JUDGMENT
G.K. Sharma, J.
1. Municipal Council, Kota has preferred this appeal against the judgment dated 6-12-1980 by which, the trial court has acquitted the respondent from the charge Under Section 7/16 of the Prevention of Food Adulteration Act.
2. The Food Inspector on 16-3-1973 took sample of the milk of the respondent and kept in three separate bottles in equal proportion and sealed the bottles in presence of the motbirs. One of the bottles was dent for to Chemical examination to Public Analyst and on examination it was found that the sample contained about 9% water and abstraction of about 53% of original fat. One sample was also sent by the respondent accused to the Director Central Food Laboratories Calcutta and no receipt of the report it was found that the milk was not upto the standard of purity. A complaint was filed before the Judicial Magistrate and after trial the learned Magistrate, found that the case against accused is not made out beyond reasonable doubt and he acquitted that respondent.
3. Aggrieved by the judgment of the trial court this appeal has been preferred. The learned Counsel for the appellant argued that the trial court has erred in acquitting the accused. From the chemical report and also from the report received from the Director Central Food Laboratories Calcutta it was found that the sample was not found upto the standard of purity. In spite of this fact the learned Magistrate acquitted the respondent.
4. The learned Counsel for the respondent argued that the trial court found that the sample of the milk was taken without proper stirring of the milk. It was also found that the Food Inspector himself did not take the sample but the milk was given by the respondent accused himself. Next ground for acquittal was that along with the sample a copy of the memorandum was not sent and the specimen of the seal which was affixed on the bottle of the sample was also not sent. Therefore, the learned trial court has not committed any error in acquitting the respondent. The learned Counsel for the respondent Shri Mehrish based his arguments on the case of State of Rajasthan v. Kachab 1979 WLN 138. This case is also Under Section 7/16 of the PFA Act. The Inspector took the sample of milk but he did not mix the milk thorughly, therefore, the Division Bench of this Court while rejecting the appeal of the State against the acquittal observed as under:
The Food Inspector while taking the sample of the milk did not take steps to ensure that the milk, out of which the sample is taken is mixed thoroughly either by stirring with a long handled dipper or by pouring from one vessel to another or by shaking it gently, so that the sample may not fail to represent the milk to be tested.
The sample of milk had globules or bubbles in it and the bubbles remained till the sample was filed in the bottles.
Where sampling of milk has not been carefully done by the Food Inspector, it cannot safely held that the sample of milk sent to the Public Analyst, Jodhpur. truly respresented the milk to be tested. Hence in our view, there are no compelling reasons to set aside the acquittal of the respondent for the offence Under Section 7 read with Section 16 of the Act.
5. He has also relied on the case of State v. Prakash and Krishna 1980(11) FAC 109. This case is also of Adulteration in milk. In this case also the sample was not taken by the Food Inspector himself and also hold that the Food Inspector did not know any specific precaution to be taken while taking the sample. Dealing the case in detail it has been observed as under:
Held, that not only this Food Inspector was ignorant about the precautions to be taken while taking the sample of the milk but he did not himself take the sample of the milk. It is clear that it is very important that an accurate and representative sample of milk has been obtained for analysis. Unless that is done, the further analysis by the Public Analyst or the Director would not represent the correct state of affairs-in view of the fact that the sample of milk taken in this case is not shown to be representative sample no conviction could be based on the basis of the report of the Director of CFL. In that view of the matter the order of the acquittal based against the respondent need not be inetrfered with.
6. The learned Counsel for the respondent argued that the provisions of Sections 3 and 4 of the PFA Act are mandatory provisions. Non-compliance of these provisions would amount to create doubt in the story of the prosecution and on the non compliance of the provisions convictions should not be based. Sub-clause (3) of Rule 4 of the PFA Act is regard to the copy of the memorandum and the specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director. Sub-clause (4) says that on receipt of the packet, it shall be opned either by the Director or by an officer authorised in writing in that behalf by the Director. If both these sub-clause are read together they say that along with the sample the copy of the memorandum and the specimen of the seal fixed on the sample should be sent to the Director. Sub-clause (4) says that it is the duty of the Director or the person who receive the sample on his behalf to record the condition of the seal on the container. So some duty is casted on the Director or Public Analyst before opening the seal which was fixed on the container before examining the sample. Therefore, the provisions of sub-clauses (3) and (4) of Rule 4 of the PFA Act are mandatory provisions and if they are not followed then it is most unsafe to base conviction of the accused. In this respect the learned Counsel for the respondent has relied on the case of Gopinath Babu More v. The State of Maharashtra and Anr. 1980(I)FAC 112. In this case it has been observed as under
Held that having regard to the provisions contained in Sub-rule (3) and (4) of Rule 4 in my opinion, it must be shown from the record that the memorandum and the spaclmen impression of the seal were sent separately by registered post. I have already observed that there is nothing on the record to show that they were sent separately by registered post Whether this direction has been carried out or not is a matter of evidence. As the evidence stands on the record, it does not show that it has been sent separately by registered post to the Director, Central Laboratory, Calcutta.
7. After considering the entire matter and the arguments advanced by both the learned Counsel and the law cited by the learned Counsel for the respondent I find that the trial court has not committed any error in acquitting the respondent. The sample of the milk was not taken after mixing it thoroughly. The Sample of the milk was not taken by the Food Inspector but it was given by the respondent himself. It is also on the record that the milk had bubbles in it. So the bubbles remained in the sample and if cannot be said that the correct sample has been taken. The mandatory provisions of sub-clauses (3) and (4) of Rules 4 had not been complied with. Therefore, I see no reason to interfere in the Order of acquittal passed by the learned trial court.
8. The appeal having no substance is, therefore, dismissed.