IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.47893 of 2007 RANDHIR KUMAR KESRI Versus The STATE OF BIHAR ----------- 3/ 17/2/2009 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 1.8.2002 of cognizance in Case No.G.O.-11/2000 (Trial No.622/2000) under Section-16(a)(1) of the Prevention of Food Adulteration Act, 1955. The allegations are that the sample of “Khoa” (a milk product) was found to contain milk fat of 28 % on dry basis only. The sample of “Khoa”, therefore, did not conform to specifications with regard to milk fat classifying it as „adulterated‟. The schedule annexed to the Prevention of Food Adulteration Act, 1955 requires a milk fat of at least 30% on dry basis. Learned counsel for the petitioner submits that under Section-11(1)(b), the product was required to be separated into three samples, sealed separately and his signature of thumb impression obtained. The submission from the allegations is that the complaint in a typed format only records that the sample of “Khoa” was divided into three parts and kept in three different glass containers. There is no 2 statement in the allegation that the signature or the thumb impression of the petitioner or his agent was obtained on the samples. The submission is that this was a vital statutory requirement to ensure that it was the same sample seized, which had been sent for analysis to the public analyst. Learned counsel for the State submits that once the allegations stated that the sample was divided into three and there is acknowledgement on behalf of the petitioner, the rest are matters for trial. This Court considers it proper to quote Section-11(1)(b) which reads as follows:- “ except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed: ” Provided that where such person refuses to sign or put his thumb impression the food inspector shall call upon one or more witnesses and take his or their signatures or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person;” On a bare perusal of the statutory provision this Court finds that the procedure is mandatory. Not only was the sample required to be divided into three parts and marked and sealed, but the signature or thumb impression of the person from whom the sample 3 had been taken was required to be obtained. In the event of his refusal to sign or put his thumb impression, the food Inspector was required to call upon one or more of the witnesses and to take their thumb impression & signature, in lieu of the thumb impression or signature of the person from whom the sample was collected. The compliance with this statutory provision has to be understood as mandatory as it makes an inroad into the liberty of the person sought to be prosecuted. This Court finds substance in the submission of the petitioner that this was a vital safeguard to protect a person sought to be prosecuted by frivolous prosecution. The purpose of the signature or thumb impression was to ensure that it was the very same sample which was being sent for analysis as otherwise there is nothing on the record to demonstrate or satisfy that it was the sample seized which was sent for analysis. The onus for the same lies on the prosecution. Once it discharges the same, the onus shall shift on the petitioner. In the facts and circumstances of the case the allegations on the very face of it do not demonstrate compliance with this statutory requirement. If that be so, quite apart from the issue of non-compliance of the 4 statutory requirement the consequent prejudice to the petitioner has to be appreciated. The order of cognizance and the entire prosecution of the petitioner in Case No.G.O.-11/2000 (Trial No.622/2000), pending before Sub-divisional Judicial Magistrate, Gaya, is, therefore, held to be vitiated for reason of non-compliance of Section-11(1)(b) of Prevention of Food Adulteration Act, 1955. It is, accordingly, quashed. The application is allowed. KC ( Navin Sinha, J.)