Municipal Corporation of Delhi Vs.
Ghisa Ram [1966] INSC 253 (23 November 1966)
23/11/1966
ACT:
Prevention of Food Adulteration Act (37 of
1954), s. 13(2), (3) and (5)-Delay in filing prosecution-Sample given to
accused vendor decomposed-Examination of sample by Director of Central Food Laboratory
not possible-Accussed if prejudiced.
HEADNOTE:
The Food Inspector of the
appellant-Municipality took a sample of curd from the respondent's shop for the
purpose of testing whether there was any adulteration. The sample was divided
into three equal parts, put in separate bottles and sealed. One bottle was
handed over to the respondent and one was sent to the Public Analyst who
analysed it and sent his report. On the basis of that report a complaint was
filed, seven months after receipt of the report, against the respondent, for an
offence under ss. 7 and 16 of the Prevention of Food Adulteration Act, 1954.
During the trail, the respondent applied to have the sample given to him
analysed by the Director of the Central Food Laboratory in accordance with s.
13(2) of the Act. The Director reportedthat the sample had become highly
decomposed and could not be analysed. The trial Court acquitted the respondent
accepting his contention that he could not be convicted after having been
denied his right of obtaining the Director's certificate by the delay in
launching the prosecution.
On the question whether he should have been
convicted on the basis of -the Public Analyst's report.
HELD : A right is conferred by s. 13 (2) on
the accusedvendor to have the sample, given to him by the Food Inspector,
analysed by the Director after the prosecution was launched against him. It is
a valuable right, because, he could for his proper defence, have that sample
analysed by a more competent expert, whose certificate supersedes the report of
the Public Analyst under s. 13(3), and is to be accepted by the Court as
conclusive evidence of its contents under the proviso to s. 13(5). However, if
for any reason, no certificate is issued by the Director, the report of the
Public Analyst does not cease to be evidence of the facts contained in it. But,
in a case where there is denial of this right on -account of the deliberate
conduct of theprosecution, the accused-vendor would be seriously prejudiced in
his trial, and could not be convicted on 'the report of the Public Analyst,
even though that report may be evidence in the case, of the facts stated
therein. In the present case, the prosecution should have anticipated that
there would be some delay, in the analysis by the Public Analyst and in the
sending of his report, and consequently, the elementary precaution of adding a
preservative to the sample given to the respondent should have been taken by
the Food Inspector. If such a precaution had been taken, the sample given to
the respondent would have been available for analysis by the Director, for a
period of 'four months; and the prosecution could have been launched, after
receiving the Public Analyst's report, well within time to enable the
respondent -to exercise his right under s. 13(2). The respondent was therefore
denied a valuable right in defending himself, due to the inordinate delay in
launching the prosecution, ad was prejudiced in his defence. [119 H;
120 A-B, F-H; 121 A] 117
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 194 of 1966.
Appeal by special leave from the judgment and
order dated November 9, 1964 of the Punjab High Court in Circuit Bench at Delhi
in Criminal Appeal No. 30-D of 1964.
H.R. Gokhale, K. K. Raizada and A. G.
Ratnaparkhi, for the appellant.
Frank Anthony, Ghanshyam Dass, Jitendra
Sharma and V. P. Chaudhari, for the respondent.
The Judgment of the Court was delivered by
Bhargava, J. The respondent, Ghisa Ram, is a Halwai dealing in milk and milk
products, including Dahi, and holds a licence for running his shop in Defence
Colony in New Delhi.
On September 20, 1961, the Food Inspector of
the Municipal Corporation of Delhi visited the shop of the respondent and took
a sample of curd of cow's milk for the purpose of testing whether there was any
adulteration. The curd was churned and divided into three equal parts. Each
part was put in a separate bottle and sealed by the Food Inspector.
One of the bottles containing the sample of
the curd taken was handed over to the respondent. Out of the two remaining
samples with the Food Inspector, one was sent to the Public Analyst who carried
out the analysis on October 3, 1961. He then gave a certificate on October 23,
1961, in which he noted that the fat content in the curd was 11.6% and the
non-fatty solids were 7.3%. The standard prescribed by the Rules framed under
the Prevention of Food Adulteration Act, 1954 (No. 37 of 1954) (hereinafter
referred to as "the Act") for curd of cow's milk was. that it must
contain a minimum of 3.5% fat and 8.5% non-fatty solids. Since the analysis
showed that the content of non-fatty solids was 1.2 % below the prescribed
standard, the respondent was prosecuted for committing an offence under s. 16
of the Act for contravening section 7 of the Act. The complaint was filed
before the Magistrate on behalf of the appellant, Municipal Corporation of
Delhi, on May 23, 1962. On October 4, 1963, the respondent applied that the
sample, which had been given to him by the Food Inspector, be sent for
examination by the Director of the Central Food Laboratory in accordance with
the provisions of s. 13 (2) of the Act. When the sample was received by the
Director, he reported that the-sample of curd sent to him had become highly
decomposed and no analysis of it was possible. The case against the respondent
had, therefore, to be tried in the absence of the report of the Director of the
Central Food Laboratory.
