State of Punjab vs Hari Chand

M.R. Sharma, J.

The sample of cow''s milk purchased from the respondent by the Food Inspector Dr. K. M Mohan P.W. 2 on analysis was found to contain fats to the extent of 32%. The statute requires that it should have been 4%. On a complaint made by the Food Inspector the respondent was tried under section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter called the Act). He was acquitted by the learned trial Magistrate, inter alia, on the grounds that :

(i) It was not proved on record that a copy of the report of the Public Analyst had been sent to the respondent,

(ii) eighteen drops of formalin as against 20 drops, contemplated by rule 20 of the rules framed under the Act, were added to the sample; and

(ii) independent witnesses were not associated by the Food Inspector in the proceedings while he took the sample.

The State of Punjab has come up in appeal against the judgment of acquittal dated 241981 passed by the learned trial Magistrate.

We have heard the learned, counsel for the parties at some length. As far as the first point is concerned, the learned counsel for the State has brought to our notice the original envelope containing the copy of the report of the Public Analyst which was sent to the respondent by registered A. D. post and it bears an endorsement of the postman that the same was refused by the respondent. The learned trial Magistrate was of the view that it was incumbent on the prosecution to produce the postman as a witness. The learned trial Magistrate was in error while taking this view. In Puwada Venkateswara Rao v. Chidamana Venkata Ramana. 1976 RCR(Rent) 439 (SC) : A.I.R. 1976 S.C. 86 ), and Harcharan Singh v. Shiv Rani and others, 1981(2) RCR(Rent) 149 (SC) : A.I.R. 1981 S.C. 1284 it has been ruled that where a registered notice is refused by the addressee the endorsement made by the postman on the envelope is sufficient to prove service even, in the absence of the postman from the witness box.

On the second point also the learned trial Magistrate seems to have committed an error. The report of the Public Analyst shows that the sample was fit for analysis. Formalin is added to the milk to act as a Preservative. The adding to the sample of 18 drops instead of 20 drops as laid down in rule 20 of the relevant rules does not make much difference so long as the sample retains its original characteristics and is capable of being Analysed. On this point the Public Analyst is the sole judge of the matter and his opinion should be given due weight. In State of Kerla Etc. Etc. v. Alaserry Mohammed Etc., Etc., 1978(2) Supreme Court Reports 820, a question arose that when the Food Inspector did not purchase the quantity fly of the Foodstuff for analysis as was envisaged under the relevant rule, whether the action of the Food Inspector. should be taken as lying outside the purview of law or not. The court ruled that since the Public Analyst was of the view that the sample supplied to him was sufficient to enable him to perform the analysis, a minor departure from the ruled could not be regarded fatal to the prosecution case. The rule was held to be directory. On a parity of reasoning we hold that rule 20 of the relevant rules is also directory.

The third point on which the learned trial Magistrate gave his decision seems to have been properly decided against the State. Section 10 (7) of the Act lays down that where a Food Inspector purchases a sample of food from a person he is under an obligation to secure the presence of one or more persons at that time. In the instant case the Food Inspector did not state that he made efforts to secure the presence of some independent witnesses who failed to oblige him. On the other hand he assumed that his colleague who was a Doctor employed by the State and also invested with the powers of a Food Inspector was good enough a witness. In other words the Food Inspector did not care to comply with the provisions of section 10(7) of the Act which have been held to be mandatory by the Supreme Court in Ram Labbbaya v. Municipal Corporation of Delhi and another, A.I.R 1974 S.C. 789. In this situation we are unable to interfere with the judgment of acquittal passed by the learned trial Magistrate. The appeal deserves to fail and we order accordingly.