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In Re: Kada Sambamurty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1973CriLJ786
AppellantIn Re: Kada Sambamurty
Excerpt:
.....for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - it may be noticed that the food inspector never complained in this case that the seal or the mark on the bottle was not intact. that apart, the court was satisfied about the mark and the seal on the bottle. that is clearly not the reason and spirit behind section 13 of the act......as the act) to have the sample of the alleged adulterated food examined by the director of central food laboratory is maintainable.2. the necessary facts may briefly be stated. on 29.12.1969 at about 3-30 p.m., the food inspector. ichapuram gram panchayat inspected the shop of the petitioner, purchased 300 grams of bengal gram flour and obtained a receipt from the petitioner in the presence of the mediator. the sample so purchased by the food inspector was divided into three equal parts and each of the parts was put and sealed in three empty and clean dry bottles. one of the bottles was given to the petitioner under a receipt obtained from him. the second was sent to the public analyst hyderabad. the third was deposited into the court. the public analyst gave a report against the.....
Judgment:
ORDER

Chennakesav Reddy, J.

1. The short but important question that falls for decision in this case is whether a second application under Section 13(2) of the Prevention of Food Adulteration Act (Act 37 of 1954)(hereinafter referred to as the Act) to have the sample of the alleged adulterated food examined by the Director of Central Food Laboratory is maintainable.

2. The necessary facts may briefly be stated. On 29.12.1969 at about 3-30 P.M., the Food Inspector. Ichapuram Gram Panchayat inspected the shop of the petitioner, purchased 300 grams of Bengal gram flour and obtained a receipt from the petitioner in the presence of the mediator. The sample so purchased by the Food Inspector was divided into three equal parts and each of the parts was put and sealed in three empty and clean dry bottles. One of the bottles was given to the petitioner under a receipt obtained from him. The second was sent to the Public Analyst Hyderabad. The third was deposited into the Court. The Public Analyst gave a report against the petitioner and hence the Food Inspector lodged a complaint against the petitioner, Thereafter the petitioner filed an application in the Court under Section 13(2) of the Act requesting the Court to send the part of the sample which was left with him by the Food Inspector for analysis to the Director of Central Food Laboratory, Calcutta. The Court after ascertaining that the mark and seal of the bottle were intact, dispatched the sample under its own seal to the Director of the Central Food Laboratory. Thereupon the Director, Central Food Laboratory, Calcutta sent a certificate to the Court specifying the result of his analysis. The certificate given by the Director was in favour of the petitioner. The Food Inspector then filed an application Cr. M.P. No. 195/1970 before the Court for sending the third sample remaining in the Court again to the Director, Central Food Laboratory, Calcutta. The petition was opposed by the petitioner mainly on the ground that the certificate already given by the Director was final and a second application to disturb the finality of the said certificate was not. permissible in law. But the learned Magistrate allowed the petition on 13.11.1970. The petitioner, aggrieved by the said order, filed Criminal Revision Petition No. 71/70 before the Additional Sessions Judge. Sri-kakulam under Sections 435 and 438 of the Criminal Procedure Code. The learned Sessions Judge (has now made this reference recommending that the order or the learned Judicial First Class Magistrate. Ichapuram in Cr. M.P No. 195/1970. dated 13.11.1970 be set aside.

3. Before I proceed to consider the question whether the second application by the Food Inspector under Section 13(2) of the Act is maintainable, it is necessary to read the relevant provisions of the Act. Section 11 of the Act which prescribes the Procedure to be followed by the Food Inspector after taking the sample of food for analysis is as follows:

11. (1) 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 analyzed to the person from whom he has taken

(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;

(c)(i) deliver one of the parts to the person from whom the sample has been taken;

(ii) send another part for analysis to the public analyst; and

(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.

(2) If the person from whom the sample has been taken declines to accept one of the parts, the food inspector shall send intimation to the public analyst of such refusal and thereupon the public analyst receiving a sample for analysis shall divide it into two parts and shall seal or fasten up one of those parts and shall cause it, either upon receipt of the sample or when he delivers his report, to be delivered to the food inspector who shall retain it for production in case legal proceedings are taken.

(3) When a sample of any article of food is taken under Sub-Section (1) or Sub-section (2) of Section 10, the Food Inspector shall send a sample of it in accordance with the rules prescribed for sampling to the public analyst for the local area concerned.

(4) An article of food seized under Sub-section (4) of Section 10 shall be produced before a Magistrate as soon as possible:

Provided that in the case of any article of which samples have been sent to the public analyst for analysis it may be produced on or after the receipt of the report of the public analyst:

Provided further that if an application is made to the magistrate in this behalf by the person from whom any article of food has been seized, the magistrate shall by order in writing direct the food inspector to produce such article before him within such time as may be specified in the order.

