Rules 16(b) and 16(c) of the Prevention of Food Adulteration Rules are mandatory and their non-compliance entitles the accused to an order of acquittal.

JUDGMENT :

M.K. Shah, J.

These ten appeals are preferred by the State and the original complainant-Food Inspector, against the orders of acquittal passed in five cases which were instituted against the respondents original accused for the offence under section 16(1) (a) (i) read with section 7(i) of the Prevention of Food Adulteration Act, 1954, (the Act.)

2. Mr. M.B. Shah, the learned Public Prosecutor for the State and Mr. J.M. Panchal for Mr. N.R. Oza, learned Advocate appearing for the original complainant have raised several contentions in these appeals, but the main contention is as follows : -

The learned Magistrate erred in holding that because the Chrnbu lying in the godown was used for the purpose of taking out groundnut oil from the tin and then pouring the same into bottles by dividing into three parts, there was defect fatal to the prosecution in taking the samples.

3. As against this, Mr. D.K. Shah, the learned Advocate appearing for the accused contends that apart from the main ground on which the learned Magistrate has acquitted the accused, he is in a position to support the acquittal on two more grounds viz. (1) there has been violation of the mandatory provisions contained in rule 16(b) of the Prevention of Food Adulteration Rules ('the Rules') inasmuch as, as proved by the evidence on record, the ends of the paper used for the purpose of wrapping the sample bottles had not been neatly folded in and affixed by means of gum or other adhesive as provided in part two of the said rule; (2) there was also violation of the mandatory provisions contained in rule 16 (c) of the Rules, inasmuch as hots of the string or thread to be fastened on the paper cover in which the sample was wrapped had not been covered by means of sealing wax bearing the impression of the seal of the sample.

4. Now, the instant case, in my opinion, Mr. D.K. Shah is on a very strong ground so far as his two contentions are concerned, and the order of acquittal, therefore, is maintainable on the ground that the mandatory provisions contained in Rules 16(b) and 16(c) are violated. In that view of the matter, it would not be necessary to go into other questions raised by both the sides in these appeals.

5. The very first question therefore which arises is as to whether these two rules, with which we are concerned, are mandatory in their character or not.

6. Mr. D.K. Shah has, in this connection, first of all strongly relied on Jethalal Lallubhai v. Baroda Municipal Corporation and another, 1979 (2) FAC 83 where a single Judge of this High Court in terms, held that rules 16(b) and 16(c) were mandatory. My learned brother D.P. Desai J. who delivered the said judgment has made the following important observations at page 451

"The first question for determination is whether the provisions of rule 16(b) and (c) are mandatory. There can be no difficulty on this point. The object of these provisions is to see that the samples sent for analysis are doubly secured. This is, inter alia, with a view to prevent their being tempered with during transit. It is obvious that an accused person can be convicted on the basis of the report of the public analyst to whom the sample in question is sent. Therefore, it is necessary in order to protect the interest of the accused to see that the sample sent for analysis is properly secured in order to prevent its being tempered with. The non-performance of the duty to carry out these double safeguards may result in injustice to the accused. The language of clauses (b) and (c) of Rule 16 in itself shows that the Rule making authority intended to provide for a double safeguard in the manner of packing and sealing".

7. Mr. Shah has also relied on a recent unreported decision of this court delivered by Divan, C.J. and the observations relied upon appear in para 4 of the said judgment. They read thus (vide Criminal Revision Application No. 447 of 1978 decided on 8-2-79): -

"I have carefully gone through the evidence and I find that now