A polythene container or a thick paper wrapper cannot be considered a suitable container as contemplated under Rule 14 of the Prevention of Food Adulteration Rules, 1955. The provisions of Section 10(7) of the Prevention of Food Adulteration Act, 1954 are mandatory, but their non-compliance itself would not vitiate the trial if there exists proper documentary evidence to show before the Court that it was not practically possible for the Food Inspector to secure the presence of independent witnesses.

HARPHUL SINGH BRAR, J.

1. After hearing an application for grant of leave to appeal under S. 378 Cr. P.C. against a judgment of acquittal, a Division Bench of this Court on May 18, 1992 ordered as under : "Heard. The perusal of the provisions of Rules 14 and 16 of the Prevention of Food Adulterations Rules, 1955 (for short the rules) reveals that the dominant consideration in sending the sample of food for analysis in clean dry bottles, jars or any other suitable container is to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture. Thus, the finding of the trial Court that since the sample of red chillies powder was taken in a wrapper of strong thick paper in violation of the mandatory provisions of Rules 14 and 16 of the Rules is not exfacie well founded. In this view of the matter, it requires reconsideration by a larger Bench of this Court as the trial Court had placed reliance on a Division Bench decision of this Court in State of Haryana V/s. Gurdhan Dass (Criminal Appeal No. 1053 of 1975). Leave to appeal allowed. Admitted to Full Bench. The matter be placed before Hon ble Chief Justice for constituting a Full Bench. The accused-respondent through his counsel is directed to furnish personal bonds and surety bonds to the satisfaction of Chief Judicial Magistrate, Hoshiarpur within a fortnight of this order, undertaking to surrender before him in case of his conviction. A copy of this order be given Dasti to the learned counsel for the respondent. Sd/- (J. S. Sekhon) Judge. Sd/- (Amarjeet Chaudhary) Judge." May 18, 1992.

2. This is how this appeal has come up for hearing before us.

3. The facts of the case in brief taken out from the evidence on the file are that Ram Kumar, respondent, was accused and charged under S. 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter to be called as the Act) for having kept in his possession in his shop situated in Krishan Nagar, Hoshiarpur, 12 packets of chilly powder containing 100 grams each for sale for human consumption on 1-3-1988.

4. Dhani Ram, Food Inspector (PW. 1), stated on oath before the trial Court that on 1-3-1988, when he was posted as Food Inspector for the entire local area of District Hoshiarpur vide Punjab Government Notification No. E-4-1-Pb-73/187, dated 7-12-1973 under S. 9 of the Act alongwith Dr. H. P. Bhatia (PW-2) inspected the shop of the accused-Raman Kumar at Krishan Nagar, Hoshiarpur. He further stated that he disclosed his identity to the accused and showed his intention to have the sample of the Food articles. He tried to join independent witnesses but no one was available and in that event he requested Dr. H.P. Bhatia to become a witness for which Dr. Bhatia agreed. The accused Raman Kumar was found having in his possession 12 packets containing 100 grams each which were wrapped in polythene wrappers, and on which it was printed as M and S Kashmiri Mirch Chillies Powder M.S. Company Delhi Trade Mark. The same packets were kept by the accused in his shop for sale for human consumption. He served a notice Ex. P. A on the accused. It was signed by the accused and attested by the witness. Out of 12 packets, aforesaid, he purchased 6 packets for Rs. 18/- vide receipt Ex. PB which was signed by the accused and attested by the witnesses. The accused produced no bill of purchase and also did not produce any food licence under the Act for the year 1987-88. The purchased packets were made into three packets containing two packets in each parcel. Each Parcel was labelled wrapped in a strong thick khakhi paper and a paper slip bearing serial No. 25529 Code No. JN-87/88 and signatures of the L.H.A. Hoshiarpur were pasted on each parcel lengthwise covering top and bottom of each parcel and making the ends of slip join with the help of gun, Each sample parcel was fastened with a strong thread and was sealed with his own seal bearing letters D. Ram at four distinct places as prescribed. Each sample parcel was