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State Vs. Ramanlal Jamnadas Gandhi - Court Judgment

LegalCrystal Citation
SubjectFood Adulteration
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1159 of 1959
Judge
Reported in(1960)62BOMLR354
AppellantState
RespondentRamanlal Jamnadas Gandhi
DispositionAppeal Dismissed
Excerpt:
.....was not satisfied with the report of the public analyst. though we are of the opinion that the food inspector in the present case failed in his duty to see that the proper quantity was sent to the public analyst for analysis, we do not think that any prejudice has been caused to the respondent because a lesser quantity of tea was sent to the public analyst than the approximate quantity of 4 ozs. prescribed under rule 22. nor are we satisfied that, on account of that, an inference should be drawn in favour of the respondent that proper tests were not carried out by the public analyst in the present case. 10. the result is that we must differ from the view taken by the learned sessions judge that, on account of the failure of the food inspector strictly to comply with rule 22 of the..........no. 1258 of 1958, decided to prosecute the accused, and accordingly a complaint was filed by the food inspector charging the accused with having committed an offence under section 7 read with section 16 of the adulteration act.2. the defence of the respondent was that he had not sold the tea to the food inspector, but that it was the inspector who took a quantity of tea from his shop though he was told by the respondent that it was not for sale. that is why he contended that he was not guilty of the offence with which he was charged. in the trial court, the respondent also made a grievance that the sample sent to the public analyst by the food inspector was less than 4 ozs. in quantity and, therefore, rule 22 of the prevention of food adulteration rules, 1955 (which will hereafter be.....
Judgment:

Gokhale, J.

1. This is an appeal by the State against the acquittal of the respondent Ramanlal Jamnadas Gandhi by the learned Sessions Judge, Mehsana, for the offence under Section 7 read with Section 16 of the Prevention of Pood Adulteration Act, 1954, which will hereafter be referred to as the Adulteration Act. The accused is the owner of a grocery shop at Loteshvar, Patan. On November 6, 1958, the Food Inspector of the Patan Municipality visited his shop in the evening and purchased a sample of tea kept by the respondent for sale in his shop. In all 8 oz. of tea was purchased and the Inspector paid its price. The tea so purchased was divided into three parts and one of the parts was sent to the Public Health Laboratory, Baroda, for analysis. The Public Analyst certified that the tea was adulterated and that certificate is exh. 8. The Managing Committee of the Patan Municipality, by Resolution No. 1258 of 1958, decided to prosecute the accused, and accordingly a complaint was filed by the Food Inspector charging the accused with having committed an offence under Section 7 read with Section 16 of the Adulteration Act.

2. The defence of the respondent was that he had not sold the tea to the Food Inspector, but that it was the Inspector who took a quantity of tea from his shop though he was told by the respondent that it was not for sale. That is why he contended that he was not guilty of the offence with which he was charged. In the trial Court, the respondent also made a grievance that the sample sent to the Public Analyst by the Food Inspector was less than 4 ozs. in quantity and, therefore, Rule 22 of the Prevention of Food Adulteration Rules, 1955 (which will hereafter be referred to as the Rules), was also contravned. On that ground also he pleaded that he could not be convicted of the offence with which he was charged.

3. The learned trial Magistrate held that the sample of tea taken from the shop of the accused on November 6, 1958, was for sale and that the said sample was adulterated. As regards the alleged breach of Rule 22, he was of the opinion that the approximate quantity of sample prescribed in Rule 22 was so prescribed in order to enable the Public Analyst to examine properly the sample of the article sent to him, and that in the present case the Public Analyst was able to examine the sample even though it was less than the prescribed quantity of about 4 ozs. He, therefore, held that the respondent could not be acquitted merely on the ground that the complainant sent about 1 oz. of tea less to the Public Analyst and that the irregularity complained of was not fatal to the complaint. On these findings, the trial Court convicted the respondent under Section 7 read with Section 16 of the Adulteration Act and sentenced him to a fine of Rs. 200 in default rigorous imprisonment for two months.

