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Food Inspector, Corporation of the City of Mangalore Vs. A.G. Suvarna - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Appeal No. 110 of 1983
Judge
Reported inILR1984KAR752; 1985(1)KarLJ1
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 103, 313, 378(1) and 378(4); Evidence Act - Sections 68 and 114
AppellantFood Inspector, Corporation of the City of Mangalore
RespondentA.G. Suvarna
Appellant AdvocateB.V. Acharya, Adv.
Respondent AdvocateP. Vishwanatha Shetty, Adv.
Excerpt:
- constitution of india article 226; [anand byrareddy, j] establishment of petrol bunk prescription of distance of 300 meters between two adjacent fuel stations held, the prescription is in respect of fuel filling stations situated adjacent to each other and not to stations which are on opposite sides of road. there is no minimum distance between such stations on opposite sides of road, prescribed. proposed fuel station of respondent and existing fuel station of petitioner were on either side of a high way. prohibition of distance between two adjoining stations would not apply. - viswanath shetty, learned counsel appearing for the accused, on the other hand, argued, not only the prosecution had failed to establish the accused was the proprietor of the shop in question, but it also.....m.s. patil, j.1. the food inspector of the corporation of the city of mangalore, dakshina kannada, has filed this appeal on special leave under s. 378(1) and (4) of the cr.p.c. questioning the legality and correctness of the judgment and order of acquittal dated 18-2-1983 passed by the ii additional chief judicial magistrate, mangalore, in c. c. no. 22/1982, on his file, acquitting the respondent-accused of the charge of the offence of food adulteration punishable under ss. 7 r/w 16(1)(a) of the prevention of food adulteration act, 1954, hereinafter referred to as the act, levelled against him. 2. the accused a. g. suvarna is alleged to be a proprietor of the shop named and styled as m/s. shakthi cream parlour, manufacturing and selling ice cream for human consumption, situated at jeppu.....
Judgment:

M.S. Patil, J.

1. The Food Inspector of the Corporation of the City of Mangalore, Dakshina Kannada, has filed this appeal on special leave under S. 378(1) and (4) of the Cr.P.C. questioning the legality and correctness of the judgment and order of acquittal dated 18-2-1983 passed by the II Additional Chief Judicial Magistrate, Mangalore, in C. C. No. 22/1982, on his file, acquitting the respondent-accused of the charge of the offence of food adulteration punishable under Ss. 7 r/w 16(1)(a) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act, levelled against him.

