JUDGMENT [ENTITY], J.
1. Both these appeals filed by the State after obtaining leave to appeal Under [SECTION] [ACT], raise common questions for determination and, therefore, they are disposed of by this common judgment.
2. In [CASE NUMBER], the respondent is [ENTITY] who was running a sweetmeat shop at Gangapur in District Bhilwara. On 14.1.76 at 12.00 p.m. Shri [ENTITY], PW 1, Food Inspector, Gangapur went to the shop of the respondent and found him selling 'Moong Laddoos'. Suspecting the 'Laddoos' to be adulterated, he purchased 1.5 kg. off 'Laddoos' after paying him a sum of Rs. 15/-. The said 'Laddoos' were divided into three portions, and were placed in three separate bottles which were separately sealed in the presence of motbirs. One of the sample bottles was given to the respondent and one of the said bottles was sent to the Public Analyst, Public Health Laboratory, Ajmer, along with memorandum Ex P 5. The report Ex.P 6 received from the Public Analyst showed that the ghee in the sample of the 'Laddoos' was adulterated as it did not conform to the prescribed standard of purity. Thereupon, after obtaining necessary sanction Under [SECTION] of the [ACT] (hereinafter referred to as 'the Act'), the Food Inspector filed a complaint in respect of the offence Under [SECTION] of the Act in the Court of Munsif and Judicial Magistrate, Gangapur. The Judicial Magistrate, by his judgment dated 6-6-77, acquitted the respondent on the view that there was non-compliance with the mandatory provisions of [SECTION] of the [ACT] (hereinafter referred to as 'the Rules' ) in as much as there was no evidence on the record to show that the Food Inspector had sent to the Public Analyst separately the specimen impression of the seal with which the packet containing the sample had been sealed. Being aggrieved by the aforesaid judgment of the Judicial Magistrate, the State has filed this appeal before this Court after obtaining leave to appeal Under [SECTION], [ACT].
3. In [CASE NUMBER], the respondent is [ENTITY] who was carrying on the business of extracting oil from oilseeds. On 27 2.76, Shri [ENTITY] PW 1, Food Inspector, Gangapur, purchased a sample of 'til' oil from the respondent. The said sample was divided into three parts and the said parts were placed in three separate bottles which were duly sealed. One of the bottles was given to the respondent and one bottle was sent by the Food Inspector for chemical examination to the Public analyst, Public Health Laboratory, Ajmer, alongwith the memorandum Ex P 5. The report Ex. P 6 received from the Public Analyst showed that the sample of til oil was adulterated as it d d not conform to the prescribed standares of purity. Thereupon, after obtaining necessary sanction Under [SECTION] of the Act, the Food Inspector filed a complaint in respect of offence Under [SECTION] of the Act in the Court of Judicial Magistrate, First Class, Gangapur and the Judicial Magistrate, by his judgment dated 6.6.77, acquitted the respondent on the view that there was non-compliance with the mandatory provisions of [SECTION] of the Rules in as much as the complainant had failed to adduce any evidence to show that the specimen impression of the sea! with which the packet containing the sample had been sealed had been sent separately to the Public Analyst. Hence this appeal by the State after obtaining leave to appeal Under [SECTION] [ACT].
4. The question which arises for consideration in both these appeals is as to whether the judicial Magistrate was right in holding that where was non-compliance with the provisions of [SECTION] of the Rules in the facts and circumstances of these cases [SECTION] of the Rules lays down that a copy of the memrandum (referred to in [SECTION]) and specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to any person authorised by him.
5. Shri [ENTITY], the learned Public Prosecutor appearing for the State in both the appeals, has pointed out that the report of the Public Analyst in both the appeals contains following recital,
The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis.
The submission of Shri [ENTITY] was that the aforesaid recital in the report of the Public Analyst must be presumed to be correct and in view of the said recital, it must be held that the specimen impression of the seal used for sealing the packet containing the sample had been separately sent by the Food Inspector to the Public Analyst and there had been due compliance with the provisions of [SECTION] of the Rules. In support of the above sub-mission, Shri [ENTITY] placed reliance on the decision of a learned single Judge of this Court ([ENTITY] J.) in [ENTITY] v. Slate of Rajasthan, S.B.Criminal Revision No. 159 of 1978 decided on November 2 , 1982 Shri [ENTITY], learned Counsel for the respondents in those appeals, has, on the other land, submitted that the presumption with regard to compliance with the provisions of [SECTION] of the Rules cannot be drawn in the facts and circumstances of the case and since the prosecution did not adduce any evidence to show that the specimen impression of the seal used for sealing the packet containing the sample was sent separately by the Food Inspector to the Publie Anlyst, there had been non compliance with the mandatory provisions of [SECTION] of the Rules and that the Judicial Magistrate was justified in acquitting the respondents.
