1. This appeal, as also Criminal Appeal No. 476 of 1965, which too has been filed by the Municipal Council, Raipur, against the same respondent, both arise out of a common judgment of acquittal of the respondent, delivered by the learned Sessions Judge, Raipur, in two different appeals, viz. Criminal Appeal No. 147 of 1964 and No. 148 of 1964, arising out of Criminal case No. 338 of 1963 and No. 344 of 1963 respectively, and as common questions of law are involved in both of them, they were heard together and this judgment shall govern the disposal of the other appeal also.
2. The Municipal Council, Raipur, has filed these appeals under Section 417(3) of the Code of Criminal Procedure against the judgment of acquittal of the respondent, dated 5-12-65, in the aforesaid two appeals which arose from Criminal CasesNos. 338/63 and 344/63, and in each ofthose cases, the respondent was convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter called the Act), and sentenced to a fine of Rs. 200/- or in default, to suffer rigorous imprisonment for a period of two months.
3. The facts of the prosecution case are identical in both the cases, excepting that the article seized in one case was wheat flour and in the other, gram-flour (Besan). Food Inspector, Shri Khimji Bhiwanday (P. W. 1) had, on 28-11-62, took sample of Besan (gram-flour) as well as wheat-flour, on payment of price therefor, for purposes of analysis, from respondent Bishandas, after due notice to him, and divided the sample of each in three equal parts, which were sealed in the presence of the witnesses, and one packet of each of the two articles was sent to the Public Analyst for test, vide his report, Ex. P-5, and in both cases, each of the two items were found below the standard specification.
4. At the trial, the accused had pleaded not guilty to the charge against him under Section 7 read with Section 16 of the Act in each case, and his defence in both was that he did not adulterate the stuff, but he had sold the same from what he had purchased from the common market. The learned Magistrate, as aforesaid, found gram-flour and the wheat-flour both to be below the specified standard, vide the reports of the Public Analyst, Ex. P-5, and hence he convicted and sentenced the respondent in each case as aforesaid. Being aggrieved, the respondent went in appeal before the learned Sessions Judge, Raipur, who held a different view, and passed the impugned orders of acquittal in the two appeals, and hence these appeals before this court.
5. The learned Judge based his order of acquittal on two grounds, firstly that the Food Laboratory referred to in the order of appointment of Shri S. N. Dutta (vide Notification No. 3695/2879/XVII-PH-IV dated 22-6-1960) is not proved to be the same Laboratory which has been referred to in the State Government notification No. 2683/3282/XVII-M-IV dated 27-12-1960 (hereinafter referred to as Notification dated 27-12-60), and secondly, Shri Dutta was appointed only as a Chemist, while the notification dated 27-12-60, purported to (Sic) the Medical Officer and the Chemist in the Public Health Laboratory, Raipur, being appointed as Public Analyst under the Act, and as Shri Dutta did not hold both the above said Offices, he was in the opinion of the learned Judge, not competent to act as a Public Analyst.
6. Shri Jakatdar, the learned counsel for the appellant in both appeals, hasurged before us, that the learned Sessions Judge had erred on both the grounds in acquitting the accused. He invited our attention to the notification No. 7010/ 2717/XVII-M dated 4-11-1959 (hereinafter referred to as Notfn. dated 4-11-1959), whereby the existing laboratories at Gwalior and Raipur etc. were raised to the status of the Regional Laboratories in order to bring them in conformity with the status as approved by the Central Government for such a laboratory and the Food Laboratory being raised to the status of the Regional Laboratory, it could not be said that Shri Dutta's appointment as Public Analyst, vide this notification, was not in order. He further urged that this notification clearly shows that the medical officer and the chemist being two different offices, and Shri Dutta haying been appointed Public Analyst, vide notification dated 22-6-60, answered all the description as mentioned in the relevant notification for appointment as a Public Analyst, and that being the position, the conviction of the accused by the learned Magistrate in both the cases was proper and should not have been interfered by the learned Sessions Judge.
7. Shri Sen, the learned counsel forthe respondent, on the other hand, urged that the prosecution has not properly proved that there was only one Food Laboratory at Raipur, and it was that laboratory which was raised to the status of the Regional Laboratory of which Shri Dutta was the Chemist. He also contended that there is no notification to show that Shri Dutta was the Medical Officer as well as a Chemist both as it was necessary before he could be appointed as a Public Analyst, and he further urged that there was nothing to show that Shri Dutta possessed the requisite qualifications for such an appointment.
8. We have given our careful consideration to all the contentions raised before us and we are of the view that the impugned order of acquittal in both the appeals deserves to be set aside.
9. Section 8 of the Act makes a provision for the appointment of a PublicAnalyst, by the State Government, and Sub-section (5) of Section 13 provides that 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 Central Food Laboratory, may be used as evidence of the facts stated therein in any proceedings under the Act.
