ORDER
J.M. Srivastava, J.
1. The petitioners were prosecuted on charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, hereafter ‘Act’, on the allegations that on 28-6-80, the Food Inspector, hereafter referred as the ‘Inspector’, had visited the Madhu Milon Hotel and Restaurant of which the petitioner No. 2 was the proprietor and the petitioner No. 1, the attendant-in-charge. The Inspector had taken sample of ‘suzi-ladu’ which on analysis was found to contain prohibited coal-tar-dye “metanil yellow.” The prosecution had examined three witnesses and the defence had examined two witnesses. On consideration of the evidence, the learned Additional Chief Judicial Magistrate by judgment and order dated 6-10-82 convicted the petitioners and sentenced them to six months’ R.I. The petitioners’ appeal was dismissed by the learned Additional Sessions Judge, Jorhat by judgment and order dated 17-1-84 with the modification that fine amount was reduced to Rs. 1000/-.
2. Aggrieved, the petitioners have come in revision, and Sri G.N. Sahewalla, learned counsel appearing on their behalf, has submitted that the provisions of Rules 14 and 16 of the Prevention of Food Adulteration Rules, hereafter referred as the Rules, had been violated and since the public analyst’s report was that coal-tar-dye metanil yellow “present” the probability of the presence of the said coal-tar-dye in the containers in which samples of ‘Suji-Ladoo’ had been taken due to non-compliance of the provisions of Rules 14 and 16 of the Rules could not altogether be excluded and accordingly the conviction and sentence of the petitioners should not be sustained. Sri B. B. Narzary, learned P.P., on the other hand, has submitted that the provisions of Rules 14 and 16 of the Rules had been complied with, and the public analyst’s report did not require to specify the amount or the quantum of the prohibited dye. Sri Narzary has accordingly submitted that the judgment of the courts below are sound and require no interference.
3. Rule 14 of the Rules provides for the manner in which sample is to be taken by the Food Inspector. It reads :
Samples of food for the purpose of analysis shall be taken in clean, dry bottles, or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance entrance of moisture and shall be carefully sealed.
The provision is intended to ensure fair play and to exclude probability of an analysis which is not true in regard to ingredients of food stuff analysed. It is mandatory and not directory. The prosecution must prove by positive evidence that the containers were clean before sample was put in it.
4. The importance of the provision lies in providing adequate safeguard to ensure that the food on analysis reflects the true and real ingredients of the foodstuff and that no impurity, etc. in the containers might affect the analysis. In the present case, the said provision assumed more importance because the public analyst’s report only stated that the said dye was present. Even in traces said dye could on analysis be considered ‘present’ which could be with the food stuff, i.e. ‘Suji Ladoo’ in case the container in which the sample was taken had traces of said dye and was not cleaned or was not properly cleaned. While it is true that it is not required that the quantum of the said dye found on analysis should have been stated in the analyst’s report, but even traces thereof could on analysis be described as present. The traces of dye could be in the containers from before and if the containers in which the sample were taken were not properly cleaned or it had not been established that the containers were new, i.e. that they had not contained any other material earlier. On analysis the dye could be found present.
5. The prosecution had to establish the charge that the foodstuff, i.e. the ‘Suji Ladoo’ contained prohibited coal-tar-dye, i.e. metanil yellow. The accused petitioners are entitled to get the benefit of any lacunae in the prosecution evidence which has bearing on the probability of the accidental presence of metanil yellow dye in the food stuff, i.e. Suji Ladoo.
6. Sri Sahewalla, learned counsel for the petitioners, has invited attention to the statement of PW-1 the Food Inspector who had stated that ladus were weighed by keeping in a polythene bag and at first the ladus were weighed by keeping the same in a large bag, thereafter weighing 500 grams, the ladus were kept in a separate polythene bag. He also said that the polythene bag was taken from the local health authority after giving requisition and he did not know wherefrom the local Health authority brought the tins and polythene bags. He further said that he had cleaned the tins with cloth and that he did not clean the polythene bags. PW-3 Dhoneswar Doley was a Peon who stated that “we did not clean the polythene bag, tin, etc.” The evidence thus shows that the ‘Ladus’ had been weighed first in a large bag and then the same were weighed in 500 grams each and kept in polythene bags and the large bag was thrown away. Sri Narzary, learned P.P. has argued that PW-1 has said that the polythene bags were dried and cleaned. But his further statement clearly was that he had not cleaned the polythene bags and the statement of PW-3 was clear that the polythene bags had not been cleaned. In my opinion, in such state of prosecution evidence it should not be reasonable to take the view that polythene bags had been cleaned before ‘Suji-Ladus’ had been weighed and kept. Moreover, the Ladus had been weighed in a large bag earlier and the same had been thrown away. There is no prosecution evidence that the said large bag itself was cleaned. Even the statement of PW-1 Food Inspector was that although he had cleaned the tin he had not cleaned the polythene bags. Sri Narzary has argued that there was no need to clean the polythene bags which were new. There was no evidence that the polythene bags were new and merely because it had been obtained from local health authority, it did not follow or mean that the pohychene bags were new. The prosecution had, therefore, not established that the large polythene bag in which the Ladus had been weighed first and the polythene bags in which the ladus were later kept had been cleaned before Suji Ladoos had been kept, sealed and sent for analysis. The probability of said polythene bags having had some material earlier which had some element of the said dye could not altogether, therefore, be excluded.
7. Sri Sahewalla, learned counsel for the petitioners, further argued that the mouth of the polythene bags had been sealed with candle and that since candle was also prepared from ‘parafin’ derived from petroleum crude and coal-tar was also a product obtained from the same raw-material, the probability of the candle used to seal the polythene bags leaving some traces of coal-tar-dye should not be excluded. There is no material on record to take a definite view on this matter and accordingly merely from the fact that coal-tar and parafin are product of crude petroleum, without anything more by way of specific, material on the subject, I do not express any opinion on the contention.
8. For the reason already stated that the prosecution had not proved that the polythene containers had been cleaned before the Suji Ladoos’ sample had been weighed and kept therein, the prosecution had not established compliance with the mandatory provisions of Rule 14 of the Rules and the petitioners were entitled to its benefit. The conviction and sentence impugned in this petition should not be sustained.
9. The revision is allowed. The impugned judgments and orders are set aside. The petitioners are acquitted of the charge under Section 16(1)(a)(i) of the Act.