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The State of Maharashtra Vs. Bhagvandas Gopaldas Bhate - Court Judgment

LegalCrystal Citation
SubjectFood Adulteration
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1249 of 1967
Judge
Reported in(1970)72BOMLR25
AppellantThe State of Maharashtra
RespondentBhagvandas Gopaldas Bhate
DispositionAppeal dismissed
Excerpt:
.....making application under section 13(2)--whether prosecution of vendor can be decided on basis of public analyst's report.;where a prosecution under the prevention of food adulteration act, 1954, is launched after such a period that the sample of food given to the vendor-accused under section 11 of the act has become decomposed and the accused does not make an application under section 13(2) of the act, it cannot he held that he has not been deprived of an opportunity to have his sample tested by the director of the central food laboratory. in such a case the prosecution of the accused cannot be decided on the basis of the report of the public analyst.;the principle of munpl. corporation of delhi v. ghisa ram [1967] a.i.r. s.c. 970 is not to be confined only to a case where the accused..........in writing to the respondent of his intention to have the sample of his butter analysed by the public analyst. it may be stated here that the food inspector paid rs. 4 to the respondent as price for the quantity purchased and obtained a receipt from the respondent. he then divided the quantity of butter into three equal parts. bach part was then put in a separate dry and clean bottle and was tightly corked and sealed. one of the bottles containing the sample was then handed over by the food inspector to the respondent under a receipt. on the same day the food inspector sent one of the two remaining samples to the public analyst, poona, and also separately sent a copy of the impression of the seal by post to the public analyst as required by the rules. the public analyst received the.....
Judgment:

Apte, J.

1. The respondent Bhagvandas Gopaldas Bhate is the owner of a shop styled as Sangli Dairy Farm'' situate on Maruti Road in the town of Sangli. In this shop the respondent deals in milk and milk products including Deshi as well as cream butter. On August 24, 1965, Mr. Dattatraya Balvant Mane (P.W.I), the Food Inspector for the Sangli Municipal area, visited the respondent's aforesaid shop and purchased 500 grains of Deshi butter from the respondent for the purpose of testing whether it was adulterated, in the presence of one panch by name Appasaheb Baburao Magdum. The Food Inspector immediately gave notice in writing to the respondent of his intention to have the sample of his butter analysed by the Public Analyst. It may be stated here that the Food Inspector paid Rs. 4 to the respondent as price for the quantity purchased and obtained a receipt from the respondent. He then divided the quantity of butter into three equal parts. Bach part was then put in a separate dry and clean bottle and was tightly corked and sealed. One of the bottles containing the sample was then handed over by the Food Inspector to the respondent under a receipt. On the same day the Food Inspector sent one of the two remaining samples to the Public Analyst, Poona, and also separately sent a copy of the impression of the seal by post to the Public Analyst as required by the rules. The Public Analyst received the sample on August 31, 1965 and he analysed it on September 3, 1965. As a result of analysis he found that the sample contained 64.6 per cent, milk fat and 22.0 per cent, foreign fat. The Public Analyst accordingly issued a certificate on December 27, 1965 and the same was received by the Municipal Authorities on December 29, 1965. Under para. 11, 05(6) of Appendix B to the Prevention of Food Adulteration Rules, 1955, standard quality of Deshi butter must contain not less than 76 per cent, of milk fat and not more than 20 per cent, of moisture. In this case, as shown by the certificate issued by the Public Analyst the sample seized from the respondent was found to be sub-standard and, therefore, the Food Inspector submitted a report to the Sanitary Committee of the Sangli Municipality through the Chief Officer for sanction to prosecute the accused. The Sanitary Committee granted its sanction on January 10, 1966 and, thereafter, the Food Inspector filed a complaint before the Judicial Magistrate, Sangli, on February 22, 1966, against the respondent for an offence under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act').

2. At the trial the respondent admitted that the Food Inspector did visit his shop on August 24, 1965, and that he had kept in his shop butter for sale. He, however, stated that the butter that he had kept for sale was cream butter and not Deshi butter and that the Food Inspector had purchased cream butter from him. The respondent denied that any notice was given to him by the Food Inspector that the sample would be sent to the Public Analyst for testing or that the quantity purchased from him was divided into three parts. He also denied any knowledge about the sample having been analysed by the Public Analyst and that it was found to contain 64.6 per cent, of milk fat and 22.0 per cent, of foreign fat.