2. The accused A. G. Suvarna is alleged to be a proprietor of the shop named and styled as M/s. Shakthi Cream Parlour, manufacturing and selling ice cream for human consumption, situated at Jeppu Market, in Mangalore City. On 31-8-1981, at about 12 noon, according to the prosecution, the Food Inspector (PW-1) visited the said shop of the accused and purchased nine cups (900 Grams) of mango ice cream for analysis and having paid its cost of Rs. 10-80 Ps. to the accused, obtained a receipt as per Ex. P-2 and in the presence of the accused and panch witness Narayana PW-2 sampled the ice cream so purchased as per the procedure prescribed and after adding 24 drops of formalin for each of the three sample packets as preservative, he packed and sealed the same under mahazar Ex. P-4 and issued notice in Form VI as per Ex. P-3 to the accused as provided under Ss. 10 and 11 of the Act. He, thereafter, sent one of the three sample packets along with memorandum in Form VIII containing specimen seals as per Ex. P-5 to the Public Analyst, Bangalore, through railway parcel and he also sent the specimen seal separately along with a copy of the memorandum of the seal by registered post to the analyst and handed over the remaining two sample packets along with a copy of the memorandum of specimen seals to the Local Health Authority. On receipt of the report from the Public Analyst as Per Ex. P-7 stating that the sample was adulterated, he placed all the relevant papers before the District Health Officer and having obtained sanction for prosecution as per Ex. P-9, on 8-2-1982, filed a complaint against the accused. On the same day, the Local Health Officer sent a copy of the report Ex. P-7 of the Public Analyst with a covering letter Ex. P-11 to the accused intimating him the result of the Public Analyst and to make an application within ten days before the Chief Judicial Magistrate to get analysed the sample packed, kept in his custody, by the Director General, Food Laboratory at Pune, if he so desired. Although the letter Ex. P-11 was delivered on him on 19-2-1982 (vide Ex. P-12 postal acknowledgment), he, it appears, did not avail of that option given to him. The learned Chief Judicial Magistrate recorded the evidence of the complainant (Food Inspector) and the pancha as P.Ws. 1 and 2 respectively and on the close of the prosecution evidence of the case also examined and recorded the statement of the accused as provided under S. 313 Cr.P.C. Although the accused admitted his signature on the papers affixed on the packets of sample and of his having also received the copy of the report of the Public Analyst with covering letter Ex. P-11 and the postal acknowledgment Ex. P-12, but denied either he was proprietor of the shop or he was selling ice cream or he was present in the shop on 31-8-1981. He also denied PW-1 having purchased ice cream from him. The learned Chief Judicial Magistrate, however, relying upon the evidence of PW-1 the Food Inspector partly corroborated by the evidence of PW-2, held that the accused was the proprietor of the shop in question and PW-1 did visit the shop on 31-8-1981 and purchased the ice cream for analysis. He also noticed that the Public Analyst had in his report stated that the sample contained 32.84% solid, 3.8% milk fat and 4.61% proteins and the total solids and milk fat being less than the prescribed standard the sample was adulterated; but, he held that not only the evidence of PW-1 was silent as regards the strength of formalin that was added to the sample, but there as no proof regarding the compliance of R. 7 by comparing the seals on the container and the outer-cover with a specimen impression received separately and as such it cannot be said the sample of the ice cream drawn the shop of the accused was adulterated. In other words, he held, there was no satisfactory proof that what was sent to the Public Analyst and examined by him was the ice cream drawn from the shop the accused and relying upon the decision of this Court in Food Inspector, Mangalore Municipality v. K. S. Raphael, 1981 Cri LJ 1149, held that the non-compliance of R. 7 vitiated the prosecution of the accused for the offence alleged against him and, accordingly, he having acquitted the accused, the Corporation of the City of Mangalore, through its Food Inspector, has filed this appeal questioning the legality and correctness of the order of acquittal as made by him.

3. Mr. B. V. Acharya, learned Counsel appearing for the Appellant, vehemently argued that the learned Chief Judicial Magistrate had materially erred in acquitting the accused either because of the strength of the formalin added had not been stated or proof regarding the comparison of the seals on the container and the outer cover with the specimen impression received separately had not be adduced, particularly when the report (Ex. P-7) of the Public Analyst stated that the sample of the food was received properly sealed and fastened and the seal affixed on the container and outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector, as the report of the Public Analyst was admissible in evidence as provided under sub-section (5) of S. 13 of the Act as substantive evidence without evidence aliunde. In support of his contention he relied upon the decision reported : in Food Inspector v. Gangadharan (1983) 2 Kant LJ 142 : (1983 Cri LJ 1732). He also further maintained that even if what is stated in the report of the Public Analyst regarding the comparison is not admissible as substantive evidence, the official acts regarding such comparison, provided under R. 7, may be presumed to have been regularly performed under S. 114 of the Evidence Act and, therefore, the learned Chief Judicial Magistrate was not right in acquitting the accused.

4. Mr. P. Viswanath Shetty, learned Counsel appearing for the accused, on the other hand, argued, not only the prosecution had failed to establish the accused was the proprietor of the shop in question, but it also failed to establish that PW-1 the Food Inspector had purchased any sample of ice cream from the accused, because, the panch witness PW-2 Narayana has not supported the prosecution that the ice cream having been seized in his presence and when the law requires that the Food Inspector taking any action under Clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (6) of S. 11 of the Act, shall call one or more persons to be present at the time when such action is taken and take his or their signatures, and the prosecution also comes forward that the sample ice cream had been purchased in the presence of pancha and the person does not support such seizure having been made in his presence, the evidence of the Food Inspector alone is not sufficient to hold that any food article was so seized. He also vehemently argued that the provisions of sub-section (5) of S. 13 only dispense the proof of facts stated in the report of the Analyst regarding the result of the analysis and not other facts in as much as the Food Analyst is required to give his report regarding the result of the analysis and not regarding the comparison of the seals on the container and the outer cover with a specimen impression received separately as required under R. 7 of the Prevention of Food Adulteration Rules, 1955, hereinafter referred to as the Rules. Therefore, the fact of so having compared as provided under R. 7 has to be proved like any other facts by adducing evidence. In support of his contention, he strongly placed reliance on the decision reported in the case of State of Karnataka v. Dolphy Albuquerque (1983) 2 Kant. LJ 481 : (1984 Cri LJ NOC 148). He also contended that the provisions in R. 7 being mandatory, the comparison to be made has strictly to be proved by adducing evidence and it is not a matter to be presumed and, therefore, no proof having been adduced regarding the comparison as provided under R. 7, the learned C.J.M. was justified in making the order of acquittal and no interference by this Court is at all called.

