N.J. Wadia, J.
1. The appellant is one of the proprietors of a bakery called the Rising Sun Bakery On January 13, 1943, the bakery was raided by the police. A large number of cakes of various sizes, biscuits and sweetmeats were found on the premises. There were 295 cakes weighing 1/2 lb, each, 180 cakes weighing 1/4 lb. each, 73 dozen small cakes weighing 14 to a lb., 190 dozen cakes weighing 20 to a lb. and some biscuits and sweetmeats. The police in the presence of panchas attached one article of each variety on suspicion that the articles contained wheat or wheat products. By Notification No. 370 issued by the Government of Bombay on January 26, 1942, in exercise of the powers conferred by Sub-rule (2) of Rule 81 of the Defence of India Rules, 1939, they had directed that no person within the limits of the City of Bombay should from the date of that Notification use wheat flour or any wheat product for the preparation of cakes, pastry or any kind of sweetmeats except under a license granted by the Director of Civil Supplies or by some other authorised person. It was alleged by the prosecution that the cakes and pastries found in the accused's bakery contained wheat products, and he was therefore prosecuted under Rule 81(4) read with Rule 81(2)(a) of the Defence of India Rules.
2. The accused pleaded not guilty. His defence was that after December 26, 1942, no wheat flour or wheat products had been used in the manufacture of the cakes and pastries which had been attached from his bakery, and that some of the cakes and pastries attached on January 13, 1943, had been made before December 26, 1942. He also contended that the evidence did not show satisfactorily that the articles, which were sent to the Chemical Analyser and which were reported byhim to contain wheat products, were the identical cakes which had been attached from his bakery.
3. The raid on the bakery took place on the afternoon of January 13, 1943. The samples attached were taken to the police station and remained there till January 21, 1943, when they were sent to the Chemical Analyser. On January 30, 1943, that officer reported that wheat products had been used in the manufacture of all the articles except 2. This report was put in at the trial under Section 510 of the Code of Criminal Procedure, 1898, but the Chemical Analyser himself was not called for examination. The report does not state the quantity of wheat products found in each of the articles, nor does it explain what the Chemical Analyser meant by wheat products.
4. The learned Magistrate has convicted the accused and sentenced him to suffer simple imprisonment for two weeks and a fine of Rs. 1,1000, in default to suffer simple imprisonment for two months. The accused has appealed.
5. Three main contentions have been urged before us on his behalf. It is argued, firstly, that there is no satisfactory evidence to show that the cakes attached from the accused had been made after December 26, 1942. The second contention is that the report of the Chemical Analyser does not show what quantity of wheat products was found in the cakes, and since the Chemical Analyser was not examined as a witness it was not possible for the accused to ascertain by cross-examination what was the nature and quantity of the wheat products detected by that officer in each article. It is suggested that the baking powder which,was used in the manufacture of the cakes may have contained some wheat starch unknown to the accused and that this might account for the presence of some wheat products in the cakes. The third contention is that there was considerable negligence on the part of the police in connection with the attaching of the cakes and their being sent to the Chemical Analyser for examination; that the cakes were not sealed in the presence of the panchas at the time of attachment but were allowed to lie about unsealed in a room at the police station for eight days before they were sealed and despatched to the Chemical Analyser, and that owing to this negligence it is not possible to say with certainty that the cakes which were sent to the Chemical Analyser were the identical cakes which were attached from the accused's bakery.
6. We think there is considerable force in each of these contentions. It is admitted by the two principal prosecution witnesses, Inspector Master and Sub-Inspector Kane, that the cakes that were attached were not in the oven in the process of preparation when they were attached. At the time of the raid the oven was being used for baking bread and the cakes were partly in the hot chamber and partly in the show-cases. According to these witnesses, the cakes were fresh and hot. Inspector Master has said that some of the cakes which were fresh and hot were still in the grease trays and baking tins. According to him most of the small cakes were in the cupboards or showcases. Sub-Inspector Kane, on the other hand, says that most of these cakes were not in the cupboards but in the grease trays. According to him the samples of all varieties of small cakes were taken from the grease trays and not from the show-cases. The accused examined some witnesses in his defence, One of them was a witness who was himself working as a confectioner and who had been working in the accused's bakery up to four or five years ago. This witness, who claimed to be an expert on the subject, deposed that bread and cakes cannot be baked in the oven at the same time as bread requires much greater heat for baking than small cakes, and that on this account if bread and cakes are to be baked on the same day, an interval of three to four hours must be allowed between the baking of the two articles. Since at the time of the raid bread was admittedly being baked in both the ovens of the accused's bakery, it would follow that the cakes which were found must have been taken out of the ovens at least three to four hours before the raid. In that case they would not be found still hot to the touch when they were attached. Since according to the evidence of the two officers they were found to be still hot, it would seem to follow that they must not have been made that day but must have been old cakes which had been kept in the hot chamber in order to keep them fresh. It appeared from the evidence of the two officers that the small cakes attached were of this kind, i.e., cakes which were, kept in grease trays and which were still hot.
