ORDER
A.D. Koshal, J.
1. The petitioner before me is Joginder Singh, aged 50 years, a resident of Naya Gaon, who has been convicted by the two Courts below of an offence under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). He was sentenced by the trial Court to rigorous imprisonment for nine months and a fine of Rs. 1,000/- or, in default of payment of fine, to further rigorous imprisonment for three months. In appeal the learned Sessions Judge, Chandigarh, while maintaining the conviction, reduced the sentence to rigorous imprisonment for six months and the fine imposed by the trial Court, the sentence awarded in default of payment of fine being left intact. Dissatisfied with the judgment of the learned Sessions Judge, the-petitioner has come up in revision to this-Court.
2. The prosecution case is as follows. At about 6 A. M. on the 20th June, 1969, Shri Mohinder Singh, Government Food Inspector (P. W. 1 and hereinafter referred to as the Inspector) demanded from the petitioner who was present in Sector 9-D,, Chandigarh, having with him a drum containing 16 Kilograms of unindicated milk for sale, a sample of the milk through a notice (Exhibit P. A) in form VI as prescribed by Rule 12 of the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules) in the presence of his (the Inspector’s) peon Ram Parkash and Moti Ram (P. W. 3) who works as a tailor in the said Sector. The petitioner sold 660 mis. of the milk contained in his drum to the Inspector who paid him Re. 1/- as the price thereof against receipt Exhibit P. B. The sample of milk so secured by the Inspector was divided by him into three parts, each one of which was transferred into a clean dry bottle-to which 17 drops of formalin were added as a preservative. All the bottles were labelled and sealed. One of them was given by the Inspector to the petitioner while the other two were retained by himself. The Inspector then prepared memo Exhibit P. C. which; contains a description of the accused, the time when and the place where the sample was taken, the price paid therefor, the fact that the milk was unindicated and the following record of the proceedings held by him:
Report and evidence taken in th& course of sampling.
The sample of milk was seized under the Prevention of Food Adulteration Act,. 1954, from drum container which contained about 16 Kgs. and exhibited having in possession for sale. The sample was divided into three parts and 17 drops of formalin as preservative was added in each part, then-each part of the sample was labelled and’ sealed in the presence of the vendor Shri Joginder Singh who was also intimated in writing in Form VI as desired under Rule 12″. of the P. F. A. Rules, 1955.
One sealed part of the sample along: with Re. 1.00 as a price of the 660 mis. of milk purchased for sample was given to the vendor. There was nothing written on the-container from which the sample of milk, was taken.
This record was signed by the Inspector,, the petitioner, Moti Ram (P. W. 3) and Ram Parkash peon.
One of the bottles retained by the-Inspector was sent by him on the same day to the Public Analyst, Punjab, who analysed the contents thereof and declared in his. report dated the 3rd of July, 1969 (Exhibit P. D.) that the percentages of fat and non-fatty solids in the sample of milk supplied to him were 3.7 and 5.6 respectively. These percentages indicated that the sample was deficient in milk fat and non-fatty solids to the extent of 8 per cent and 34 per cent respectively in comparison to the prescribed standard for unindicated milk which requires the minimum percentages of fat and non-fatty solids in such milk to be 6 and 9 respectively. A copy of this report was delivered to the petitioner on the 15th of July, 1969, against his signed acknowledgment Exhibit P. E.
3. The prosecution was launched against the petitioner on the 4th of August, 1969, by means of a complaint signed by another Food Inspector named Kuldip Singh. On the same day the trial Court ordered that the petitioner be summoned for the 4th of September, 1969, when the order recorded was:
Warrant not received. Non-bailable warrants of arrest against the accused for 29-10-1969.
The case was adjourned from time to time thereafter but the petitioner failed to appear before the trial Court. The case was ultimately adjourned on the 28th of January, 1970, to the 4th of March, 1970, with the direction that bailable warrants in the sum of Rs. 3,000/- be issued against the petitioner. There is nothing on the record to show that any process was issued to the petitioner at any time, but on the 17th of February, 1970, he appeared before the trial Court on his own and made an application for his release on bail stating that he had been informed that in his absence a constable had visited his residence with a warrant for his arrest in connection with this case.