5. Although there is no doubt the provisions contained in sub-section (7) of S. 10 of the Act are enacted as safeguard against any unfair means resorted to by the Food Inspector, but the fact that the panch witness has not supported the prosecution version of the case of the Food Inspector, PW-1, obtaining the samples and of his having packed and sealed the samples of food so obtained in his presence, is not by itself sufficient to conclude that the prosecution version of the case as put forward by PW-1 of his having visited the shop of the accused and purchased the ice cream for the purpose of analysis, as alleged in the complaint and sworn to by him from the witness box, is altogether false. In the case of Babu Lal Hargovindas v. State of Gujarat : 1971CriLJ1075 dealing with the similar contentions advanced, their Lordships of the Supreme Court observed as follows :

'... Even otherwise in our view no question of the trial being vitiated for non-compliance of these provisions can arise. It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar to the one as in the case of Wills where the law makes it imperative to examine an attesting witness under S. 68 of the Evidence Act to prove the execution of the Will. The evidence of the Food Inspector alone if believed can be relied on for proving that the samples were taken as required by law. At the most Courts of fact may find it difficult in any particular case to rely on the testimony of the Food Inspector alone though we do not say that this result generally follows. The circumstances of each case will determine the extent of the weight to be given to the evidence of the Food Inspector and what in the opinion of the Court is the value of his testimony. The provisions of S. 10(7) are akin to those under Section 103 of the Cr.P.C. when the premises of a citizen are searched by the Police. These provisions are enacted to safeguard against any possible allegations of excesses or resort to unfair means either by the Police Officers or by the Food Inspectors under the Act. This being the object it is in the interest of the prosecution authorities concerned to comply with the provisions of the Act, the non-compliance of which may in some cases result in their testimony being rejected. While this is so we are not to be understood as in any way minimising the need to comply with the aforesaid salutary provisions'.

The same question of law again came up for consideration before their Lordships of the Supreme Court in the case of Prem Ballab v. State (Delhi Admn.) : 1977CriLJ12 and their Lordships observed as follows :

'It is unfortunately not an infrequent occurrence to find that punchanama witness turn hostile and go back upon what is stated in the punchanama in utter disregard of truth. This betrays lack of character and absence of civic sense which not only result in the guilty escaping the punishment but lead to general deterioration in standards of honesty and integrity. This is a highly reprehensible phenomenon which has to be curbed in the larger interest of the administration of justice .... There is no rule of law that conviction cannot be based on the sole testimony of a Food Inspector. It is only out of a sense of caution that the courts insist that the testimony of a Food Inspector should be corroborated by some independent witness. This is a necessary caution which has to be borne in mind because the Food Inspector may in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law; if it were otherwise, it would be possible for any guilty person to escape punishment by resorting to the device of bribing panch witnesses.'

6. In the cases on hand, the evidence given by PW-1 showed that he had taken the sample in compliance with the provisions of law. Even though the panch witness PW-2 did not support the prosecution case whole heartedly, as to the taking of the sample, as deposed to by the Food Inspector (PW-1), the learned Magistrate has found that not only the accused was the proprietor of the shop in question, but there are also no reason for disbelieving the evidence of PW-1 as to the taking of the sample from the shop of the accused on the date in question. The evidence in the case and the admissions given by PW-2 himself showed that he had come to the Court with the accused and on his motor-cycle, from which it can reasonably be inferred that he had been won over by the accused. Nevertheless, PW-2 has stated that on the date in question when he went to the shop of the accused he also found PW-1 present in the shop and he also signed on Ex. P-4 as asked by the accused and when confronted with Ex. P-4 he also admitted his signature thereon. The evidence given by PW-1 substantially finds corroboration from the recitals in panchanama Ex. P-4. The learned Magistrate, it appears, was right in accepting and placing reliance on the evidence of PW-1 and in reaching the conclusion that on the day in question PW-1 visited the shop of the accused and took samples as deposed to by him and as narrated in Ex. P-4. It is essentially a finding of fact and that finding of fact does not call for any interference and we accept it and hold that the Food Inspector PW-1, as found by the learned Magistrate, did visit the shop of the respondent-accused and take sample of article of food, that is the ice cream.