4. Against this v conviction and sentence, the respondent filed an appeal, and that appeal was heard by the Court of Session at Mehsana. In the appellate Court, a further contention was raised on behalf of the respondent, and that was that the report of the Public Analyst did not show that the analysis of the sample of tea sent to him was carried out in accordance with Article 14 of Appendix B to the Rules. The learned Sessions Judge was of the opinion that the report did not mention that the total ash was made of tea leaves dried to a constant weight at a temperature of 100oC., that it did not show that the dry tea leaves were boiled, that it did not also show that the water used was distilled water and the boiling was for one hour, and further that this was done under reflux. According to the learned Sessions Judge, as the water extract stated in the report of the Public Analyst was 33.5 per cent., while according to Article 14 it should not be less than 35 per cent., the variance was of a very small nature, and if the analysis was not carried out strictly in accordance with Article 14 of Appendix B to the Rules, then some variation was bound to arise even if the sample was not adulterated. The Sessions Court, therefore, came to the conclusion that the prosecution had failed to prove that the sample of tea was adulterated. As regards Rule 22, the learned Sessions Judge held that the quantity of the sample of tea sent to the Public Analyst would, on the evidence, be about 2.2/3 ozs. whereas the approximate quantity required under Rule 22 was 4 ozs. There was no explanation given by the prosecution why the Inspector did not send the quantity prescribed in Rule 22, and, therefore, the learned Sessions Judge was inclined to draw an inference in favour of the accused to the effect that the less quantity of tea sent to the Public Analyst may have resulted in a proper test not being carried out by the Public Analyst and, therefore, his report could not be taken as correct. On these findings, the appellate Court allowed the appeal and set aside the conviction and the sentence imposed upon the accused under Section 7 read with Section 16 of the Adulteration Act and directed that the accused should be acquitted. Against this order of acquittal, the present appeal has been filed.

5. Mr. Rane, learned Assistant Government Pleader on behalf of the State, has contended, in the first instance, that the view of the learned Sessions Judge that there was a defect in the report of the Public Analyst was erroneous. According to Mr. Rane, the report submitted by the Public Analyst and the certificate contained in that report were in accordance with the requirements of the Adulteration Act and the rules framed there under, and, therefore, a presumption should have been drawn in favour of the prosecution that all the necessary steps were taken by the Public Analyst to have a proper analysis made of the sample sent to him and the certificate declaring the result of the analysis should, therefore, have been relied upon by the learned Sessions Judge. Mr. Rane has also contended that the view of the Sessions Court that, owing to less quantity of the sample of tea being sent to the Public Analyst, proper tests may not have been carried out, is also not sound.

6. In order to test this argument, it would be necessary to refer to the relevant provisions of the Adulteration Act as well as some of the Rules framed there under. Under Section 2(i)(f), an article of food shall be deemed to be adulterated

if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.

Under Section 10, a Food Inspector is empowered to take samples of any article of food from any person selling such article. Under Section 11, when a Food Inspector takes a sample of food for analysis, he shall

(a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample; and

(b) except in special cases provided by rules under this Act separate the samples then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits.

After the sample is thus divided into three parts, under Sub-clause (i) of Section 11(i)(c) the Food Inspector is to deliver one of the parts to the person from whom the sample has been taken, under Sub-clause (ii) send another part to the Public Analyst for analysis, and under Sub-clause (iii) retain the third part for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under Sub-section (2) of Section 13, as the case may be. There is no dispute in the present case about the procedure under Section 11 having been followed by the Food Inspector. Then comes Section 13, which deals with the report of the Public Analyst, and that section runs as follows:-

13. (1) The public analyst shall deliver, in such form as may be prescribed, a report to the food inspector of the result of the analysis of any article of food submitted to him for analysis.

(2) After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of 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 one month from the date of receipt of the sample, specifying the result of his analysis.

(3) 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).

(4) Where a certificate obtained from the Director of the Central Food Laboratory under Sub-section (2) is produced in any proceeding under this Act, or under Sections 272 to 276 of the Indian Penal Code, it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.

(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under Sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the Indian Penal Code:

Provided that any 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.

In the present case, after the institution of the prosecution against the respondent, he made no application to the Court for sending any of the samples mentioned in Sub-section (2) of Section 13 for being sent to the Director of the Central Food Laboratory for a certificate. That being the position, the Court had to consider merely the report given by the Public Analyst under Sub-section (1) of Section 13. A certificate signed by the Director of the Central Food Laboratory is to be treated as final and conclusive evidence of the facts stated therein in view of the proviso to Sub-section (5) of Section 13. But a document purporting to be a report signed by the Public Analyst, unless it is superseded by a certificate issued by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under the Act. Obviously, therefore, a report signed by the Public Analyst is not final and conclusive evidence of the facts stated therein. But it is not necessary for the prosecution to examine the Public Analyst in support of the report and the certificate, inasmuch as under Sub-section (5) the report signed by the Public Analyst can be used as evidence of the facts stated therein.

