Non-compliance with mandatory rules 18 and 7(1) of the Rules framed under the Prevention of Food Adulteration Act vitiates the trial and the conviction of the accused cannot be sustained.

ANWAR AHMAD, J.

1. The petitioner was convicted under S.16(1) of the Prevention of Food Adulteration Act, hereinafter referred to as the Act, and sentenced to undergo simple imprisonment for six months. On appeal, his conviction and sentence have been upheld by the Additional Sessions Judge, Singhbhum.

2. The prosecution case in that the Food Inspector (P.W. 2) of the District Board of Singhbhum visited the shop of the petitioner on the 7th November 1963 along with Hari Har Bhattacharya (P.W. 1), Mata Karwa (P.W. 3) and one Abhay (not examined), purchased one and a half pao of gunja oil from the petitioner on payment of price, divided it into three equal parts, put them in three separate bottles and, after affixing labels thereof, properly packed and sealed them. One of the bottles was given to the petitioner and one was sent to the Public Analyst, who, in his report, found the sample of gunja oil highly adulterated with linseed oil.

3. The prosecution of the petitioner was started on the basis of a complaint (Ext. 7) made by P.W. 2 after obtaining the necessary sanction as required by S.20 of the Act.

4. The taking of the sample and the fact that it was found to be highly adulterated are not denied by the petitioner. His contentions before the learned Additional Sessions Judge that the District Medical Officer was not empowered to sanction a prosecution and that the Public Analyst was not duly authorised by the State Government have been negatived by the learned Judge, and these two points have not been raised before us.

5. Mr. Nrinendra Narayan Roy, learned counsel for the petitioner, has however, raised a new point to the effect that gunja oil is not an edible oil and, as such, the petitioner cannot be convicted under S.16(1) of the Act. There is no substance in this submission, as gunja oil is mentioned in Appendix B to the Rules framed by the Central Government under S.23 of the Act. The contention is, accordingly, overruled.

6. The next contention of Mr. Roy is that the conviction of the petitioner cannot be maintained because rules 18 and 7(1) of the aforesaid Rules have been infringed. These rules run as follows :

"18. 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."

"7(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."

In support of his submission, learned counsel relied upon the following lines in the evidence of P.W. 2 :-

"Public Analyst ko jo sishi bheja uske sath ek forwarding memo bhi bheja-yah usi ka office copy hai Mark (?) jo mere hastlekh me hai Mark Ext. 5. Is par yah dastkhat mere hai Mark Ext. 5/1. Uske sath jo seal sishi par diya tha uska fhaisla (?) mili bhi forwarding note ke sath bheja aur ek formal (?) rakh liyay yah wahi formali seal ka hai mark Ext. II"

The submission of the learned counsel has to be accepted. Under rule 18a, specimen impression of the seal had to be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him and, under R.7(1), the Public Analyst was required to compare the seal on the bottle and the outer cover with the specimen impression received by him separately and to note the condition of the seal thereon. The evidence of P.W. 2 quoted above makes it clear that specimen impression of the seal was not sent separately and by registered post. The registration receipt granted by the postal Department has not been filed nor has the acknowledgment receipt been brought on record. In absence of any evidence on record, it is not possible to hold that the specimen impression of the seal was sent separately and b