3. The prosecution, in support of their case, examined the Food Inspector, Mr. Mane, (P.W. 1), and the panch Appasaheb Baburao Magdum (P.W. 2). The prosecution also produced the receipts passed by the accused, the panchanama and the certificate of the Public Analyst. On behalf of the defence Public Analyst, Mr. N. N. Dastur was called as a witness. He produced the register in which he had noted the findings of the analysis. It appeared from the relevant entry that the figure 9 of the month in the date of analysis September 3, 1965 was over-written. Mr. Dastur explained this overwriting. He stated that these entries were usually made by Laboratory Assistant on the very day on which analysis was made and they were also on same day checked by the witness himself. He stated that through oversight the Laboratory Assistant had put the figure of the month as 8 and when he checked the entries on the same day he detected the mistake and himself corrected it by writing the figure 9 on original figure 8 in the month. In the cross-examination of the Public Analyst it was elicited by the Police Prosecutor that if butter was kept in air tight container it would remain in the same condition for three to four months and that the sample received by him in this case was immediately on its receipt kept by him in a refrigerator. He further stated that the sample kept in a refrigerator would not deteriorate for four months.

4. On the above evidence, the learned Judicial Magistrate found in favour of the prosecution that the accused had kept Deshi butter for sale in his shop and that the Food Inspector had purchased a sample of that butter from the accused. It was found that the Food Inspector had divided the quantity purchased into three equal parts and had handed over one part to the accused and had sent one to the Public Analyst for analysis and that the Public Analyst on examination of that sample issued a certificate which showed that the sample contained 64.6 per cent, milk fat and 22.0 per cent, foreign fat. Even so the learned Magistrate held that in view of the long interval between the date of analysis and the date of issue of the report or certificate (exh. 9) it was doubtful whether the sample was really analysed by the Public Analyst on September 3, 1965. In the view of the learned Magistrate it was quite possible that the Public Analyst had analysed the sample sometime by the end of December, 1965, and then the report was sent on December 27, 1965 and that in order to cover up the delay he had overwritten the figure in the entry of the date of analysis, in the register. According to the learned Magistrate, therefore, if the analysis was carried out sometime by about December 27, 1965, it could not be said that the sample of butter had remained in the same condition in which it was when it was collected by the Food Inspector and that this circumstance robbed the Public Analyst's certificate of its evidentiary value. Consequently, he held that there was no evidence left to show that the sample of butter sold by the accused to the Food Inspector contained 64.6 per cent, of milk fat and was, therefore, adulterated. In the result, the learned Magistrate passed an order acquitting the accused. The State has now preferred this appeal against this order of acquittal.

5. Mr. Rege, the Honorary Assistant Government Pleader, who appears for the appellant-state, urged that the finding of the learned Magistrate that the Public Analyst as a matter of fact did not analyse the sample sent to him on September 3, 1965 but he analysed it sometime on or about December 27, 1965 is contrary to the evidence of the Public Analyst and is, therefore, totally erroneous. On the other hand Mr. Shah, the learned advocate for the respondent-accused, besides supporting the finding recorded by the learned Magistrate further urged that even, assuming that the Public Analyst analysed the sample on September 3,1965, he ought to have forthwith sent his report of analysis to the Municipal Authorities but he having not sent it till December 27, 1965, there was an infringement of Rule 7(5) of the Prevention of Food Adulteration Rules, 1955, and that the prosecution having been launched late the accused was deprived of the right given to him under Section 13(2) of the Act. Mr. Shah also wanted to urge that this being an appeal against acquittal this Court should be slow to interfere with the order of acquittal.

6. Taking up the contention urged for the State it would be seen that the report (exh. 9) which the Public Analyst sent to the Municipality regarding the result of the analysis does not on the face of it show the date on which the sample was analysed. It only mentions that the sample sent by the Food Inspector was received for analysis by the Public Analyst on August 31, 1'965. Mr. Dastur, the Public Analyst, who was examined for the defence, however, in his examination-in-chief stated that he himself examined the sample of butter in this case on September 3, 1965. He admitted that the figure in the date of analysis as entered in the register was overwritten by him and he explained that it was so over-written because it was incorrectly entered by his clerk as August 3, 1965. It is necessary to note that these statements were made by the witness in his examination-in-chief for the accused. It was nowhere suggested to the witness that this statement made by him, as to the correction of the date was false or that as a matter of fact he had analysed the sample by the end of December, 1965. Mr. Shah for the respondent submitted that since the witness was examined for. the defence no such suggestion by way of cross-examination could have been made to the witness by the defence advocate. But this explanation is a lame explanation. If the defence theory was that the sample was not analysed on September 3, 1965, as stated by the Public Analyst but it was analysed sometime in the last week of December, questions in the nature o cross-examination could have been, with the permission of the Court, put to the witness by the defence advocate. They could even have moved the Court to declare the witness hostile and could have sought opportunity to cross-examine him but that too was not done.