7. Under Rule 5 of the Rules, 'standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that Appendix'. Clause (1) of Rule 7 refers to the duties of the Public Analyst and it provides that

on receipt of a package containing a sample for analysis from Food Inspector or any other person the Public Analyst or an officer authorised by him shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the condition of the sealsthereon.

Under Clause (2) of Rule 7,

the Public Analyst shall cause to be analysed such samples of food as may be sent to him by the Food Inspector or by any other person under the Act;

and under Clause (5),

after the analysis has been completed he shall forthwith supply to the person concerned a report in Form III of the result of such analysis.

Now, Form III shows that the Public Analyst has to certify that he received a sample for analysis properly sealed and fastened and that he found the seal intact and unbroken. Then he has further to certify that he has analysed the aforementioned sample, and finally he has to give his opinion on the basis of the analysis carried out by him. There is no dispute that exh. 8, which is the report of the Public Analyst, is in the prescribed Form III. The second part of that report gives the certificate that he analysed the tea sample sent to him and he has also declared the result of his analysis, which shows that the percentage of water extract was 33.5 per cent. and the percentage of crude fibre was 27 per cent. 'While the sample of tea sent to him in the present case conformed to the specifications mentioned in Clauses (a), (b), (c) and (e) of Article 14 of Appendix B to the Rules, it was not according to the specifications mentioned in Clauses (d) and(f) of Article 14. Under Clause (d), the extract obtained by boiling dry tea leaves is not to be less than 35 per cent., whereas in the present case the percentage of water extract was 33.5 per cent. Under Clause (f) of Article 14, the crude fibre in the tea sample must not be more than 15 per cent., whereas in the instant sample the percentage of crude fibre was 27 per cent. The Public Analyst, therefore, was of the opinion that the sample of tea was adulterated because it gave a lower percentage of water extract and a higher percentage of crude fibre than the prescribed limit. Now, in the first instance, it has to be mentioned that the learned Sessions Judge has made no reference at all in his judgment to the second defect mentioned in the report of the Public Analyst, namely, that the percentage of crude fibre disclosed in the sample of tea sent to him was 27 per cent., whereas under Article 14 it should not have been more than 15 per cent. That obviously would imply that the opinion of the Public Analyst that the tea sample sent to him was adulterated would be correct. In fact, on this point no argument seems to have been addressed on behalf of the respondent in the Sessions Court, and, as already stated, the learned Sessions Judge does not appear to have referred to the fact that the percentage of crude fibre was nearly double the normal percentage to be found in unadulterated tea. As indicated earlier, what is required in the form prescribed for the report of the Public Analyst is a certificate that he had analysed the sample and a declaration about the result of this analysis. The form does not require the Public Analyst to state that, in arriving at the result of his analysis, he carried out the analysis in the manner mentioned in the several clauses of Article 14. The learned Sessions Judge was of the opinion, that the report did not show that the total ash was obtained after the tea leaves were dried to a constant weight at a temperature of 100C with 100 parts of distilled water for one hour under reflux. In our opinion, in view of the form prescribed for the report by the Public Analyst under Rule 7(3), it is not necessary for the Public Analyst to mention all the details of the manner in which he carried out the analysis. The form itself requires a certificate from him that he has analysed the sample, and when he so certifies, it must be presumed that the steps mentioned in Article 14 must have been followed by him. Rule 6 of the Rules prescribes the qualifications of a Public Analyst, and it shows that fairly high qualifications in Chemistry and experience in analysis of food in a laboratory are required for persons to be qualified for appointment as Public Analysts. Under Section 114, ill. (e), of the Indian Evidence Act, the Court may presume that official acts have been regularly performed. Unfortunately, the learned Sessions Judge failed to draw this presumption in favour of the prosecution when he upheld the contention raised on behalf of the defence that the report of the Public Analyst could not be accepted because it did not mention the various steps which were taken by the Public Analyst in making an analysis of the sample of tea submitted to him and state that the analysis was carried out as laid down under Article 14 of Appendix B of the rules. As already pointed out, this point was never raised in the Court of the trial Magistrate, nor did the respondent apply to the Court for sending the other sample or samples of tea in the case to the Director of the Central Food Laboratory, as provided under Sub-section (2) of Section 13. Since the report of the Public Analyst is in the form prescribed under Rule 7(5) and since it shows that, as a result of the analysis of the sample submitted to him, two defects were disclosed, namely, there was a lower percentage of water extract and higher percentage of crude fibre than the prescribed limit, in our judgment, the opinion of the Public Analyst that the sample of tea in the present case was adulterated will have to be accepted.

