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State of Madhya Pradesh Vs. Shri Tulsiram - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Appeal Nos. 610 and 683 of 1966
Judge
Reported inAIR1970MP123; 1970CriLJ972; 1970MPLJ177
ActsPrevention of Food Adulteration Act, 1954 - Sections 13(2); Prevention of Food Adulteration Rules, 1955 - Rule 20
AppellantState of Madhya Pradesh
RespondentShri Tulsiram
Appellant AdvocateM.V. Tamaskar, Dy. Govt. Adv.
Respondent AdvocateR.P. Chopra, Adv.
DispositionAppeals dismissed
Cases ReferredJugsalai Notified Area Committee v. Mukhram Sharma
Excerpt:
- - ' 9. thus, their lordships have clearly laid down that if prejudice to an accused could be inferred on account of the long delay in launching of the prosecution on account of the fault of the prosecution itself, whereby the accused is deprived of his valuable right of challenging the report of the public analyst, as conferred by section 13(2) of the act the conviction cannot be sustained on account of such prejudice, although the report of the public analyst would continue to be good evidence. of course, the court can always rely on the report of the public analyst which continues to be good evidence. (b) where there is no delay in examination of the sample by the public analyst and adequate precautions are taken by adding of preservatives and by keeping the samples in.....tare, j. 1. this judgment shall also govern the disposal of criminal appeal no. 683 of 1966 (the state of m.p. v. kishanaji s/o bapu). these appeals arise out of different cases unconnected with each other. but, as we happened to hear them on the same day and as they involved the same question of law, we thought it necessary to dispose them of by a common judgment. the only common thing in both the cases is that the same food inspector, shri r.p. shrivastava, had taken the samples of milk from the respective respondents on 26-5-1965 at village manpur, where the respondents had gone to sell the milk. however, we propose to deal with the facts of each case separately. 2. the food inspector, shri r.p. shrivastava, (p.w. 1) had taken the sample of milk from tulsiram on 26-5-1965. all.....
Judgment:

Tare, J.

1. This judgment shall also govern the disposal of Criminal Appeal No. 683 of 1966 (The State of M.P. v. Kishanaji s/o Bapu). These appeals arise out of different cases unconnected with each other. But, as we happened to hear them on the same day and as they involved the same question of law, we thought it necessary to dispose them of by a common judgment. The only common thing in both the cases is that the same Food Inspector, Shri R.P. Shrivastava, had taken the samples of milk from the respective respondents on 26-5-1965 at village Manpur, where the respondents had gone to sell the milk. However, we propose to deal with the facts of each case separately.

2. The Food Inspector, Shri R.P. Shrivastava, (P.W. 1) had taken the sample of milk from Tulsiram on 26-5-1965. All formalities had been done by the Food Inspector and he put one drop of formalin for each ounce of milk in the bottles which were duly sealed in the presence of attesting witnesses. One sample bottle was sent to the Public Analyst on 28-5-1965. It is not known as to when the Public Analyst received the sample. However, he issued a report, dated 11-6-1965 (Ex. P/7), wherein he observed that milk fat was 4%, while non-fat solids were 7%. Further, he opined that the milk was adulterated indicating the presence of 22% of added water. He also stated that no change had taken place in the constitution of the sample that would interfere with the analysis. The report was actually sent by him on 11-6-1965. The Public Analyst might have conducted the test at the latest on 11-6-1965 or some time earlier, which means after 15 days of the samples being taken.

3. Thereafter, on 14-8-1965, the Food Inspector filed a complaint against Tulsiram and the respondent actually appeared on 11-9-1965. It appears that he was served on the same day and it was on that date, namely, 11-9-1965, that he could have an opportunity of making a demand for sending any of the remaining sample bottles to the Director of Central Food Laboratory for examination so as to challenge the report of the Public Analyst.

4. This case was registered as Criminal Case No. 163 of 1965 of the Court of the Magistrate, 1st Class, Waraseoni, who acquitted Tulsiram, mainly on three grounds:--

(i) That, there was delay in examination of the sample bottle by the Public Analyst;

(ii) That, there was delay in launching the prosecution, as a result of which the accused was prejudiced and he could not exercise his right as conferred by S. 13(2) of the Prevention of Food Adulteration Act, 1954;

(iii) That, as formalin had not been added upto the prescribed quantity, namely, 2 drops per ounce, the value of the report of the Public Analyst was diminished and it could not be asserted by the prosecution that the contents of the sample bottles might not have undergone some change.