7. The only material on which the learned Magistrate took the view that the actual date of analysis must not be September 3, 1965 but must be somewhere round about December 27, 1965 was that there was long interval between the date of analysis as given in the register and the date of actual dispatch of the report. But that can hardly be regarded as sufficient to warrant such a conclusion.

8. As Mr. Shah disputed the assertion of the Public Analyst Mr. Dastur, that it was only the figure of the month that was re-written in the entry made in the relevant column of the register, hearing of this appeal was adjourned and the original register was called for from the office of the Public Analyst, Poona, for inspection. It was on inspection found that only the figure of the month in column No. 4 reserved for entering the date of analysis was found to have been changed to 9. The figure 3 of the date as well as the figure 65 of the year have not at all been altered. In the place of the figure of the month it appeared that originally the figure 8 was written and it appeared to have been changed to 9. This, therefore, clearly lends support to what the Public Analyst stated in the box namely that the clerk or the Laboratory Assistant who usually makes these entries had erroneously entered this date as August 3, 1965 and when it came to the witness for checking and signature he corrected it on the same day to September 3,1965 by altering the figure of the month 8 into 9. It appears quite probable that the Laboratory Assistant must have originally entered the month as 8 in this column because the date in the previous two columns which relate to the date of purchase of the sample and the date of receipt of the sample by the Public Analyst are both from the month of August. The dates entered in these two columns are respectively August 24, 1965 and August 31, 1965. Naturally while entering the date in the third column the Laboratory Assistant seems to have put the same month which he had written in the previous two columns in this column as well.

9. Thus it would appear that there is not the slightest material on record to suspect that the analysis was actually done by the Public Analyst sometime in the last week of December and that with a view to cover up the delay on his part in taking up the sample for analysis he changed the figure of the month in column No. 3 of the register. Consequently the reasons given by the learned Magistrate for holding that the Public Analyst's report or certificate (exh. 9) had no evidentiary value cannot be accepted. The inferences drawn by the learned Magistrate in this respect are, therefore, totally unsupported by evidence and are, therefore, wrong.

10. Under Sub-section (5) of Section 13 of the Act, any document purporting to be a report filed by a Public Analyst, unless it has been superseded under Sub-section (5), or by the certificate issued by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceedings under this Act. That being so the report of the Public Analyst at exh. 9 in this case must be accepted as the evidence of the facts stated therein. If that is so then it is clear from the Public Analyst's certificate that the sample of butter which was purchased from the accused and was examined by the Public Analyst was found by him to contain only 64.6 per cent, of milk fat and 22.0 per cent, of foreign fat.

11. The difficulty in the way of the prosecution, however, does not end here. Sub-section (2) of Section 13 of the Act confers a right on the accused to have the sample given to him by the Food Inspector 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, and Sub-section {3) of that section provides that the certificate issued by the Director of the Central Food Laboratory under Sub-section (2) shall supersede the report given by the Public Analyst under Sub-section {1) and proviso to Sub-section (5) provides that such certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.