7. Now, coming to the other contentions, what requires to be considered is : whether and how far the other evidence adduced on behalf of the prosecution is reliable and to what extent the report of the Public Analyst is relevant and admissible in evidence. It is important to bear in mind that when a Food Inspector takes a sample for analysis, he has to follow certain procedure. He has to give notice in writing then and there of his intention to have it so analysed to the person from whom he takes the sample as provided under S. 11(i)(a) of the Act. He has to add preservative, as may be prescribed, to the sample for the purpose of maintaining it in a condition suitable for analysis as provided under R. 19 of the Rules and has to divide the sample then and there into three parts and mark and seal or fasten each such packet and he has also to take signature or thumb impression of the person from whom the sample has been taken and in case such person refuses to sign or put his thumb impression, then to call upon one or more witnesses and to take his or their signature or thumb impression, as the case may be, in lieu of signature or thumb impression of the person from whom he takes the sample, for having so divided the samples and packed and sealed in the manner prescribed under S. 11(1)(b) of the Act and R. 16 of the Rules and then he has to send one of such sealed and fastened packets for analysis to the Public Analyst by immediately succeeding working day as provided in sub-section (3) of S. 11 of the Act and in the manner as provided under R. 17 with a memorandum in Form VII : addressed to the Public Analyst. It is also obligatory on the Food Inspector as provided under R. 18 of the Rules to send a copy of the memorandum and the specimen impression of the seal used to seal the packets to the Public Analyst separately by registered post or deliver to him or to any person authorised by him. The only witness who can speak to all these having been done would be the Food Inspector, except in cases where the person from whom the sample is taken refused to sign or put his thumb impression, one or more other witnesses is called to sign or put his thumb impression in lieu of the person from whom the sample is taken, in which case the person or persons so called upon to sign or put his thumb impression, unless he is not the same person in whose presence the sample was taken by the Food Inspector as provided under S. 10(7) of the Act, who will have to be called to prove the dividing packing and sealing of the sample of the article of food. In the case on hand, PW-2 being the same witness present while taking the sample and sealing the packets, it may also be held that the Food Inspector also did divide, pack and seal the packets of the sample as provided under S. 11 of the Act and Rules 14 & 16 of the Rules. There is no dispute and in fact Mr. P. Vishwanatha Shetty, learned Counsel appearing for the respondent, did not seek to dispute that the Food Inspector PW-1 had also sent samples of the seal with a copy of the Memorandum, separately by registered post as provided under R. 18 of the Rules. The only question of importance that now requires to be considered is : in the absence of proof aliunde regarding the comparison, how far the report Ex. P-7 issued by the Public Analyst is conclusive and sufficient to establish charge of the offence of adulteration as levelled against the respondent-accused.

8. Sub-sections (1) and (5) of S. 13 of the Prevention of Food Adulteration Act, 1954, which are relevant for our purpose read as follows :

'13(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analyst of any article of food submitted to him 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 Ss. 272 to 276 of the Penal Code : Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory (not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1A) of S. 16) shall be final and conclusive evidence of the facts stated therein.'

From a reading of sub-secs. (1) and (5) of S. 13 of the Act, it is clear that the Public Analyst shall deliver, in such form as may be prescribed, a report to the Local Health Authority of the result of the analysis of any article of food submitted to him for analysis; and any document purporting to be a report signed by a Public Analyst, unless it had been superseded under sub-section (3) of S. 13, may be used as evidence of the facts stated therein in any proceeding under the Act or under Ss. 272 to 276 of the Penal Code. While under sub-section (1) of S. 13, the public analyst is required to deliver 'a report of the result of the analysis of the article of food submitted to him for analysis', under sub-section (5) any such document purporting to be a report signed by a public analyst may be used 'as evidence of the facts stated therein.' The expressions 'of the facts stated therein' have to be understood as having reference only to the article of food and result of the analysis and not to any other facts. The provisions contained in sub-section (5) thus only dispenses the proof aliunde of the result of the analysis and of the facts stated therein as regards result of the analysis of the article of food submitted to him.

