(1) The Petitioners before this Court are the accused in the Court of the Additional First Class s Magistrate, Mangalore in C.C. No. 2888/64. They were prosecuted for storing tea waste without a licence. The charge against them was under Section 41 read with section 30(3) of the Tea Act of 1953 and Clause 3 of the Tea Waste (Control) Order 1959.
(2) The prosecution case briefly stated is as follows: On 18th of February 1964, P.W. 1 who is an Inspector of the Tea Board, inspected the godown of the petitioners. He found a stock of 70 Kgs. Of tea waste stored in the premises packed in two chests, and they had no licence as required under the Tea Waste (Control) Order 1959. P.W. 1 therefore took one sample from the said stock in the presence of their Manager. T his sample was divided and packed in three tins, labelled and sealed by P.W.1. one sample tin bearing No. 10/SP/64 was handed over to the petitioners. Another sample seized was sent to the Public Analyst who has been duly appointed under the Prevention of Food Adulteration Act 1954 for examination and analysis. The report of the Public Analyst was that the sample sent to him did not confirm to the specifications prescribed for tea under the Prevention of Adulteration Rules 1955.
(3) After the prosecution had examined their witnesses and close their case, the petitioners made an application to the court to send the sealed sample tin which P.W. 1 had left with them for examination and analysis to the Director, Central Food Laboratory. The Petitioners contend that under Section 13(2) of the Prevention of Adulteration Act the Court has powers to send the samples for examination to the Director of Central Food Institute. This application made by the learned Magistrate. The Petitioners have come up to this Court questioning the correctness of this Order rejecting this application.
(4) Mr. D'sa appearing for the petitioners has contended that the Tea Act and the Tea waste Control Order and the Prevention of Food Adulteration Act should be read together. He argues that Clause 2(f) of the Tea Wastte (Control) Order 1959 defines 'tea waste' According to it, 'tea waste' means 'tea sweepings tea fluff, tea fibre or tea stalks or any article purporting to be tea waste which does not conform to the specifications for the tea laid down under the Prevention of Food Adulteration Act, 1954(37 of 1954) but does not include 'green tea or green tea stalks.' So according to Mr. D'sa the Petitioners have got a right to ask the Court under Section 13(2) of the Food Adulteration Act to send the sample given to them by the Inspecting authority for the analysis to the Director, Central Food Laboratory. Apart from this Mr. D'sa also contends that under the general law the petitioners have a right to ask the Court to send the sample for examination and analysis. He argues the Court should not prevent the Accused from establishing his defence and every opportunity should be given to the accused to prove his case. Natural justice and equity requires that this prayer of the accused should be granted, otherwise, it will be a denial of his right to prove his defence. Mr. D'sa also contends that even in case there is no specific provision under the Tea Waste (Control)Order to send the sample for examination, it is a fit and proper case where the High Court acting under Section 561(a) Cr.P.C. should be passed by the High Court.
(5) The learned counsel Government pleader on the other hand contends that there is no provision under the Tea Waste (Control) Order to send such sample for examination to the Director of Central Food Laboratory. He contends that Section 13(2) of the Prevention of Rules Adulteration Act of 1954 has no application to the facts of this case. Sub-section 2 of the said section specifically states that after the institution of the prosecution under that Act, the accused can ask the Court to send the sample for examination. It is only in a prosecution instituted under the Prevention of Food Adulteration Act the accused has a right to ask the court to send the sample given to him to the Director of Central Food Laboratory for analysis. He argues that the Tea Waste (Control) Order fully prescribed the procedure and it is not permissible for the Court to travel outside the procedure prescribed by the Tea Waste (Control) Order. He further contends that there is no provision even in the Civil Procedure Code authorised the court to send the sample seized from the accused for analysis by the Director of Central Food Laboratory. In support of his argument he drew my attention to Section 1(2) of the Civil Procedure Code and Section 5(2) of the same. It is quite unnecessary to deal with the first point urged by Mr. D'Sa, as I am of opinion that there is considerable force in the second and the third contention urged by him. It is no doubt a fact that there is no specific provision under the Tea Act or under the Tea Waste (Control) Order 1959, as in the Prevention of Food Adulteration Act, by which the accused ask the Court to send the samples seized and given to by custody to the Director of Central Food Laboratory for analysis. Even in the Notification issued by the licensing authority in pursuance of section 14(1) of the Tea Waste (Control) Order possibly by oversight no provision seems to have been given to the custody of the accused to the Director of Central Food Laboratory analysis. Under Section 13(2) of Prevention Food Alteration Act, the accused has a right to ask the court to send samples given to him for examination. Therefore, the learned Central Government Pleader is right in stating that there is no provision either under the Tea Act or under the Tea Waste (Control) Order by which samples handed over to the possession of the accused can be sent to the Director of Central Food Analyst for analysis.