12. It is contended for the respondent that the accused was deprived of this right because of the delay on the part of the prosecution to launch this prosecution and that, therefore, the order of acquittal should not be interfered with. As observed by the Supreme Court in Munpl. Corporation of Delhi v. Ghisa Ram : 1967CriLJ939 , the right conferred on the accused vendor by Sub-section (2) of Section 13 of the Act is a valuable right and it is therefore to be expected that the prosecution would proceed in such a manner that that right will not be denied to him. This 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. It has been observed by the Supreme Court in the above case that in a case where there is denial of this right on account of the deliberate conduct of the prosecution such as delay in instituting prosecution with the result that the sample is highly decomposed and could not be analysed, 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, of the facts contained therein. In that case sample of curd was collected from the accused by the Food Inspector on September 20, 1961 and it was duly sent for analysis to the Public Analyst who carried out the analysis on October 3, 1961 and issued his certificate on October 23, 1961. The prosecution was thereafter launched on May 23, 1'962. On October 4, 1963, the accused applied under Sub-section (2) of Section 13 of the Act to have the sample given to him sent for examination to the Director of the Central Food Laboratory. Accordingly the sample was sent to the Director of the Central Food Laboratory but he reported that the sample sent to him had become highly decomposed and no analysis thereof was possible. One of the pleas raised on behalf of the accused was that the accused having been thus denied the right of obtaining the report of the Director of the Central Food Laboratory because of the delay by the appellant in launching the prosecution the respondent could not be convicted. This defence was accepted by the Magistrate and the High Court also upheld it in appeal. The matter was then taken to the Supreme Court by the Municipal Corporation of Delhi. In that case an expert Dr. Sat Parkash was examined and the opinion given by him showed that in the case of a food article, like curd, it starts undergoing changes after a week if kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. If the sample is kept in a refrigerator, it preserves its fat and non-fatty solid contents for purposes of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the percentage of fat and non-fatty solid contents for purposes of analysis would be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may he available for making analysis, without decomposition, would be six months. The vendor is not expected to keep his sample in a refrigerator. Consequently without any preservative the sample kept with the vendor could have been analysed successfully during 17 days after the collection of the sample, whereas, if a preservative had been added it could have been analysed successfully during the next four months.

13. On this evidence their Lordships held that launching of prosecution having been delayed till the sample given to the accused became decomposed, the prosecution was guilty of deliberate conduct which deprived the accused of this valuable right given to him by Section 13(2) of the Act. It is necessary to point out that in that case the application for sending the sample to the Director of Central Food Laboratory was made by the accused almost a year and a half after the starting of prosecution, yet that delay on the part of the accused was not considered as of any consequence.

14. In the present case as already stated above the sample was taken by the Food Inspector on August 24, 1965, and although it was despatched by the Food Inspector on the same day to the Public Analyst it was actually received by the latter on August 31, 1965. Although he carried out analysis on September 3, 1965, the certificate (exh. 9) was issued by the Public Analyst on December 27, 1965. In the register at exh. 24, however, in column No. 5, the date of issue of the report has been mentioned as December 20, 1965. Mr. Shah wanted to make some capital of this discrepancy between the date of issue entered in the register and the one noted on the report or certificate exh. 9, But I do not think that any capital can be made out of this discrepancy. It seems that the certificate was prepared on December 20, 1965, was actually signed and despatched by the Public Analyst on December 27, 1965. All the same the fact remains that the certificate or report of the Public Analyst was issued more than three months after the analysis was carried out. It is not clear from the record nor was any attempt made by either side to get a clarification from the Public Analyst for this delay. The certificate was received by the Municipal Authorities on December 29, 1965 and, thereafter, the Food Inspector submitted his report (exh. 10) through the Chief Officer to the Sanitary Committee for sanction to launch the prosecution. Since the endorsement of the Chief Officer below this report is dated January 4, 1966, it appears that this report was submitted some time before January 4, 1966 and the resolution granting sanction to prosecution was passed on January 10, 1966. Even then the complaint was not filed in Court till February 22, 1'966. Thus it is clear that six months had elapsed from the collection of the sample when the prosecution was launched.

15. Mr. Dastur, the Public Analyst who was called as a witness by the defence, stated that butter kept in an air tight container would remain in the same condition without deterioration for about two to four months and if kept in a refrigerator it would not deteriorate for four months. He was not asked as to how long such a sample would last if a preservative were added. But it can very well be presumed that if preservative was added it would have been available for analysis for a longer period. The panchunama (exh. 8) under which this sample was seized by the Food Inspector shows that no preservative was added to the samples. The testimony of the Food Inspector only shows that the samples were kept in an air tight, dry and clean bottle. On the evidence of the Public Analyst, therefore, it is clear that the sample that was handed over to the accused could have been available for analysis at the most for a period of four months even assuming that the same was kept by the accused in a refrigerator. It, therefore, follows that this sample could have been successfully analysed upto the end of December 1965 at the latest.