5. The same Food Inspector, Shri R.P. Shrivastava, had taken the sample milk from the respondent, Kishanji, in the connected appeal on 26-5-1965. The bottles were duly sealed after complying with all formalities. A sample bottle was despatched to the Public Analyst by the Food Inspector on 30-5-1965. The Public Analyst, as per the report, Ex. P/7, dated 11-6-1965, found that the milk fat was 4% and non-fat solids were 6.5%. The Public Analyst opined that the milk did not conform to the prescribed standard for buffalo milk and it indicated the presence of 27% of added water. A challan against Kishnaji was filed on 4-8-1965. On 7-9-1965, the accused was absent as he could not be served for want of correct address. However, the correct address was furnished and the respondent, Kishnaji, appeared in Court on 8-10-1965. That was the earliest time when Kishnaji could exercise his right under Section 13(2) of the Prevention of Food Adulteration Act 1954. This case was registered as Criminal Case No. 157 of 1965 of the Court of the Magistrate, 1st Class, Waraseoni, and as per the judgment, dated 2-8-1966, the Magistrate acquitted the respondent on the same grounds as in the case against Tulsiram. As such, both the cases involve identical questions.

6. First, we propose to take up the question of delay in testing of the sample by the Public Analyst. In this connection, we may observe that in some types of cases where preservatives may not beadded, the delay of about a fortnight in conducting such test might prove fatal. But, where preservatives are added. It cannot be asserted by the defence that a delay of 14 or 15 days would be fatal to the prosecution case. We propose to deal with this aspect in some details a little later. But suffice it to say that although in some cases, it might have been held that a delay of a fortnight or so might prove fatal, we do not think that it would be a correct view, especially where preservatives are added to the samples. But, we do not think that the so-called delay of a fortnight in the present two cases would be fatal to the prosecution case and we negative the contention of the learned counsel for the respective respondent in each case.

7. However, in our opinion, the second delay in launching the prosecution will have a material bearing and it is an important question of law, as we find differing and conflicting views expressed on that aspect of the case, especially in this High Court itself. For that reason, we propose to discuss this question in details.

8. In Municipal Corporation, Gwalior v. Kishan Swaroop, AIR 1965 Madh pra 180, to which both of us happened to be parties, we had discussed this question, wherein we had observed that the right conferred by Section 13(2) of the Prevention of Food Adulteration Act, 1954, could be exercised only after a prosecution was launched and if there was undue delay in launching the prosecution, the accused could not exercise his right as conferred by Section 13(2) of the Act by having the remaining sample bottle or bottles examined by the Director of Central Food Laboratory so as to challenge the certificate of the Public Analyst. We had also observed that on account of that fact, the evidentiary value of the certificate of the Public Analyst might be reduced. But, however, their Lordships of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 held that the evidentiary value of the certificate of the Public Analyst would not be reduced and it would continue to have the same evidentiary value. But, according to their Lordships, it may be the question of prejudice to the accused on account of the delay in launching the prosecution that might be the relevant consideration in such cases. We may usefully reproduce the observations of their Lordships to the following effect:

'It appears to us that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate ofthe Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.

We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.'

9. Thus, their Lordships have clearly laid down that if prejudice to an accused could be inferred on account of the long delay in launching of the prosecution on account of the fault of the prosecution itself, whereby the accused is deprived of his valuable right of challenging the report of the Public Analyst, as conferred by Section 13(2) of the Act the conviction cannot be sustained on account of such prejudice, although the report of the Public Analyst would continue to be good evidence.

Therefore, it will have to be decided with reference to the facts of each case whether any prejudice has been caused to an accused on account of such delay. Of course, the Court can always rely on the report of the Public Analyst which continues to be good evidence. We may envisage three kinds of cases in order to ascertain whether the delay in launching of the prosecution would prejudice an accused in his trial:

(i) where there is undue delay in the sample being examined by the Public Analyst and there is also delay in launching prosecution so that the right of the accused conferred by Section 13(2) of the Act is rendered nugatory;

(ii) (a) Where there is no delay in examination of the sample by the Public Analyst, but there is undue delay in launching the prosecution so as to deprive the accused of his right under Section 13(2) of the Act, but where adequate precautions are taken by adding of preservatives or by keeping the samples in a refrigerator;

(b) Where there is no delay in examination of the sample by the Public Analyst and adequate precautions are taken by adding of preservatives and by keeping the samples in refrigerator, but there is inordinate delay in launching the prosecution, with the result that the right of the accused to have the sample tested by the Director of Central Food Laboratory, stands defeated and any demand by him in that behalf would be rendered meaningless;

(iii) Whereas in the present two cases, the samples were examined by the Public Analyst without any undue delay, but there was undue delay in launching of the prosecution coupled with the fact that preservatives were not added by the Food Inspector according to the prescribed quantity, as prescribed by Rule 20 of the Rules framed under the Prevention of Food Adulteration Rules, 1955.

