Sharad Manohar, J.
1. This revision application is filed by the original accused against the order of the Additional Sessions Judge, Aurangabad confirming the order of conviction and sentence passed by the learned Judicial Magistrate, Aurangabad under section 16(1)(a)(i) of the Prevention of Food Adulteration Act.
2. A few facts necessary for the purpose of appreciating the question of law urged by Mr. Savant for the petitioner (hereinafter, the accused) may be stated as follows :---
On 17-5-1979, at about 5.00 p.m., the Food Inspector visited the establishment known as 'Lok Vijay Dairy' along with panchas and other staff. A bucket filed with milk was there in the shop. The inspector purchased 750 mls. of milk and paid Rs. 1.50 in that behalf to the accused, who was there in the shop at that time. Since the visit was with the intention of verifying whether milk sold in the shop conformed to the statutory requirement or not, the necessary sample was taken by him from the milk by purchasing the same in the quantity mentioned above. He dropped 20 drops of formalin in the same and the sample was divided into three parts. Each part was kept in the separate clean and dry bottle. The necessary label was affixed to the same and the bottles were sealed in the presence of the panchas and all other necessary formalities were observed.
3. One of the points urged by Mr. Savant for the accused pertains to alleged delay on the part of the prosecution in the matter of filing of the complaint against him. Hence, subsequent facts may be stated in the chronological order.
It is mentioned above that the sample was taken by the Inspector on 17-5-1979. One of the samples was sent by the Inspector to the Public Analyst and the Report was received from the Public Analyst on 6-6-1979. The Report revealed that the sample contained 1.734% of added sugar and 51.377% of added water.
The sanction to prosecute the accused was, however, received by the Food Inspector as late as on 23-11-1979 and the complaint was filed by the Food Inspector in the Court on 1-12-1979. The Court issued intimation to the accused as regards the Public Analyst's Report on 28-12-1979 and the same was received by the accused on 2-1-1980. The accused appeared in the Court on 5-1-1980 and made an application to the Court for sending one of the samples to the Director of Central Food Laboratory, Mysore, for correct analysis. The bottle containing the 2nd sample was actually sent to the Director of Central Food Laboratory as late as on 29-1-1980 and the Report was received was received from the Director thereafter.
4. The defence of the accused was three-fold :
(a) The 1st contention was that the accused was not the owner of the shop at all and that he was a mere guest in the shop and that, hence, no offence could be brought home to him even assuming that the sample of milk supplied to the Inspector was adulterated;
(b) Secondly, it was contended that the milk which was kept in the bucket form out of which the samples were taken by the Inspector was not kept there for sale at all but that it was kept just for test on a machine kept in the Dairy; and
(c) The 3rd defence was that there was noncompliance with the statutory requirement, resulting in vitiating the prosecution.
It is necessary for me to set out the particulars of the arguments advanced in the courts below. It is sufficient here to state that all these arguments were negatived by the learned Judicial Magistrate. Even the Sessions Court rejected the arguments advanced in the appeal, some of the arguments have been advanced before me and I proceed to deal with them presently.
All that needs be stated here is that rejecting the defence of the accused, the trial Court convicted him of offence punishable under section 16(1)(a)(i) of the Prevention of Food Adulteration Act and he sentenced him to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 500/-. The order of sentence in default of payment of fine was also passed.
5. In appeal, the Sessions Court has confirmed the order of conviction and sentence.
6. The two points urged before the trial Court on behalf of the accused, viz.---
(i) that the accused was a mere guest in the shop and had nothing to do with the sale of milk; and
(ii) the bucket from which milk sample was taken did not contain milk for sale---were not urged before me by Mr. Savant and advisedly so. In the first place, after going through the judgment. I found that there was hardly any substance in the points. Moreover, both the points involve questions of pure appreciation of evidence and it would be impossible for me to interfere with the findings recorded concurrently by both the courts below in that behalf. Mr. Savant fairly stated that in this revision application he was going to urge only the questions of law and that he was not going to advance any argument relating to the above finding, of facts. He, therefore, urged only 3 points before me and in fairness to him, I must say, all the three questions urged by him were essentially the questions of law.
