M.H. Beg, J.
1. This is an appeal by the Municipal Board of Saharanpur against an acquittal of the respondent from a charge framed for an offence punishable under Section 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954, (hereafter referred to as 'the Act').
2. It was alleged that the respondent Dhian Singh was selling coloured sweets of which a sample was taken on 31-5-1963. The sample was sent to the Public Analyst to the Government of U. P. for analysis. The result of analysis as given in certificate No. 11652 dated 24-6-1963, which was attached to the complaint purporting to be filed by the Food Inspector Municipal Board, Saharanpur, on behalf of the Municipal Board, showed that the sample was coloured with a coaltar dye metanil yellow (colour index No. 138) which is not one of the coaltar dyes permitted for use in food stuffs, under Rule 28 of the Prevention of Food Adulteration Rules, 1955 It was also alleged in the complaint that no change had taken place in the constituents of the sample which could have interfered with the analysis. It was further alleged that the respondent had been convicted previously for an offence punishable under Section 16 read with Section 7 of the Act.
3. The learned Magistrate, who tried the case, examined the prosecution evidence given by Sri Kedar Nath (P. W. 1), the Food Inspector, about the actual purchase of 750 grams of coloured sweets (Batasa) for Rs. 1.90 Paise by the Food Inspector, for which a receipt (Ex. Ka. 1) was filed. The learned Magistrate did not disbelieve this evidence. The sample taken was shown to have been divided into three portions which were sealed on the spot and one of these parts was given to the accused who signed a receipt for it (Ex. Ka. 2). The accused was also informed by means of a notice that file sample will be sent to the Public Analyst for analysis.
4. The respondent accused had after denying, in his statement wider Section 348 Cr. P.C., on 24-9-1963 that he made any signatures on any documents or that anything was written out before him, finally admitted, on 8-12-1963, in his statement under Section 342 Cr.P. C. after the prosecution evidence that the signatures on three receipts (Exs. Ka. 1, Ka, 2 and Ka. 3) were his. The stand finally taken by the accused was that he did not put any prohibited colour in the sweets taken from his possession so that the sweets were not adulterated. The respondent accused also denied that any price was paid to him for the sweets and tried to support his version by producing a witness, Tara Chand (D.W. 1), who stated that the respondent's signatures were taken on pieces of paper without writing out anything on them or explaining anything to him. The learned Magistrate considered the defence evidence to be unacceptable as ft appeared to be that of an interested witness. The allegations made by the defence witness also seemed to be contrary to the ordinary course of human conduct. It was, therefore, rightly rejected by the trial court.
5. The learned Magistrate did not give a finding, as he should have given, on the question whether a sale had actually taken place or not. He relied on two grounds mainly for acquitting the respondents firstly, he thought that the report of the Public Analyst consisted of an expression of opinion in the form of a single sentence recording the conclusions of the public Analyst, and that it had to be discarded as it did not give the full data upon which the opinion was based; and, secondly, the Magistrate found that the Food Inspector had not observed the provisions of Section 10(7) of the Act.
6. So far as the first ground of acquittal of the respondent is concerned, the learned Magistrate purported to rely on two authorities of this Court which were: Din Dayal v. State, AIR 1956 AH 620: 1966 Cr. LJ. 1031 and State v. Sahati Ram, AIR 1958 All. 34 : 1968 Cr. L.J. 8. Now both these cases deal with the provisions of Section 10 and other related to provisions of the U.P. Pure Food Act (XXXII of 1050) and not at all with the provisions of the Prevention of Food Adulteration Act (No XXXVII of 1954) which is a Central Act. After having examined the two cases, I accept the contention advanced on behalf of the appellant that these two cases are not applicable id the present case.
7. The decision of the Supreme Court in Mangal Dass v. State of Maharashtra, AIR 1966 S.C., 128 seems completely to support the contention on behalf of the Municipal Board. This decision was given with regard to the provisions of Sections 13 and 19 of the Prevention of Food Adulteration Act. It was contended before me that all the cases which have a bearing on the reports of Public Analysts have been exhaustively considered by their Lordships of the Supreme Court in Mangal Dass's case. AIR 1966 S.C. 128 (supra) where the effect of the provisions of Section 13(5) of the Act was pointed out. This provision may be quoted here:--
'13(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 he 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 to 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 staled therein.'