(6) Taking the second and third points urged by Mr. D'sa, his contention is that under the General Law he has got a right to insist on the samples given to his custody to be sent to the Director of Central Food Laboratory for analysis. He argues that every opportunity must be given the fullest opportunity to prove his innocence. It is in evidence that along with P.W.1, P.W.3, the Food Inspector of the Mangalore Municipality was also present at the time of search of the godown of the petitioners. P.W. 3 has admitted that along with P.W. 1 he also took samples of alleged tea-waste which was found in the Godown of the petitioners. This sample has been sent to the very same public Analyst and the petitioners have filed Ex. D-5 the letter of the Health Inspector, Mangalore Municipality which states that with regard to the said sample sent, the report of the Analyst is that it is not adulterated Sri D'Sa, therefore, urged that in view of these conflicting reports it is just and necessary that the petitioners must be given an opportunity to send the samples which were sealed by P.W. 1 and entrusted to Petitioners custody, to the Director of Central Food Laboratory, who is the highest authority, for analysis and report. As per the Prevention of Food Adulteration Act the report of the Director of Central Food Laboratory, the prosecution is not in any way prejudiced. If the report of the highest authority, i.e. the Director is against them, the petitioners are prepared to face the necessary consequence.
(7) Sri D'Sa has also cited the observation made by this court in Mary Lazardo v. State of Mysore, 1965(2) Mys LJ 107: (AIR 1966 Mys 244). He has relied on the passage at p. 111 Mys (at p. 247 of AIR) which is as follows:
'The method of check and verification proved for the Rules is the only guarantee against tampering and is a definite source of confidence of 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 himself. The procedure prescribed by the Rules serves a great public purpose by guaranteeing impartial and honest holding of the sample despatched to, and received for analysis of the Public Analyst.' Sri D'Sa strongly relied upon Habeeb Mohammad of State of Hyderabad : 1SCR475 . Their Lordships of the Supreme Court at para 15 page 61 have observed as follows:--
'A conviction arrived at without according opportunity to the defence to lead whatever relevant evidence it wanted to procedure cannot be sustained.
The only course open to us in this situation is to set aside the conviction.'
(8) The Petitioner's Counsel has also relied upon Ronald v. State of West Bengal, AIR 1954 SC 455 in support of his said contention Justice Venkatarama Iyer speaking for the Bench at page 457(para 10) has observed as follows:--
'................... It must be conceded that the evidence on record tends to establish a strong case against the appellants. But then, that is a case which they are entitled to rebut, and if, as was held by the Federal Court, Exhibit 27 series would furnish good material for rebutting that case, the Court, by declining to issue process for the examination of the witnesses connected with those documents, has deprived the appellants of an opportunity of rebutting it. Whatever one may think of the merits of the appellants' contention they cannot be convicted without an opportunity being given to them to present their evidence, and that having been denied to them there has been no fair trial and the conviction of the appellants.........cannot stand.' Mr. D'Sa has also relied on the Full Bench decision of the Bombay High Court in State of Bombay v. Nilkant, : AIR1954Bom65 in support of his contention. Chief Justice Chagla speaking for the Full Bench has at page 66 observed as follows: 'Therefore, in our opinion, as S. 561-A was enacted to emphasise the fact that the High Court has the widest jurisdiction to pass Orders to secure the ends of justice, S. 561-A must give the power to this Court to entertain applications which are not contemplated by Criminal P.C. Therefore, if the High Court feels that the ends of justice require that an Order should be made in an application although the application is not contemplated by the Code, the High Court will entertain the application and make the necessary Orders to secure the ends of justice.'
