The judgment established the need for substantial and fair compliance with the provisions of the Prevention of Food Adulteration Act and discussed the liability of the licensee under S. 16(1)(a).

U.L. Bhat, J.

Food Inspector, Cannanore Municipality (P.W.1) filed a complaint against the revision petitioner (owner of shop by name “Anukul Mini Departmental Store” in Door No. KL 200(q) of Cannanore Municipality) as the second accused and his salesman as the first accused alleging that on 29-12-1981 at about 11 a.m. he visited the shop and after fulfilling all the legal formalities purchased 450 grams of cow’s ghee for analysis from the first accused and sent it for analysis to the Public Analyst and the sample was found adulterated. Complaint was filed and other legal formalities complied with. First accused absconded. The case was proceeded against the second accused, who denied the incriminating evidence and stated that the sample was not taken from his shop. The trial court and the appellate court concurrently found in favour of the prosecution case and convicted the second accused under S. 16(1) (a) (i) of the Prevention of Food Adulteration Act (for short ‘the Act’) and sentenced him to undergo simple imprisonment for six months and to pay fine of Rs. 1,000/- and in default to undergo simple imprisonment for two months. Sankaran Nair, J. before whom the revision petition came up for hearing, adjourned the case to be heard by a Division Bench as it involved question of importance, namely, whether Rule 17(1)(b) of the Prevention of Food Adulteration Rules (for short ‘the Rules’) is mandatory.

2. The two courts below have concurrently accepted the prosecution case. There is no dispute before us that going by the report of the Public Analyst, which was not challenged by requesting the court to send one of the remaining parts of the sample to the Director of Central Food Laboratory for analysis, the sample did not conform to the standards prescribed for ghee and also contained 87% hydrogenated vegetable oil, that is vanaspati, and non-permitted colouring matter.

3. Learned counsel for the revision petitioner urged the following contentions before us:

(i) Sub-rules (a) and (b) of Rule 17 of the Rules are mandatory and since there is no evidence to show that these mandatory provisions have been strictly complied with, the result of the analysis cannot be accepted.

(ii) Revision petitioner is only a licensee and hence not liable to be prosecuted.

(iii) Though the report of the Public Analyst shows that the articles sold is actually hydrogenated oil, that is vanaspati, it may be case of misbranding and not adulteration.

(iv) That the sentence imposed is excessive.

4. It would be useful to have a bird’s-eye view of the relevant provisions of the Act and the Rules. Section 10 of the Act prescribes powers of the Food Inspectors. Food Inspectors shall have power to take samples of any article of food from the person indicated in the provision and to send such sample for analysis to the Public Analyst for the local area within which such sample has been taken. Where the Food Inspector takes such action, he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. S. 11 prescribes the broad procedure to be followed by the Food Inspectors. He shall give notice in writing then and there of his intention to have the sample so analysed from the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under S.14-A and except in special cases provided by the Rules, 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, send one of the parts for analysis to the Public Analyst under intimation to the local health authority and send the remaining two parts to the local health authority for the purpose of Sub-s. (2), (2-A) and (2-E) of S. 13. Sub-s. (1) of S. 13 requires the Public Analyst to de