It is clear from the above mentioned provision that a document 'purporting' to be a report signed by Public Analyst can be used as evidence of facts stated therein. It was duly proved by Kedarnath (P.W. 1), the Food Inspector, that the report, of which the original is on the record, actually is from the Public Analyst. The report bears the stamp of the Public Analyst for the State of Uttar Pradesh. It is on a printed form which has been duly filled in by the Public Analyst who has not only signed, but under whose signature his name and his qualifications and his Public office are clearly rubber-stamped. Such a document purporting to be a report signed by a Public Analyst was certainly admissible without further proof under the abovementioned provision. It was enough to show that it is a 'document purporting to be signed by Public Analyst.'
8. It had been held by this Court in Nagar Mahapalika v. Sri Ram, 1963 All. L.J. 765 at p. 775: (AIR 1964 All. 270 at p. 278)
'The well settled view of this Court is that the report of the Public Analyst under Section 13 of the Act need not contain the mode or particulars of the analysis, not the test applied, but should contain the result of analysis, namely the data from which it could be inferred whether the article of food was or was not adulterated as defined in Section 2(1) of the Act.'
In the above mentioned case the previous cases of this Court on the subject have been considered I find that the data on which the Public Analyst based his opinion in the present case is certainly given in the printed report. No. 11662 of the Public Analyst Dr. R. S. Srivastava, which is in form No. 3 under Rule 7(3) of the Act. The report contains the nature of the sample, the type of test carried out, the result of that test, the nature of the coaltar dye and the analytical data in respect of fat or oil used in the preparation of the sample After giving these details the opinion is recorded that the coaltar detected 'is not one of the coaltar dyes permitted for use in food stuffs under Rule 28 of the Prevention of Food Adulteration Rules 1955' I, therefore, think that the learned Magistrate erred seriously in excluding this report from evidence altogether on the ground that it does not give the required data.
9. The contention that the Public Analyst himself had to be examined before giving effect to the conclusions contained in the report of the Public Analyst can be disposed of by the argument accepted by their Lordships of the Supreme Court in Mangaldass' case, AIR 1969 SC 128 (supra) in the following words:
'As regards the failure to examine the Public Analyst as a witness in the case no blame can be laid on the prosecution. The report of the Public Analyst was there and if either the Court or the appellant wanted him to he examined as a witness appropriate steps would have been taken. The prosecution cannot fail solely on the ground that the Public Analyst had not been called in the case.'
Their Lordships also observed there:
'Mr. Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves, and, quite apart from the fact that it was not challenged by any of the appellants as inadequate when it was put into evidence, we are satisfied that it contains the necessary data in support of the conclusion that the sample of turmeric powder examined by him showed adulteration. The report sets out the result of the analysis and the test performed in the public health laboratory. Two out of the three tests and the miscroscopie examination revealed adulteration of the turmeric powder The miscroscopir examination showed the presence of pollen stalks. This could well be regarded as adequate to satisfy the mind of a Judge or Magistrate dealing with the facts.'
The contention on behalf of the appellant is that the law conferred a right upon the vendor, to whom a sealed sample had been given, to contest the correctness of the conclusions of the Public Analyst. This right is contained in Section 13(1) and (2) of the Act and the effect of the exercise of that right a given in Sub-sections (3) and (4) of Section 13 of the Act. The result is that where a vendor contests the correctness of the report of the Public Analyst, he can apply to the court to send the sample given to him to the Director of the Central Food Laboratory for a certificate. The certificate of the Director, where there is one, will then supersede the report of the Public Analyst This is a very effective right given to a person accused of an offence against the provisions of the Act. A person who fails to exercise this valuable right could be presumed to have failed to do so because the report of the Public Analyst could not be properly questioned
10. A contention on behalf of the respondent accused was that the prosecution 'must prove that the vendor knew that the food sold was actually adulterated This contention is met effectively by the provisions of Section 19(1) of the Act which was also pointed out by their Lordships of the Supreme Court in Mangal Dass' case, AIR 1966 S.C. 128 (supra). The Supreme Court has held there that the result of Section 19(1) of the Act is that a person who alleges absence of mens rea must not only allege but prove facts and circumstances which would entitle him to establish effectively a plea of a mistake of fact by way of an exception to criminal liability. The circumstances in which such a plea will succeed are given in Section 19(2) of the Act and the two provisos to Sub-section (2) of Section 19 of the Act. It appears that the law has made ample provision for those labouring under bona fide mistakes of fact so as to escape criminal liability The facts constituting a bona fide belief that the food exposed to sale was not adulterated certainly lie within the special knowledge of the person pleading the belief and its burden would be upon him by reason of Section 106 of the Evidence Act also.
