JUDGEMENT :- This is an application in revision from the Judgement of the Additional Sessions Judge, Dhulia, confirming the order of conviction of the petitioner passed by the Judicial Magistrate, First Class, Dhulia, under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.

2. The material facts are as follows :-

The petitioner (who would hereafter be referred to as the accused) is a dealer in food grains. On 29th March 1965, Koranne, the Food Inspector, on information that the accused was dealing in adulterated food grains, went to the shop of the accused and purchased Bajari weighing one Kilogram. He divided the sample purchased by him in three parts, and sent one packet to the Public Analyst for analysis. The report of the Analyst was received in due course. It stated that ergot was found on chemical test. It further stated that the test for acidity (soreness) was negative. The report was written on Form-III, rule 7(3). In the certificate with which the report begins, the Analyst stated that sample of Bajari sent for analysis was properly sealed and fastened and that he found the seal intact and unbroken. In due course, the accused was prosecuted under Sec. 16(1)(a)(i) read with rule 7(1) of the Food Adulteration Act.

3. The accused pleaded not guilty to the charge. He contended that he had purchased the Bajari from a merchant at Bagalkot in Mysore State and he sold it in the same condition in which he had purchased it. He denied that he had any knowledge about the defect if any which was found on analysis.

4. The learned Magistrate relying on the report of the Public Analyst held the offence proved and convicted and sentenced the accused as stated above. The accused went in appeal to the Sessions Judge from that decision. The conviction having been confirmed by the Sessions Judge the accused has now come up in revision.

5. Mi. Karlekar for the accused contended that the procedure laid down in rules 7 and 18 of the Act has not been complied with He also contended that the percentage of the ergot has not been mentioned in the report Unless the percentage of damage exceeds 5 per cent of the total weight it cannot be said that the food grain was not of the requisite standard.

6. I will deal with the first point raised by Mr. Karlekar first. Rule 7 of the Rules deals with the duties of the public Analyst Rule 18 provides that memorandum and impression of seal must be sent separately Rule 18 runs thus :

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

Clause (1) of Rule 7 enjoins a duty upon the Analyst to compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. Mr. Karlekar complained that there is no evidence to show that specimen impression to the seal was separately sent by the Food Inspector. He also argued that there is nothing to indicate that the Analyst compared the seals on the container with the specimen impression sent separately. According to Mr. Karlekar these defects go to the root of the matter, because there cannot be any guarantee that goods have not been tampered with in the process of transit. In that connection, he relied upon a decision of the Gujrat High Court in State of Gujarat v. Shantaben, AIR 1964 Guj 136 (137) wherein the learned Judge observed :

"To base a conviction upon report, the record must show that the Food Inspector and the Public Analyst had complied with the Rules 7 and 18 of the Prevention of Food Adulteration Rules. These rules are framed in order to prevent the possibility of tampering with the sample, before it reaches the Analyst. Where the report of the public Analyst merely shows that the seals were intact and unbroken, but it does not show that the seals on the container were compared with the specimen seals sent by pos

Click Here to Read the rest of this document