(9) I am of the opinion that there is considerable force in the contentions 2 and 3 urged by Mr. D'Sa. there is no doubt that the Accused must be given every opportunity to prove his case. As observed by the Supreme Court in : 1SCR475 a conviction arrived at without affording opportunity to the defence to led whatever relevant evidence it wanted to produce cannot be sustained. The Supreme Court also has held in AIR 1954 SC 455 that every opportunity must be given to the accused to rebut the case, against him. The accused cannot be convicted without an opportunity being given to him to present his evidence and if this is denied to him there can be no fair trial. Mr. D'Sa also pointed out that Ex. D-5 shows that the sample seized from the petitioners' shop by P.W. 3 along with P.W. 1 shows that the same is not adulterated tea under the Food Adulteration Act. All that the accused pray for is that the sample seized and sealed by P.W. 1 given into their hands, be sent to the highest authority i.e. the Director, Central Food Laboratory for analysis and report. This request of the accused to prove their case that the articles seized from them is not tea waste cannot be said to be unreasonable and if this request of the accused is not granted, it would be denying them an opportunity to prove their case. There will be no point or purpose in giving one sample seized to the possession of the accused, if the accused is not able to send the same through the court to the highest authority i.e. the Director, Central Food Laboratory for analysis. The Central Government Pleader has contended that before the High Court can interfere under Section 435 of the Civil Procedure Code the order of the learned Magistrate, as there is no provision under the Tea Act or under the Tea Waste (Control) Order authorising him to send the sample in accused's possession for examination to the Director Central Food Laboratory. I am not impressed by this argument. I am of the opinion that if an accused is not given reasonable opportunity to prove his case, the Order refusing him to give such opportunity would be improper and illegal and would call for interference by the High Court. The learned Central Government Pleader does not dispute the fact that the High Court has got inherent power under Section 61-A of the Code of Criminal Procedure to pass such Orders as may be necessary to secure the ends of justice. His contention is that this power is an extraordinary power and should be exercised by the High Court only in very exceptional cases. He has brought to my notice a decision of the Supreme Court in Raghubir Saran v. State of Bihar, : 1964CriLJ1 . The passage relied on by him is as follows:--
'...........These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial Order and for securing the ends of justice. When we speak of ends of justice we do not use the expression to comprise within if any vague or nebulous concept of justice, nor even justice in the philosophical sense but justice according to law, the statute law and the common law.'
Sri D'Sa emphasises the fact that this very decision stresses the fact that ends of justice include not only statute law, but justice, according to law and common law. No doubt, their Lordships emphasized the fact that inherent power should be exercised by the High Court only in rare cases. In para 31 they specifically state as follows:--
'To sum up, every High Court as the highest court exercising criminal jurisdiction in a State has inherent power to make any Order for the purpose of securing the ends of justice.'
(10) As I have already stated in the circumstances of this case. I am definitely of opinion, that the ends of justice require that the petitioners should be given an opportunity to make out their defence. If no chance is given to them to rebut the prosecution case, it would mean a dental of fair trial to them.
(11) In the result, this revision petition is allowed. I set aside the Order passed by the learned Magistrate refusing to seen the sample produced by the petitioners to the Director of Central Food Laboratory. The Court will satisfy itself that the seal on the said sample produced before it by the petitioners, is intact before sending the same to the Director of Central Food Laboratory, for analysis and report.
(12) Revision petition allowed.