Baharul Islam J.
1. This is an application in revision by the petitioner, who was convicted by a first class Magistrate (Judicial), Gauhati, under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter called 'the Act) and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for six months more. On appeal by the petitioner, the order of conviction and sentence passed by the Magist- rate was upheld by the Sessions Judge, Kam-rup. fifcgice this petition.
2. The prosecution case is that the District Food Inspector, Soba Prasad Sarrna, visited Kapurba Restaurant at Bamuiiimaidan and purchased 600 grams of 'Bundia' (sweet) from the petitioner (who gave his name as 'Madhusudnan Rai', which was actually his-father's name). The article was divided info 3 parts and each part was put in a container and one part was sent to the Public Analyst for chemical examination and another part in a container was given to the petitioner. The Public Analyst gave his opinion that the sample of bundia was coloured with 'Metanil Yellow', which is prohibited. On receipt of the report from the Public Analyst, the Food Inspector, aforesaid, obtained necessary sanction from the Civil Surgeon of the District for prosecution of the petitioner and submitted an offence report against 'Madhusudhan Rai'. Madhusudhan was accordingly summoned and was allowed to go on bail of Rs. 1,000/-, On 17-4-1972 when the Magistrate proceeded to take evidence in the case, the Food Inspector pointed out that the man in the dock was not the man from whom he had purchased the bundia. The Magistrate then issued warrant of arrest against 'Madhusudhan Rao' to be identified by the Food Inspector. On identification of the Food Inspector, the petitioner Chandrika Prosad Rai, son of Shri Madhusudhan Rai, was arrested by police. Thereafter the prosecution examined two witnesses and having found a prima facie case charged the petitioner under Section 7 read with Section 16 of the Act.
3. The defence of the petitioner was that it was not he who sold the bundia in question and he pleaded not guilty to the charge,
4. One of the points that came up for decision before the Magistrate was whether the petitioner Chandrika Prosad Rai was the person who sold the bundia in question and he came to the finding that it was the petitioner who sold the bundia to the Food Inspector and that he gave his name as Madhusudhan Rai, which, in fact, was the name of his father. He further held that there was no mistake in the identity of the accused.
5. The prosecution examined two witnesses namely, P.W. 1, the Food Inspector, and P.W. 2 who was one of the witnesses to the sale of bundia, and on a consideration of the evidence oral and; documentary, on record the learned Magistrate found the petitioner guilty as stated above and convicted and sentenced him as aforesaid.
6. Shri K. Lahiri, learned Counsel appearing for the petitioner, first submits that the prosecution by their conduct deprived the petitioner of the right given to him under Section 13 (2) and (5) of the Act. His submission is that the sample was taken on 24th July, 1971 which was received by the Public Analyst on 29th July, 1971.The Pub- hit. Analyst's report was sent on 1st September, 1971 and the complaint was filed m. Court on 23-9-1971.
7. Sub-section (2) of Section 13 of the Act provides that after the institution of a prosecution under the Act the accused vendor or the complainant may, on payment of prescribed fee, make an application to the Court for sending the part or the sample mentioned in Sub-clause. (i) or Sub-clause. (iii) of Clause (c) of Sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application, the Court shall first ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within month from the date of receipt of tide sample specifying the result of his analysis.
8. It is clear on a plain reading of this sub-section that the vendor or the complainant, who wants to exercise his right given to him by this sub-section, has to make an application and make payment of the prescribed tea. In As instant case no such application was mad in exercise of his right given under Section 13(2) of the Act learned Counsel submits that as the case was lodged very late, the conduct of the prosecution deprived be from exercising the right and it was futile to make an application and exercise that right. He submits that die bundia in question by the time the complaint was filed in Court, must have decomposed. There is no evidence on record as to within what period, the sample would be decomposed, with and without preservative.
In, support of his contention, learned Counsel relies on the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Ghisa Ram, reported in : 1967CriLJ939 in which their Lordships have held:
It appears to us that 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 m 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 prejudiced 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 o the facts contained therein.
The case before the Supreme Court is distinguishable.
In the case before the Supreme Court, a sample of curd of cow's milk was taken on 20th September, 1961 It was churned and divided into three equal parts which were put in three separate bottles. One bottle was handed over to die accused, one bottle was sent to the Public Analyst who carried out the analysis on 3rd October 1961 and gave a certificate on 23rd October, 1961, in which it was stated that the quality of the curd was below the standard prescribed by the Rules framed under the Act. The complaint was filed before the Magistrate on 23rd; May, 1962, On 4th October, 1963 the accused made an application that the sample which had keen given to him by the Food Inspector be sept for examination by the Central Food Laboratory in accordance with the provisions of Section 13(2) of the Act. When the sample was received by the Director, he reported that the sample had become highly decomposed and no analysis of it was possible. The case, therefore, was tried on the basis of the report of the Public Analyst. The accused admitted that the sample of the curd was taken from his shop by the Food Inspector, but his case was mat he prepared the curd, from pure cow's milk, In the case there was evidence of an expert, namely, the evidence of Dr. Sat Prakash. Their Lordships of the Supreme Court have referred to the evidence of Dr. Sat Prakash as follows:
The opinion of one of the experts, Dr. Sat Prakash, given in this case snows that In the case or a food article, like curd, it starts undergoing changes after a week, it kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. On die other hand, if the sample is kept in a refrigerator, it will reserve its fat and non-fatty solid contents for purposes of analysis for a total period of four weeks. If a preservative is added and die sample is kept at room temperature, the percentage of fat and non-fatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without de composition, will be six months. In this case, when the Food Inspector handed over the sample to the respondent, the respondent was not expected to keep it in a refrigerator. Consequently, without any preservative the sample kept with him could have been analysed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months
9. In the instant case, it may be mentioned the point now urged before me was neither urged before the Magistrate, nor even before the Sessions Judge. No evidence was led, It is not known within what period of time the sample of bundia starts decomposing and be uslese for chemical anaylsis. It would have been for the Director of the Central Food Laboratory to say that the sample was unfit for chemical examination only, when a sample was sent to him and the sample could have been sent to him only on an application made by the petitioner under Section 13(2) of the Act.
