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CASE NO.: Appeal (crl.)  1109 of 1997

PETITIONER: State of H.P.

RESPONDENT: Narendra Kumar and Anr.          

DATE OF JUDGMENT: 16/02/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: JUDGMENT

ARIJIT PASAYAT, J

The State of Himachal Pradesh calls in question  legality of judgment rendered by learned Single Judge of the  Himachal Pradesh High Court affirming judgment of the trial  court holding that respondent no.1 (hereinafter referred to  as ’the accused no. 1) was not quilty of the accusations  under Sections 16(1)(a)(i) of the Prevention of Food  Adulteration Act, 1954 (in short the ’Act’).

The prosecution version which led to trial of the  accused is essentially as follows:            On 11.4.1985. the Food Inspector took sample of   "Shakkar" from the shop of the accused no. 1. He purchased  600 gms. of "Shakkar" for analysis after serving the  requisite notice. Thereafter sample articles were sealed and  one such sample was sent to the Public Analyst for analysis.  On analysis the sample was found to be containing  unpermitted acid coal tar of orange shade. Prosecution was  launched after service of notice in terms of Section 13(2)  of the Act. During trial, the accused no. 1 applied under  Section 19(2) seeking to implead Jain Trading Company  represented through its manager- respondent no.2  (hereinafter referred to as ’the Vendor’). The vendor was  impleaded as accused no.2. In order to establish its  accusation, the prosecution examined 4 witnesses and  produced the record relating to the sanction and the Public  Analyst report. The accused persons pleaded innocence. In  his statement recorded under Section 313 of the Code of  Criminal Procedure, 1973 (in short ’the Cr.P.C.’) accused  no. 1 took the stand that though sample was taken, there was  no proper mixing and that it was not taken from the place  indicated in the complaint. He further took the plea that  his brother had purchased the articles in question from  accused no.2, which was not meant for sale but was for  consumption by animals. Accused no.2 took the plea that  articles in question were never sold to accused no.1, and  the receipt which was produced was fictitious. Trial court  by judgment and order dated 24.10.1990 held that accusations  were not established, and recorded the findings in favour of  the accused. Firstly, it was held that the sanction order  was defective, and secondly there was no compliance of the  mandatory requirements of Rule 18 of the Prevention of Food  Adulteration Rules, 1955 (in short the ’Rules’). For coming

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to the second conclusion it was held that there was no  definite material about despatch of the seal impression and  the memo Ex. P-E separately. So Far as culpability of  accused no.2 is concerned, with reference to Section 19 it  was held that the accused no.1 failed to show that the bill  on which he placed reliance was a genuine one and that the  sample article of food while in his possession was properly  stored and that it was sealed in the same state as he had  purchased.  The State questioned correctness of the judgment  before the High Court. By the impugned judgment, the High  Court held that the Trial Court was not justified in its  conclusion about the absence of valid sanction.  It,  however, held that the prosecution has failed to prove  despatch of seal impression and memo separately which is a  mandatory requirement under Rule 18 of the Rules.  It also  upheld the acquittal of accused no.2.

       In support of the appeal, learned counsel for the State  submitted that the evidence of the witnesses has not been  properly analysed by the Trial Court and the High Court. The  Public Analyst in his certificate has categorically stated  that the seals and the memo received separately were intact  and there was no defect therein. It was submitted that at  any rate no prejudice has been caused and shown by the  accused.  It was urged that when the Public Analyst was  satisfied about due despatch of the articles and there was  not even any suggestion about any prejudice caused or that  the report of the Public Analyst did not reflect the correct  state of affairs, the view taken by the Trial Court and the  High Court cannot be maintained.    

       In response, learned counsel for accused no.1 submitted  that the requirements of Rule 18 are mandatory in nature  and, therefore, it was rightly observed by the High Court  that there has been non-compliance with the requirements of  the said rule making the prosecution case vulnerable.   Reference was made to a decision of this Court in State of  Maharashtra v. Rajkaran (1987 Supp. SCC 183) in support of  the stand. It was submitted that the concurrent findings of  fact recorded should not be disturbed and in any event  nearly two decades have passed and this is not a fit case  for interference under Article 136 of the Constitution of  India.

       The rule has been amended by GSR 293(E), dated  23.3.1985 with effect from 24.9.1985. Rule 18 before  amendment reads as follows:

       "Memorandum and impression of seal to  be sent separately - A copy of the  memorandum and specimen impression of the  seal used to seal the packet shall be sent  to the Public Analyst separately by  registered post and delivered to him or to  any person authorised by him."

       After amendment it reads as follows:

       "Memorandum and impression of seal to  be sent separately - A copy of the  memorandum and specimen impression of the

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seal used to seal the packet shall be sent  to the Public Analyst in a sealed packet  separately by any suitable means immediately  but not later than the succeeding working  day."

The new rule makes the following changes:

(i)     The copy of the memorandum and  specimen impression of the seal are  now required to be sent in a sealed  packet separately, which was not a  requirement under the old rule.          

(ii)     The mode of sending now is by ’any  suitable means’, whereas under the old  rule it was by registered post or hand  delivery.

(iii)   The time for sending the packet is now  prescribed as ’immediately but not  later than the succeeding day’, but  there was no such prescription of time  under the old rule."