7. The 1st point of Mr. Savant was that the delay of more than 7 months if filing the complaint and, further, in giving intimation to the accused for availing of the opportunity to have the sample sent for analysis, has vitiated the prosecution at its very inception. In this connection, Mr. Savant relied upon as many as four authorities.
The 1st authority is the judgment of this Court reported in (1977(2) Criminal Law Journal, at page 1342)1. However, to my mind, the ratio of that case does not help the present accused at all. In that case, the Sessions Court had held that in the particular facts of the case the delay in the prosecution had vitiated the trial. In defence to the said plea of delay, the State came out with the plea that the delay was caused by the pressure of work. This plea was rejected by the Session Court and was re-agitated before this Court, a learned Single Judge of this Court, with great respect quite rightly, rejected that contention once again. This Court held that if a prosecution is vitiated by delay, the result could not be wiped off by the plea that the delay was caused by the pressure of work upon the State Government. To my mind, no other view could be taken. There are cases in which delay might not cause any prejudice to the accused, whereas there are other case in which delay might very much prejudice the accused. In such a cases, the law requires the prosecuting agencies to be on their toes. It is no answer to the prejudice caused to the accused that the prejudice was the result of the pressure of work upon the State Government. The State Government has to adjust its own machinery in such a manner that the urgent matter has got to be given priority. If the State chooses otherwise, it can do the same only at the risk of frustrating all its own efforts and objects.
Point, however, is that the said authority does not decide as to in what circumstances delay would be fatal for the prosecution. The authority cited before me does not state that the delay is fatal in every case. The position there was that according to the Sessions Court the delay in the prosecution in that case was fatal and the excuse on the part of the prosecuting agency was that the delay was unavoidable on account of the pressure of work upon the Government. All that this Court decided was that the pressure of work was no ground to cause prejudice to the accused. The authority, therefore, does not help Mr. Savant.
All the three other authorities cited by Mr. Savant result in one and the same ratio. I will refer to all the three authorities, but discuss only the 1st one.
8. The 1st authority is the judgment of the Madhya Pradesh High Court in Shiv Dayal v. The State of Madhya Pradesh, 1977 (2) CLJP 1548. What happened in that case was that the prosecution was launched by the Food Inspector more than 8 months after the detection of the so called offence. The sample of the milk in the bottle was not even kept in any refrigerator. The accused got opportunity to have the 2nd sample sent to the Director for analysis more than 9 months after the detection of the so-called offence. In those circumstances, the accused did not make any application to the Court for sending the 2nd sample for analysis to the Director. In those circumstances, the Court held that the right of the accused to have the sample sent to the Public Analyst and to have second opinion from him was set at naught by the delay in the prosecution. What is to be noted is that in that case the accused has not made any application for sending the 2nd sample to the Director at all and the Court found that the accused could not be blamed on that account, because sending the sample to the Director of Central Food Laboratory would normally be futility.
