The importance of safeguarding the accused's rights under S.13(2)(b) of the Prevention of Food Adulteration Act and the inadmissibility of presumptions in judicial decision making.

1. Petitioner was found guilty of offences under S.7(1), and 14(A) read with S.16(1)(a) of the Prevention of Food Adulteration Act. The article involved is Bengal dam. By Ext. P10 report, Public Analyst found, that the sample analysed did not conform to the standards prescribed. At the instance of the petitioner, one part of the sample was sent to the Central Food Laboratory for analysis and by Ext. P16 report, Central Food Laboratory also found the article adulterated, as not conforming to standard.

2. Counsel far petitioner challenges the conviction on several grounds. I advert only to one, for I think he is entitled to succeed on that ground.

3. By CMP 377/81 dated 27-1-81 petitioner prayed that one part of the sample be sent for analysis to the Central Food Laboratory. On 28-1-81, magistrate below ordered the petition stating "allowed", and no more. S.13(2)(b) of the Act requires that on receipt of the part or parts of the sample, court shall ascertain, if the mark and seal of fastening as provided in clause (b) of sub-section (1) of S.11 are intact and if the signature or thumb impression, is not tampered with. This is to be ascertained before the sample is sent for analysis. This court had said time and time again, that the safeguard built into S.13(2)(b) is of vital concern to the accused and that breach thereof, could defeat his rights. Bhat, J. highlighted the importance of this in Crl. RP 19/80. Other decisions followed. The last of these is reported in Kesavan v. Food Inspector (1987 (2) KLT 87). What is contained in S.13(2)(b) is in the shape of a safeguard, a safeguard against unmerited conviction. Records shew that the magistrate below has not made such application of mind. One cannot say with any degree of certainty that the magistrate had seen the sample. A judicial order cannot be a semantic exercise on paper and the element of satisfaction the section requires to be attained, has to be attained in the manner indicated. There is an infraction of law.

4. With respect to certain other provisions of the Act, this court had held that presumptions can be raised. A plea to raise presumptions in respect of satisfaction to be derived under S.13(2)(b), cannot be entertained. Presumptions that may emerge in other areas, cannot be transplanted into an area of judicial decision making, or of reaching judicial satisfaction, as these imply application of mind. A speaking order or discernability of reasons are sine quo non of judicial function. If such were not the state of law, application of judicial mind could well be obliterated and determination of guilt would rest on presumptions. It follows that the conviction entered by the courts below cannot be sustained. Revision petition is allowed, and the accused is acquitted. I express my appreciation to Shri. S. Vijayakumar who assisted the court, as amicus curiae.