6. In the present cases, it is not disputed that the prosecution has not adduced any direct evidence to prove that the specimen impression of the seal used to seal the packet containing the samples was sent separately by the Food inspector to the Public Analyst. The State is, however, relying on the recital contained in the reports of the Public Analyst and the question which needs determination is whether, on the basis of the aforesaid recital, it can be presumed that the specimen impression of the seal used to seal the packet containing the sample had been sent separately by the Food Inspector to the Public Analyst and there was due compliance with the provisions of [SECTION] of the Rules.
7. In respect of official acts, a presumption of regularity arises Under [SECTION] of the [ACT]. In view of the aforesaid presumption a recital in an administrative document is presumed to be correct till it is shown to be incorrect. The question as to whether the aforesaid presumption Under [SECTION] of the [ACT] can be drawn with regard to the due compliance of the provisions of the Rules has come up for consideration before Courts in India in a number of cases.
8. In [PRECEDENT], an objection was raised that there was non-compliance with the provisions of [SECTION] of the Rules because it had not been proved that the specimen impression of the seal used for sealing the container had been sent by the Food Inspector to the Public Analyst. In the report of Public Analyst, it was stated that the sample was properly sealed and packed and that the Public Analyst had found the seal intact and unbroken. In the said report it was not stated that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. The Kerala High Court, relying upon the principle that the official acts should be presumed to have been regularly performed, presumed that the Public Analyst must have acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container. The Supreme Court affirmed the aforesaid view of the Kerala High Court.
9. In the [PRECEDENT] , the question that arose for consideration was whether in the absence of specific evidence to show that the specimen impression of the seal had been sent separately to the Public Analyst, as required by [SECTION] of the Rules and that the Public Analyst had compared the seal on the container as required by [SECTION], the report of the Public Analyst was admissible in evidence A Full Bench of the Madhya Pradesh High Court, after placing reliance on the decision of the Supreme Court in [PRECEDENT] (supra) held that in view of the presumption arising under [SECTION] of the [ACT] to the regular performance of official acts the report of the Public analyst was admissible in evidence without further prof and that the accused may rebut the said presumption by cross-examining prosecution witnesses or leading other evidence.
10. In [ENTITY] v. State of Rajasthan (supra), there was evidence to, the effect that specimen of the sealed bottles of the sample was sent to the Public Analyst, Jodhpur, through the memorandum in Form VII but there, was no evidence to show that the sample bottle was sent in a sealed packet in an outer cover to the Public Analyst. The learned single Judge of this Court, after referring to the decision of the Supreme Court in [PRECEDENT] (supra) and the decisions of the various High Courts and this Court, held that when the sealed container of the sample was sent through a memorandum, it can safely be presumed that it must have been addressed to the Public Analyst and it was held that these was due compliance of the provisions of [SECTION] of the Rules. In that case, it has been observed as under:
the presumption under [SECTION] is a rule of evidence. It furnishes prima fade evidence of the matter to which it relates and relieves the party of the duty of producing he evidence. [SECTION] is a permissive provision and it is optional with the court to resort to the aid of this provision. Under [SECTION] , the presumption is not regarding the act but the presumption is regarding the regularity in the performance of the act. Presumption would be regarding the performance of the act with due regard to form and procedure i.e. while performing an act the prescribed forms and procedures have been followed.
11. In [PRECEDENT] decided on 10.5.83, a question arose before this High Court as to whether the order sanctioning prosecution under [SECTION] of the Act was passed by the sanctioning authority after applying its mind to the case and after satisfying himself that a prima facie case existed for the alleged offender being put up before the Court. In that case, in the order of sanction passed by the sanctioning authority, it was stated that the sanctioning authority was sanctioning the prosecution after applying his mind to the facts of the case and being convinced that a prima facie case was made out against the alleged offender. This Court held that the aforesaid recital in the order of sanction should be presumed to be correct and that in view of the said presumption it was not necessary for the prosecution to adduce evidence to show that while granting sanction, the sanctioning authority had applied his mind to the facts of the case and had satisfied himself about the existence of a prima facie case for launching the prosecution against the alleged offender.
12. The decision of the Division Bench of this Court in [PRECEDENT], on which reliance has been placed by Shri [ENTITY], has no application to the present case. In that case, the question as to whether presumption Under [SECTION] should be drawn did not arise for consideration. Moreover, in the said case, it has been specifically observed that the report of the Public Analyst was not in conformity with Form III and the reporf "nowhere says that the memorandum and the specimen impression of the seal were separately received".
13. Similarly, the decision of the Division Bench of this Court in [PRECEDENT] lends no assistance to Shri [ENTITY] in that case also, the question with regard to presumption Under [SECTION] of the [ACT] was not considered.
