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CASE NO.: Appeal (crl.)  38 of 2001

PETITIONER: State of Gujarat & another

RESPONDENT: Shaileshbhai Mansukhlal Shah & another

DATE OF JUDGMENT: 30/05/2007

BENCH: R.V. RAVEENDRAN & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G E M E N T

RAVEENDRAN, J.     

1.                  This appeal by special leave is by the State of Gujarat against the  judgment dated 7.10.1999 passed by the Gujarat High Court in Special  Criminal Application No. 803 of 1998.

2.              The Food Inspector, Rajkot launched a prosecution against the  respondents in respect of offences under Sections 7(i) and (v) of the  Prevention of Food Adulteration Act, 1954 ("Act" for short) punishable  under Section 16 of the said Act.  During the pendency of the said  proceedings, the first respondent made an application under Section 13(2) of  the Act to get a second analysis of sample of the article of food kept with the  Local (Health) Authority, by the Central Food Laboratory.  The learned  Judicial Magistrate allowed the said application on 8.5.1996 and directed the  respondents to deposit the fee prescribed under Rule 4(6) of the Prevention  of Food Adulteration Rules, 1955 (’Rules’ for short) for issue of Certificate   by the Central Food Laboratory.  The respondents neither deposited the said  amount nor challenged the said direction for deposit of the fee. Nearly one  year later, the respondents raised an objection that having regard to the  provisions of the Act and the Rules, they were not required to deposit any  fee for the second analysis.  The learned Additional Chief Judicial  Magistrate, Gondal, rejected the said objection by order dated 18.9.1997.  The Sessions Court, in revision, affirmed that order.

3.           The revisional order was challenged by the respondents before the  Gujarat High Court in Special Criminal Application No. 803 of 1998. The  High Court, by its order dated 7.10.1999, allowed the application, set aside  the orders of the learned Magistrate and Additional Sessions Judge and held  that it is the obligation of the State or Local Authority to subject the sample  to analysis under section 13(2) and there was no obligation on the accused to  bear or pay the fee for the second analysis. It followed the decision of a  learned Single Judge of the Kerala High Court in George Kutty Vs. State of  Kerala 1991(1) PFAC 133, and held that the right to have a second analysis  was a privilege subject to payment of fee under the old section 13(2) of the  Act, and that stood converted to an unconditional legal right of the accused  under the new section 13(2), substituted by Act 34 of 1976.  As a  consequence, the learned Magistrate was directed to take appropriate steps in  the matter, without requiring any payment by the accused.   

4.              The said order of the High Court is challenged by the State in this  appeal. It is  contended that the amendment to section 13(2) in the year 1976  did not affect the liability of the accused to pay the fee prescribed under   Rule 4(6). It is submitted that the decision of the Kerala High Court in  George Kutty (supra) relied on by the High Court, was not followed by the

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other High Courts. Reliance is placed on the decision of the Madhya Pradesh  High Court in Rajendra Kumar Vs. State of M.P. [1994 (2) PFAC 56] and  decision of the Madras High Court in Mohd. Saif Vs. Local Health  Authority, Melur Municipality [1996 (1) PFAC 20]. On the contentions  urged, the question that arises for our consideration is :  

"Where the accused, not being satisfied with  correctness/accuracy of the report of the Public Analyst,  exercises his right under section 13(2) of the Act to have a  second part of the sample analysed by the Central Food  Laboratory, whether he is bound to pay the fee prescribed under  Rule 4(6) of the Rules ?"

5.              When a Food Inspector takes a sample of food for analysis, section 11  requires him to divide the sample into three parts and send one part of the  sample to the Public Analyst and the remaining two parts to the Local  (Health) Authority. Section 13(1) requires the Public Analyst to deliver a  report of the result of the analysis of the said food sample to the Local  (Health) Authority. Sub-section (2) of section 13 confers a valuable right on  the accused to have another part of the sample of food analysed by the  Central Food Laboratory, for a second opinion. Sub-sections  (2), (2A),  (2B), and (3) of section 13 which are relevant are extracted below: "13.    Report of Public Analyst : (1) : xxxxx

(2)     On receipt of the report of the result of the analysis under sub- section (1) to the effect that the article of food is adulterated, the Local  (Health) Authority shall, after the institution of prosecution against the  persons from whom the sample of the article of food was taken and the  person, if any, whose name, address and other particulars have been  disclosed under Section 14A, forward, in such manner as may be  prescribed, a copy of the report of the result of the analysis to such person  or persons, as the case may be, informing such person or persons that if it  is so desired, either or both of them may make an application to the court  within a period of ten days from the date of receipt of the copy of the  report to get the sample of the article of food kept by the Local (Health)  Authority analysed by the Central Food Laboratory.