7. According to the defence witness cakes can be preserved even for four or five months if they are kept more or less constantly in a hot chamber, and even small cakes can be preserved in this manner for an equal length of time, though he adds that it is not necessary as a rule to keep cakes for such long periods as they would be sold out. In another part of his evidence in cross-examination he has said : ' About 15 days is the utmost which1 small cakes would be kept in the hot chamber or otherwise much grease will come out of the cakes and the cakes will not be so edible even though they may look fresh.' If this witness is to be believed, and there is nothing in his cross-examination or in the evidence adduced by the prosecution to suggest that his statements are not true, it appears that some at least of the cakes which were attached from the accused's bakery had not been made on the very day on which the raid took place, and that they may possibly have been several days old. The learned Magistrate has himself said that the biscuits and sweetmeats which were attached might quite possibly have been more than eighteen days old, and that the detection of wheat products in those articles would not therefore necessarily prove any offence against the accused. He seems to admit also that it was quite possible that the big cakes which were attached and in which wheat products were detected might also have been more than eighteen days old. He appears to have based the conviction of the accused entirely on the fact that wheat products were detected in the small cakes which were attached from the bakery. With regard to these cakes the learned Magistrate considered that it was impossible to accept the accused's suggestion that they may have been made before December 26, i.e. more than eighteen days before the raid. The argument of the learned Magistrate, that it was most improbable that a large bakery like that of the accused, which had a restaurant attached to it and which made and used up a large quantity of cakes every day, would keep cakes more than eighteen days old, would have been much more convincing if it had been alleged by the accused that a very large number of the small cakes found in the bakery were old. He did not, however, allege this. Admittedly the cakes attached were from the grease trays, that is cakes which were probably not made that day but were old cakes which had been put into the hot chamber in order that they might remain fresh. The total number of small cakes found in the bakery was 263 dozen, or well over 3000. They were made up of two groups. One group consisting of 190 dozen cakes weighing 20 to a lb., and another group of 73 dozen cakes weighing 14 to a lb. From this large number of over 3000 only two were attached, one from each group, and these were attached from the old cakes, and not from the freshly made ones. It would, in our opinion, be extremely dangerous to infer from the finding of some wheat products in these two cakes that the remaining 3000 and odd cakes also contained wheat products. Although it is most improbable that a big bakery like that of the accused would keep over 3000 stale cakes, it is perfectly conceivable that a few stale cakes may have been kept, or may have accidentally remained, in the bakery. The possibility at least of some old cakes having remained, which were more than eighteen days old, cannot be altogether ruled out.
8. There is also considerable force in the second contention, urged on behalf of the accused, that there is no satisfactory evidence with regard to the finding of wheat products in the cakes. The only evidence on the point is the report of the Chemical Analyser to the effect that wheat products had been used in the manufacture of the articles sent to him. Even if this evidence is believed, it means that the conviction of the accused rests on the finding of some unspecified quantity of wheat products in two out of over 3000 small cakes which were found at the time. It has been suggested on behalf of the accused that there might have been some small quantity of wheat products in the baking powder used in the manufacture of the cakes and that the accused would not be in a position to know whether the baking powder which was being used by him contained these products. The accused's witness Pereira has stated that the baking powder ordinarily used in the making of cakes contains some starchy substance and that this might be a wheat product. When the report of the Chemical Analyser was put in counsel for the accused protested against its going in and contended that the Chemical Analyser should be examined as a witness. The report was allowed to go in. After the arguments of the defence counsel were over, and when stress was laid on the point that the accused had been prejudiced by the failure of the prosecution to examine the Chemical Analyser and the consequent absence of any evidence to show what tests he had applied, what was meant by the words 'wheat products', and what was the percentage of wheat products found in the cakes, the learned Magistrate offered to call the Chemical Analyser, if the defence counsel wanted him to do so. But at this stage counsel for the defence stated that he did not wish to avail himself of the Court's offer, as he did not wish to give up the advantage which the accused had gained by the failure of the prosecution to call the Chemical Analyser. The learned Magistrate has pointed out, and rightly, that under Section 510 of the Code of Criminal Procedure the report of the Chemical Analyser may be used as evidence without the officer being called as a witness. That undoubtedly is the practice usually followed in most cases in which a report of the Chemical Analyser is put in. It is obvious, however, that the weight to be attached to such a report must depend to a considerable extent on the reasons which the Chemical Analyser gives for the conclusion which he has arrived at, and in some cases, as in the one before us, where the matter to be reported on is the presence of certain substances in the article submitted for examination, much would turn on the quantity of the incriminating substance found in the article. If the Chemical Analyser's report alone is to be considered sufficient, it should contain all the information which that, officer himself would have been able to furnish if he had been examined as a witness. In the present case the report merely says that wheat products had been used in the manufacture of the cakes. The danger of accepting a mere report of the Chemical Analyser in criminal cases has been very forcibly pointed out by Young J., in Emperor v. Happu I.L.R. (1933) All. 228. It is true that the learned Magistrate offered, though at a late stage, to call the Chemical Analyser as a witness if the accused wanted him to do so, and the accused's counsel declined at that stage to avail himself of this offer. But it was for the prosecution to prove that wheat products had been used in the manufacture of these cakes, and in order to do so, it was necessary for them to show that wheat products had been detected in the cakes in such quantities as would justify the inference that they must have been knowingly and deliberately used. Owing to the absence of all mention in the Chemical Analyser's report of the quantities of such products found in the cakes, and the failure of the prosecution to examine the Chemical Analyser, we have no means of knowing whether the percentage of wheat products found in the cakes was sufficiently large to support the inference which the learned Magistrate has drawn that the accused must have deliberately used wheat products in the making of the cakes. The possibility that some very small percentage of wheat products might have got into the cakes through the accused's unknowingly using baking powder which contained some wheat products, is not such a very remote one that it could be ruled out of consideration. If the Chemical Analyser had stated in his report that the percentage of wheat products found was something very small, it would not have been difficult for the accused to persuade the Court to hold that the presence of such products was due to the accidental use of baking powder which contained some wheat products.