9. Rule 7 of the Rules deals with the duties of the public analyst appointed by the Central Government or the State Government under S. 8 of the Act and it reads as follows :-

'7. Duties of public analyst :- (1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person the public analyst or an Officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.

(2) The public analyst shall cause to be analysed such samples of articles of food as may be sent to him by Food Inspector or by any other person person under the Act.

(3) The public analyst shall, within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority report of the result of such analysis in Form III :

Provided that where any such sample does not conform to the provisions of the Act or these rules, the public analyst shall deliver four copies of such report to the said Authority : Provided further that the public analyst shall forward a copy of such report also to the person who purchased an article of food and forward the same to him for analysis under S. 12 of the Act.'

Form III under Rule 7(3) reads as follows :

FORM III

(See Rule 7(3))

Report by the Public Analyst

Report No. ..............

I hereby certify that I ........................................ Public Analyst for ............................................. duly appointed under provisions of the Prevention of Food Adulteration Act, 1954, received on the ............. day of ........ 19 ..... from ...................... A sample of ......................... for analysis, properly sealed and fastened, and that I found that seal intact and unbroken.

The seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the food inspector and the sample was in a condition fit for analysis.

I further certify that I have/had caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows :

and am of the opinion that ..................................... Signed this ................ day of ......... 19 ...........

(Signature)

Public Analyst

Address .....................

10. The provisions in the Rule are mandatory in nature and it is obligatory on the part of the Public Analyst or an Officer authorised by him to not only compare the seals on the container and the outer cover with the specimen impression received separately (under R. 18) and to note the conditions of the seals thereon, but also cause the sample of the articles of food analysed and to deliver the report of the result of such analysis to the Local Health Authority within a period of forty-five days from the date of receipt of the sample. Although as provided under sub-section (1) of S. 13 of the Act r/w S. 23 of the Act it is left to the Central Government to make Rules to carry out the provisions of the Act generally and in particular for all or any of the matters provided in S. 23(1A) of the Act, including the manner in which the container of sample of food purchased for analysis shall be sealed and fastened up and the methods of analysis, there is no provision either in the Act or the Rules whereunder it is either permissible to the Public Analyst to make a report of his having compared the seals on the container and outer cover with the specimen impression received separately as required under R. 7 of the Rules or whereby it is permissible to use as evidence the facts stated in the report in this behalf.

11. In the case of Mary Lazrado v. State of Mysore, AIR 1966 Mys 244 : (1966 Cri LJ 1036), there was no evidence adduced to show that the Food Inspector had sent separately by registered post or delivered to the public analyst or to a person authorised by him the specimen impression of the seal used for sealing the bottles as required under R. 18 of the Rules. Although the report of the public analyst contained a statement in printed form, as in the case on hand, that the sample sent for analysis had been properly sealed and fastened and that he found the seal intact and unbroken, after referring to Rr. 7 and 18 of the Rules, Tukol J., sitting as single Judge, pointed out that not only Rr. 7 and 18 of the Prevention of Food Adulteration Rules are mandatory, but the non-compliance with them affects the evidentiary value of the report of the public analyst and the mere fact that the report of the public analyst contained a statement that the sample sent for analysis had been properly sealed and fastened and he found the seals intact and unbroken was not sufficient. In para 8 of the judgment, pointing out the importance of checking and verification. His Lordship observed as follows :

'This method of check and verification provided for by the Rules is the only guarantee against tampering and is a definite source of confidence both to the accused and to the Court that the sample analysed was the very sample which had been submitted by the Food Inspector, in fact, it is the report or the Certificate issued after such analysis that virtually concludes the accused against him. The procedure prescribed by the Rules serves a great public purpose by guaranteeing impartial and honest handling of the sample despatched to, and received for analysis by the Public Analyst.'

Proceeding further, it is observed, - ......................................

'The burden of proving the guilt of the accused is on the prosecution and if the report or the certificate is to be used as evidence without calling the Public Analyst or the Director of the Central Food Laboratory for evidence as the law now permits, then it is imperative that all the rules prescribing the procedure commencing from the stage of purchasing the sample of food leading up to its analysis are strictly observed. To argue that the accused has got the liberty of getting his sample analysed to counteract the effect of the report of the Public Analyst is to require the accused in every case to prove his innocence.