It is to be noted that in the present cases, the Food Inspector had put one drop of formalin per ounce instead of the prescribed quantity of two drops per ounce.

10. As regards the question of not adding of preservatives in the prescribed quantity is concerned, the matter has been referred to a Full Bench of this Court in Municipal Committee, Khandwa v. Ganpat, Criminal Appeal No. 311 of 1966, D/- 25-8-1969 (Madh Pra). It was suggested by the learned counsel for the respondents that this case be adjourned till the decision of the Full Bench case. We might have been required to follow that course if the decision of the present case had depended on the sole question of effect due to insufficient addition of preservatives. However, we do not propose to decide the case on this basis only and, therefore, in our opinion, it is not necessary to await the decision of the Full Bench. We are mainly concerned with the delay in launching the prosecution which might cause prejudice, to an accused.

11. Further, we may observe that the view as expressed by a Division Bench of this Court in AIR 1965 Madh Pra 180 (supra) was affirmed by their Lordships of the Supreme Court in AIR 1967 SC 970 (supra), so far as the question of prejudice being caused to an accused on account of the delay in launching the prosecution is concerned. But, what their Lordships did not approve of was the remark of this Court to the effect that, on account of the delay in launching the prosecution, the evidentiary value of the report of the Public Analyst would be diminished. According to their Lordships, the report of the Public Analystwould continue to be good evidence unless it be superseded by the report of the Director of Central Food Laboratory. Their Lordships laid down that it is the question of prejudice to the accused that would be material in such cases. Therefore, it may be necessary to examine as to in what manner or under what circumstances prejudice to the accused, if any, will prove fatal to the prosecution case. On this aspect, there has been some difference of opinion in this Court.

12. In Ramdayal v. State of M.P., 1966 MPLJ 638, Naik J. observed that where formalin was not added to the samples in the prescribed quantity, the conviction of the accused could not be challenged on that ground alone. In that case, the Public Analyst had been examined as a witness and his evidence did not disclose that non-mixing of formalin in the prescribed quantity affected the suitability of the sample for analysis. In that view of the matter, the conviction of the accused was upheld. However, that question being for consideration before the Full Bench, we would decline to express any opinion, but would leave the matter for consideration of the Full Bench.

13. In Municipal Council, Multai v. Juggan, Criminal Appeal No. 495 of 1964, D/- 3-10-1966 (Madh Pra), a Division Bench case of this Court presided over by Golvalkar and Surajbhan JJ., the view of Naik J. as expressed in 1966 MP LJ 638 (supra) was affirmed by holding that mere non-adding of preservatives in the prescribed quantity would not entitle an accused to acquittal on the ground that the report of the Public Analyst should be excluded from consideration altogether.

14. We may, further, refer to some Single Bench cases of this Court, wherein contrary views were expressed. In Ataul Haque v. The State of M.P., Criminal Revn. No. 431 of 1966, D/-. 30-9-1969 (Madh Pra), G.P. Singh, J. had to consider the question on the following facts: The Food Inspector had taken the samples on 19-10-1963. Each sample bottle contained 250 grams of milk. Sixteen dropa of formalin were added. The report of the Public Analyst was made on 8-11-1963; while the prosecution was launched on 25-3-1965. No application was filed by the accused for exercising his right of having one of the remaining bottles examined by the Director of Central Food Laboratory under Section 13(2) of the Prevention of Food Adulteration Act, 1954. The counsel for the accused contended before the Single Bench that the prescribed quantity of formalin according to Rule 20 of the Prevention of Food Adulteration Rules, 1955, would be 20 drops and as such, 16 drops would be insufficient and, therefore, an inference should be drawn that the contents of thesample bottles sent to the Public Analyst must have deteriorated. The learned Judge negatived that contention and held that no question had been put on behalf of the accused so as to get the matter clarified. It was also argued before the learned Judge that there being undue delay in launching the prosecution, the accused was deprived of his right to have the sample analysed by the Director of Central Food Laboratory, as per Section 13(2) of the Act. The learned Judge negatived that contention by relying on the Supreme Court case of AIR 1967 SC 970 (supra). The learned Judge held that there was nothing to show that the other sample bottles had become unfit for analysis at the time when the prosecution was instituted. In that view, the conviction of the accused was upheld.