10. At the outset we must say that no objection was raised on behalf of the accused that the Food Laboratory at Raipur was not the Regional Food Laboratory as up-graded, vide notification dated27-12-60, and similarly no objection was also raised regarding the appointment of Shri Dutta as a Chemist and about his continuance as such, and these objections in our view should not have been allowed to be raised in appeal, but since that have already been taken up, and dealt with by the learned Judge, we are of the view that they have no force, and the conviction in both cases, as held by the learned Magistrate, was justified.
11. The notification dated 4-11-1959, relates to the up-grading of the then existing laboratories at Gwalior, Raipur and Jabalpur, as Regional laboratories, and notification dated 27-12-60, which was in exercise of powers conferred by Section 8 of the Act appointing the Medical Officer and the Chemist of the Public Health Laboratory, Raipur, as a Public Analyst. Now the question that arises is, whether, vide notification dated 27-12-60 (at Ser. No. 4), the 'Medical Officer and the Chemist' (Public Health Laboratory) is one person or consists of two persons i.e. a medical officer and a chemist. The question turns round, whether the word 'and' should be interpreted as 'or'. The word 'and' is normally conjunctive and the word 'or' is normally disjunctive, but sometimes they are read as vice versa to give effect to the manifest intention of the legislature as disclosed from the context. Scrutton LJ., in Green v. Premier Glynrhonwy Slate Company. Ltd., 1928-1 KB 561 at p. 568 has observed as follows:
'You do not sometimes read 'and' in a statute, but you do not do it unless you are obliged, because 'or' does not generally mean 'and', and 'and' does not generally mean 'or'.'
In Maxwell's Interpretation of Statutes, at p. 229, in dealing with conjunctions 'or' and 'and', it is said:
'To carry out the intention of the legislature, it is occasionally found necessary to read conjunctions 'or' and 'and' one for the other.'
In State of Bombay v. R. M. D. Chamar-baugwala. AIR 1957 SC 699 at p. 709, the Supreme Court read 'or' as 'and' to give effect to the clear intention of the legislature as expressed in Bombay Lotteries and Prize Competition Control and Tax Act, (No. 54 of 1948). Similarly, in Mazagaon Dock Ltd. v. Commissioner of Income-tax and Excess Profits Tax, AIR 1958 SC 861 the word 'or' was read as 'and', as the result produced by reading 'or' in Section 42 (2) of the Income-Tax Act, 1922 could not have intended. See also T. S. Govindlalji Maharaj etc. v. State of Rajasthan, AIR 1963 SC 1638 at p. 1652.
12. By reading column 2 of the notification, it appears that the State Government intended that a 'Medical Officer and the Chemist' are two different persons and any one of them could be appointed as a Public Analyst having the requisite qualifications, and in our view, the word 'and' used in column 4 should be read as 'or', and we are supported in our view by the notification dated 11-10-1966, the relevant portion of which is as under:--
'Notification No. 4762/5177/XVII-Med.-IV, Bhopal dated 11th October, 1966-
In exercise of the powers conferred by Section 8 of the Prevention of Food Adulteration Act, 1954 (No. 37 of 1954), and in supersession of all previous Notifications issued in this behalf the State Government hereby appoints the persons specified in Col. (2) of the Table below to be Public Analysts for the purposes of the said Act and further defines the local areas as specified in the corresponding entries in Col. (3) of the said Table, over which they shall exercise jurisdic-tion.-
The Chemist, Pub-
lic Health Labora-
13. It is, therefore, quite clear that the intention of the State Government was to appoint a Chemist as a Public Analyst, vide Notification dated 27-12-1960, and the learned Judge erred in holding that an 'Officer holding charge of Medical Officer as well as that of Chemist' could only be competent person to be appointed as a Public Analyst.
14. Shri Dutta was appointed as aChemist by the order of the State Government, vide the notiacation dated22-6-1960, and the notification dated22-6-61 (No. 4162/77/XVIII-Med.I)extended the continuance of the post ofa Chemist, and having held that theMedical Officer and the Chemist weretwo quite distinct offices, and any one ofthem holding such an office, could beappointed as a Public Analyst, vide notification dated 27-12-1960, we are of theview that at the time when the accusedis alleged to have committed the offence,Shri Dutta was holding the office of aChemist and further, the Food Laboratory at Raipur, having been upgraded tothe status of the Regional Laboratorywith which he was attached as a Chemisthe was a fit person to perform the dutiesof a Public Analyst. It is pertinent tonote here that it is not necessary for theState Government to appoint any personas a Public Analyst by name. It can bedone even by virtue of his office also.It is also true that certain qualificationsare prescribed for appointment as a Public Analyst and the accused had not taken any objection whatsoever in the trial Court that Shri Dutta was not so qualified. That being the position, and it being a question of fact, it cannot be allowed to be raised here.
15. In view of the aforesaid discussion, we are of the view that the view taken by the learned Sessions Judge in acquitting the accused in both the cases was erroneous, and the conviction and sentence awarded to the respondent by the learned Magistrate in both the cases was proper.
16. Consequently, both the appeals are allowed; the impugned orders of acquittal passed by the learned Sessions Judge in both the appeals are hereby set aside, and the conviction and sentences awarded to the accused-respondent by the learned Magistrate in both the criminal cases are hereby restored.