Ram Dayal Vs. Municipal Corporation of
Delhi & ANR [1969] INSC 270 (7 October 1969)
07/10/1969 REDDY, P. JAGANMOHAN REDDY, P.
JAGANMOHAN SIKRI, S.M.
MITTER, G.K.
CITATION: 1970 AIR 366 1970 SCR (2) 682 1970
SCC (3) 35
ACT:
prevention of food Adulteration Act,
1954--public Analyst--Right to cross examine though procedure prescribed by s.
13(2) not gone through.
HEADNOTE:
The appellant was convicted for selling food
with impermissible colouring matter. He contended that as his request for
summoning the Public Analyst for crossexamination had not been acceded to he
had been prejudiced and as such the entire proceeding against him were vitiated
The High Court rejected the contention on the ground that s. 510 of the Code of
Criminal Procedure bad no application in that it only dealt with the experts
mentioned therein. The Court also observed that when the accused desired to
challenge the report of the Public Analyst under the Act, he had to follow the
procedure provided in s. 13(2) for sending the sample to the Director of
Central Food Laboratory whose report would be final and conclusive.
Dismissing the appeal,
HELD: Where certificates are not made final
and conclusive evidence of the facts stated therein, 'It will be open to the
party against whom certificates are given either to rebut the facts stated
therein by his own or other evidence or to require the expert to be produced
for cross examination which prayer the court is bound to consider on merits in
granting or rejecting it. The court may reject the prayer for good and
sufficient reasons such as for instance where it is made for the purpose of
vexation or delay or for defeating the ends of justice. [685 B-C; F-G] The
present case is not a fit case for interference. No attempt was made to
establish why the evidence was required and as to the specific point which
needed to be elucidated.
The accused knew what colouring matter he
added; he could have easily said that that colour was one of the permitted
colours; but he did not say so in his examination under s.
34 nor did he produce any evidence of those
whom he employed as to the colouring matter which was added. The application
was made more to delay the disposal of the case. [687 E] Mangaldas Raghavji v.
State, [1965] 2 S.C.R. 894 and Sukhmal Gupta v. The Corporation of Cakutta, Cr.
A. No. 161/66 dated 3-5-68, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 80 of 1968.
Appeal from the judgment and order dated
November 6, 1967 of the Delhi High Court in Criminal Revision No. 189 of 1967.
Hardev Singh, for the appellant.
Bishan Narain and B. P. Maheshwari, for
respondent No. 1.
L. M. Singhvi and R. N. Sachthey, for
respondent No. 2.
683 The Judgement of the Court was delivered
by Jaganmohan Reddy, J. This appeal by certificate granted by the Delhi High
Court under Art. 134(1)(c) of the Constitution is against its judgment which
confirmed the conviction of the accused of an offence under s. 9 of the
Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act)
and against the enhancement of the sentence of imprisonment from the one till
the rising of the court to six months R.I. which is the minimum prescribed
under the Act together with a fine of Rs. 1,000/-, in default to undergo six
months R.I.
The appellant is a sweetmeat seller. It is
alleged that on September 1, 1965, Shri B. S. Sethi, Food Inspector appointed
by the Central Government under s. 9 of the Act visited his shop and found that
the appellant was selling coloured laddus. The Food Inspector purchased 1,500
grams of these laddus by way of a sample by paying him Rs. 9/as the price
thereof. This sample was subdivided into three parts and was put into three
separate bottles as required under s. II of the Act. One bottle was given to
the accused, another was sent to the Public Analyst and the third was retained
by the Food Inspector. The sample sent to the Public Analyst was analysed and a
report was received from him on September 10, 1965 to the effect that the
laddus were adulterated with unpermitted colour. Thereupon a complaint was
filed against the accused and he was convicted by the magistrate on October
17,1966 and sentenced to imprisonment till the rising of the court and to pay a
fine of Rs. 1,000/-, in default to undergo six months' R.I. It would appear
that the Municipal Corporation filed before the Sessions Judge a revision for
the enhancement of the sentence because the accused having been found guilty
under the provisions of s. 7 read with s. 16 of the Act should have been
awarded the minimum sentence of six months and a fine of Rs. 1,000 but instead
he was sentenced to imprisonment till the rising of the court and a fine of Rs.
1,000/which was not in accordance with the
mandatory provisions of s. 16 of the Act. The Sessions Judge, after hearing the
parties accepted the contention of the Municipality and referred the case to
the High Court recommending that the accused having been found guilty under the
provisions of s. 16 of the Act should have been awarded a minimum sentence of
six months and a fine of Rs. 1,000/-, Before the High Court several contentions
were raised on behalf of the accused one of which was that as his request for
summoning the Public Analyst for cross examination had not been acceded to, he
had been prejudiced, as such the entire proceedings against him were vitiated.