15. In Ramsajeewan v. Commr., City of Jabalpur Corporation, Criminal Revn. No. 100 of 1967, D/- 8-9-1969 (Madh Pra), Bhave J. had to deal with a case where the challan was filed after 8 months of the sample being taken. It is to be noted that the sample had been taken on 28-7-1964 and it had been analysed by the Public Analyst on the same day. But, however, the challan was filed on 22-3-1965, after about 8 months. Bhave J. held that the report of the Public Analyst was good evidence and there would be no question of the contents of the sample deteriorating as the analysis has been done on the same day. Moreover, at the trial, the accused never demanded that one of the remaining sample bottles be got analysed by the Director of Central Food Laboratory. We may observe that in the case before Bhave J., it might be argued in favour of the view expressed by the learned Judge that the question about the accused exercising his right under Section 13(2) of the Act would be more or less of an academic nature, and if there be no circumstances so as to cause doubt on the report of the Public Analyst, it might be immaterial if the launching of the prosecution is delayed. On the other hand, there may be cases where there may be some infirmities in this behalf and it is only in those cases that the question of prejudice to an accused on account of the delay in launching the prosecution would become material.

16. We may next refer to another case decided by Bhave, J. namely, Phagu v. State of M. P., Criminal Revn No. 83 of 1967, D/- 29-8-1969 (Madh Pra). In that case, the samples were taken on 26-4-1964 and the analysis was conducted by the Public Analyst on the next day, i.e. 27-4-1964. The prosecution was launched on 18-8-1964 while the accused had received the summons sometime before 22-9-1964. The argument was advanced that as the prosecution was inordinately delayed, the valuable right of the accused to get this sample tested by the Director of Central Food Laboratory was defeated and, therefore, no reliance could be placed on the report of the Public Analyst. The Division Bench case of this Court, namely, AIR 1965 Madh Pra 180 (Supra) was cited before the learned Single Judge, who relying on the Supreme Court case of AIR 1967 SC 970 (Supra) held that mere delay per se in launching the prosecution would not be sufficient to hold that the report of the Public Analyst could not be relied on. We may observe that Phagu's case, Criminal Revn. No. 83 of 1967, D/- 29-8-1969 (Madh Pra) (Supra) was more or less akin to the case of Cri. Revn. No. 100 of 1967, D/- 8-9-1969 (Madh Pra) (Supra) decided by the same learned Judge and in this case also, the question of delay in launching the prosecution might be said to be more or less of an academic nature. In fact, the samples had been analysed by the Public Analyst on the next day of the same being taken.

17. In Mathura v. State of M.P., Criminal Revn. No. 591 of 1967, D/- 1-8-1969 (Madh Pra) by Surajbhan J., the Food Inspector had taken the samples on 1-10-1965. The report of the Public Analyst was made on 19-10-1965. Formalin had been added in the prescribed quantity. The complaint, though dated 13-1-1966, was actually filed on 4-2-1966, i.e. after four months subsequent to the samples being taken. A grievance was made that the valuable right of the accused as conferred by Section 13(2) of the Act was defeated. That contention was negatived by relying on the Supreme Court case of AIR 1967 SC 970 (Supra). We may observe that the question of delay in launching the prosecution might in the said case be said to be more or less of an academic nature, as was the situation in the two cases of Ramsajeewan, Cri. Revn. No. 100 of 1967, D/- 8-9-1969 (Madh Pra) and Fagu, Cri. Revn. No. 83 of 1967, D/- 29-8-1969 (Madh Pra) (Supra) before Bhave, J. and it was for that reason that Surajbhan, J. held that the question of delay did not affect the evidentiary value of the report of the Public Analyst.