8. As regards the contention that there was a breach of Rule 22, the evidence of the Food Inspector shows that he purchased 8 ozs. of tea and divided it into three parts. The vernacular deposition of the Inspector shows that he took care to see that the sample purchased by him was divided into three equal parts, so that it is apparent, as the learned Sessions Judge has pointed out, that the sample of tea sent to the Public Analyst would be about 2.2/3 ozs. It is somewhat strange that the Food Inspector has deposed that he could not say as to what quantity was sent to the Public Analyst. Under Rule 22, which is in part V of the Rules, the quantity of sample of food to be sent to the Public Analyst or to the Director of the Central Food Laboratory for analysis shall be as specified in the table set out therein. Item (8) of the table refers to tea, and the approximate quantity to be supplied to the Public Analyst or to the Director is stated to be 4 ozs. There is no doubt, therefore, that in the present case the Food Inspector sent about 1.1/3 oz. less than the approximate quantity of 4 ozs. which was required to be sent under Rule 22. Under Section 2, Clause (xiv), of the Adulteration Act, a 'sample' means 'a sample of any article of food taken under the provisions of this Act or of any rules made there under'; and the quantity of sample of the article of food to be sent to the Public Analyst is the one prescribed under Rule 2]2. The question is whether the view of the learned Sessions Judge, that by sending less quantity to the Public Analyst there was a possibility of the latter not being able to carry out a proper test of the sample, is cornet.

9. Now, the table under Rule 22 itself shows that what is required to be sent to the Public Analyst is an 'approximate quantity'; so that, if in sending a sample of food to him a little more or less is supplied, that by itself cannot introduce any infirmity in the analysis which may be carried out by the Public Analyst. It is true that, in the present case, the quantity of sample sent falls short of the required quantity by 1.1/3 oz. But that necessarily would not imply that a proper test could not have been carried out by the Public Analyst. The use of the words 'approximate quantity to be supplied' in the table in Rule 22 itself shows that, regarding the quantity to be sent, the rule is recommendatory. That is also apparent from the wording of some other rules in Part V of the Rules dealing with the manner of packing, sealing, fastening and despatch of samples. The report of the Public Analyst does not indicate that any difficulty was found by him in carrying out his analysis. The respondent does not appear to have applied to the Court for asking the prosecution to call the Public Analyst for cross-examination. As has been already stated, no attempt was made by the respondent for having any of the othersamples sent to the Director of the Central Food Laboratory under Sub-section (2) of Section 13, Under Section 11, one-third of the sample is to be delivered to the person from whom the sample has been taken, and the remaining third is to be retained for production in case any legal proceedings are taken. It is obvious, therefore, that more than 4 ozs. of the sample of tea was still available for analysis by the Director of the Central Food Laboratory if the respondent was not satisfied with the report of the Public Analyst. Though we are of the opinion that the Food Inspector in the present case failed in his duty to see that the proper quantity was sent to the Public Analyst for analysis, we do not think that any prejudice has been caused to the respondent because a lesser quantity of tea was sent to the Public Analyst than the approximate quantity of 4 ozs. prescribed under Rule 22. Nor are we satisfied that, on account of that, an inference should be drawn in favour of the respondent that proper tests were not carried out by the Public Analyst in the present case.

10. The result is that we must differ from the view taken by the learned Sessions Judge that, on account of the failure of the Food Inspector strictly to comply with Rule 22 of the Rules, there is an infirmity in the report of the Public Analyst which must go in favour of the accused.

11. We must, however, observe that those concerned in the enforcement of beneficent social legislation must take care to observe scrupulously its provisions and the rules framed under the legislation.

12. We must, therefore, hold that the accused sold to the Food Inspector adulterated tea and is guilty of an offence under Section 7 read with Section 16 of the Adulteration Act,

13. The appeal will, therefore, be allowed, the order of acquittal passed by the learned Sessions Judge will be set aside, and the respondent will be convicted of the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. '

14. The trial Court imposed on the respondent a sentence of fine of Rs. 200 in default rigorous imprisonment for two months. Tea is an article of every-day consumption, and, in our view, the offence committed by the respondent is a serious one. We do not, therefore, think that the sentence which was imposed upon the respondent by the trial Court was in any manner excessive, We therefore, sentence the respondent to a fine of Rs. 200 and in default to undergo rigorous imprisonment for two months.


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