IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 231/2001. Reserved on :08.01.2008. Decided on: 11.01.2008. State of H.P.. … … Appellant. Versus Raj Kumar. … … Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the Appellant: Mr. M.A. Khan, Deputy Advocate General. For the Respondent: Mr. N.K. Thakur, Advocate. Rajiv Sharma, Judge: A challenge has been laid by the State to the judgment of the learned Sessions Judge, Hamirpur in Criminal Appeal No.4 of 1998, dated 1.12.2000 whereby he has set aside the conviction and sentence of the respondent awarded by the Additional Chief Judicial Magistrate, Hamirpur in Prevention of Food Adulteration Case No.20-III of 1995 (254- 1/1994). The brief facts of the prosecution case are that the complainant, Shri K.S. Verma (PW-1), Food Inspector had visited the halwai shop of the respondent at Patlandar and found in his possession about 4 Kgs. of cow’s milk in his shop for sale to the general public. The complainant Whether reporters of local papers may be allowed to see the judgment? No. - 2 - after associating one Shri Sita Ram and Anil Kumar disclosed his identity to the accused and served him with a notice for taking sample of cow’s milk out of the patila after stirring the whole contents properly to make it homogeneous against payment of Rs.6/- for the purpose of analysis. The sample was divided into three equal parts and put in three neat, clean and dry bottles and 20 drops of formalin 40% were added in each sample bottle and thereafter the bottles were properly stoppered, labeled and wrapped in thick wrapping paper separately and the corners of the paper were folded properly and affixed with gum. On each bottle a paper slip bearing Code No.48 and Sr. No.064/94 was pasted. One sample alongwith memo of Form-VII in a sealed packet was handed over to the Public Analyst, Chandigarh by the complainant personally and one Form- VII bearing the impression of the seal used for sealing the sample and packet was also handed over by the complainant to the same Public Analyst in a sealed packet personally and two parts of the sample alongwith Form-VII in duplicate was deposited with Local Health Authority, Hamirpur. The notice of accusation was put to the accused for an offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 to which the accused had claimed trial. The prosecution had examined three witnesses in all to prove its case against the accused. The accused was also examined under Section 313 Cr.P.C. The trial Court had convicted and sentenced the accused with six months simple imprisonment and to pay a fine of Rs.1000/- and in default, he was to further undergo simple imprisonment for one month. The accused assailed the judgment of the Additional Chief Judicial Magistrate by way of Criminal Appeal No.4 of 1999 in the Court of learned Sessions Judge, Hamirpur. The learned Sessions Judge, Hamirpur - 3 - accepted the appeal and set aside the judgment of the trial Court dated 3.2.1998. Hence, this appeal by the State. The learned Deputy Advocate General had strenuously argued that the prosecution had proved its case against the accused beyond all reasonable doubts. Mr. N.K. Thakur had supported the judgment dated 1.12.2000. I have heard the learned counsel for the parties and perused the record carefully. The sample was taken by the Food Inspector of cow’s milk from the accused on 3.8.1994 on payment of Rs.6/-. The sample was divided into three equal parts and one of the sample was sent to the Public Analyst, Punjab, Chandigarh. The report of the Public Analyst, Punjab Chandigarh reads thus:- “Milk fat = 2.1% Milk-solids not fat =3.4% Test for Starch = Negative Test for solids Test for Succress = Negative Bicarbonate = Negative Test for Mal = Negative to Dextrin. That for Formalin = Positive. That for Hydrogen = Negative Peroxide And I am of opinion that the contents of the sample are deficient in milk fat by 40.0 per cent and in milk-solid-not-fat by 60.0 per cent of the minimum prescribed standard. The contents of the sample are, therefore, adulterated. The milk fat and milk-solids-not-fat have been found grossly sufficient in the sample of the milk.” Primarily, three contentions were raised by the accused before the learned Sessions Judge, Hamirpur; (i) the sample was not made - 4 - homogeneous by the complainant at the time of taking the sample, (ii) the Chief Medical Officer, Hamirpur had not applied his mind at the time of giving sanction to prosecute the accused, and (iii) there is violation of Rules 17 and 18 of the Prevention of Food Adulteration Rules, 1955. The appellate Court has rejected the contentions No.(i) and (ii) raised by the accused before him. It has found that the milk was made homogeneous at the time of taking the sample and there was proper application of mind by the sanctioning authority, i.e. the Chief Medical Officer. However, the learned Sessions Judge has agreed with the 3rd contention raised by the accused that there was non-compliance of Rules 17 and 18 of the Prevention of Food Adulteration Rules, 1955. It is evident from the bare reading of Rule 17(a) that the sealed container of one part of the sample for analysis and memorandum in Form-VII is to be sent in a sealed packet to Public Analyst immediately, but not later than the succeeding working day by any suitable means. In the present case, the sample was taken on 3.8.1994 at 2.12 p.m. The same was to be sent in a sealed packet to the public Analyst immediately, but