................................................

Since the report of the Public Analyst has neither finality nor conclusiveness as evidence of the facts stated therein, it becomes all the more obligatory on the Court to require strict and imperative compliance with the Rules before it decides to use the report of the Public Analyst as proof of the accused's guilt.'

or course, in the case of Laxman Sitaram v. State of Mysore, AIR 1967 Mys 33 : (1967 Cri LJ 382), another single Judge of this Court took a view that the contents of the printed form prescribed under R. 7(3) of the Rules satisfy the requirement of both sub-rules (1) and (3) of R. 7 of the Rules. But, however, explaining and dissenting from this view and quoting with approval the observations made by Tukol, J., in the case of Mary Lazrado cited supra, a Division Bench of this Court in the case of Belgaum Borough Municipality v. Shridhar Shankar Kundri (1967) 2 Mys LJ 299 : (1968 Cri LJ 952) observed as follows : 'We entirely agree with the observations of his Lordship and hold that Rr. 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act are mandatory in nature and any non-compliance of the Rules affects the evidentiary value of the report of the Public Analyst.'

12. In the case of Food Inspector, Mangalore Municipality v. K. S. Raphael, 1981 Cri LJ 1149, no proof was adduced to show that a copy of the memorandum of specimen or seals was either sent to the Public Analyst by registered post or delivered to him or to any person authorised by him and no proof was also adduced to show that the seals were compared, but the report of the Public Analyst furnished in Form III contained a statement to the effect that the sample sent for analysis was properly sealed and packed and the seals were intact and unbroken and it was contended that there was no scope for tampering. Repelling that contention, it is held that compliance of Rr. 7 and 18 was not merely an idle formality, but it was intended to provide a safeguard against inter-meddling and tampering with the sample sent for analysis and both S. 13(1) of the Act and sub-rule (3) of R. 7 provided for furnishing a report regarding the analysis and as such the report was admissible only to prove the result of the analysis and not the comparison of the seals on the container and outer cover with the specimen received separately and their condition. Therefore, like any other fact, it was obligatory on the prosecution to prove that the seals on the container and the outer cover were compared with the specimen impression separately received and the conditions of the seals thereon was noted. No doubt, a Division Bench of this Court in the cases of Food Inspector v. Gangadharan (1983) 2 Kant LJ 142 : (1983 Cri LJ 1732) has laid down that the report of the Public Analyst is substantive evidence in the case and the recital in the certificate regarding the comparison of the specimen seal with the seals affixed on the bottles is admissible in proof of that fact; but subsequently, in the case of State of Karnataka v. Dolphy Albuquerque (1983) 2 Kant LJ 481 : (1984 Cri LJ NOC 148) a Division Bench of this Court approving the view taken by this Court in the cases of Food Inspector, Mangalore Municipality, cited supra, laid down that what is stated in the Form about the comparison cannot be read as substantive evidence and it is obligatory, like any other fact, for the prosecution to prove that the seals on the container and the outer cover were compared with the specimen received separately and the condition of the seals thereon. In our considered view, that appears to be the correct interpretation of the provisions of R. 7 and sub-section (5) of S. 13 of the Act.

13. Both under sub-section (1) of S. 13 of the Act and R. 7(3) of the Rules, the Public Analyst is required to give and deliver a report of the result of the analysis, not any report regarding his having compared the seals, although it is the duty of the Public Analyst under R. 7(1) of the Rules, either by himself or by an officer authorised by him, to compare the seals on the container and the outer cover with the specimen impression of the seal received separately and note the condition of the seals thereon. Whether the samples of food article submitted were properly sealed and fastened or the seals thereon were intact or broken, whether the seals affixed on the container and the outer cover of the sample on comparison tallied with the specimen impression of the seal separately sent by the food inspector; and if the sample was in a condition fit for analysis or not, are all facts as to the state or condition of the sample and the seals and how they tallied in relation to other seals on comparison are all matters capable of being perceived by sense of personal observation and like all other facts have to be proved by oral evidence of the public analyst or the officer authorised by him, who compares the seals as provided under R. 7(1) of the Rules. The public analyst or any other officer authorised by him, who so perceives or compares by his observations, is bound to make a record of his observation; because, what R. 7(1) says is that he shall note the condition of the seals thereon. The expression 'shall note' means observe and make a record. Even where a public analyst or an officer authorised by him observes and makes a record of his observation will not by itself be admissible in evidence, unless the public analyst or the officer authorised by him, who makes the record, is called and examined as a witness. It therefore follows, apart from the fact that the recitals in the report of the public analyst in so far as they relate to the condition of the seals and comparison of the seals in the prescribed form are in excess of the rule making power, and the same being in print form cannot be regarded as record of the notes of observation made by the public analyst or the officer authorised by him in this behalf. The recitals in this behalf in Ex. P-7 are, therefore, neither by themselves substantive evidence, much less the evidence of the facts stated therein.