At the trial, the respondent admitted the
taking of the sample of curd from his shop by the Food Inspector, but he
pleaded that he had prepared the curd from pure cow's milk.
The counsel for the:
118 challenged the correctness of the
analysis of the sample .made by the Public Analyst, and a further plea was
taken that the having been denied his right of obtaining the report of ,the
Director of the Central Food Laboratory because of the delay by the appellant
in launching the prosecution, the respondent could not be validly convicted.
This defence was accepted by the Magistrate,
and the respondent was acquitted. The appellant filed an -appeal against this
order of acquittal before the Delhi Bench of the Punjab High Court, but that
Court upheld the order of the Magistrate. The appellant has now-come up to this
Court, by special leave, against that decision of the High Court.
In this appeal, the main contention on behalf
of the appellant was that, though, under the Act, a certificate of the Director
of the Central Food Laboratory has the effect of superseding the report of the
Public Analyst, the absence of such a certificate for any reason whatsoever
will not affect the value and efficacy of the certificate given by the Public
Analyst. The proposition put forward on behalf of the appellant appears to be
correct. Under, s. 13(3) of the Act, the certificate issued by the Director of
the Central Food Laboratory supersedes the report given by the Public Analyst.
'The proviso to sub-section (5) of s. 13 further lays down that any document
purporting to be a certificate signed by the Director of the Central Food
Laboratory shall be final and conclusive evidence of the facts stated therein.
These provisions of the Act are, however, only attracted when, in fact, an
analysis of the sample sent to the Director of the Central Food Laboratory is
made by him on the :basis of which he issues a certificate. If, for any reason,
no certificate is issued, the report given by the Public Analyst does not cease
to be evidence of the facts contained in it and does not become ineffective
merely because it could have been superseded by the certificate issued by the
Director of the Central Food Laboratory. Further, there being no certificate
issued by the Director of the Central Food Laboratory, no question can arise of
his certificate becoming final and conclusive evidence of the report contained
in it.
This aspect, however, does not conclude the
matter so far as the question of the validity of the acquittal of the
respondent is concerned. There can be no doubt that sub-s. (2) of s. 13 of the
Act confers a right on the accused vendor to have the sample given to him
examined by the Director of the Central Food Laboratory and to obtain a
certificate from him on the basis of the analysis of that sample. It is when
the accused exercises this right that a certificate has to be given by the
Director of the Central Food Laboratory and that certificate then supersedes
the report given by the Public Analyst. If, in any case, the accused does not
choose to exercise this right, the case against him can be decided on the basis
of the report of the Public Analyst. Difficulty, however, arises in 119 a case
where the accused does exercise the right by making a request to the Court to
send 'his sample for analysis to the Director of the Central Food Laboratory
and the Director is unable to issue a certificate because of some reason,
including the reason that the sample of the food article has so deteriorated
and become decomposed that no analysis is possible.
In the present case, we find *that the
decomposition of the sample, which the respondent desired should be analysed by
the Director of the Central Food Laboratory, took -place because of the long
delay that had occurred in sending the sample to the Director' The sample was
taken on September 20, 1961, while it was sent to the Director after October 4,
1963, when the respondent made his application in that behalf. The submission
on behalf of the respondent was that the appellant instituted the prosecution
of the respondent on May 23, 1962, and consequently, under s. 13(2) of the Act,
the right accrued to the respondent to have the sample sent for analysis only
thereafter. Section 13(2) specifically mentions that the accused vendor may
make the application "after the institution of a prosecution under the
Act." No right vested in the respondent to have the sample analysed in
this case until the prosecution was launched on May 23, 1962.
The opinion of one of the experts, Dr. Sat
Parkash, given in this case shows that in the case of a food article, like
-curd, it starts undergoing changes after a week, if kept at room temperature,
without a preservative, but remains fit for analysis for another 10 days
thereafter. On the other hand, if the sample is kept in a refrigerator, it will
preserve its fat and non-fatty solid contents for purposes of analysis for a
total period of four weeks. If a preservative is added and the sample is kept
at room temperature, the percentage of fat and non-fatty solids contents for
purposes of analysis will be retained for about four months, and in case it is
kept in a refrigerator after adding the preservative, the total period which
may be available for making analysis, without decomposition, will be six
months. In this case, when the Food Inspector handed over the sample to the
respondent, the respondent was not expected to keep it in a refrigerator. Consequently,
without any preservative, the sample kept with him could have been analysed
successfully during the next 17, days, whereas, if a preservative had been
added, it could have been analysed successfully during the next four months.
