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1980 Supreme(MP) 143
High Court of Madhya Pradesh
Chandra Pal Singh, J.
Banshilal
v.
State of M.P. and another
Cr. Revn. No. 194 of 1979 against judgment passed by Smt. Sarojini Saxena, IV Additional Session Judge, Ujjain
Decided on 21-7-1980
S.R. Bhargava for applicant;
V.K. Dube and C.M. Mehta for non-applicants
Headnote:(1) Prevention of Food Adulteration Rules, 1955 - R. 17 (a) and (b) - sending sample for analysis-prescribed period for- what is- provision under-when complied with.
The sample had been taken in the evening of 10-2-1977. It could, therefore, not have been sent that day because in all probabities the office of the Public Analyst had closed for the day the day following had been declared to be a public holiday because of the death of the President of India On 12-2-1977 fell the second Saturday of the month and 13-2-1977 was Sunday a public holiday. Ex. P-11 the document containing the Public Analysts report discoed that the sample had been received on 14-2-1977 which was the succeeding working day within the meaning of sub-rule (a) of rule 17 of the Rules. [Para 4]
(2) Prevention of Food Adulteration Rules, 1955 - Rr. 17 (a) and (b) and 7-despatch of container-manner of - whether it is necessary to seal the outer cover beside sealing container-nature of provision -whether mandatory.
If the Food Inspector has not dispatched the sample with the container duly sealed and the outer cover (packet) duly sealed, there does not arise any question for the Public Analyst to effectively perform his duty The sub-rule 1 of Rule 7 therefore, presupposes the compliance with the sealing of not only the container, but also the 'outer cover'.
He took the signatures of the accused on the three sealed bottles. His evidence is silent about his putting a similar seal also on the outer cover which could be described as a sealed packet within the meaning of rule 17. There is preponderance of decisions, though not under the amended rule 17 as such, certainly under the rule 17 as it had stood before 4-1-1977 that requirements under the rule are mandatory. [Para. 5, 6 & 7]
(3) Prevention of Food Adulteration Act, 1954 - S. 11 – representative sample-what is-non-compliance of provision under-effect. AIR 1962 Mad. 342 & 1978 (1) FAC 165 relied on. [Para 8 & 12]
(4) Evidence Art, 1872 - Ss. 137, 138 and 154 - examination-in chief, cross-examination-whether a party can cross-examine his own witness-examination-in-chief-whether may be termed as cross examination simply because some question under S.154 were put to the witness.
The examination of a witness by the party who calls him is called his examination in• Chief and it remains his examination in chief even inspite of his having been asked question by party calling him, which otherwise could be asked only in eras examination by the adverse party.
It would therefore be readily seen that there is no scope for labeling a part of examination-in-chief as cross-examination. [Paras 9 & 10]
(5) Witness-when may be declared as hostile - lest for such declaration -what is. [Para 9]
(6) Interpretation of statutes-various provisions of a statute or subordinate registration-how to be construed - presumption against implied repeal-when to he inferred. [Para 7]
(7) Practice-law prescribing particular way for discharging duty whether it is incumbent to adopt that way only.
When the law prescribes a duty to be performed by a public officer in a particular way, he has to perform that duty in the prescribed manner or not at all. [Para 6]
(8) Words and Pharoses - words "sealed packet" - whether mean and include "outer cover". [Para 6]
C.P. Singh, J.
1. By this petition, the petitioner Banshilal seeks to have the judgment of the Fourth Additional Sessions Judge, Ujjain in Criminal Appeal No. 18 of 1979, revised. The learned Additional Sessions udge by his judgment has upheld the petitioners conviction and sentence of six months' rigorous imprisonment with Rs.1000/- fine and in the alternative further rigorous imprisonment for three m0nths for selling adulterated ground-nm oil prohibited under section 7 (1) of the Prevention of Food Adulteration Act and made punishable under section 16 (1) (a) (i) of that Act•
2. The petitioner has Mahalaxmi oil Mills at Anantpeth, Ujjain on 10-2-1977 in the evening Shankudeo Varma (P. W. 1), the Food Inspector in the Municipal Corporation, Ujjain in the company of Rajmal (P. W 2), who is peon under him, went to the Mills or the petitioner, bought from him 375 grams of ground nut oil for Rs.3.40, divided the oil into three parts and after completing the formalities, lent one of the parts of the sample to the Public Analyst, who on examining it on 18-2-1977, found that though it had conformed to all the prescribed standards, the contents of free fatty acid as Oleic acid instead of being 3% wail 3.8%, thereby making it adulterated.
3. On these facts the petitioner was successfully prosecuted for selling adulterated ground-nut oil prohibited under section 7 (1) and made punishable under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act before the Municipal Judicial Magistrate First Class, Ujjain. His appeal to the Fourth Additional Sessions Judge, Ujjain failed. His defence during the trial was that he had not kept the oil from which the sample had been taken for sale because the container containing that oil was open and kept exposed to weather that the petitioner himself had not sold it but it had been bought from a servant who had raised an objection that it was not being bought from the master and that he (the petitioner) signed the documents regarding the buying and sending of sample to the Public Analyst under compulsion. He examined Kasam as a witness for the defence.
4. The first contention for the petitioner is that rule 17 (a) of the Prevention of Food Adulteration Rules (hereinafter referred to merely al rules) had not been complied with, inasmuch as the sealed packet bad not been sent to the public Analyst immediately or even on the succeeding working day. There is no force in this contention. Rule 17 (a) of the rules lays down as follows:
"17. The containers of the samples shall be dispatched in the following manner, namely:
(a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be lent in a sealed packet to the Public Analyst immediately but not later than the succeeding working day by any suitable means."
The sample had been taken in the evening of 10-2-1977. It could, therefore, not have been sent that day because in all probability tae office of the Public Analyst had closed for the day. The day following (11-2-1977) had been declared to be a public holiday because of the death of the President of India. On 12-2-1977 fell the second Saturday of the month and 13-2-1977 was Sunday a public holiday. Ex. P. 11 the document containing the Public Analyst's report discloses that the sample had been received on 14-2-1977, which was the succeeding working day within the meaning of sub-rule (a) of rule 17 of the rules The sample having been lent not later than the succeeding working day there was compliance with sub-rules (a) and (b) of rule 17 so far as the sending of the sample for analysis within the prescribed period is concerned.
5. The second contention for the petitioner is that there was no compliance with sub-rule (a) of rule 17 of the Act, inasmuch as the sample for analysis and a memorandum in form VII bad not been sent in a sealed packet according to the requirement of law. I find this contention prevails. Rule 17 sub-rules (a) and (b) lay down the manne
