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PETITIONER: RAM DAYAL

       Vs.

RESPONDENT: MUNICIPAL CORPORATION OF DELHI AND ANR.

DATE OF JUDGMENT: 07/10/1969

BENCH: REDDY, P. JAGANMOHAN BENCH: 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   cross- examination  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]

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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.

JUDGMENT: 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  crossexamination  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

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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  im- permissible  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 ex-               685               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  cross-

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examination   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

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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  re- ceipt.   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  sub- sections  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

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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. 688