It appears to us that when a valuable right
is conferred by s. 13 (2) of the Act on the vendor to have the sample given to
him analysed by the Director of the Central Food Laboratory, it is to be
expected that the prosecution will proceed in such a manner that that right will
not be denied to him. The right is a valuable one, because the 120 certificate
of the Director supersedes the report of the Public Analyst and is treated as
conclusive -evidence of its contents. Obviously, the right has been given to
the vendor in order that, for his, satisfaction and proper defence, he should
be able to have the sample kept in his charge analysed by a greater expert
whose certificate is to be accepted by Court as conclusive evidence In a case
where there is denial of this right on account of the deliberate conduct of the
prosecution, we think that the vendor, in his trial, is so seriously prejudiced
that it would not be proper to uphold his conviction on the basis of the report
of the Public Analyst, even though that report continues to be evidence in the
case of the facts contained therein.
We are not to be understood as laying down
that, in every case where the right of the vendor to have his sample tested by
the Director of the Central Food Laboratory is frustrated, the vendor cannot be
convicted on the basis of the report of the Public Analyst. We consider that
the principle must, however, be applied to cases where the conduct of the
prosecution has resulted in the denial to the vendor of any opportunity to
exercise this right. Different considerations may arise if the right gets
frustrated for reasons for which the prosecution is not responsible.
In the present case, the sample was taken on
the 20th September, 1961. Ordinarily, it should have been possible for the
prosecution to obtain the report of the Public Analyst and institute the
prosecution within 17 days of the taking of the sample. It, however, appears
that delay took place even in obtaining the report of the Public Analyst,
because the Public Analyst actually analysed the sample on 3rd October, 1961
and sent his report on 23rd October, 1961.
It may be presumed that some delay in the
analysis by the Public Analyst and in his sending his report to the prosecution
is bound to occur. Such delay could always be envisaged by the prosecution, and
consequently, the elementary precaution of adding a preservative to the sample
which was given to the respondent should necessarily have been taken by the
Food Inspector. If such a precaution had been taken, the sample with the
respondent would have been available for analysis by the Director of the
Central Food Laboratory for a period of four months which would have expired
about the 20th of January, 1962. The report of the Public Analyst having been
sent on 23rd October, 1961 to the prosecution, the prosecution could have been
launched well in time to enable -the respondent to exercise his right under s.
13(2) of the Act without being handicapped by the deterioration of his sample.
The prosecution, on the other hand, committed inordinate delay in launching the
prosecution when they filed the complaint on 23rd May, 1962, and no explanation
is forthcoming why the complaint in Court was filed about seven months after'
the report of the Public Analyst had been issued by him 121 This, is, therefore,
clearly a case where the respondent was deprived of the opportunity of
exercising his right to have his sample examined by the Director of the Central
Food Laboratory by the conduct of the prosecution. In such a case, we think
that the respondent is entitled to claim that his conviction is vitiated by
this circumstance of denial of this valuable right guaranteed by the Act, as a
result of the conduct of the prosecution.
Learned counsel for the appellant drew our
attention to a decision reported in Suckling v. Parker(1). That case was
concerned with similar law in England, but, there, the provision relating to
the testing of the sample kept with the vendor was quite different. In England,
there was no restriction that the vendor could not have his sample tested until
after the prosecution was launched, nor did the subsequent report have the
effect of completely superseding the earlier report of the Analyst.
In Municipal, Corporation, Gwalior, v. Kishan
Swaroop,(2) it was held that, where there was delay in launching the
prosecution, it deprived the accused of the valuable right to challenge the
report of the Analyst in the manner prescribed by s. 13(2) of the Act, and when
this right was denied to the accused for no fault of Ms, but wholly due to the
inordinate laches of the prosecution, no weight could be given to the report of
the Public Analyst. That decision proceeded on the basis of the value of the
report of the Public Analyst being affected by the fact that the accused had
been deprived of his right to challenge that report by obtaining a certificate
from the Director of the Central Food Laboratory. The report of the Public
Analyst, as we have said earlier, does not cease to be good evidence merely
because a certificate from the Director of the Central Food Laboratory cannot
be obtained. The reason why the conviction cannot be sustained is that the
accused is prejudiced in his defence and is denied a valuable right of
defending himself solely due to the deliberate acts of the prosecution.
In these circumstances, the acquittal of the
respondent was justified, and the appeal is dismissed.
V.P.S. Appeal dismissed (1) [1906]1 K.B.527.
(2) AJ.R. 1965 M.P. 180.
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