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IN THE HIGH COURT OF ALLAHABAD
R. B. Lal, J.
NANHEY - Appellant
Versus
STATE OF U.P. - Respondents
. . Of .
Decided On : 07/24/1981
PREVENTION OF FOOD ADULTERATION ACT - SECTION 7, 13, 16, 20 - ADULTERATION - REPORT OF PUBLIC ANALYST - ADMISSIBILITY - SANCTION FOR PROSECUTION - RULE 9 (J) - MANDATORY OR DIRECTORY - SALE OF FOOD - SECTION 10 (7) - PUBLIC MAN AS WITNESS - RULES 17, 18 - COMPLIANCE - SUMMARY OF FACTS AND FINDINGS OF THE COURT.
Fact of the Case:
The applicant, Nanhey, was convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act for selling adulterated milk. A sample of cow's milk was taken from him by a Food Inspector and sent to the Public Analyst, who reported that the fat content was 3.6% and the non-fatty contents were 5.6%. The applicant defended himself by arguing that the Public Analyst's report was not admissible because the Public Analyst was not examined at trial, that the Nagar Swasthya Adhikari had no authority to file a complaint against him, that there was no compliance with Rule 9 (j) of the Rules framed under the Act, that the milk was not meant for sale, that there was no compliance with Section 10 (7) of the Act, and that there was no compliance with Rules 17 and 18 of the Rules framed under the Act.
Finding of the Court:
The court held that the report of the Public Analyst was admissible and was rightly received in evidence, as it was not erroneous and was rightly acted upon by the learned Courts below. The court also held that the Nagar Swasthya Adhikari had the authority to file a complaint against the applicant, as he was authorized by the government of U.P. to institute or to give written consent for instituting prosecution under the Act within the Municipal areas in their respective jurisdictions. The court further held that Rule 9 (j) was only directory and that its non-observance did not vitiate the criminal proceedings against the applicant. The court also held that there was sufficient evidence to show that the milk was meant for sale, that there was compliance with Section 10 (7) of the Act, and that there was compliance with Rules 17 and 18 of the Rules framed under the Act.
Issues: 1. Whether the report of the Public Analyst was admissible in evidence. 2. Whether the Nagar Swasthya Adhikari had the authority to file a complaint against the applicant. 3. Whether Rule 9 (j) of the Rules framed under the Act was mandatory or directory. 4. Whether the milk was meant for sale. 5. Whether there was compliance with Section 10 (7) of the Act. 6. Whether there was compliance with Rules 17 and 18 of the Rules framed under the Act.
Ratio Decidendi: 1. The report of the Public Analyst is admissible in evidence under Section 13 (5) of the Act, and the prosecution need not produce the Public Analyst to formally prove the report and its contents. 2. The Nagar Swasthya Adhikari had the authority to file a complaint against the applicant, as he was authorized by the government of U.P. to institute or to give written consent for instituting prosecution under the Act within the Municipal areas in their respective jurisdictions. 3. Rule 9 (j) is only directory and its non-observance does not vitiate the criminal proceedings against the applicant. 4. There was sufficient evidence to show that the milk was meant for sale. 5. There was compliance with Section 10 (7) of the Act, as the Food Inspector had asked the public men who had come to the scene to be witnesses but they declined. 6. There was compliance with Rules 17 and 18 of the Rules framed under the Act, as the statement of the Food Inspector showed that the requirements of these rules were fully complied with while sending one part of the sample to the Public Analyst for analysis.
Final Decision: The revision petition was dismissed, and the conviction and sentence of the applicant were upheld.
( 1 ) THIS revision has been filed by Nanhey who has been convicted for an offence Under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (briefly the Act) and sen tenced to undergo rigorous imprisonment for six months and pay a fine of Rupees 1,000/ -.
( 2 ) THE relevant facts, in brief, are that Food Inspector V. N. Kulshrestha took a sample of cows milk from the applicant at Lohamandi crossing within the limits of Nagar Maha Palika, Agra on 25th Aug. 1973 at about 9 p. m. after observing the relevant rules. A part of the sample was sent to the Public Analyst who reported that the fat content was 3. 6% and non-fat contents were 5. 6%. The sample was treated as adulterated. A complaint was filed against the applicant on or before 4th May, 1974. The applicant took a variety of defences but none was accepted by the trial court. In the result, the applicant was convicted and sentenced. His appeal was also unsuccessful. Hence this revision,
( 3 ) SRI R. K. Dwivedi, learned Counsel for the applicant, argued this revision at great length on 6th and 15th July, 1981.
( 4 ) THE first point urged by Sri Dwivedi is that the Public Analyst was not examined at the trial by the prosecution in order to prove as to what method was applied by him to find out the fatty and non-fatty contents of the sample milk. In the absence of the examination of the Public Analyst, the report of the Public Analyst could not be taken into consideration to come to the conclusion that the sample of milk was adulterated. In connection with this submission Shri Dwivedi has placed re-_ liance on two reported decisions of this Court namely, Sultan Shah v. State of U. P. , 1978 FAJ 168 (All) and four unreported decisions of this Court namely, Criminal Revn. No. 745 of 1975 Dhani Ram v. State decided on 19-9-1978, Criminal Revn. No. 1224 of 1975, Bhagwan singh v. State decided on 27-9-1978, Criminal Appeal No. 2225 of 1974 Nagar Swasthya adhikari, Na-gar Maha Palika, Agra v. Ram Swarup, decided on July 19t 1979 and Criminal revn. No. 2058 of 1979 Babu v. State of U. P. decided on 4-9-1980. In Ihe last four decisions, the aforesaid Division Bench decision was followed.
( 5 ) I have perused the judgments of the aforesaid cases. The judgments of the unreported cases were obtained from the record room of this Court.
( 6 ) IN Sultan Shahs case 1973 Cri LJ 1413 (All) the fat content of milk was over 60% higher than the required minimum, whereas non-fatty solids content was 16% below the minimum required by the rule. An earlier unreported decision was cited before the learned single Judge who observed, thus (at p. 1413):
The ratio decidendi of the said decision, to put it briefly, is that the fact that the fat content found in the milk sold is much higher than the minimum prescribed by the Rules leads neceasarily to the inference that no water had been added to the milk and that in such a case the mere circumstance that the non-fatty solid content was below the standard prescribed by the Rules could only justify the inference either that the cow, from the udders of which the milk was drawn, was not given the proper feed or that the Public Analysts report was erroneous.
( 7 ) PURAN Singhs case 1978 FAJ 168 (All) came up before a learned single Judge, who in view of sultan Shahs case 1973 Cri LJ 1413 (All) (supra) referred the case to a larger Bench. The division Bench observed that "the only question which arises, is whether in view ofs. 13 of the act, the correctness of the report of the Public Analyst can be doubted. " The Division Bench held that in view of Section 13 (5) of the Act the report signed by Public Analyst, is evidence of the facts stated therein, but it would be open to the Court deciding the case either to accept such evidence to be reliable or vice versa. If on the face of it the correctness of the report appears not free from reasonable doubt, benefit of that doubt has to go to the accused. The Division Bench also obser
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