11. In the present case. I find that the respondent accused, far from pleading any ignorance about the contents of the sweets or any bona fide belief that they were not adulterated, asserted categorically that his sweets did not contain any colour which was prohibited. The assertion implied that he knew what the contents of the sweets were and also knew that none of the contents were prohibited The assertion that the sweets did not contain prohibited colour is proved to be false by the report of the Public Analyst which the respondent accused did not question in the manner provided by the law The signature of the accused-respondent upon the receipt (Ex. Ka 1), showing that 750 grams of coloured sweets were sold by the accused for Rs. 1.90 paise together with his signature on the copy of the notice (Ex. Ka. 3) which was given to him showing that the sample taken was being sent to the Public Analyst strongly corroborate the Food Inspector's statement.
In addition, there is also a receipt (Ex. Ka. 2) showing that a sealed sample was being given to the accused respondent to enable him to exercise the right conferred upon him by Section 11 of the Act. The effect and importance of these documents was certainly overlooked by the trial court, when it held that the evidence of the Food Inspector, together with the report of the Public Analyst which was on record, was insufficient to establish (he prosecution case I am satisfied that the evidence on record fully established a sale of the sweets which were fully proved to be adulterated.
12. Turning now to the second ground of acquittal. I find that the Food Inspector did not comply with the provisions of Section 10(7) of the Act inasmuch as he did not call at least two persons to be present before he took action, and, therefore, he could not take their signature as witnesses The Food Inspector has explained that the persons taking tea nearby and the shopkeepers in the vicinity were unwitting to come forward and give evidence. But, from what he said, it may be inferred that the Food Inspector probably made efforts to obtain witnesses present there already after actually taking the sweets from the respondent-accused. The evidence of the Food Inspector is certainly vague on the matter. Section 10(7) of the Act contemplates that he should call not less than two persons to be present before, he actually decides to make the purchase or take the action under the Act. It is, however, possible to conceive of contingencies in which it may not be possible or practicable to secure two witnesses. I am not satisfied that the Food Inspector took due care to ensure that at least two persons should be present who were willing to act as witnesses before he took the sample.
13. On behalf of the respondent reliance is placed upon In re Raju Konar, AIR 1959 Mad. 118 1959 Cri. LJ 336. There, Somasundaram, J., was pleased to hold, after finding that the milk involved in that case was adulterated, that there was deliberate disobedience of the mandatory provisions of Section 10(7) of the Act. The conviction and sentence of the accused in that case was, therefore, set aside it was pointed out by the learned Judge that Section 10(7) of the Act was not intended to be ignored deliberately and that its compliance could not be dispensed with when at least two persons were available. In the case before me, it appears that the Food Inspector did not deliberately fail to comply with the provision, but he overlooked the possibility of refusal of persons actually present to give evidence. He should have tried to secure the presence of two persons before he actually took action. I have no reason to disbelieve his statement when he said that he made an effort to secure the evidence of the witnesses to the sale but did not find them willing to give it. If members of the public actually present on the spot are not willing to give evidence which may result in a conviction, the Food Inspector could not be seriously blamed. At most, it can be urged that he should have guarded against this contingency by previously taking two persons who would be willing to act as witnesses.
14. On behalf of the appellant, reliance isplaced upon Gopalpur Tea Co. Ltd. v. Corporation of Calcutta, AIR 1966 Cal 51 where theeffect of non-compliance with Section 10(7)of the Act, when no witness was available, wasdealt with. It was held there that the salecould not be vitiated for that reason only andthat each case will have to be decided on itsown facts and circumstances. I, respectfullyconcur with this view.