(2A)    When an application is made to the court  under sub-section (2),  the court shall require the Local (Health) Authority to forward the part or  parts of the sample kept by the said Authority and upon such requisition  being made, the said Authority shall forward the part or parts of the  sample to the court within a period of five days from the date of receipt of  such requisition.

(2B)    On receipt of the part or parts of the sample from the Local  (Health) Authority under sub-section (2A), the court shall first ascertain  that the mark and seal or fastening   as provided in clause (b) of sub- section (1) of Section 11 are intact and the signature or thumb impression,  as the case may be, is not tampered with, and despatch the part or, as the  case may be, one of the parts of the sample  under its own seal to the  Director of the Central Food Laboratory who shall thereupon send a  certificate to the court in the prescribed form within one month from the  date of receipt of the part of the sample specifying the result of the  analysis.

(3)     The certificate issued by the Director of the Central Food  Laboratory under sub-section (2B) shall supersede the report given by the  public analyst under sub-section (1).  

6.             Rule 4 of the Rules relates to the analysis of food samples. The  relevant portion of the said rule (as it stood at the relevant time) is extracted  below:

"Analysis of food samples - (1) (a) Samples of food for analysis under

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sub-section (2) of Section 13 of the Act shall be sent either through a  Messenger or by registered post in a sealed packet, enclosed together with  a  memorandum in Form 1 in an outer cover addressed to the Director.

xxxxxxxxx

(5)     After test or analysis the certificate thereof shall be supplied   forthwith to the sender in Form II.

(6)     The fees payable in respect of such a certificate shall be Rs.200 per  sample of food analysed.

xxxxxxxxx"

Clause (6) of  Rule 4 of the Rules as it originally stood prescribed a fee of  Rs.40/-. The rule was amended  twice, first with effect from 24.8.1995  substituting the figure of Rs. 200/- for Rs. 40/- and again with with effect  from 20.5.1999 substituting the figure of Rs. 1000/- for Rs. 200/-.   

7.             The procedure for getting a second analysis by the Central Food  Laboratory, as laid down in sub-section (2), (2A) and 2(B) of section 13 can  be summarised thus :  (i)     On receipt of the report of the result  of the analysis from the Public  Analyst, the Local (Health) Authority  is required to forward a copy of  the result of the analysis by the Public Analyst to the  person from  whom the sample of article of food was taken (as also the vendor, if  any, from whom  such person purchased the article of food).

(ii)    While so forwarding the report, the Local (Health) Authority is also  required to inform the said persons (the accused) that if they so desire,  either or both of them may make an application to the court within    ten days from the date of receipt of the copy of the report, to get the  second portion of the sample (kept by the Local (Health) Authority)  analysed by the Central Food Laboratory.

(iii)   When an application is made by such persons (accused), the  court  shall require the Local (Health) Authority to forward the parts of the  sample kept by it; and the Local (Health) Authority shall forward the  parts of the sample to the Court within five days from the date of  receipt of requisition from the court.  

(iv)    On receipt of the sample from the Local (Health) Authority, the Court  shall despatch one part of the sample to the Director of Central Food  Laboratory.  

(v)     The Central Food Laboratory has to analyse the sample and send a  report (certificate) in respect of the result of the analysis of such  sample to the court.

Section 13 does not require payment of any fee to the Central Food  Laboratory for the second analysis. Nor does it say that the  complainant/State or Local (Health) Authority should bear the cost of  second analysis. Nor does it say that when an accused makes an application  for a second analysis by the Central Food Laboratory, such analysis shall be  done free of cost. In fact section 13 does not deal with the fee part. Other  provisions deal with the fee to be paid. Section 4 requires the Central  Government to establish one or more Central Food Laboratories (or specify  any Laboratory or Institute as a Central Food Laboratory) to carry out the  functions entrusted to the Central Food Laboratory by the Act or the Rules  made under the Act. Sub-section (2) of section 4 empowers the Central  Government to make rules prescribing the procedure for submission of  samples for analysis/tests to the Central Food Laboratory, the forms of the  Laboratory’s Reports and the fees payable in respect of such reports. Rule  4(6) of the Rules provides that a fee of Rs.200 (now Rs. 1000) should be

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paid to the Central Food Laboratory for a certificate under Section 13(2) of  the Act. Form-I of Appendix-A to the Rules makes it clear that when the  court sends a requisition to the Director, Central Food Laboratory for  analysis of the sample under sub-section 13(2) of the Act, the court is  required to enclose a demand draft for the amount of fee for analysis.   Section 13(2) when read with section 4(2)(b) and Rule 4, makes it clear that  the analysis by the Central Food Laboratory is not free of cost, but subject to  payment of the prescribed fee and that such fee should be paid in advance.  The non-mention of fee in section 13 does not mean that the provision for  payment of fee under section 4(2)(b) read with Rule 4(6) is negated or  rendered obsolete.  The question is who should bear and pay the prescribed  fee?   