4. Only three witnesses, namely, the Inspector, Sri. Kuldip Singh above-mentioned and Moti Ram (P. W. 3) were examined at the trial in support of the prosecution case. The Inspector deposed to having secured the said sample of unindicated milk from the petitioner in the presence of his peon Ram Parkash and Moti Ram (P. W. 3), to having transferred the same into three bottles, to each one of which 17 drops of formalin were added and to having labelled and sealed the bottles. He added that one of the bottles was given to the petitioner and the other two were retained by him. He testified to having prepared notice Exhibit P. A., receipt Exhibit P. B. and memo. Exhibit P. C, all of which are admittedly thumb-marked by the petitioner and signed by the Inspector. Memo. Exhibit P. C. further bears the signatures of Ram Parkash peon and Moti Ram (P. W. 3). Report Exhibit P. D. was tendered in evidence.
Shri Kuldip Singh (P. W. 2) merely stated that he filed complaint Exhibit P. F. in court, Moti Ram (P. W. 3) fully supported the Inspector in the witness box and claimed to be present when the sample in question was demanded from the petitioner under notice Exhibit P. A., when it was-secured by the Inspector against payment of Re. 1/- when it was transferred to thff three bottles to which “some medicine” was-added and when documents Exhibits P. A. and P. C. were prepared. He further stated that memo. Exhibit P. C. was thumb-marked by the petitioner in his presence.
5. When examined under Section 342 of the Code of Criminal Procedure, the petitioner denied all the allegations made by the prosecution against him and took the stand that he was innocent and that Moti; Ram (P. W. 3) had deposed against him at the instance of the Inspector.
6. Two witnesses, namely, Sadhu Singh. (D. W. 1) and Gurcharan Singh (D. W. 2);. both residents of village Naya Gaon, were-produced in defence. They asserted that the petitioner was engaged in the cultivation of his land in the village and had never been, seen selling milk,
7. The two Courts below found ther prosecution evidence to be trustworthy and rejected the defence evidence as unreliable.
8. The first contention raised on behalf of the appellant is that report Exhibit P. D. relates not to the sample of milk secured from the petitioner but to some-other sample. Support for the contention is sought from the description of the sample-analysed as appearing in report Exhibit P. D. That description runs as follows:
Cow’s Milk No. M/88/69 taken from Shri Joginder Singh.
It is pointed out that the sample secured from the petitioner consisted of unindicated milk and not of cow’s milk. The discrepancy is no doubt there but it appears to me to be immaterial. As stated in memo, Exhibit P. C the sample taken from the petitioner was assigned No. M/88/69 which tallies with that appearing in report Exhibit P. D. The name of the petitioner is also correctly given in both the documents (Exhibits P. C. and’ P. D.). The word “cow’s” appearing in the description of the sample as contained in Exhibit P. D. thus appears to be the result of some error on the part of the person who filled up the various columns in the report but that mistake does not in any way alter the fact that the sample to which report Exhibit P. D. relates was the one which had been assigned number M/88/69 and’ which had been secured from the petitioner. It is further significant that report Exhibit P. D. categorically states that the sample was received on the 20th of June, 1969, from “Shri Mohinder Singh, G. F. I. Chandigarh”. This is another circumstance lending assurance to the sample analysed being the same which was secured by the Inspector from the petitioner. The contention is, therefore, repelled.
9. The next contention put forward: by learned Counsel for the petitioner is that no process was issued or served against the petitioner till the 17th of February, 1970, by when the sample in question must have decomposed so as to have become unfit for analysis, thus depriving the petitioner of the right guaranteed to him under the provisions of Sub-section (2) of Section 13 of the Act to have the contents of the bottle entrusted to him analysed by the Director, Central Food Laboratory, Calcutta (hereinafter referred to as the Director). It is urged that the petitioner is in consequence entitled to be acquitted. Reliance in this connection is placed on Municipal Corpn. of Delhi v. Ghisa Ram , which, however, in my opinion, has no application to the facts of the present case. In that case the Food Inspector had not taken the precaution of adding the necessary preservative to the sample which, when sent to the Director in pursuance of an application made under Section 13(2) of the Act was found to have become highly decomposed and unfit for analysis. In those circumstances their Lordships of the Supreme Court held that a valuable right given to the vendor under Section 13(2) of the Act could not be availed of and that the conviction was bad. In the present case the petitioner never applied to the trial Court to have the sample with him analysed by the Director. Section 13(2) of the Act states:
13 (1) * * * * * *
(2) After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the Court ‘for sending the part of the sample mentioned in sub-clause (i) or sub-clause (iii) of clause (c) of Sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of Sub-section (1) of Sec-lion 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis.” As laid down by their Lordships of the Supreme Court in Sukhmal Gupta v. Corpn. of Calcutta, Criminal Appeal No. 161 of 1966, decided on 3-5-1968 (SC), an accused person cannot plead prejudice in his defence flowing from a deprivation of the right given to him under Section 13(2) unless he has the sample actually sent to the Director and shown that the sample had deteriorated by the time the notice of the proceedings against him was received by him. The same view -was taken in Babulal Hargovindas v. State of Gujnrat , wherein Jaganmohan Reddy, J., speaking for the Court, said that unless an application to send the sample to the Director was made, the vendor cannot complain that he was deprived of his right to have the sample analysed by the Director.