Rule 18 requires the Food Inspector; (i) to send (a) a  copy of the memorandum; and (b) specimen impression of the  seal used to seal in a sealed packet to the Public Analyst;  (ii) to send this sealed packet separately by any suitable  means (iii) to send the same immediately but not later than  the succeeding working day. The expression ’separately’ has  to be understood on a conjoint reading of Rules 7, 17 and  18. Rule 7 postulates that Public Analyst on receipt of the  packet containing the sample for analysis has to compare  the seals on the container and the outer cover with  specimen impression received separately and has to note the  condition of the seals thereon. Reading Rules 17 and 18  together, it is clear that the word ’separately’ used in  Rule 18 has been intended to convey the sense that the copy  of the memorandum and the specimen impression of the seal  has to be sent independently of the articles that are  required to be sent under Rule 17.  In this connection,  reference can be made to the observations made by this  Court in Raj Karan’s case (supra), wherein it was observed  that it is mandatory that the materials referred in Rules  17 and 18 are to be separately sent to the Public Analyst.  The object of Rule 18 is to ensure the accuracy of the seal  on the sample sent to the Public Analyst by comparison with  the specimen impression of the seal sent by the food  Inspector separately.  The report of the Public Analyst in  terms of Rule 7(3) marked as Ext.PJ shows that he found the  same intact and unbroken.  The seal fixed on the container  and on the outer cover of the sample tallied with the  specimen impression of the seal separately sent by the Food  Inspector.  A presumption can be drawn that requirements of  Rule 18 have been complied with. The presumption under  Section 114 of the Indian Evidence Act, 1872 (in short ’the  Evidence Act’) in relation to regular performance of  official acts applies to the report of a Public Analyst.   However, this presumption is rebuttable.  No effort was  made by the accused to dislodge this presumption.  There  was even no suggestion to the Food Inspector (PW-1) who

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exhibited the report that there is any untruth in the  recital by the Public Analyst.  It is relevant to note that  under sub-section (5) of Section 13 of the Act any document  purporting to be a report signed by a Public Analyst unless  it has been superseded under sub-section (3) of the said  Section or any document purporting to be a certificate to  be a signed by the Director of the Central Food Laboratory,  may be used as evidence of the facts stated therein in any  proceeding under the Act.  It is urged that the memorandum  and the specimen impression of seal were to be sent  separately in different packets.  On a plain reading of  Rule 18, what is required is that a copy of the memorandum  and specimen impression of the seal used to seal the packet  shall be sent in a sealed packet (underlined for emphasis)  separately to the Public Analyst.  As indicated above, the  word ’separately’ refers to separate despatch of articles  indicated in Rule 17, and Rule 18. The expression ’in a  sealed packet’ refers to both the copy of memorandum and  the specimen impression of the seal.  They are both  required to be sent in a sealed packet. Plurality of  packets is not provided for and obligated. What is required  is that the copy of memorandum and specimen impression of  the seal used to seal the packet are to be sent in a sealed  packet separately and not with the articles required to be  sent under Rule 17.

This Court in N. Sukumaran Nair v. Food Inspector,  Mavelikara (1997 (9) SCC 101) dealt with requirements of  Rule 18 and in paragraph 2 noted as follows:

"It has vehemently been urged by Mr.  V. A. Bobde, learned Senior Counsel that  compliance of Rule 18 was mandatory and  since there was an infraction in the instant  case, the view of the trial court deserves  to prevail. We fail to see how there is  violation of the said Rule. The Food  Inspector as PW 1 was categoric that he had  sent the specimen impression of the seal  separately to the Public Analyst under  sealed cover. It is true that he did not  adduce in evidence the postal receipt vide  which the specimen impression of the seal  was sent separately. The Food Inspector  could be dubbed wrong if his statement had  been challenged in cross-examination. As is  obvious, the Food Inspector deposed to the  observance of the requirement of Rule 18  but, at best, can be said not to have  introduced corroborative evidence to his  word. But, if the word of the Food Inspector  is not challenged in cross examination and  is otherwise found corroborated From the  report of the Public Analyst wherein the  necessary recitals, even though in printed  form, are available, compliance of Rule 18  becomes obvious. Such report by the Public  Analyst is ex facie evidence. There are  methods to challenge the same which were not  resorted on. We are, thus, of the view that  the High Court was justified in upsetting  the order of acquittal on the aforesaid  ground."

Additionally during trial PW-1 produced postal

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receipts (Exts. PE and PG) with regard to the memos and  Ext. PW1/A and Ext.PW1/B regarding despatch of the same  sending of memos. The genuiness of the receipts was not  questioned by accused no.1.  Strangely, the trial court and  High Court did not consider the evidentiary value of these  documents.

When the evidence on record is considered in the  background of the legal position highlighted above, the  inevitable conclusion is that the Trial Court and the High  Court were not justified in directing acquittal of accused  no.1. So far as the acquittal of accused no.2 is concerned,  the conclusions of the Trial Court and the High Court have  been arrived at by properly appreciating the evidence and  no interference is called for.

The occurrence took place nearly two decades back, and  the Courts below acquitted the accused, though erroneously.  Therefore, keeping in view the nature of violation and the  peculiar facts and circumstances of the case while  sentencing accused no.1 to undergo 6 months RI and fine of  Rs.1,000/- we make it clear that if accused no.1 moves the  appropriate government to commute the sentence of  imprisonment, the same may be considered in the light of  this Court’s decision in N. Sukumaran’s case (supra)  subject to such conditions or terms as the government may  chose to impose. For period of three months, the accused  need not surrender to undergo sentence.  During this period  it shall be open to him to move the appropriate government  for commutation.  The fate of the order of commutation, if  any, shall be operative. If no order in the matter of  commutation is passed by the appropriate government, the  accused no.1 shall surrender the custody to serve the  remainder of sentence.

The appeal is allowed to the aforesaid extent.