8.              The payment to Central Food Laboratory due under Rule 4(6) has to  come from someone. Logically the choices are (a) the complainant (Food  Inspector/State); (b) the Local (Health) Authority; (c) the Court; (d) the  person who requires the second analysis by the Central Food Laboratory.   

8.1)    The Food Inspector (who is the complainant), when he takes a sample  of food for analysis  is required to divide the sample into three parts and sent  one part for analysis to the Public Analyst and the remaining two parts to the  local health authority. The fee/cost of analysis by the public analyst is  prescribed under the relevant state rules and is paid by the local authority  concerned. The Food Inspector cannot require a second analysis by the  Central Food Laboratory under section 13(2). He does not require a second  analysis to prove the charge. The provision for second analysis is an option  given to the accused and not the complainant. A request by the accused for  second analysis is not a request by the complainant. The Act does not  require the complainant to pay the fees for the second analysis. Therefore,  the question of complainant paying the fee for the second analysis does not  arise.  

8.2)    The Local (Health) Authority has three obligations with reference to  the sample : (i) to keep two parts of the sample received from the Food  Inspector; (ii) to inform the person from whom the sample was taken (and  his vendor, if any, disclosed under section 14A) that if it is so desired, either  or both of them may make an application to the court to get the sample of  the article of food (kept by it) analysed by the Central Food Laboratory; (iii)  to send the parts of the sample to the court, if so directed by the court under  section 13(2A).  The obligation of the Local (Health) Authority is only that  of safe keeping of the samples and not to get the samples analysed.  Therefore Local (Health) Authority cannot be required to pay the fees for the  second analysis of the samples.   

8.3)    The court cannot obviously be asked to bear the cost of the second  analysis or for that matter, any analysis. Its functions are adjudicatory. If the  court is required to render some assistance of service free, it should be  specifically provided in law. (For example section 363 of Cr.PC provides  that when an accused is sentenced to imprisonment, a copy of the judgment  shall be given to him free of cost).  

8.4)    In the absence of any specific provision, the cost of an analysis has to  be borne by the person requesting for such analysis. The accused need not  apply to have the sample analysed by Central Food Laboratory, as the report  of the public analyst is already on the file. The accused has been given an  option under section 13(2) to get a second analysis of the sample (that is  analysis of second part of the sample by a Central laboratory) only if he so  desires. This option will obviously be exercised, only when the accused is  not satisfied with the Report of the Public Analyst and wants to assail it.  As  the second analysis by Central Food Laboratory is at the option of the  accused, it necessarily follows that he should bear and pay the fee fixed for  such analysis under the Rules, if he wants the second analysis.   

9.              We may now consider the decision of the Kerala High Court which  takes a different view.  The Kerala High  Court has held that there is no

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liability on the part of the accused to pay the fee for the second analysis, by  comparing the wording of Section 13(2) with the old Section 13(2).  Section  13(2) before its amendment, by Act 34 of 1976 read as follows:          "13(2). After the institution of a prosecution under this Act the accused  vendor or the complainant may, on payment of the prescribed fee, make  an application to the court for sending the part of the sample mentioned in  sub-clause (i) or sub-clause (iii) of clause (c)  of sub-section (1) of Section  11  to the Director  of the Central Food Laboratory for a certificate; and on  receipt of the application the court shall first ascertain that the mark and  seal or fastening as provided in clause (b) of sub-section (1)  of Section 11  are intact and may then despatch the part of the sample under its own seal  to the Director of the Central Food Laboratory who shall thereupon send a  certificate to the Court in the prescribed form within one month from the  date of receipt of the sample, specifying the result of his analysis."

