Mehar Chand vs The State

Gopal Singh, J.—This is revision petition by Mehar Chand. He has been convicted u/s 16(1)(a)(1) of the Prevention of Food Adulteration Act, 1965 and sentenced to rigorous imprisonment for six months and to pay fine of Rs. 1909(sic) or in default of payment of fine to further suffer rigorous imprisonment for six months.

The Petitioner is a halwai. Apart from selling sweets, he also caries on the business of selling milk. His shop is situate in Bazaar Charkhari in the twon of Jagraon On August 13, 1966 at 7.15 a.m., Dr. Chaman Lal, who was invested with the powers of Food Inspector, visited the shop of the Petitioner to take sample. He associated with him C.L. Sharma, Sub Post Master. There were lying in his shop several buckets of unindicated milk for sale. After serving notice in form VI, Exhibit P.A., upon the Petitioner, Dr. Chaman Lal purchased 660 millilitres of milk for 80 paise. The. receipt executed by the petittoner is Exhibit P.B. It is attested by Dr. Chaman Lal and C.L. Sharma. After dividing the milk purchased into three lots, it was poured equally in three clean and dry bottles. These bottles were closed, labelled and sealed after 16 drops of formaline were added in each bottle. One of the samples was delivered to the Petitioner and one was sent to the Public Analyst. The Public Analyst, by report, Exhibit P.D., gave the opinion that the sample of milk was of adulterated milk, that the sample was deficient both in fat and solids not fat. He found that solids not fat were deficient to the extent of 22 per cent and the fat was short by 40 per cent.

At the trial, the case of the prosecution was supported by the evidence of Dr. Chaman Lal Verma P.W.1 and C.L. Sharma P.W.2. In his statement u/s 342, Criminal Procedure Code, the Petitioner stated that at the time the Food Inspector came to take sample of milk from his shop, he was not present at the shop, that he was never served with any notice in form VI, that he did not self any sample of milk to the Food Inspector nor did he receive any price in lieu thereof, that the receipt, Exhibit P.B. was signed by him and the memo Exhibit P.C. bore his signature, that C.L. Sharma P.W. was not present at the time the sample was taken, that the sample taken was of sour aud curdled milk meant for being given to dogs and that he had been falsely implicated at the instance of C.L. Sharma P.W., with whom he had dispute over the non-payment of the arrears of goods supplied to him from his shop. x x x. In support of these pleas, he produced Lal Singh D.W.I and Des Raj D.W.2.

The trial Court believed the recovery of sample of milk from the shop of the Petitioner as desposed to by Dr. Chaman Lal Verma and C. L. Sharma P. Ws and attached no importance to the defence version.

Shri Har Parshad appearing on behalf of the Petitioner has in no way criticised or assailed the evidence of the eye-witnesses. He has, however, contented that there has been delay of 1 month and 12 days in the analysis of the sample recovered from the shop of the Petitioner and that there has been delay of period of 2 months and 2 days in launching prosecution against the Petitioner and consequently the conviction of the Petitioner is not maintainable.

The sample of milk was taken on August 18, 1966. One bottle out of the three containing the sample of milk was despatched to the Public Analyst on the date of its recovers. It was received in the office of the Public Analyst on August 19. 1966. Report of the Analyst is Exhibit P.D. It is dated September 30 1966. In the certificate given at the top of the report, the date on which the sample was analysed, has been omitted from the following sentence;-

The analysis of the sample was undertaken on------.

Thus, the date on which Public Analyst analysed the sample of the milk in the laboratory or caused it to be analysed is not mentioned. In Rule 4(5) of the Prevention of Food Adulteration Rules, 1955, it if provided that after test or analysis of the sample, the certificate thereof shall be supplied forthwith to the sender in the prescribed form. Again, Rule 7(3) of the Rules lays down that after the analysis has been completed, he (Analyst) shall forthwith supply to the person concerned report in the prescribed form of the result of such analysis.