18. We may refer to another type of case decided by B.K. Choudhury J., namely, Nandlal v. State of M.P., Cri. Revn.' No. 438 of 1967, D/- 24-1-1968 (Madh Pra). In that case, the Food Inspector had taken the samples on 10-5-1965. From the order in the case it is not known as to on what date the Public Analyst had analysed the contents. However, it is mentioned that the complaint was filed on 10-6-1966, i.e., after about 13 months of the samples being taken. The counsel for the accused made a grievance by relying on the case of State of M.P. v. Abbasbhai, 1967 MPLJ 872 - (1967 Cri LJ 1723) that the report of the Public Analyst could not be used, as there was non-compliance with the provisions of Rule 7 and 8 of the Prevention of Food Adulteration Rules, 1955. That contention was negatived by the learned Judge by relying on the Supreme Court case of AIR 1967 SC 970 (Supra). The order does not disclose whether there was any infirmity and whether the report of the Public Analyst could be challenged on any valid ground.

19. We may next refer to another case decided by Naik, J., namely, Fateh Mohammad v. Municipal Corporation, Jabalpur, Cri. Revn. No. 198 of 1967, D/- 5-12-1967 (Madh Pra). In that case, the Food Inspector had taken the samples on 1-2-1965. The Public Analyst had analysed the contents on that very day. The complaint was filed sometime in November, 1965 and the accused appeared in Court on 16-12-1965. As such, the prosecution was launched almost after 9 months of the samples being taken. A grievance was made that there had been inordinate delay In launching the prosecution so that the accused was deprived of his right conferred by Section 13(2) of the Act. The Division Bench case of this Court, namely, AIR 1965 Madh Pra 180 (Supra) as also the Supreme Court case of AIR 1967 SC 970 (Supra) were cited before Naik, J. He, however, held that on account of inordinate delay in launching the prosecution, prejudice had been caused to the accused and in that view of the matter, the conviction was set aside. We may observe that the Public Analyst had analysed the samples on the same day and the question of prejudice to the accused could be said to be more or less of an academic nature. Their Lordships of the Supreme Court in AIR 1967 SC 970 (Supra) have clearly laid down, as is clear from the observations of their Lordships reproduced by us above that mere delay In launching the prosecution by itself cannot be fatal, but it becomes material where prejudice to the accused is caused in his defence. Such prejudice may be caused under different circumstances and on account of different reasons. It is not possible to enumerate them all, but by way of illustration, we have taken into consideration the three distinct types of cases, as stated by us earlier.

Thus, the ratio decidendi of the Supreme Court case AIR 1967 SC 970 (Supra) is that conviction cannot be maintained where prejudice is caused to the accused, but where no such prejudice may be inferable, the conviction can, as well, be based on the unchallenged report of the Public Analyst. Their Lordships of the Supreme Court have also observed that difficulties would arise in a case where the accused makes a demand for exercise of the right under Section 13(2) of the Act and that right stands defeated on accountof the long delay In launching the prosecution. It is only from this point of view to scrutinise the matter further that we have taken the three distinct categories of cases by way of illustration.

20. We may further observe that in the Supreme Court case of AIR 1967 SC 970 (Supra) and in some other cases, which we propose to discuss presently, there was evidence of the expert regarding the period during which the contents of the sample may remain intact without deterioration. It cannot be disputed that the facts of a particular case and the evidence led in one case cannot be a precedent for the facts of another case. In fact, there can be no precedent on facts, but the precedent is always on a question or proposition of law. Therefore, such cases may not be of much use except to propound propositions of law.

21. In this connection, we may advert to the observations of a Single Bench of the Gujrat High Court in Manka Hari v. State of Gujrat, AIR 1968 Guj 88. In that case, the Food Inspector had taken the samples on 17-1-1966 and he had added 16 drops of formalin to the contents of each sample bottle. The sample bottle had been handed over to the Public Analyst on the same day. The report of the Public Analyst was submitted on 25-1-1966. The prosecution was launched on 6-5-1966. Formalin had been added in the prescribed quantity. An argument was advanced on behalf of the accused that prejudice had been caused to the accused on account of the delay in launching of the prosecution. The Division Bench case of this Court, namely, AIR 1965 Madh Pra 180 (Supra) was cited before the learned Judge. The learned Judge distinguished the case on facts. It appears that the Supreme Court case of AIR 1967 SC 970 (Supra) had not been published at the time the judgment in the Single Bench case of Gujrat was delivered. However, the learned Judge referred to other cases. The prosecution in that case was launched on 6-5-1966, i.e. after about 4 months of the samples being taken. In that view of the matter, the question about the contents of the remaining sample bottles being examined by the Director of Central Food Laboratory could be said to be more or less of an academic nature. It was under those circumstances that the learned Judge upheld the conviction of the accused.

