The report of the Public Analyst is evidence of the facts stated therein, including compliance with Rules 7(1) and 18 of the Prevention of Food Adulteration Rules, 1955, and the presumption under S. 114 of the Evidence Act can be invoked to presume that the rules and legal formalities were complied with.

ORDER :-

The petitioner has been convicted under S. 16 (1) (a) of the Prevention of Food Adulteration Act (Act no. 37 of 1954) (hereinafter referred to as the Act) and sentenced to pay a fine of Rs. 250 in default to undergo Rigorous Imprisonment for one month. Prosecution case is that the petitioner was carrying adulterated milk for sale in Puri town on 15-6-63. The defence was that the milk was not being taken for sale and there was no adulteration. The learned Courts below concurrently found that the milk was adulterated.

2. Mr. Harichandan advanced two contentions :-

(1) Prosecution infringed Rr. 7 and 18 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) inasmuch as there is no proof that a specimen impression of the seal the packet was sent to the public Analyst separately and the Public Analyst compared the seal on the container and the outer cover with the specimen impression received separately. Infringement of these mandatory rules vitiated the report of the Public Analyst. The conviction based on such a report only is illegal.

(2) The prosecution was launched about five and half months after the detection when the milk had decomposed. The delay in prosecution resulted in the petitioner being deprived of the opportunity of asking the Court for sending a part of the sample to the Director of the Central Food Laboratory for a certificate which would have superseded the report of the Public Analyst.

Both the contentions require careful attention.

2-A. To appreciate the aforesaid contentions, the relevant provisions of the Act and the Rules may be noticed. Under S. 10 (1) (a) (i) of the Act, a Food Inspector shall have power to take samples of any article of food from any person selling such article. In this case, the Food Inspector (P. W. 2) purchased the milk taken as sample. Section 11 prescribed the procedure to be followed by Food Inspectors. Under S. 11, sub-s. (1), Cl. (c), the Food Inspector shall do the following things :-

(i) deliver one of the parts to the person from whom the sample has been taken;

(ii) send another part for analysis to the Public Analyst; and

(iii) retain the third part for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under sub-s. (2) of S. 13, as the case may be.

Rule 16 lays down the manner of packing and sealing the samples. Rule 17 prescribes how the containers of samples are to be sent to the Public Analyst.

The containers of samples for analysis shall be sent to the Public Analyst by registered post or railway parcel or air freight, or by hand in a sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed to the Public Analyst.

Rule 18 says that- 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.

Rule 19 deals with addition of preservatives to samples.

Any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis.

Rule 20 speaks of preservative in respect of milk, cream and gur-

The preservative used in the case of samples of any milk including toned, separated and skimmed milk, cream-ice-cream, mixed ice-cream, ice candy, dahi and gur in liquid or semi-liquid form shall be the liquid commonly known as ''formalin," that is to say, a liquid containing about 40 per cent of formaldehyde in aqueous solution, in the proportion of two drops for one ounce of the sample.

Rule 7 prescribed duties of Public Analyst :

(1) On receipt of a package containing a sample for analysis from Food Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seal on the container and the outer cover with specimen impression recei