14. The decision of the learned single Judge of the Bombay High Court ([ENTITY], J.) in the State of Maharashtra v. Tilokchand Bhivraj [ENTITY] 1979(2) F.A.C. 14 does lend support to the submission of Shri [ENTITY] in as much as in that case, it held that a presumption with regard to compliance of the mandatory provisions of [SECTION], [SECTION] and [SECTION] of the Rules could not be raised Under [SECTION] of the [ACT] and that it was necessary to adduce evidence with regard to compliance with the provisions of the said Rules. The aforesaid decision has been considered by [ENTITY].J. in [ENTITY]'s case (supra) and after to the decision of the Supreme Court in [PRECEDENT] (supra) and various decisions of other High Courts, the learned Judge has observed that the presumption Under [SECTION] of the [ACT] can be raised in respect of compliance with the provisions of [SECTION] and [SECTION] of the Rules. I am in respectful agreement with the aforesaid view taken by [ENTITY], J., in [ENTITY]'s case (supra) and I am unable to concur with the view taken by [ENTITY], J. in State of Maharashtra v. Tilokchand Bhivraj [ENTITY] (supra) that the presumption Under [SECTION] cannot be invoked in respect of compliance with the mandatory provisions of [SECTION], [SECTION] and [SECTION] of the Rules. In my view, the presumption with regard to regularity of official acts arising Under [SECTION] of the [ACT] can be drawn for the purpose of holding due compliance with the mandatory provisions of the Rules.
15. The report which was sent by the Public Analyst, Publiy Health Laboratory, Ajmer, was prepared in the discharge of his official duties and, therefore, the presumption with regard to regularity of the official acts can be drawn in respect of the said report. The said report contains a recital to the effect that the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. The said recital indicated that the specimen impression of the seal used for sealing the container had been sent separately by the Food Inspector to the Public Analyst, Public Health Laboratory, Ajmer. The aforesaid recital in the report of the Public Analyst must be presumed to be correct and in view of the said presumption it was not necessary for the prosecution to adduce evidence to prove that the Food Inspector had sent separately to the Public Analyst the specimen impression of the seal used for sealing the container. The aforesaid presumption arising Under [SECTION] of the [ACT] is, no doubt, a rebuttable presumption and it could be rebutted by the accused by adducing independent evidence or the cross examination of the witnesses examined by the prosecution to show that the recital in the report of the Public Analyst is not correct and that the specimen impression of the seal used for sealing the container was not sent separately by the Food Inspector to the Public Analyst, In the present case, no such evidence has been adduced by the respondent to rebut the presumption, nor is there anything in the evidence of the complainant to show that the recital is not correct. In the circumstances, on the basis of the recital in the report of the Public Analgst, it must be held that the Food Inspector had sent the specimen impression of the seal used for sealing the container separately to the Public Analyst and, therefore, there was due compliance with the provisions of [SECTION] of the Rules.
16. Shri [ENTITY] has, however, submitted that even if it be held that the Judicial Magistrate was not right in holding that there was non-compiance with the provisions of [SECTION] of the Rules in these cases, the order of acquittal passed by the Judicial Magistrate can be sustained on another ground, namely, that the trial in both the cases is vitiated on account of the fact that although the complaint was by the Food Inspector, the trial was conducted by the Assistant Public Prosecutor who had no authority either to present the complaint on behalf of the Food Inspctor or the Municipal Board, Gangapur, or to conduct the case on their behalf. In support of his aforesaid contention, Shri [ENTITY] has placed relian.'e on the judgment of this Court in [ENTITY] v. State of Rajasthan (supra). In [ENTITY]'s case, the complaint was filed by the Municipal Board, Pali, through Food Inspector but the complaint was presented by the Assistant Puiblic Prosecutor and the case was conducted by the Assistant Public Prosecutor and an objection was raised that that Assistant Public Prosecutor was not competent to conduct the case in as much as it was not a State case and the Assistant Public Prosecutor was not a person who had the authority to present and conduct the case on behalf of the Municipal Board, Pali or on behalf of the Food Inspector, Municipal Area, Pali. The aforesaid objection was upheld by [ENTITY], J. and it was held that the Assistant Public Prosecutor had no authority so present the complaint on behalf of Municipal Board, Pali or the Food Inspector, or to conduct the case on their behalf and that the said infirmity could not be cured as it went to the root of the matter and the trial stood vitiated.
[SECTION]. In both these appeals, the complaint is [ENTITY], Food Inspector, Gangapur. The complaints have been singed by the Foot Inspector and bear the dated 1.5 76 They also bear endorsements "submitted" with the signatures of APP-I and bear the date 1.3.76. They bear further endorsements of being been presented by Shri [ENTITY], APP, on 1st May 1976. The order sheets of the court of Judicial Magistrate in both the cases show that the trial was conducted by the APP. There is nothing on the record of these cases to show that the APP had the authority to present the complaint on behalf of the Food Inspector Shri [ENTITY] or to conduct the case on his behalf In view of the decision of this Court in [ENTITY] v. State of Rajasthan (supra), it must be held that the complaint was presented by an unauthorised person and the trial was also conducted by an unauthorised person. Since the aforesaid infirmity in the trial goes to the root of the matter, the trial stands vitiated and no conviction can be recorded on the basis of the aforesaid trial.
[SECTION]. For the reasons aforesaid, the judgment of acquittal passed by the Judicial Magistrate in both the appeals must be affirmed.
19. In the result, both the appeals fail and they are dismissed.