16. Under Sub-section (2) of Section 13, it is only after the institution of the prosecution that the accused vendor is required to exercise the option to have the sample sent to the Director of Central Food Laboratory and not before. At the time the prosecution in this case was launched therefore the sample that was given by the Food Inspector to the accused had obviously deteriorated and could not have been properly analysed. Mr. Shah for the respondent-accused, therefore, contended that here as in the above Supreme Court case the accused was robbed of this valuable right given to him by Section 13(2) of the Act.

17. Mr. Rege, however, pointed out that in the Supreme Court case referred to above the accused had made an application to exercise his option to send the sample to the Director of Central Food Laboratory and the sample was sent to the Director of Central Food Laboratory for analysis and it was then that the Director of Central Food Laboratory found that the sample sent to him could not be analysed as it had become highly decomposed. According to Mr. Rege in the present case the accused did not make any application to exercise his option, and, therefore, the accused cannot now contend that he has been deprived of his right under Section 13(2). It was submitted that it is only after an application as contemplated in Sub-section (2) was made by the accused that he would get the right to have his sample sent to the Director of the Central Food Laboratory for analysis and not otherwise. If the accused does not choose to make such an application, according to Mr. Rege, it follows that he does not wish to exercise his option to have the sample sent to the Director of Central Food Laboratory and therefore it cannot be said that the accused is deprived of any right. But it appears to me that where as in the present case, it is patent on the record that by the time the accused has an opportunity of exercising the option the sample had become decomposed or deteriorated it would be futile for the accused to make an application to send the sample to the Director of Central Food Laboratory.

18. Mr. Rege, in support of his argument relied on the following observations made in the above case by the Supreme Court in para. 4 of the report (p. 971) : '...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 the basis of the report of the Public Analyst...' Relying on the above observations, Mr. Rege urged that in the present case the accused not having exercised the option the case must be decided on the basis of the report of the Public Analyst which shows that the sample collected from the accused was sub-standard and was adulterated. From the subsequent observations made by the Supreme Court in para. 8 however, it appears, that the principle of the case is not to be confined only to a case where the accused exercises his option but has to be extended to all cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Their Lordships observe (p. 972) :

We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.

It should be noted that the principle of this ruling is applicable to cases where the accused had no opportunity to exercise the right. In a case where the prosecution is launched after such a period that the sample given to the vendor has become decomposed, it is difficult to say that the vendor has any opportunity to exercise this right. In such a case it would be too much to expect the accused to observe the empty formality of making the application to send the sample to the Director of Central Food Laboratory when it is quite plain that making of such an application would be futile.

19. In my opinion, therefore, merely because in this case the accused did not make an application to exercise his right under Section 13(2), it cannot be held that he has not been deprived of an opportunity to have his sample tested by the Director of Central Food Laboratory due to the deliberate conduct of the prosecution. As I have stated above, not only that there was avoidable delay of three months and more in issuing the certificate by the Public Analyst but even after the report of the Public Analyst was received, the prosecution did not act with diligence. The sanction for prosecution was accorded by the Sanitary Committee on January 10, 1966, but the filing of complaint was, without any apparent reason, delayed till February 22, 1966. In these circumstances it appears to me that this is not a fit case to interfere with the order of acquittal.

20. In the view which I have taken above it is not necessary for me to examine the other contention raised for the respondent that the mandatory provision of Rule 7(3), requiring the Public Analyst to send his report to the Municipal Authorities forthwith ought to have been complied with strictly. So also it is not necessary to consider the contention that this being an appeal against acquittal this Court should be slow to interfere with the order of acquittal. On merits this contention also appears to be untenable in view of the recent Supreme Court ruling in Sher Singh v. State of U.P. : 1967CriLJ1213 where the Supreme Court has laid down that the powers of the High Court in an appeal from acquittal are in no way different from those in an appeal from a conviction, and that the High Court can consider the evidence and weigh the probabilities. It can accept the evidence rejected by the lower Court and reject evidence accepted by it, unless the lower Court relied upon its observation of the demeanour of a particular witness. In departing from the conclusions of the lower Court the High Court must no doubt pay due attention to the grounds on which the acquittal is based and repel those grounds satisfactorily, bearing in mind always that an accused starts with a presumption of innocence in his favour and this presumption cannot certainly be less strong after the acquittal. If these matters are properly kept in view and the acquittal is reversed, there can be no objection because our criminal jurisdiction empowers the High Court to reverse an acquittal.

21. In the result, the order of acquittal passed by the trial Magistrate must be confirmed although on different grounds. The appeal is, therefore, dismissed.


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