The High Court however rejected this contention on the ground that s.
510 of the Code of Criminal Procedure had no
application in that it only dealt with Chemical Examiner or an Assistant
Chemical L3Sup, CI/70-13 684 Examiner and other experts mentioned therein. It
was also observed that where the accused desired to challenge the report of the
Public Analyst under the Act, he had to follow the procedure provided in s.
13(2) for sending the sample to the Director of Central Food Laboratory for his
examination, because any report given by him will supersede the report of the
Public Analyst and would be final and conclusive as to the facts stated
therein. Before us also a similar contention was urged by the learned Advocate
for the accused Shri Hardev Singh who had produced before us the application
made on behalf of the accused under s. 510(2) for calling the Public Analyst
which was summarily rejected on 28th August 1966. This contention urged before
us has to be determined in the light of the relevant provisions of the Act.
It cannot be disputed that any person selling
food with impermissible colouring matter contravenes the provisions of s. 7
which prohibits the selling of any adulterated food and would be punishable
under s. 16 of the Act. What is adulterated article of food has been defined in
s. 2 (i) and so far as it is related to colouring sub-cl. (i) of cl. (i) of s.
2 provides that an article of food shall be deemed to be adulterated "if
any colouring matter other than that prescribed in respect thereof and in
amounts not within the prescribed in respect thereof and in amounts not within
the prescribed limits of variability is present in the article".
Rules 23 and 27 of the Prevention of Food
Adulteration Rules, 1955 prohibit the addition of any colouring matter except
permitted by the Rules, and of inorganic colouring matters and pigments to any
article of food. What is permitted and to what extent has been stated in rr. 24
to 26 and 28 to 3 1, but in so far as this case is concerned we may merely
refer to rr. 26 and 28 the former of which gives a list of natural colouring
matters that can be, used and the latter with coal tar dyes. We are told that
the laddus which were being sold by the accused had yellow colour. If so, item
2 of r. 28 prescribes that the only permitted colours are Tartrazine with
colour index 640 belonging to Chemical class of Xanthene and Sunset Yellow FCF
belonging to the chemical class Azo, and these alone can be used. It will therefore
be incumbent on the Public Analysts to say whether the colour used is that
which is permissible under any of the rules and if as in the report he has
stated that the sample of the laddus purchased by the Food Inspector was
coloured with unpermitted colour, it would mean that the accused has not used
any of the colours permitted under the rules. The report of the Public Analyst
is as follows:"Butyro Refractometer reading at 40 C of the fact extracted
from sweets-50-0 Baudouin test of the extracted fact-Positive Reichert value of
the extracted fact-7.59 Colour-unpermitted.
1 1 1 the same is adulterated due to 7.0
excess in Butyro Refractometer reading at 40 0 C of the fact ex685 tracted from
sweets, 20.41 deficiency in Reichert value of the extracted fact, Baudouin test
of extracted fact being positive, and also coloured with unpermitted
colour." The learned Advocate for the accused submits that the refusal of
the court to grant the application of the accused to call the Public Analyst
Shri Sudhama Rao for crossexamination has greatly prejudiced him, as such the
conviction ought to be quashed. It is contended that the accused has a valuable
right of cross-examination to test the contents of the report given by the
Public Analyst and the court has to summon him if so desired. On the other hand
it is contended both by Shri Bishan Narain for the Delhi Municipality as well
as Dr. Singhvi for the Union of India that no such right has been conferred
under the Act when the provisions of s. 13(5) have not only made the document
signed by the Public Analyst to be used in evidence of the facts stated therein
in any proceedings under the Act or under s. 272 to 276 of the Indian Penal
Code but has given a right to the accused to have the, sample sent to the Director
of the Central Food Laboratories under s. 13(2) whose report supersedes that of
the, Public Analyst and is final and conclusive. In view of these provisions it
is said that the legislature inferentially took away the right of the accused
to summon the Public Analyst either for examination or cross examination, as
such the analogy of s.
510(2) of the Criminal Procedure Code which
specifically gives a right to summon and examine the chemical examiner and
other experts therein stated, as to the subject matter of their respective
reports has no relevance. Dr. Singhvi further contends that there are a class
of cases which permit of trials by certificates where the general rule of
evidence that every document in order to be admissible has to be proved by the person
signing it has no application as the statute permits it to be proved without
calling the author of it. While it cannot be disputed that there are certain
classes of cases where certificates have been treated as conclusive evidence,
there were yet others though admissible without calling the functionaries that
gave them were none the less only prima facie evidence. In cases where the
certificates are not to be treated as conclusive evidence and they are only
prima facie evidence, the party against whom they are produced has a right to
challenge the subject matter of the certificate. The statutes have also in some
cases recognised this right, such as for instance in sub-s. (2) of s. 510
Criminal Procedure Code in respect of reports given under the hand of several
experts named in sub-s. (1) notwithstanding the fact that they may be used in
evidence in enquiry, trial or other proceedings under the Code. Sub-s. (2)
provides : "The court may if it thinks fit, and shall, on the application
of the prosecution or the accused, summon and examine any such person as to the
subject matter of the report". Similarly sub-s. 686 1) of s. 110 of the
English Food and Drugs Act, 1955 while providing that the production by one of
the parties of the certificate of a Public Analyst in the form prescribed in s.