14. Mr. B. V. Acharya, learned Counsel appearing for the appellant. However, contended that even if what is stated in the report of the Public Analyst regarding the condition of the seal and the comparison is not admissible in evidence, as substantive evidence, it being the duty of the Public Analyst or the person authorised by him to make such comparison of the seals and note the condition of the seals and the Public Analyst having issued the report regarding the result of the analysis, in discharge of his official duties, it may be presumed under S. 114 of the Evidence Act that such official acts in compliance with the conditions of the Rules have been regularly performed, if there was evidence to show that the specimen seal used for sealing the packets had been sent to the Public Analyst separately by registered post as provided under R. 18 of the Rules and in support of his contention he also placed reliance on the Full Bench decision in the case of State of Madhya Pradesh v. Chhotekhan Nannekhan, AIR 1979 Madh Pra 29 : (1970 Cri LJ 238) as also the decisions in the cases of Food Inspector, Cannanore Municipality v. P. Kannan : AIR1966Ker70 , K. Rajaram v. Koranne : AIR1968Bom247 and Jammu Municipality v. Faquir Hussain, AIR 1968 J and K 17 : (1968 Cri LJ 162).

15. Of course, the Kerala High Court appears to have taken a view that in a case where the Food Inspector gives evidence that the article was duly sealed and forwarded to the Public Analyst and also there is a report of the Analyst that the sample of food properly sealed and fastened was received by him and the seals were found intact and unbroken, there was no need to let in any link evidence to show the sample that was sent to the Public Analyst was the same that was taken by the Food Inspector and it may be presumed under S. 114(e) Evidence Act that the sample seal was duly forwarded by the Food Inspector and that the Public Analyst duly compared the seal as per rules and the Division Bench of the Jammu a& Kashmir High Court also following the decisions of Allahabad High Court in the case of Municipal Board, Faizabad v. Lal Chand Surajmal, : AIR1964All199 and the Kerala High Court in the case of Food Inspector, Cannanore Municipality v. P. Kannan, : AIR1966Ker70 and after referring to the provisions in S. 11 of the Act has observed as follows :

'The procedure in this section is complete in itself. Its object is to safeguard the interests of the person from whose custody some food articles which are suspected to be adulterated are seized. After the Public Analyst gives his opinion against the person from whose possession the sample has been seized, the accused retains one portion of the sample and if he feels that the sample seized is not the same as the one examined by the Public Analyst or feels that the seals were tampered with, he can come forward with his own sample and get it verified by the Public Analyst. If he does not do so, it can safely be inferred that he has had no grievance against the report of the Public Analyst'.

Dealing with the comparison of the seals it has been further observed :

'It is an official act performed by the Public Analyst and under illustration (e) to S. 114 of the Evidence Act would be deemed to be properly performed.'

A single Judge of the Bombay High Court also relying upon the decision in the case of State v. Umacharan : AIR1966Ori81 has observed as follows :

'It would not be proper to place undue emphasis on one technical safeguard provided in the Rules, viz., the comparison of the seal of the container with the specimen of the seal. If the specimen seal was sent separately as required by R. 18, there is no reason why the Public Analyst should fail to discharge the duty enjoined on him. At any rate at least on that narrow point, it would be legitimate to draw a presumption under S. 114 of the Evidence Act.'

In these decisions, no such general proposition of law appears to have been laid down. But, on the facts of those cases, it is held that the presumption under S. 114 of the Evidence Act could be raised.