9. Another suggestion which has been made on behalf of the accused to explain the presence of wheat products in very small quantities in the cakes is that the receptacle in which the cakes had been made, or in which the gram or other flour used in the making of the cakes had been kept, may have previously contained some wheat flour or wheat product, and a small quantity of such wheat product may have in that way got into the cakes.
10. Where the guilt or innocence of the accused turns entirely on the result of the chemical analysis as to the presence of certain ingredients in the articles before the Court, it is, we think, desirable that the Chemical Analyser should be examined in support of his report and the accused given an opportunity of cross-examining him. The Bombay Prevention of Adulteration Act of 1925 contains special provisions both with regard to the manner in which articles or samples of food attached from a person are to be treated at the time of attachment, and also as regards the manner in which the result of the chemical analysis is to be proved. Section 10 of the Act provides that any person purchasing any article or sample of food with the intention of sending it for analysis must inform the seller of his intention; to have the article analysed by the public analyst, and should offer to divide the article then and there into three parts, and each part must be marked and sealed in the presence of the seller, and one part should be delivered to him. Section 16 provides that when any person is accused of an offence under that Act he is entitled to ask the Court to summon the public analyst who analysed the article as a witness. Although these provisions undoubtedly do not apply to the present, case, we think it very desirable that where articles are attached for alleged breach of the Defence of India Rules and it is intended that they should be submitted to the Chemical Analyser for examination, the procedure prescribed by the Bombay Prevention of Adulteration Act should, as far as possible, be followed.
11. This brings us to the third contention urged on behalf of the accused, that there is no reliable evidence to show that the two sample cakes which were examined by the Chemical Analyser were the identical cakes which were attached from the accused's bakery. The cakes were attached in the presence of panchas on January 13, 1943, They were admittedly not sealed at the time and in the presence of the panchas. They were taken in a box to the police office and were kept at the police station for eight days till January 21, 1943, when they were sealed and sent to the Chemical Analyser. It is urged on behalf of the accused that during this interval other cakes may have been deliberately substituted for those which were attached from the accused's bakery, or the cakes attached from the accused's bakery may have accidentally got mixed up with similar articles attached from other bakeries which might also have been lying; unsealed in the police office. It is true that Sub-Inspector Kane has said definitely that he himself sent the samples to the Chemical Analyser and that they were the ones which he had attached from the accused's bakery. But since the cakes were not in his own charge throughout the period of eight days during which they remained in the police office it is impossible to attach very great value to this statement, even though it may have been perfectly honestly made. During this period of eight days they remained in charge of the Inspector of the police station. That officer has not been examined. It is admitted that the store room or muddamal box in which the cakes had been kept is generally opened every day. It has also been admitted by Inspector Master that on the very day on which the accused's bakery was raided four other bakeries had also been raided, and it is quite possible that during the period of eight days which elapsed before the sealing of the cakes and their despatch to the Chemical Analyser other bakeries and restaurants may also have been raided. Sub-Inspector Kane has said that the cakes were entered in the muddamal register at the police station on the very day on which they were attached. But that register was not produced. The possibility of the cakes attached from the accused's bakery having been deliberately or accidentally mixed up with other cakes cannot therefore be completely ruled out, and this again introduces a very serious element of doubt as regards the guilt of the accused, and he is entitled to the benefit of that doubt.
12. In our opinion, therefore, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. The appeal is allowed, his conviction and the sentences of imprisonment and fine passed upon him set aside and he is acquitted. The fine, if paid, should be refunded. The bail bonds are cancelled.