In AIR 1967 SC 870 : 1967 Cri LJ 939) (Supra) their Lordships of the Supreme Court further observed:
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 (he basis of the report of the Public Analyst. Difficulty, however, arises in a case where the accused does exercise the right by making a request to the Court to send his sample for analysis to the Director of the Central Food Laboratory and the Director is unable to issue a certificate because of some reason, including the reason that the sample of the food article has So deteriorated and become decomposed that no analysis is possible.
10. This observation of the Supreme Court clinches the matter. In the instant case as the petitioner did not exercise his right under Section 13(2) of die Act and no sample was sent to the Director of the Central Food Laboratory, the petitioner can make no grievance. This submission of learned Counsel has no substance.
11. The next submission of the petitioner is that under Rule 22 of the Rules framed under the Act 500 grams of the sample had to be sent to the Public Analyst. But, Counsel submits, only 600 grams were purchased and one-third of it was sent to the Public Analyst. His submission is that Rule 22 is mandatory and its non-compliance has vitiated the trial
12. It may be mentioned that this point also was not taken before the trial Magistrate, The schedule of articles of food appended to Rule 22 enumerates 23 items of food. learned Counsel referred to the item at serial No. 14 which is 'Prepared food' and the approximate quantity to be sent to the Public Analyst was 500 grams. But there is another item at serial No. 23 which is 'Food (not specified).' It is not controverted that the bundia in question is food; but the question is whether it is prepared food as at serial No, 14 or merely 'food' within the meaning of the words at serial No.. 23.
Food' has been defined under Section 3 (v) as
food' means any article used as food or drink for human consumption other than drugs and water and includes
(a) any article which ordinarily enters into, or is used in the composition or preparation of human food, and
(b) any flavouring matter or condiments.
It is indisputable that bundia is an 'article used as food' and as such it is 'food as defined under the Act. Indeed in both the courts below both the parties proceeded on the footing that the bundia was food of which only approximately 200 grams had to be sent to the Public Analyst, and, in fact, in the instant case approximately 200 grams was sent. There is, therefore, no violation of Rule 22. This submission of learned Counsel also has no substance.
13. The next submission of learned Counsel is that Section 10(7) of the Act was not complied with, and, as suck, the conviction and sentence has been vitiated, Subsection (7) of Section 10 provides:
Where the Food Inspector takes any action under Clause (a) of Sub-section (1) sob-section (2), Sub-section (4) or Sub-section (6) he shall, call one or more persons to be present at the time when such action is taken and take his or their, signatures.
The submission is that one or more independent persons must be called to be present. In the instant case, learned Counsel submits, P.W. 2, who was called to be present at the time when the sample was taken, was an office Assistant of the office of P.W. 1 and was not an independent witness. In support of his contention counsel relies on a decision of the Supreme Court reported in : 1974CriLJ672 in which their Lordships of the Supreme Court held:
We are of the opinion, particularly in view of the legislative history of Section 10(7), that while taking action under any of the provisions mentioned in the sub-section the Food Inspector must call one or more Independent persons to be present at the time when such action is taken, We are, however, unable to agree that regardless of all circumstances, the non-presence of one or more independent persons at the relevant time would vitiate the trial or conviction. The obligation which Section 10(7) casts on the Food Inspector is to 'call' one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shopkeepers to witness the taking of the sample but none was wilting to co-operate. He could not certainly compel their presence. In such circumstances, the prosecution was relieved of its obligation to cite independent witnesses.
Although this decision in all fours applies to the present case, in my opinion it does not support the contention of learned Counsel; rather it goes against him. The duty of the Food Inspector is to call one or more independent witnesses and if the presence of independent witnesses cannot be procured and the witness whose presence is procured is not independent, the trial and the consequent conviction and sentence will not be vitiated. In the instant case the evidence of P.W. 1 is that he called the independent neighbouring people to come and witness the taking of the sample, but they declined to come, Counsel submits that this evidence of P.W. 1 has been contradicted by the evidence of P.W. 2. In my opinion there is no contradiction. The evidence of P, W. 2 is that he did not know whether P, W. 1 called witnesses 'from outside'. He has not stated that P.W. 1 did not call any independent witness. The 3rd submission of learned Counsel also has no substance.
14. No other submission has been made by learned Counsel.
15. In the result this application fails and is rejected. The Rule is discharged. The bail bond is cancelled. The petitioner shall now surrender to serve out the sentence.