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SUPREME COURT OF INDIA
M. HIDAYATULLAH AND V. BHARGAVA, JJ.
Municipal Corporation of Delhi, Appellant
Versus
Ghisa Ram, Respondent.
Criminal Appeal No. 194 of 1966, D/- 23-11-1966.
Advocates appeared
Mr. H. R. Gokhale, Senior Advocate, (M/s. K. K. Raizada and A. G. Ratnaparkhi, Advocates, with him), for Appellant, M/s. Frank Anthony, Ghanshyam Dass, Jitendra Sharma and V. P. Chaudhuri, Advocates, for Respondent.
A sample of curd of cow's milk was taken on 20.9.1961 and was put in three bottles and sealed. The Public Analyst analysed the contents of one of the bottles on 30.10.1961 and gave a certificate on 23.10.1961, stating that the non fatty solids were below the prescribed standard. Prosecution of the accused under sections 7 and 16 of the Act was started on 25.5.1962. The accused applied to the Court that the sample given to him should be sent for examination to the Director of the Central Food Laboratory in accordance with section 13 (2) of the Act. On receiving the sample the Director reported that as the curd had decomposed, no analysis was possible. The Courts below acquitted the accused.
Held: Under section 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 section 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, it 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not cease to be evidence of the facts contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory.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.
(Para 3)
There can be no doubt that sub-section (2) of section 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.
(Para 4)
In a case where there is a denial of this right on account of the deliberate conduct of the prosecution, 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 the report continue to be evidence in the case of the facts contained therein.
(Para 7)
It cannot be laid 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. 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 the right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.
The report of the Public Analyst 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 prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution. 1965 JLJ 63 Overruled on this point.
(Para 11)
Judgment
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 per cent and the non-fatty solids were 7.3 per cent. The standard prescribed by the Rules framed under the Prevention of Food Adulteration Act, 1954 (No. 37 of 1954) (hereinafter referred to a the Act ,) for curd of cow s milk was that it must contain a minimum of 3.5 per cent fat and 8.5 per cent non-fatty solids. Since the analysis showed that the content of non-fatty solids was 1.2 per cent 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.
2. 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. The counsel for the respondent challenged the correctness of the analysis of the sample made by the Public Analyst, and a further plea was taken that the respondent 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.
3. In this appeals, 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 i
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