I may state here that I am in complete agreement with the said authority. In fact, I have myself held on an earlier occasion that if the accused receives the intimation months after the sample of the milk is taken from him, it would be a sheer futility to except of him that he should make an application to the 2nd sample to be sent for analysis. But the distinguishing feature of the present case is that the accused in fact applied for the sample to be sent to the Director of Central Food Laboratory and the sample was in fact sent to the Director and the Director gave his Report holding that the water content of the sample was far in excess of the statutory limit. It is common ground before me that the Report of the Director or of the Public Analyst can go in evidence without either of them being examined by the Court. The plea of the prosecution that the samples contained adulterated milk, in that the water comments in the same were far in excess of statutory limit must, therefore, be held to be borne out by both the Reports. Mr. Savant contended that the Director of Central Food Laboratory, could not have come to the conclusion that he arrived at when the sample was sent to him nearly 7 months after the detection of the alleged offence. To my mind, raising such a such a contention at this stage is not quite justified. The Director of Central Food Laboratory has given his Report. If the sample that was sent to him was incapable of being analysed on account of the likely decomposition of the milk contained in the bottles sent to him, he would have stated that position in his Report. The fact that he has not stated so means that it was possible for him to analyse the sample of milk sent to him. If the accused chose not to make an application to the Court for making the Director of Central Food Laboratory available for cross-examination, the blame must go to the accused or his Advocate, not to the prosecution. The prosecution has placed all their cards before the Court. It is true that the report of the Director as well as the Public Analyst can go in evidence without either of the persons being examined by the Court and to that extent the accused lose the opportunity of cross-examining those persons. But that does not mean that there is any impediment in the way of the accused in cross-examination those officers. It is perfectly open for the accused to make application to the Court to make available those officers for cross-examination. It is even open for the accused to apply to the Court for examining those persons as Court's witnesses so that they can be available for himself and to the prosecution as well for cross examination. In the instant case, the prosecution was not under any duty to have examined the said officers, either as their own witnesses or as the Court's witnesses. But if the defence wanted the Report of the Directors, falsified, it was incumbent upon the accused or his learned advocate to apply to the Court either for examining the witnesses as Court's witnesses or for making the witnesses available for cross-examination otherwise. Obviously, the advocate for the accused took chance of getting a favourable Report from the Director of Central Food Laboratory and when the Report was against the accused, the Legal Adviser of the accused decided to sit pretty.
In this view of the distinguishing feature, to my mind, the above authority of the Madhya Pradesh High Court could not be of much avail to the accused as the position of the record stands.
9. The other two authorities relied upon by Mr. Savant are :---
(i) Radhelal Jagannath Bitholia v. State of Maharashtra, 1982 MLJl 181; and
(ii) Satrughna Behera v. Puri Municipality, 1968 (74) CLJ 123.
It is, however, un-necessary to refer to the facts of both the cases, because the ratio of both of them is identical as the one discussed above. In both the cases there was a delay in sending intimation to the accused for application to send the 2nd sample to the Director of Central Food Laboratory and in those circumstances the accused had abstained from making any application in that behalf to the Court and in the self-same circumstances, the Court held that the right given to the accused to have a second opinion from the Director was rendered nugatory by virtue of the delay on the part of the prosecution. With great respect, I am in complete agreement with the principle of law laid down by both the judgments. But, as discussed above, there is essentially a distinguishing set of facts in the present case.
10. Question then arises as to whether on this account, I should dismiss the revision application. After giving careful thought to the question, I am of the opinion that this is a case where the accused ought to be given an opportunity to prove in the Court that the Director of Central Food Laboratory could not have analysed the sample of milk sent to him nearly 8 months after the taking of the sample. In the instant case, the sample was kept just in a steel cupboard. All that the Food Inspector did was that 20 drops of formalin were put by him in each of the samples. A point has been raised by Mr. Savant in connection with the strength of the said preservative. But I will refer to that point a little later. The point to be noted at this stage is that a question would still arise as to whether after the period of 8 months the milk kept in a mere steel cupboard would not decompose, the addition of formalin notwithstanding. To my mind, this question is something which must be examined by the Court on the basis of the evidence of the Analyst. No doubt the learned Advocate for the accused had made no application to the Court for examining the Director as the Court's witness. But in the peculiar facts of the present case, mentioned above, to my mind, the Court would have been better advised to examine the Director suo motu and to give opportunity to the defence to cross-examine him so that he would have explained as to how it was that the milk sample remained in fact without being decomposed for such a length of time.
I am, therefore, inclined to give to the accused opportunity to cross-examine the Director of Central Food Laboratory and to satisfy the Court by leading other evidence, if he so desires, to prove that the 2nd sample which was sent to the Director was incapable of being fruitfully analysed.
11. The 2nd point of Mr. Savant was that there was a non-compliance on the part of the investigating agency in respect of the requirement of Rule 21 of the Prevention of Food Adulteration Rules. In the instant case, the 3 samples which were taken by the Inspector and 20 drops of formalin, in each of them, was added by him. Mr. Savant argued that as per Rule 21 it is mandatory that the Inspector should write on the label attached to each of the bottles the nature and quantity of the preservative. According to Mr. Savant, there was nothing to show that on the label such a writing was made by the Food Inspector at the time of the panchanama.