The opinion expressed in Criminal Ap-peal No. 161 of 1966, D/- 3-5-1968 (SC) and was reiterated by their Lordships in Ajit Prasad Ramkishan Singh v. The State of Maharashtra , wherein the contention now under examination was raised on behalf of Ajit Prasad Ramkishan Singh appellant and was repelled with the following observations made by Mathew, J., speaking for the Court:
It is clear from the sub-section that the appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis. If he had made the application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysis by the Director. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the appellant could perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, since the appellant never applied under Section 13(2) of the Act, he cannot complain that he has been deprived of any right.
Their Lordships distinguished on the same grounds which I have set out above in that behalf. The petitioner before me never having made any application under Section 13(2) of the Act cannot now be held to say that he has been deprived of the right guaranteed to him under that section and the contention raised on his behalf is, therefore, turned down.
10. learned Counsel for the petitioner has then urged that although formalin was shown to have been added to the three bottles abovementioned, the strength thereof was unknown so that the preservative added was not established to be of the quality specified in that behalf in Rule 20 of the Rules which states:
20. The preservative used in the case of samples of any milk **** 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 formaldehvde in aqueous solution in the proportion of 0.1 ml. (two drops) for 25 ml. or 25 grams.
It is contended that it was incumbent on the prosecution to prove affirmatively that the formalin added to the three bottles in question by the Inspector was of the strength indicated in the rule, that is, that it contained “about 40 per cent, of ****.
The contention is fallacious. The rule makes it clear that what has to be added to milk samples as a preservative is the liquid commonly known as formalin. “Formalin” has only one strength which pertains to it by reason of its constitution. In other words, when a liquid contains “about 40 per cent. of * * * *” it is known as formalin and :if a liquid contains formaldehyde but not to he extent of 40 per cent or not in aqueous solution in the prescribed proportion, it is not known as formalin. When the Inspector said that he had added formalin to the bottles, he must be taken to have meant that what he added was a liquid containing “about 40 per cent of * * * *.” I may add here that the assertion on the point made by the Inspector was not at all challenged at any stage of the trial so that it was accepted as good.
learned Counsel for the petitioner has relied upon the following observations made by Sodhi, I., in Babu Ram v. State, 1972 Cur U 351 (Punj):
No doubt, a preservative was put in the bottle but the strength of that preservative is also not indicated though as stated in Rule 20 it is necessary that the preservative in such a case must contain about forty per vent formaldehyde in aqueous solution in the proportion of 0.1 ml. (2 drops) for 25 ml. or 25 grams. All these matters are necessary links in the chain of the prosecution case and a duly was cast on the prosecution to prove every one of them before a conviction against the accused could be recorded. Harbans Lai (P. W. 2) is only a witness about the sample being taken into possession by the Food Inspector and he states that some medicine was put in the bottles. He does not know what that medicine was and the only material evidence thereon is that of the Food Inspector which is very perfunc-lory in the instant case.
In that case one Babu Ram was tried for selling adulterated curd. Sodhi, J. noted, while setting out the facts of the case, that according to the allegations made against Babu Ram, the sample of the curd taken from him was transferred into three bottles, each one of which was labelled and sealed after 16 drops of formalin had been added to it. All the same I do not think that that case is of any assistance to the petitioner. It is to be seen that after setting out the allegations made by the prosecution against Babu Ram in full, Sodhi, J., proceeded to detail the evidence produced on behalf of the prosecution in support of its case and observed:
Two witnesses, namely, Ram Mohan Rai, Food Inspector (P. W. 1) and Harbans Lai (P. W. 2) were produced in support of the prosecution case. Ram Mohan Rai deposed to the purchase of the curd and putting the samples thereof in the sealed bottles.
