1. Sahati Ram and Dudh Nath respondents were prosecuted on the complaint of the Health Officer. Banaras Municipal Board of an offence under Section 4 read with Section 42 of the U. P. Pure Food Act 1950 for having sold adulterated ghee on the 15th July 1953 to a Pood Inspector of the Banaras Municipality.
2. The prosecution led evidence about the purchase of the ghee and about sending a sample of it to the Public Analyst to U. P. Government and filed a certificate received from the Public Analyst. This certificate is reproduced below:
'I. the undersigned, Public Analyst, Government. U. P. hereby certify that I received a sample of ghee No. 877 on 27th July 1953, from the Medical Officer of Health, Municipal Board Banaras. far analysis (which weighed at the time .....). I analysed it and notify the following result:
In my opinion this sample is adulterated. In my opinion fhe greater part of this sample consists of fat or oil which is foreign to the pure substance.'
3. The defence taken by the respondents was somewhat inconsistent. The statement of Dudhnath was to the effect (which statement was adopted by Sahati Ram as well) that the ghee was sold to the Food Inspector under the receipt Ex P-1. Dudhnath went on to say that a sample cf the Ghee used for burning purposes was forcibly taken off from him, that he did not sell the ghee which was used for burning purposes representing it to be ghee fit for human consumption, that he did not even get the price of the ghee and that he gave receipt Ex. P-1 without taking the price.
When the Pood Inspector was in the witness-box and he proved receipt Ex. P-1 and also the pavment of the price under it, not a single question was put to him in cross-examination to support the suggestion of the accused persons that what was sold was not represented to be ghee and that it was a commodity given free of charge and as something which was fit only for burning purposes. The Food Inspector was examined about a month after the statement of the accused persons. The omission to put that part of the story to the Pood Inspector in cross-examination robbed efficacy of the statement of the accused persons made in that behalf and also robbed the efficacy of the statement of two of the defence witnesses who were produced to show that what was given to the Food Inspector was 'waste matter of ghee' and not something which was fit for human consumption.
The learned Magistrate was, therefore, wrong in giving the accused the benefit of doubt on the strength of the statement of the two defence witnesses. That error by itself will not, how ever, justify the conclusion that the case against the accused was proved. It has been repeatedly pointed out by this Court, and in this connection we may refer to two recent decisions of this Court, the one in Din Dayal v. State 1956 All. LJ 276: ( (S) AIR 1956 All 520)(A) in which one of us was a party, and the other in State v. Nathi Lal 1956 All LJ 340 (B) that the certificate of the Chemical Analyst should contain the factual data which the analysis should reveal and not merely the opinion of the Public Analyst as to what that data indicates about the nature of the article of food, and that if the certificate merely gives the final opinion of the Public Analyst and if such an opinion be held to be conclusive evidence about the nature of the article of food, the merit of the case against the accused is really decided by the Public Analyst and not by the Court and the Court just gives its authority to the conclusion of the Public Analyst and this cannot be the position in law.
The report of the Public Analyst in the present case does not. in our opinion, specify what Section 10 of the Act required him to specify and what could have been evidence for the consideration of the Court. No finding can, therefore, be recorded on the basis of such a certificate that the ghee purchased from the accused's shop was adulterated ghee. The Public Analyst's cerficate in the present case is not even in accordance with the form of the certificate prescribed by the rules.
4. In view of the above we are of opinion that this appeal should fail and we accordingly dismiss it.