The argument is not quite correct. There is nothing on record to show that the labels did not have the writing relating to the quantity or quality of the preservative. In fact the evidence of the Food Inspector and particularly his cross-examination clearly shows that the fact that formalin was added to the milk was mentioned on the labels. From the cross-examination, it is clear that only the strength of the formalin was not mentioned by the Inspector. This was so because the Inspector himself did not know the strength of the same. He has stated in his evidence that the normal formalin which he received from the office was added by him in the samples of the milk. From this fact, it cannot be said that the nature and quantity of formalin was not mentioned on the label. In fact the entire cross-examination of the Inspector proceeded upon the basis that 20 drops of formalin was added, but that the Inspector did not know the strength of the formalin. This is a far cry from saying that the nature and quantity of the preservative was not mentioned on the label.
I make it clear that since I am remanding the case to the trial Court for the purpose of giving opportunity to the accused to prove that the 2nd sample was incapable of being analysed by the Analyst, I find no difficulty in giving opportunity to the accused even to prove that the preservative itself might have the result of addicting water contents to the milk.
12. This takes me thorough the 3rd point urged by Mr. Savant. The point is based upon the judgment of the Allahabad High Court in the case of Patil Ram v. State, 1982 CLJ 387. In that case, the Court found that there was no evidence as to the strength of formalin added to the sample of the allegedly adulterated milk and in the context of the factual position, the Allahabad High Court held as follows:
'Taking into consideration the fact that the strength of formalin that was added to the sample of she-buffalo milk was not disclosed by the Food Inspector and that the Public Analyst found fat contents 14% as against 6% and non-fatty solids 5.1% as against 9% prescribed as standard of buffalo milk in the State of Uttar Pradesh under Item A 11.01.11 of the Rules, the result of analysis could not be taken as accurate and the report of Public Analyst cannot be implicitly accepted. As there is not material to find that the sample was adulterated, conviction of appellant is unsustainable.'
However, the above authority is capable of being distinguished from the present case. In that case, the milk was alleged to be adulterated on account of the excess of fat contained in it. Evidently the possibility was that the excess contents was the result of addition of formalin. In the instant case, the adulteration lies in excess of water contents. The Court will have to examine the question on the basis of the evidence before it as to whether formalin has the result of increasing water contents in the milk beyond statutory limits. The entire question, to my mind, is one of Expert opinion evidence. As stated above, since I am remanding the matter to the trial Court for examination of the other questions, there is no reason why I should not give the accused an opportunity to show that the excess of the water contents might have been the result of addition of formalin.
13. The Revision Application is, therefore, allowed. The rule earlier issued is made partly absolute. The order of conviction and sentence passed by the trial Court is, for the present, set aside and the matter is sent back to the trial Court. The trial Court shall examine the Director of Central Food Laboratory, Mysore, as the Court witness for satisfying itself as to whether it was possible for the Director to analyse or have analysed the sample of milk sent to him as late s on 29-1-1980 and to come to the conclusion that he arrived at, as disclosed by his Report. The trial Court shall give opportunity both to the prosecution as well as to the accused, to cross-examine the Director or the other persons who had in fact made the Report and decided the case in accordance with law thereafter.
It is made clear that if the accused so desires he may make an application to the trial Court to lead the evidence of his own (in addition to his right to cross-examine the Court witness) with a view to prove that addition of formalin in the milk resulted in excess quantity of water in the samples sent for Public Analysis. After giving opportunity both to the prosecution and the defence on the question mentioned above, the trial Court shall decide the case in accordance with law.
The bail granted to the accused shall continue during the course of the trial. The fine, if paid, by the accused shall be refunded. In view of the fact that the conviction has been set aside by me for the present, the fine, if paid, by the accused shall be refunded. However, it is made clear that in case the accused is convicted by the trial Court once again, it will be open for the learned Judge to Impose penalty of fine once again.