1999 Supreme(SC) 36

1999(1) Supreme 30
Supreme Court of India
(From Calcutta High Court)
K.T. Thomas, D.P. Wadhwa & S.S. Mohammed Quadri, JJ.
Calcutta Municipal Corporation -Petitioner
versus
Pawan K. Saraf & Anr. -Respondents
Special Leave Petition (Criminal) No. 3708 of 1998
Decided on 13-1-1999
Counsel for the Parties :
For the Petitioner : D.C. Agrawala, Advocate (A.C.) (N.P.).

Important points
(i) Certificate issued by the Central Food Laboratory abut contents of samples sent for analysis would annul and replace the report of the Public Analyst and if the certificate of the Central Food Laboratory says that the food item conforms to standard prescribed prosecution proceedings have to be quashed.
(ii) Delay in filing SLP is inexcusable unless sufficient cause is shown and if the application for condonation of delay does not prima facie make out any reasonable cause for delay SLP is liable to be dismissed without notice on condonation of delay petition to the opposite party.

Headnote:(i) Prevention of Food Adultera­tion Act, 1954-Section 16(1)(a)(i)/ 7 read with Section 13-Prosecu­tion launched on basis of Public Ana­lyst’s Report - Compounded Asa­foetida-Public Analyst Report specifying Asafoetida found adulterated-Sample sent to Central Food Laboratory (CFL)-Certificate of CFL that food article contained in sample conforms to standard pre­scribed for compounded Asafoetida-Trial Court refusing to discharge accused stating CFL report not complete-High Court relying on CFL certificate quashing criminal prosecution proceedings-Plea of prose­cution that CFL certificate silent on certain eliments pointed out in public analyst report and hence it must be presumed that CFL has not conducted those tests -Not sustainable-Non-mention of ele­ments in question CFL in certificate means sample did not contain wee bit of those eliments when analysis made by CFL-Certificate of CFL annuls or replaces report of Public Analyst-Prosecution proceedings rightly quashed.

       Held : If the certificate issued by the Director of Central Food Laborato­ry did not contain anything about those three elements it only means that the sample did not contain even a wee bit of those elements when analysis was made in the laboratory. (Para 9)

       Section 13 of the Act contains pro­visions regarding report of Public Analyst as well as the Certificate of the Director of Central Food Laboratory. After institution of prosecution against the person from whom the sample of the article of food was taken (and/or the person whose name and address were disclosed under Section 14-A), the accused has the right to apply to the court to get one of the remaining parts of the sample of the food article analysed by the Central Food Laboratory. It is a right conferred on the aforesaid accused in order to defend the prosecution launched against him or them. For availing themselves of the aforesaid statutory right all that they have to do is to make application to the court within the prescribed time. Once the application is made it is not the look out of the accused to get the result of the analysis made by the Central Food Laboratory. (Para 10)

       Sub-section (2-B) of Section 13 requires the court to despatch one of the parts of the sample under its own seal to the Director of Central Food Laboratory. Once it is despatched it is the duty of the said Director to 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”. Sub-section (3) of Section 13 is important in this context and is extracted below:

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

       When the statute says that certificate shall supersede the report it means that the report would stand annulled or obliterated. The word “supersede” in law, means “obliterate, set aside, annul, replace, make void or inefficacious or useless, repeal”, (vide Black’s Law Diction­ary, 5th Edn.). Once the Certificate of the Director of Central Food Laboratory reaches the court the Report of the Public Analyst stands displaced and what may remain is only a fossil of it. (Paras 11 and 12)

       The legal impact of a Certificate of the Director of Central Food Laboratory is three-fold. It annuls or replaces the report of the Public Analyst, it gains finality regarding the quality and standard of the food article involved in the case and it becomes irrefutable so far as the facts stated therein are concerned. If the argument of the learned counsel for the Corporation is upheld and the Certificate of the Director of Central Food Laboratory is sidelined as pleaded him, the consequence is that there will not be anything surviving to show the quality or standard of the food arti­cles involved in the case. Even that apart, the accused will be de­prived of his statutory right to disprove the Report of the Public Analyst. (Paras 15 and 16)

       The High Court has rightly quashed the prosecution proceedings on the strength of the Certificate of the Director of Central Food Laboratory which has come on record in the case. (Para 19)

       Per D.P. Wadhwa, J. (Dissenting)

       Argument of Mr. Tapas Ray, learned counsel for the Calcutta Munic­ipal Corporation, that since the report of the Director of CFL was silent about galbanum resin, ammoniaccum resin and mineral pigment it must be presumed that he had not conducted those tests with the sample and such certificate issued by him is not valid cannot be brushed aside without hearing full arguments. It is on this ground that I have expressed my inability to concur with the view that if the certificate issued by the Director, CFL did not contain anything about those three elements it only means that the sample did not contain even a wee bit of those elements when analysis was made in the laboratory. As a matter of fact I think that this Court should not lay down a law on an ex parte hearing. It is not material even if the dismissal of the petition does not prejudice the other party. Any law declared by this Court applies all over. It is binding on all the courts in the country under Article 141 of the Constitution. I would, therefore, rather dismiss the Special Leave Petition on the ground of delay without expressing any opinion on the merit of the case. (Paras 28 and 32)

       (ii) Special Leave Petition-Con­donation of delay in filing-Delay inexcusable unless sufficient cause is shown-Court will not condone delay without notice to respondent -If application does not make out any prima facie reasonable cause for delay application liable to be dismissed without notice to other party.

       Held : Delay is inex­cusable unless sufficient cause is shown. It is not the law that when an application seeking condonation of delay is filed by the State or any authority, this Court must invariably condone the delay irrespec­tive whether sufficient cause is shown or not. (Para 20)

       It is only when circum­stances mentioned in the application before this Court would show sufficient cause to condone the delay that notice is required to be issued. Rule 10 of Order XVI of the Supreme Court Rules, 1966 provides that where a petition for special leave has been filed beyond the period of limitation prescribed therefor and is accompanied by an application for condonation of delay, the Court shall not condone the delay without notice to the respondent. (Para 21)

       It is, therefore, only when this Court from the facts stated in the application seeking condonation of delay is prima facie of the view that there could be sufficient cause that notice is required to be issued. If the application does not make out any such cause there is no bar dismissing the application without notice to the other party. Since no sufficient cause was shown by the petitioner as noted above, we dismissed the petition on the ground of delay. (Para 23)

       (iii) Special Leave Petition-Dismissal on ground of delay-Whether in such case merits of case could be gone into. (Paras 24, 27 and 28)

       c