92(5) or of a document supplied to him by the
other party as being a copy of such certificate shall be sufficient evidence of
the facts stated therein unless in the first mentioned case the other party
requires that the analyst shall be called as a witness. Sub-section (2) of s.
110 also gives a like opportunity in the case of a certificate of an officer
who took a sample of the milk. It appears to us that where certificates are not
made final and conclusive evidence of the facts stated therein, it will be open
to the party against whom certificates which are declared to be sufficient
evidence either to rebut the facts stated therein by his own or other evidence
or to require the expert to be produced for cross-examination which prayer the
court is bound to consider on merits in granting or rejecting it.
There is no presumption that the contents are
true or correct though such a certificate is evidence without formal proof. In
any case where there is evidence to the contra the court is bound to consider
that evidence along with such a certificate with or without the evidence of the
expert who gave it being called and come to its own conclusion. It is true that
sub-s. (2) of s. 13 of the Act has given a right both to the accused as well as
the complainant on payment of the prescribed fee to apply to the court after
the prosecution has been instituted to send part of the sample preserved as
required under sub-cl. (1) or sub-cl. (iii) of cl. (c) of sub-s. ( 1) of s. 11
to the Director of the Central Laboratory for a certificate, and the court is
bound to send it under its seal to the said Director who has to submit a report
within one month from the date of the receipt. This certificate under sub-s.
(3) supersedes the Public Analyst's certificate and is conclusive and final
under sub-sec. (5). But nothing contained in these subsections relating to
certificate of the Director of the Central Food Laboratory in any way limits
the right of the accused under s. 257 of the Code of Criminal Procedure to
require the Public Analyst to be produced. The court may, as we said earlier,
reject the prayer for good and sufficient reasons such as for instance where it
is made for the purpose of vexation or delay or for defeating the ends of justice.
In Mangaldas Raghavji v. State(1) this Court
held that where the accused had not done anything to call the Public Analyst
the court could legally act on the report of the Public Analyst. Mudholkar, J.
speaking for the Court observed at p. 900 :
"It is true that the certificate of the
Public Analyst is not made conclusive but this only means that the court of
fact is free to act on the certificate or not as it thinks fit.
(1) [1965] 2 S.C.R. 894.
687 Again at p. 902 it was said, "As
regards the failure to examine the Public Analyst as a witness in the case no
blame can be laid on the prosecution. The report of the Public Analyst was
there and if either the court or the appellant wanted him to be examined as a
witness appropriate steps would have been taken. The prosecution cannot fail
solely on the ground that the Public Analyst had not been called in the
case." In Sukhmal Gupta v. The Corporation of Calcutta (unreported,
Criminal Appeal No. 161 of 1966 decided on 3rd May 1968) the Assistant Public
Analyst who had analysed the sample was examined and was cross-examined by the
defence. It was contended that the Public Analyst was not called. There does
not appear to have been any attempt to have him called, nor was any prejudice
shown. On the other hand, the accused could have availed of the valuable right
given to him under s. 13(2) but he did not do so, nor did lie put any question
in cross-examination that the tea was liable to deterioration and could not be
analysed by the Director of Central Food Laboratory. In these circumstances the
evidence of the Assistant Public Analyst and the report of the Public Analyst
was accepted in maintaining the conviction.
In this case we would have remanded it to
give the accused an opportunity to examine the Public Analyst, but it appears
to us that even before us no attempt was made as to why the evidence was
required and what is the specific point which needs to be elucidated. The
accused knows what colour he added, he could have easily said that that colour
was one of the permitted colours, but he did not say so in his examination
under s. 342, nor did he produce any evidence of those whom he employed as to
the colour which was added. In our view, the application was made more to delay
the disposal of the case; otherwise he could have easily made an application
under s. 13(a) as soon as a complaint was lodged against him on 19th Jan. 1966 which was within 3 1/2 months from the purchase of the sample and the
receipt of the report. There is nothing to show that either the Laddus or the
colour would have deteriorated even if he had made his application under s.
13(2) when he made the application under s. 510(2) on 29th August 1966.
In these circumstances, we do not consider
this to be a fit case for interference. The appeal is accordingly dismissed.
R.K.P.S. Appeal dismissed.
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