JUDGMENT
R.A. Jahagirdar, J.
1. The order of acquittal recorded by the learned Additional Chief Judicial Magistrate, First Class of Poona, in Criminal Case No. 2577 of 1973, is challenged by the state in this appeal. In that case three persons were charged with the offence punishable under section 16(1)(a)(i) read with section 7(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”). During the pendency of the trial, accused No. 3 died and the case naturally abated against him. According to the prosecution accused Nos. 1 and 2 were the partners of a firm called “Puranchand Giriraj and Co.”. On 25th January, 1973, the Food Inspector Mahajani purchased from the accused 450 gms. black pepper. The purchased quantity was divided, according to the prosecution, into three different parts, and one of the parts which was sent to the Public Analyst was found by him to be adulterated within the meaning of section 2(i)(l) of the Act. The report at Exhibit 18 shows that the sample sent to the Public Analyst contained 17.48% of light berries. According to the standard fixed under the rules made the Act the proportion by way of light berries should not have been more than 10%. On the basis of this report, the required consent for the prosecution was obtained and the accused were put up for trial as mentioned above.
2. During the course of the trial, the accused made an application at Exhibit 5 for sending the sample which was given to them to the Central Food Technological Laboratory at Calcutta for analysis. Surprisingly, the Food Inspector made similar application for sending the sample with him to the Central Food Laboratory at Calcutta. The sample which was with the accused when examined at the Laboratory at Calcutta, was found to contain 8.4% of light berries and pin heads were found to be negligible. However, this analysis disclosed presence of mineral oil. The sample with the Food Inspector when analysed by the Central Food Laboratory at Calcutta was found to contain 14.3% light berries. No presence of mineral oil was directed in this sample. The report of the Central Food Laboratory in respect of the analysis of the sample which was of the accused is at Exhibit 7 and the report in respect of the analysis of the sample which was with the Food Inspector is at Exhibit 23. There were, thus, before the learned trial magistrate, three reports of three part of the original sample. The report at Exhibit 18 disclosed adulteration as mentioned in section 2(i)(l) of the Act; the report at Exhibit 7 did not disclose any adulteration at alleged but showed presence of mineral oil the report at Exhibit 23 disclosed adulteration within the meaning of section 2(i)(l). The find of the presence of mineral oil in one of the samples persuaded the learned trial Magistrate to frame an additional charge showing adulteration within the meaning of section 2(i)(h) of the Act.
3. Ultimately, the learned trial magistrate passed the order of acquittal which is the subject matter of the challenge in this appeal by holding that consent for the prosecution was not legal and valid, inasmuch as, it has been given before the report of the Central Food Laboratory at Calcutta was received. The learned trial magistrate also held that the provisions of section 11(i)(b) have not been complied with by the Food Inspector when he took sample from the accused.
4. Mr. Gangakhedkar appearing in support of the appeal criticised the judgment of the trial magistrate wherein he has hold that the prosecution was incompetent on the ground that the consent given was not valid. There is substance in the contention of Mr. Gangakhedkar in so for as it relates the prosecution for the offence of adulteration within the meaning of section 2(i)(l) of the Act. Even if the report of the Central Food Laboratory supersedes the report of the Public Analyst, the nature of the offence as disclosed by Exhibit 23 also shows that there were more than the permitted quantity of light berries. As per this report, therefore, the offence disclosed is the same as one disclosed under Exhibit 18 though, when the report of the Central Food Laboratory discloses the same nature of adulteration which is found by the Public Analyst, a fresh sanction is wholly unnecessary. The consent which has been given for the original prosecution is for an offence of the type which has been disclosed in the report of the Public Analyst and if on the subsequent analysis by the Central Food Laboratory the nature of the adulteration is found to be the same, the prosecution continues to before the same offence. Therefore, a fresh consent after the report of the Public Analyst is not necessary. To that extent the view of the learned trial Magistrate is incorrect.
5. The Magistrate is however demonstrately on sound ground in so far as the prosecution case related to the offence for adulteration within the meaning of section 2(i)(h) of the Act on the basis of the find of the mineral oil in the sample. This report was not before the consenting authority. Prosecution for an offence for adulteration within the meaning of section 2(i)(h) is different from the prosecution for offence for an adulteration within the meaning of section 2(i)(l) for which the original consent had been given. The prosecution therefore, for the second charge, was incompetent ad being without the consent as required by law.
6. In the present case, both the accused and the complainant made applications to the trial Court for sending the samples which were with them to the Central Food Laboratory. The two reports, embodying analysis of the two samples are wholly inconsistent with each other. Analysis of the sample which was with the accused shows total absence of adulteration; analysis of the other sample which was of the Food Inspector discloses adulteration. The benefit of the certificate embodying analysis of the sample which was with the accused must be given to him and therefore, he could not be convicted of the offence with which he was charged for selling a sample on the ground that it was adulterated within the meaning of section 2(i)(l) of the Act.
7. That apart the three conflicting reports support the contentions of the accused that there was no compliance with the provisions contained in section 11(1)(b) of the Act. This provisions requires of Food Inspector to purchase a sample in bulk, divide it into three parts and then proceed to put them in containers and to seal under the relevant rules. In this case the panch has mentioned that the accused went on giving to the Food Inspector 150 gms. of the commodity in three different lots. It, therefore, means that 450 gms. of the commodity were not purchased and then divided into three parts. The contention of the accused in this regard finds corroborations in the prosecution evidence itself namely the testimony of the panch witness. It also finds corroboration from the fact that the results of the analysis of the three samples are not consistent with each other. The accused is entitled to acquittal on this ground also.
8. In the result, the order of acquittal recorded by the learned trial Magistrate has got to be confirmed. This appeal, is therefore, dismissed. Bail bond of the accused shall stand cancelled. The order of acquittal passed by the learned Additional Chief Judicial Magistrate, Poona, in Criminal Case No. 2577 of 1973 is confirmed.