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PETITIONER: MUNICIPAL CORPORATION OF DELHI

       Vs.

RESPONDENT: GHISA RAM

DATE OF JUDGMENT: 23/11/1966

BENCH:

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 ofsample       by Director of Central Food Laboratory not possible-Accussed,if prejudiced.

HEADNOTE: The Food Inspectorof  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 reported-  that 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  accused- vendor  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  the- prosecution,   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,

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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

JUDGMENT: 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.

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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

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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

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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  prose- cution  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

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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. Cl/66-9 122