22. We may refer to another Single Bench case of the Patna High Court, namely, The Chairman, Jugsalai Notified Area Committee v. Mukhram Sharma, AIR 1969 Pat 155. In that case, the Food Inspector had taken the samples on 31-5-1965. The judgment, however, does not give any indication as to when the samples were examined by the Public Analyst and when the prosecution was launched. How-ever, the questions, relating to adding of insufficient preservatives and the prejudice to the accused on account of the delay in launching of the prosecution were argued before the learned Judge and he negatived those contentions by mainly relying on the Supreme Court case of AIR 1967 SC 970 (Supra).

23. In the present cases however, no evidence was led consisting of the testimony of an expert. Therefore, it is not possible to state with precision for what period the contents of the sample bottles might remain intact and, therefore, we may take the opinion given by the experts examined in the Supreme Court case of AIR 1967 SC 970 (Supra) and AIR 1968 Guj 88 (Supra) as indication of the probable period for which by taking precautions, the samples might be kept intact.

24. We may observe that ordinarily, milk would start deteriorating and would start becoming curd after about 11/2 to 2 days and by adding preservatives, it might be kept intact at the most for a month or a month and a half. However, if more precautions are taken by keeping the contents in a refrigerator, the contents could be preserved without deterioration for a period of four to six months. But that is the limit to which milk might be preserved in good condition. It can certainly not be preserved in the same condition beyond that period. In the light of these observations, we now propose to consider the three types of illustrative cases.

25. As indicated by us earlier, the first type would be where the analysis by the Public Analyst is unduly delayed and there may be facts or circumstances to indicate a probability of the contents having deteriorated. In addition, the prosecution itself is delayed so that the right of the accused to challenge the report of the Public Analyst is defeated. In a case of this type, we may observe that the Court would have no hesitation in acquitting the accused because of the delay in conducting the analysis and the delay in launching the prosecution so as to defeat the right of the accused to challenge the report of the Public Analyst. Such a case would present no difficulty.

26. Another type of case would be where there is no undue delay in conducting an analysis and where preservatives are added in the prescribed quantity. In some of the cases mentioned by us earlier, the analysis was conducted on the same day or on the next day, In that event, adding of preservatives in the prescribed quantity would not have any material bearing and if some delay which cannot be dubbed as undue delay be caused in launching the prosecution, we do not think that the delay by itself would be fatal to the prosecution case. If the Court finds that the report of the Public Analystcannot be challenged on any probable ground, the question of getting the samples further examined by the Director of Central Food Laboratory, might be said to be of an academic interest and the Court will not acquit the accused merely because there has been some delay in launching the prosecution. In that event, the conviction of an accused can be upheld on the principles indicated by their Lordships of the Supreme Court in AIR 1967 SC 970 (Supra). Thus, we are clearly of opinion that a conviction cannot be set aside or an accused cannot be acquitted on a hypothetical conjectural prejudice said to have been caused to an accused by the mere fact of some delay being caused in launching the prosecution.

27. The above discussion would dispose of illustrative cases mentioned in sub-para (ii) (a) of paragraph 8 of the judgment. We may now consider a situation mentioned in sub-para (ii) (b) of the said paragraph. Different views have been expressed in different cases mentioned above. In such types of cases, the view taken in one set of cases is that the question of prejudice being caused to an accused would be more or less of an academic nature, especially when preservatives have been added or the test by the Public Analyst is conducted expeditiously. In the other set of cases, mentioned by us above, a contrary view has been expressed suggesting that an inordinate delay in launching the prosecution so as to defeat the right of the accused under Section 13(2) of the Act would lead to an inference of prejudice being caused to the accused. As we are not required to deal with such a case in the present appeals, we would reserve our opinion for some suitable occasion.

But, we may observe that it has been specifically laid down by their Lordships of the Supreme Court in AIR 1967 SC 970 (Supra) that their Lordships should not be understood as laying down that in every case, where the right of the vendor to have his sample tested by the Director of Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. What their Lordships have laid down is that it is necessary to find out if any prejudice has been caused to an accused on account of inordinate delay in launching the prosecution. We have no doubt that if prejudice is inferable in a particular case from the inordinate delay in launching the prosecution, the conviction has necessarily to be set aside. But, if no such prejudice be inferable, in that event, it is doubtful if the conviction could be set aside on account of inordinate delay in launching the prosecution even in the absence of prejudice caused to the accused. That will be the necessary corollary of the pronouncement of their Lordships of the Supreme Court in AIR 1967 SC 970 (Supra). However, as already indicated by us, we would reserve our opinion on the question whether a long delay in launching the prosecution would be an indication of prejudice to an accused. In the present appeals, consideration of that question will be of an academic interest, as in our opinion, the present appeals squarely fall within the ambit of illustrative case No. 3 mentioned by us earlier, and it is for that reason that we do not think it necessary to have that question decided by a Full Bench in spite of there being a controversy and conflict of views on that point.