Nothing further appears in the report about the evidence of the Food Inspector which, as remarked by Sodhi, J., was very perfunctory. It thus appears that the adding of formalin into the bottles was not testified to by any of the witnesses for the prosecution and that the reference to formalin appearing in Sodhi, J.’s judgment was based on the allegations made in the complaint or on the contents of the documents prepared by the Sub-Inspector at the time when he secured the sample. If the Food Inspector who took the sample from Babu Ram had deposed at the trial that he added formalin to each bottle, the requirement of Rule 20 would be satisfied and there would have been no occasion for Sodhi, J., to observe that the strength of the preservative in question was not established; for, formalin, as already indicated by me, is a liquid containing a particular percentage of formaldehyde in a special type of solution and that when a person talks of “formalin”, he must be deemed to refer to a liquid of that specification. Babu Ram’s case is, therefore, distinguishable on the ground that the evidence of the Food Inspector therein is not shown to have supported the allegation of the prosecution that the preservative added to the curd secured from Babu Ram was formalin.
11. Another point raised in support of the petition is that Moti Ram (P. W. 3) is not the same person whose presence purports to be evidenced by the relevant signature in Hindi appearing on memo. Exhibit P. C. That signature, according to learned Counsel for the petitioner, reads “Moti Lai” and not “Moti Ram”. I do not think he is right there. Although the signature may reasonably be read both as “Moti Lai” and “Moti Ram”, the matter is clinched by the description of the witness given by the Inspector just above the signature as “Moti Ram Shop No. 28 Sector 9-D”. Even if, however, the signature could be read as “Moti Lai”, there is every reason for me to hold that it was made by Moti Ram (P. W. 3) and by no other person. According to the Inspector, it was Moti Ram (P. W. 3) who was present throughout the proceedings pertaining to the taking of sample from the petitioner and it was that Moti Ram who had signed memo. Exhibit P. C. To this assertion of his no challenge was thrown at any time during the trial (not even while Moti Ram P. W. was himself in the witness-box) and in fact the contention now raised was never put forward before the two Courts below. It is found to be without force.
12. The last contention of learned Counsel for the petitioner is that the proceedings held by the Inspector did not conform to the provisions of Sub-section (7) of Section It of the Act and that the conviction recorded against the petitioner cannot, therefore, be sustained. That sub-section reads:
Where the food inspector takes any action under clause (a) of Sub-section (T), Sub-section (2), Sub-section (4) or Sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures.
According to learned Counsel, the signatures of the two witnesses should have been taken on documents Exhibits P. A. and P. B. and that it is immaterial if they were secured on memo. Exhibit P. C. There is no substance in this contention either. No provision of the Act expressly states that a memo, has to be prepared at the time a sample is taken by a Food Inspector, but when Sub-section (7) of Section 10 provides that the signatures of one or more witnesses who are present when the sample is taken, shall be obtained, it only means that the Food Inspector has to draw up a memo, detailing the action taken by him and to secure the signatures of the witnesses on that memo. This was also the view taken in a Bench decision of this Court reported as State v. Sadhu Singh . Therein Gurdev Singh, J., speaking for himself and Shamsher Bahadur, J., observed:
Sub-section (1) (a) of Section 10 does not expressly state that a memo, has to be prepared when a sample is taken by a Food Inspector, but when it is read along with Sub-section (7) of the same section, which requires obtaining of signatures of at least two persons who are called to witness the taking of sample, it becomes abundantly clear that the Food Inspector has to draw up a memo. about the taking of sample, and it is on this memo, that the signatures of at least two witnesses have to be obtained. * * * *
Since no forms for memos. are prescribed under Section 10(1) read with Sub-section (7) and Section 11, a composite memo, relating to the taking of sample, its division into three parts and handing over of one of such parts to the person from whon the sample is taken, would meet the requirements of law, if it is attested by two independent persons;
* * * * * * Memo. Exhibit P. C. in the instant case fully conforms to the requirements laid down by Gurdev Singh, J., with whom I most respectfully agree and hold that the absence of signatures of Ram Prakash peon and Moti Ram (P. W. 3) on documents Exhibits P. A. and P. B. does not at all amount to a non-compliance with the provisions of Sub-section (7) of Section 10 of the Act. 13. No other point has been raised before me and, for the reasons stated, the petition fails and is dismissed.