(5) If it appears to the magistrate on taking such evidence as he may deem necessary that the article of food produced before him under Sub-section (4) is adulterated, he may order it-

(a) to be forfeited to the local authority; or

(b) to be returned back tot the owner the owner or the person from whom it was seized so as to prevent its being used as human food or

(c) to be so disposed of as to prevent its being again exposed for sale or used for food under its deceptive name, or

(d) to be returned back to the owner for being sold under its appropriate name, after taking adequate guarantee from the owner.

(6) If it appears to the magistrate that any such article of food is not adulterated the person from whose possession the article was taken shall be entitled to have it restored to him and it shall be in the discretion of the magistrate to award such person from such fund as the State Government may direct in this behalf, such compensation not exceeding the actual loss which he has sustained as the magistrate may think proper.

The next section that is relevant for our purpose is Section 13 which reads 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 dispatch 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 the 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 - 276 of the Indian Penal Code (Act XLV of 1860). 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 - 276 of the Indian Penal Code (Act XLV of 1860):

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.

4. Under Section 11 of the Act the Food Inspector has to divide the sample of food taken by him for analysis into three parts then and there and seal or fasten up each part in such a manner as its nature permits, He has to deliver one of the parts to the person from whom the sample had been taken, send another part for analysis to the Public Analyst and retain the third part for production in case any legal proceedings are taken or for analysis by the Director, Central Food Laboratory under Sub-section (2) of Section 13 when an application is filed by the accused vendor or the complainant. Under Section 13(1) the Public Analyst has to submit a report to the Food Inspector of the result of the analysis of any article of food submitted to him for analysis. Section 13(2) provides for the filing of an application by the accused vendor or the complainant before 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. 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 then dispatch the part of the sample under its own seal to the Director of Central Food Laboratory. The Director shall thereupon send a certificate to the Court specifying the result of his analysis in the prescribed form within one month from the date of receipt of the sample. Under Sub-section (3) of Section 13 the certificate issued by the Director of Central Food Laboratory under Sub-section (2) shall supersede the report given by the Public Analyst under Sub-section (1). Under the proviso to Sub-section (5) any document purporting to be a certificate signed by the Director of Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.

5. In this case the petitioner vendor was delivered one of the bottles containing the part of the sample under Section 11(1)(c)(i) and he filed an application under Section 13(2) for sending the part of the sample given to him to the Director of the Central Food Laboratory for a certificate. The magistrate after ascertaining that the mark and seal or fastening on the bottle were intact, dispatched that part of the sample under his seal to the Director of Central Food Laboratory and the Director gave his opinion after analyzing the sample. This certificate was in favour of the petitioner. Under Sub-section (3) it supersedes the report given by the Public Analyst under Sub-section (1) of Section 13. When once the report is received, the proviso to Sub-section (5) of Section 13 makes the said report final and conclusive evidence of the facts stated therein. The remedy available under Section 13(2) of the Act is a valuable right. Parliament in its wisdom attached greater sanctity and accuracy to the report of the Director Central Food Laboratory under Section 13(2) and made the said report final and conclusive as regards the analysis of the alleged adulterated sample. A second application to disturb that conclusion is not contemplated under Section 13 of the Act. Although there is no specific prohibition for entertaining a second application for sending the third sample also to the Director for Examination, the intention that a second application is not permissible for sending the sample for a second time to the Director is clear from the proviso to Sub-section (5) of Section 13 which makes the certificate signed by the Director of Central Food Laboratory final and conclusive. Therefore, no further evidence can be adduced to challenge the opinion of the Director given under Section 13(2) of the Act. It may be noticed that the Food Inspector never complained in this case that the seal or the mark on the bottle was not intact. That apart, the Court was satisfied about the mark and the seal on the bottle. Therefore, I am of the opinion that the second application by the Food Inspector is not maintainable. This view of mine finds support from a decision of the Allahabad High Court in Ranbir Singh v. State 1970 Cri LJ 82 (All). In that case the learned Judge observed as follows:

When the report of the Director is received, the law provides that, that report shall be as final and conclusive. The provision in the Act virtually prohibits any other evidence being brought on record relating to the adulteration of the particular food-stuff. If the report received from the Director on the sample being sent under Sub-section (2) of Section 13 becomes final and conclusive no other report can be obtained even from him for otherwise the effect of that second report from him, if it is not in conformity with his earlier report, would be to negative the opinion given by him in his first report. That would take away the finality and conclusiveness of the report. It is clear, therefore, that the intention of the Legislature is that the report of the Director when once received should be treated as final and conclusive.

6. The Public Prosecutor has not canvassed the correctness of this proposition. The Director of the Central Food Laboratory had already given his report and that had become final. If this second application filed by the Food Inspector is entertained and the report is to the contrary to the report already given, that would upset the finality and the conclusive nature of the earlier report. That is clearly not the reason and spirit behind Section 13 of the Act. The reference is therefore accepted and the revision is allowed.


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