28. Then, we may consider the third type of illustrative case. Where the report of the Public Analyst may not have been unduly delayed, but no proper precautions are taken by adding preservatives in the prescribed quantity and for that reason, it may be open to the accused to challenge the report of the Public Analyst, or there may be infirmity of some other kind so that the report of the Public Analyst cannot be relied on for basing a conviction, although it may continue to be good evidence. In such a case, if the prosecution is unduly delayed, the prejudice to the accused would be obvious, if his right under Section 13(2) of the Act stands defeated on account of the long delay in launching the prosecution. In our opinion, the Court ought to decline to base a conviction on the basis of the report of the Public Analyst. We further feel that the report of the Public Analyst, which continues to be good evidence, might be relied on where preservatives are added in the prescribed quantity and the analysis is not unduly delayed by the Public Analyst. In such a case, the question of burden of proof also might become material. But the prosecution has to establish its case beyond any shadow of doubt; while the accused might suggest a probable and reasonable explanation for not accepting the report of the Public Analyst. Non-adding of preservatives in the prescribed quantity or a long and undue delay in conducting the analysis might amount to such a reasonable and probable explanation on behalf of the accused. Therefore, where inadequate preservatives are added or where the report of the Public Analyst is inordinately delayed, no conviction, in our opinion, can be based on the report of the Public Analyst and where the launching of the prosecution is inordinately delayed, the question whether the accused made a demand for exercise of his right conferred by Section 13(2) of the Act would be wholly immaterial, as prejudice would be inferable from the long delay in launching the prosecution, especially in view of the fact that the report of the Public Analyst cannot form the basis of conviction eitheron account of insufficiency of preservatives or on account of the analysis being inordinately delayed. We may further observe that the present cases belong to this category where prejudice to the accused is obvious from the facts themselves. In such an event, it is not for the accused to say positively that the contents of the sample could have or, in fact, had deteriorated. But the burden would be on the prosecution to satisfy the Court that the contents remained intact in spite of such an infirmity. The position, however, will be different if there be no infirmity of the kind Indicated by us.

29. To conclude, we are of opinion that where the analysis by the Public Analyst is inordinately delayed and the launching of the prosecution also is inordinately delayed, prejudice to the accused being obvious, conviction cannot be based on the report of the Public Analyst. Where, however, the analysis by the Public Analyst is not inordinately delayed and the preservatives are added in the prescribed quantity, the mere fact of some delay in launching the prosecution will not entitle the accused to claim an acquittal land the report of the Public Analyst can form the basis of conviction. Lastly, we are of the opinion that where report of the Public Analyst is not unduly delayed, but there is an infirmity in the prosecution case by failure to add the prescribed quantity of preservatives to the samples, prejudice to the accused being obvious, no conviction can be based on the report of the Public Analyst. The same result will follow if in addition to insufficiency of preservatives, the analysis by the Public Analyst is inordinately delayed.

30. We have already indicated that it is not necessary for us to consider the illustrative case No. (ii) (b) mentioned in paragraph 8 of the judgment. Therefore, we would reserve our opinion on that aspect for some suitable occasion, nor do we think it necessary to refer the said question for consideration by a Full Bench as it would be of an academic interest so far as the present appeals are concerned.

31. As already indicated by us earlier the present cases belong to the third category, where prejudice to the accused would be obvious from the fact that preservatives were not added in the prescribed quantity. Although, the analysis by the Public Analyst may have been conducted with a reasonable time, launching of the prosecution was unduly delayed and the respective respondent's right conferred by Section 13(2) of the Act stood defeated on account of such delay; with the result that the respective accused could not challenge the report of the Public Analyst on account of laches on the part of the prosecution. In the view that we take, we do not think that an interference with the acquittal of the respective respondent would be warranted in the present appeals. Therefore, we dismiss these appeals.


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