(Emphasis supplied)

The Kerala High Court was of the view that the specific provision for  payment of prescribed fee by the person making the application for analysis,  in the old section 13(2) having been omitted in the new Section 13(2), the  legislative intent was that the person requiring the second analysis need not  pay the fee for such analysis. We extract below the reasoning of the Kerala  High Court :  

"After 1976 amendment the Local (Health) Authority has the obligation,  under section 13(2), to forward a copy of the report of the Public Analyst  to the accused and to inform him that he may make an application to the  court to get the other sample analysed by the Director of Central Food  Laboratory. Before 1976 amendment, either the complainant or the  accused could have applied for sending the other part of the sample to the  Central Food Laboratory. Neither the food inspector nor the local  authority had any obligation, before 1976 amendment, to inform the  accused that he could exercise his option under section 13(2) after 1973  amendment would thus show that it is the obligation of the State or local  authority to subject the sample to analysis. Such analysis would be made  by the Public Analyst first, and if the accused needs, such analysis must be  arranged to be made at the Central food Laboratory. The only difference is  that in the analysis to be made by the Public Analyst the accused has no  part to play, whereas the Director of Central Food Laboratory cannot be  asked to analyse the sample if the accused does not want it. In other  words, if the accused expresses his desire to have the sample analysed  by a superior expert, law provides that it must be got done. This right  or option is not conditional on the accused remitting the expenses  needed for analysing the sample. The result of such analysis by the  Director of Central Food Laboratory is binding on the prosecution in the  same way as it is binding on the accused because the certificate of the  Director of Central Food Laboratory will supersede the report of the  Public Analyst. Such certificate is not an item of defence evidence, as it  takes the place of the report of the Public Analyst. In the absence of any  clear statutory insistence an accused cannot be asked to bear the  expenses to bring in a document having greater probative value and a  substitution for the earlier document of the prosecution. Hence, the  deletion of the words "on payment of the prescribed fee" from section  13(2) coupled with the other changes, conveys the message that it is no  longer obligatory for the accused to bear the expenses for such  analysis."                                                                  (emphasis supplied)

The Kerala High Court got over Rule 4(6) by stating  that the said rule was  made when the original Section 13(2) was in force and after Section 13(2)  was substituted in 1976, the said sub-rule became obsolete. 10.     On a careful reading of section 13(2) as it exists now, and the old  section 13(2), we are of the view that the old provision is of no assistance to

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interpret the new provision. If section 13(2) as it originally stood had been  retained, by merely omitting the words "on payment of prescribed fee", with  a consequential change in Rule 4 by deleting clause (6) thereof, it might  have been possible to take the view that no fee was payable by the applicant  for second analysis. But that is not the position. Section 13(2) has undergone  a complete change, by substitution in entirety, by section 13(2)(2A) to 2(E).  Further, Rule 4(6) has continued in the statute book. Not only Rule 4(6) has  continued, but it has been consciously amended in 1995 and again in 1998  increasing the fee. There is a clear provision in the Act for payment of fee,  when section 4(2)(b) is read with Rule 4(6). Rule 4(6) cannot be ignored as  obsolete, as has been done by the Kerala High Court, in the absence of clear  irreconciliability with section 13(2) or any other provision of the Act.  11.     When a statutory provision is substituted, the new provision has to be  read and construed with reference to its wording and not with reference to  the wording of the old provision. Old section 13(2) and new section 13(2) to  (2F) are different. Old section 13(2) enabled the accused as also the  complainant to make an application to the court for sending a second part of  the sample to the Central Food Laboratory. Under the new section 13(2), a  complainant does not have such right, but on the other hand, the right is  given only to the person from whom the sample was taken as also his  vendor, if any. Secondly, under the new section an obligation is cast on the  Local (Health) Authority to inform the person from whom the sample has  been taken (and his vendor, if any) that they can make an application to the  court, within 10 days of receipt of the Public Analyst’s report,  for getting a  second part of the sample analysed by the Central Food Laboratory. Old  section 13(2) did not contain such a provision. Lastly, the provision that "the  accused or the complainant may on payment of the prescribed fee, make an  application" in old section 13(2) meant that payment of the prescribed fee  was a condition precedent for making an application to the court for second   analysis. The omission of the words ’on payment of the prescribed fee’ in the  new section 13(2), in context, only means that payment is no longer a  condition precedent for making an application for second analysis. Under the  new section 13(2), the applicant can make the payment, after the application  is allowed by the court. The sample however will be sent by the court to the  Central Food Laboratory only on deposit of the prescribed fee. The omission  to refer to the fee in section 13(2) is  obviously because it was provided in  Rule 4(6) made in exercise of power conferred under section 4(2)(b). If the  legislative intent was to exempt the applicant for second analysis from any  payment, the section would have stated that such analysis was free.  The  decision of the Kerala High Court is clearly erroneous. The view of the High  Courts of Madhya Pradesh  and Madras that the applicant has to pay the fee  for the second analysis, in view of Rule 4(6) providing for such fee and the  absence of any provision exempting the applicant from paying the fee, is  correct.

14.     We, therefore, allow this appeal and set-aside the impugned  judgement of the High Court and restore the order of the Revisional Court,  affirming the order of the learned Magistrate directing the respondents to  remit the fee for the second analysis under section 13(2) of the Act.