16. The object of Section 10(7) of the Act is to ensure that an actual and genuine transaction of sale of the sample and its formalities are proved by evidence which is above board and satisfactory. In the present case there is no allegation, that the Food Inspector had any motive to implicate the respondent falsely. The Food. Inspector's statement remained quite unshaken under cross-examination It could not be inferred, from anything upon the record, that the Food Inspector could have come oblique or dishonest motive in not complying with Section 10(7) of the Act. The statement of the Food Inspector that an actual and genuine transaction of sale took place is corroborated strongly by the admissions of the accused that he was given a part of the sample and that he signed the documents which were mentioned above. In these circumstances, I do not consider the inadvertent failure to comply with the provisions of Section 18(7) of the Act could demoliah what is otherwise proved satisfactorily. The result is that I set aside the acquittal at the respondent and allow this appeal. I hereby convict the respondent Dhian Singh of an offence punishable under Section 16 react with Section 7(1) of the Act.
16. The question of sentence in this case presents some difficulty. Although the complaint on behalf of the Municipal Board mentions a previous offence of the respondent against Section 7 of the Act and an officer of the Municipal Board, Brijlal (P.W. 2) was produced to prove that the respondent was fined Rs. 50 for it, no charge was framed mentioning a previous conviction. The respondent, when asked to explain under Section 342, Cr P.C stated that he had no recollection of the previous conviction. The officer of the Municipal Board merely spoke about it after having looked up some previous record of the Municipal Board which he did not bring with him. No documentary evidence to prove the precise conviction was filed. Now a second offence under this Act entails serious consequences in view of Section 16(1)(ii) of the Act which reads as follows:--
'He shall, in addition to the penalty to which, he may be liable under the provisions of Section 6, be punishable. (i) (ii) for a second offence with imprisonment for a term which may extend to two years and with fine: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, such imprisonment shall not be less than one year and such fine shall not be less than two thousand rupees.'
17. It is true that Section 221(7) Cr. P C. lays down that even if the fact, the date, and the place of the previous conviction, which ought to be stated in the charge, are omitted the court 'may add it at any time before the sentence is passed' Nevertheless, the provision requiring such a statement in the charge is mandatory. In my opinion, the object of such a statement in the charge will be defeated if the addition is made at the appellate stage without having indicated to the respondent at all that he was placed in the jeopardy of getting an enhanced punishment under Section 16(1)(ii) of the Act. The proviso to Section 16(1)(ii) of the Act necessarily implies that the accused will have the opportunity of showing that special reasons existed for exempting him from full penalts in committing a subsequent offence Such exceptional circumstances may relate to the pettiness of the trade carried on by the vendor, the fact that the vendor has left the trade, to the question, whether the vendor had reasons to be misled by something which even though not sufficient to absolve him from criminal liability, may be enough for mitigating the gravity of the second offence. In the present case the vendor certainly appears to be a very petty tradesman and he could very well say that he was misled by the small sentence of fine ofRs. 69 only said to have been imposed for thefirst offence.
I also find that even the fact that he waspreviously convicted for an offence against theprovisions of the Act has not been satisfactorily proved. The best evidence of such a conviction was a judgment of the court. I do notthink that the mere statement of the officer ofthe Municipal Board that he had inspected arecord where he had seen some entry abouta previous conviction of the respondent couldbe considered enough to prove a previous conviction. I do not think that the prosecution isnow entitled to another chance to provethe previous conviction when the dateand other particulars of the previous conviction are not proved by it in spiteof the opportunity to prove it. Even thecomplaint does not mention the date and placeof the previous conviction but only sets out thatthere was a previous conviction of the respondent under Section 7/16 of the Act. In the circumstances stated above, I would treat this caseas though it was a case of a first offence onlyin the absence of necessary particulars fromthe charge or adequate opportunity to the respondent to meet the allegation or any satisfactory proof of the nature of the alleged previousconviction. I, therefore, convict the respondentto undergo a sentence of two months rigorousimprisonment and to pay a fine of Rs. 100, andin default of payment of fine, to undergo further rigorous imprisonment for a period ofOne month.