16. In the Full Bench decision of the Madhya Pradesh High Court : AIR1970MP29 , it has been laid down as follows :

'The principle embodied in illustration (e) under S. 114 of the Evidence Act is that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that the formal requisites for its validity have been complied with. As we have indicated elsewhere, if the Statute itself provided that certain regulations and formalities must be complied with before the report of the Public Analyst could be admitted in evidence, the position would have been different, for in that case, it would be necessary to specifically establish that those regulations and formalities were duly observed. In the absence of such a provision, what purports to be report signed by a Public Analyst is, without any other proof, admissible in evidence and the presumption arising under S. 114 of the Evidence Act to the regular performance of official acts also applies to it. The accused is not thereby prejudiced. He may rebut the presumption by cross-examining prosecution witnesses or leading other evidence. He has also been given under sub-section (2) of Section 13 of the Act the right to show, if possible, the report is incorrect.'

Proceeding further, it is also observed :-

'... In our opinion, the presumption under S. 114 of the Evidence Act and Illustration (e) thereunder in relation to regular performance of official acts applies to the report of a Public Analyst. It is, however, a rebuttable presumption. That being so, such report is not inadmissible only because it has not been specifically established by evidence aliunde that the requirements of Rr. 7 and 18 of the Prevention of Food Adulteration Rules, 1955, were duly complied with.'

The Full bench of the Madhya Pradesh High Court appears to have proceeded on the assumption that this aspect of question (presumption under S. 114 of the Evidence Act) was not considered in the case of Mary Lazrado v. State of Mysore AIR 1966 Mys 244 : (1966 Cri LJ 1036), but in fact such a presumption under S. 114(e) of the Evidence Act was argued and considered and it has been held that the presumption in regard to the regularity of the procedure followed by the Public Analyst may be raised when there is proof that the Food Inspector had discharged his functions according to the Rules. To raise a presumption, both in favour of the Food Inspector and the Public Analyst, is to render the rules superfluous and meaningless. We are in complete agreement with these observations.

17. Of course, as provided under S. 114 of the Evidence Act, regard being had to the common course of natural events, human conduct and public and private business, the Court may presume existence of any fact which it thinks likely to have happened in relation to facts of a particular case and as provided under illustration (e) the Section, the Court may presume that judicial and official acts have been regularly performed if the official act is proved to have been done. There is, however, no presumption that the official act was done. Under illustration (e) of S. 114, if the official act is proved to have been done, then the Court may presume the official act as having been regularly performed; because, the presumption to be raised is as to the regularity of the official acts done and not the acts themselves being done. The presumption to be raised being discretionary, whether such presumption can be raised or not in any given case, depends upon the facts of the particular case. It cannot be laid down as a general proposition of law that if once the Public Analyst issues a report regarding the result of the analysis, it may also be presumed that the Public Analyst or the person authorised by him has discharged his duties in compliance with R. 7(1) of the Rules. The question is not as to the admissibility of the report of the Public Analyst in evidence. It us admissible in evidence as provided under sub-section (5) of S. 13 of the Act and, as stated earlier, only in proof of the result of analysis of the article of food submitted for analysis. The question is : whether the report of the Public Analyst, in the absence of proof of compliance of R. 7 of the Rules, can safely be made a basis for convicting the accused. The provisions contained in R. 7 of the Rules being mandatory in nature, as laid down by this Court in the case of Belgaum Borough Municipality (1968 Cri LJ 952) cited supra, any non-compliance of the Rules affects the evidentiary value of the report of the Public Analyst.

17A. Here in the case on hand, in the absence of proof regarding the compliance of the provisions of R. 7, learned Magistrate has considered it not safe and proper to find the accused guilty of the charge merely on the basis of the report of the Public Analyst. He appears to have committed no error in reaching that conclusion and acquitting the accused. We are also not inclined to raise any presumption of the compliance of Rule 7(1) of the Rules; because, although the Food Inspector has stated that he sent a copy of memorandum with sample seal separately by registered post and he has also produced the acknowledgment to that effect, but whether Ex. P-5 produced in the case is the copy of the Memorandum sent to the Public Analyst is not free from doubt since there is neither any endorsement on it as having been received in the office of the Public Analyst nor there is any indication that the same had been received, so as to draw a presumption that the Public Analyst or any person authorised by him had compared the sample seal as required under the Rule.

18. In the result and for the reasons stated above, we confirm the order of acquittal passed by the Magistrate and dismiss the appeal.

19. Appeal dismissed.


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