not later than the succeeding working day. The same was to be sent to the Public Analyst latest by 4.8.1994. PW-1, the complainant had deposed that he handed over the packet of sample in the office of Public Analyst, Chandigarh on 5.8.1994. The Food Inspector has not explained why Rule 17(a) was not followed. It is evident from Ex.P-E and Ex.P-G that the Public Analyst, Punjab, Chandigarh had received the sample on 5.8.1994 itself. The samples are generally sent by registered post as per the practice, but in the present case the Food Inspector has personally stated to have handed over the sample to the Public Analyst, that too, after the expiry of the period prescribed under Rule 17(a) of the Rules. The plea regarding non-compliance of mandate of Rule 17(a) - 5 - was also taken by the accused before the trial Court, but has not been dealt with by the trial Court. Mr. Naresh Thakur has relied upon State of Haryana v. Isher Dass, 1985 Cr.L.J. 1061 to substantiate his plea that Rule 17 is mandatory since at every stage expression “shall” has been used. Their Lordships of the Punjab and Haryana High Court have held as under:- “… When we juxtapose the old and the new rules for study, it emerges that the new rule requires the Food Inspector to send the seized sample and Form VII in sealed condition immediately to the Public Analyst, but not later than the succeeding working day. The other amendment in this rule is that even Form VII has to be sent in a sealed condition. Previously, it was only to be enclosed with the sample. The sample container and Form VII sealed in the manner provided in Rule 17(a) has to be deposited with the local (health) authority immediately, but not later than the succeeding working day. This amendment lays emphasis on steps to rule out any possibility of tampering with the sample. It is to be noted that at ever stage in this rule the word, ‘shall’ has been used, which does not leave any doubt about the mandatory character of its language. Rule 7 prescribes the duties of a Public Analyst. We are concerned with Rule 7(1) only, as only this is the relevant clause. Rule 7(1) is as under:- “7. Duties of public analyst. – (1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person the public analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.” If the Public Analyst does not find the sample in accordance with Rules 17 and 18 or finds any provision of the rules vitiated, he will not examine the sample. He has to note the condition of the sample and the accompanying material in - 6 - Form VII prescribed in the Rules. This counter-checking adds weight to the opinion that Rule 17 is mandatory. In Bhagwan Dass Jain’s case (1981 Cri LJ 48) (Punj & Hry) (FB) (supra) it was observed (at P.51):- “Rule 7 casts a duty on the Public Analyst or any other officer authorised by him, on receipt of the packages for analysis, to compare the seals on the container and its outer cover with the specimen seal impression received separately and note the condition of the seal. Unless the Public Analyst carries out this comparison, he cannot proceed to examine the sample received in the package. After such satisfaction and analysis, the Public Analyst has to note these facts in Form III (reproduced in a later part of the judgment) and send the copies of the report and the result to persons mentioned in sub-clause (3) of Rule 7. The object of the rule making authority in providing for the sending of the copy of the memorandum and the facsimile of the seal ‘separately’ in Rule 18 is undoubtedly clear that it wanted to ensure that the correct sample or the same sample which had been collected by the Food Inspector from the accused has reached the Public Analyst and that it was not substituted or tampered with in the transit after its seizure. If the copy of the memorandum in Form VII and the facsimile of the seal are to be in the same packet, then the very purpose of Rule 18, which prescribes a manner for cross-checking the identity of the sample, will be frustrated. This provision in the Rules is made in favour of the accused, so that the identity of the sample is ensured and that can be best achieved if the things mentioned in Rules 17 and 18 are sent separately. It is also a check on the activities of the Food Inspector in case his action is motivated against the accused.” In State of Haryana v. Jagtar Singh, (1979) 81 Pun LR 553 : (1980 Cri LJ 1232), which has been approved in Bhagwan Dass Jain’s case (1981 Cri LJ 48) (Punj & Hry) (supra) by the Full Bench, a Division Bench of this court expressed the view in regard to Rules 17 and 18, that these rules are mandatory. The legislative intent to make the rule mandatory in manifest - 7 - from the amendment and the language used. Rule 17 is mandatory and not directory.” The Rule 17(a) is couched in imperative language. The Food Inspector has also not explained in any manner why there was delay in sending the sample to the Public Analyst. The learned Sessions Judge has come to the just conclusion that there was departure from Rule 17(a) by the Food Inspector causing prejudice to the accused. The learned Sessions Judge has rightly set aside the judgment of the trial Court noticing non-compliance with Rule 17(a) of the Prevention of Food Adulteration Rules, 1955. Accordingly, there is no merit in this appeal and the same is dismissed. The bail bonds furnished by the accused-respondent stand discharged. January 11, 2008. (Rajiv Sharma) (sck). Judge