The underlying object of the above provisions seems to be that there should not be any delay between the date of analysis of the sample and the date of issue of the certificate or opinion given as a result of the analysis conducted. These provisions enjoin on the Analyst that the time lag between the date of analysis of the sample and the date of certificate to be issued by the Analyst be reduced to bare minimum. In other words, it is obligatory upon the Analyst to give the certificate immediately after the sample has been analysed and the data collected of the result of the analysis and correlated and complied. Not only the sample of article of food purchased should be sent by the Food Inspector to the Analyst soon after its purchase, but also the Analyst, after the receipt of the sample, should not at all delay the work of analysis of the sample. In the light of Rules 4(5) and 7(3) of the Rules and fact of omissson of the date of analysis from the report or certificate of the Analyst, Exhibit P. D., the date of analysis should be treated to be the date of the certificate itself but not the date of receipt of the sample, namely, August 19, 1966.

From the above facts, it follows that there has been delay of 42 days in issuing the certificate and hence in analysing the sample of milk sent to the Analyst. If, the articles of food sought to be analysed are either not despatched promptly to the Public Analyst or having been so despatched are not analysed with expedition by the Analyst or having been analysed, there is delay in the issue of certificate, the underlying object of Rules 4(5) and 7(3) of the Rules will be defeated. No explanation whatsoever is forthcoming for this delay. It is just possible that the sample of the milk analysed by the Analyst either on the date of certificate or may be a short time earlier than that date, might have undergone chemical changes and physical transformation. A sample analysed long time after it was taken may not admit of the precise result about its various component parts sought to be examined. These rules have been framed as a matter of public policy to avoid the hazards in the results of the chemical analysis and to eliminate the chances of incorrect results of analysis in the laboratories of the Public Analyst being given. It is only by rigorously enforcing the compliance with these rules that these hazards can be eliminated and the consequential prejudice to be occasioned to the persons being proceeded against avoided.

It was next contended by the counsel for the Petitioner that there has been delay of 2 months and 2 days in filing complaint against the Petitioner, The sample of milk was recovered on August 18,1966. The complaint was filed in Court on October 20, 1966. Thus, there has been delay of 2 months and 2 days in initiating the proceedings against the Petitioner. u/s 13 (2) of the Prevention of Food Adulteration Act, a person from whose possession, sample of article of food sought to be analysed has been taken, has to be provided with one bottle containing one-third of the sample recovered from his possession and he has a right to get that sample analysed from the Central Laboratory at Calcutta. It the launching of prosecution against the person, from whose possession sample has been taken is delayed by as long period as two months and he is summoned as an accused person in that complaint, he will have the opportunity of making application for analysis of the contents of the simple supplied to him more than three months after the sample was recovered from his possession. There is every likelihood that during that period of three months, the sample of the article recovered from him and supplied to him, will undergo alterations in its chemical content and physical texture and the nature and content of the sample of the article of food recovered, may not be the same at the time when under the orders of the trial Court, on an application made on behalf of the person from whom the recovery has been effected it is sent to the Central Laboratory at Calcutta for analysis as it existed when recovered from him. By delayed prosecution, a valuable right, which vests in an accused person to have his sample analysed will be lost it by that delay the sample sought to be examined by the accused person does not yield, on analysis, the correct result of various components constituting that sample. As the provisions of Section 13 (2) of the Act will be defeated by delayed commencement of prosecution against an accused person, the laxity or negligence on the part of the Food Inspector and may be in some cases the deliberate practice of delaying the filing of complaint so as to render nugatory the provisions of Section 13 (2) of the Act, the Court should not countenance with favour that laxity, negligence or practice. Again, the matter of making of complaint promptly is a matter of public policy. The Course should see that there does not occur any delay in filing complaints against the offenders after the sample of article of food is taken. Their Lordships of the Supreme Court in Municipal Corporation of Delhi Vs. Ghisa Ram, . observed as follow:-

Under Section 13(3) of the Act, the certificate issued by the Director of the Central Food Laboratory supersedes the report given by the ublic Analyst. The proviso to Sub-section (5) of Section 13 further lays down that anv 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 issues a certificate. If, for any reson, no certificate is issued the report given by the Public Analyst does not cease to be evidence of the facts contained in its 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.

Their lordships further observed:-

When a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence, In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudidiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst. even though that report continues to be evidence in the case of the facts contained therein

For the foregoing reasons, it will not be safe to convict the Petitioner on the basis of the report of the the Public Analyst, Exhibit P. D. or in pursuance of belated complaint filed against him by the Food Inspector. In the result, the revision petition is allowed and the Petitioner is acquitted.