G.K. Misra, J.
1. The petitioner has been convicted under Section 16(1)(a) of the Prevention of Food Adulteration Act (Act No. 37 of 1954) (hereinafter referred to as the Act) and sentenced to pay a fine of Rs. 250 in default to undergo Rigorous Imprisonment for one month. Prosecution case is that the petitioner was carrying adulterated milk for sale in Puri town on 15.6.63. The defence was that the milk was not being taken for sale and there was no adulteration. The learned Courts below concurrently found that the milk was adulterated.
2. Mr. Harichandan advanced two contentions:
(1) Prosecution infringed Rules 7 and 18 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) inasmuch as there is no proof that a specimen impression of the seal the packet was sent to the public Analyst separately and the Public Analyst compared the seal on the container and the outer cover with the specimen impression received separately. Infringement of these mandatory rules vitiated the report of the Public Analyst. The conviction based on such a report only is illegal.
2. The prosecution was launched about five and half months after the detection when the milk had decomposed. The delay in prosecution resulted in the petitioner being deprived of the opportunity of asking the Court for sending a part of the sample to the Director of the Central Food Laboratory for a certificate which would have superseded the report of the Public Analyst.
Both the contentions require careful attention.
(2-A) To appreciate the aforesaid contentions, the relevant provisions of the Act and the Rules may be noticed. Under Section 10(1)(a)(i) of the Act, a Food Inspector shall have power to take samples of any article of food from any person selling such article. In this case, the Food Inspector (P.W. 2) purchased the milk taken as sample. Section 11 prescribed the procedure to be followed by Food Inspectorr. Under Section 11, Sub-section (1), Clause (c), the Food Inspector shall do the following things:
(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 itt> 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.
Rule 16 lays down the manner of packing and sealing the samples. Rule 17 prescribes how the containers of samples are to be sent to the Public Analyst.
The containers of samples for analysis shall be Bent to the Public Analyst by registered post or railway parcel or air freight, or by hand in a sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed! to the Public Analyst.
Rule 18 says that-
a copy of the memorandum and a specimen impression of the seal used to seal the packet, shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him.
Rule 19 deals with addition of preservatives to samples.
Any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis.
Rule 20 speaks of preservative in respect of milk, cream and gur-
The preservative used in the case of samples of any milk including toned, separated and skimmed milk, cream-ice-cream, mixed ice-cream, ice-candy, dahi and gur in liquid or semi-liquid form shall be the liquid commonly known as 'formalin,' that is to say, a liquid containing about 40 per cent of formaldehyde in aqueous solution, in the proportion of two drops for one ounce of the sample.
Rule 7 prescribed duties of Public Analyst:
(1) On receipt of a package containing a sample for analysis from Food Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seal on the container and the outer cover with specimen, impression received separately and shall note the conditions of the seal thereon.* * * * *
3. After the analysis has been completed he shall forthwith supply to the person concerned a report in Form III of the result of such analysis.
(3) Section 13 runs thus:
13. Report of public analyst - (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 n 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 sample mentioned in Sub-clause (i) or Sub-clause (iii) of Clause (c) of Sub-section (1) of Section 2 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 2 are intact and may then despatch 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 his 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 is any proceeding under this Act, or under Sections 272 to 276 of the Indian Penal Code (45 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 572 to 276 of the Indian Penal Code (45 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.
Note:-It would not be proper to deny the accused right of cross-examining Public Analyst. Where such an opportunity is not afforded, the opinion of the public Analyst would carry little weight and would not be an Adequate basis for conviction.
4. It is not disputed that the Food Inspector (P.W. 2) complied with the provisions of Section 10 and 11. Formalin was added as a preservative to the milk in compliance with the provisions of Rule 20. The first attack is that Rule 18 was not complied with. The argument is based on the evidence that a copy of the memorandum and a specimen impression of the seal used to seal the packet was not separately sent to the Public Analyst. Reliance was placed on A.I.R. 1951 Nag. 191, Dattappa Mahadappa v. Secretary, Municipal Committee Buldana A.I.R. 1964 Guj. 186, State v. Shantaben and : AIR1966Ori188 . These decisions lay down that prosecution must establish that the specimen impression of the seal used to seal the packet was sent separately to the Public Analyst and that he compared the seal on the container and the outer cover with the specimen impressions received separately as enjoined upon in Rule 7(1). The proposition in its bald form is correct and cannot be questioned. These decisions, however, did not examine whether in the absence of any direct evidence of the aforesaid facts, the Court can come to a conclusion that Rules 7 and 8 were complied with, with reference to the report of the Public Analyst submitted in form No. 111 prescribed under Rule 7(3).
5. Form No. III may be quoted:
Report by the Public Analyst
I hereby certify that I Public Analyst for duly appointed under the provisions of the Prevention of Food Adulteration Act, 1951, received on the day of 19 from a sample of for analysis, properly sealed and fastened, and that I found the seal intact and unbroken.
I further certify that I have/have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows:
and am of the opinion thatSigned this day of 19Address (Signature)
Under Section 13(5), the report of the Public Analyst unless superseded by the certificate of the Director of the Central Food Laboratory may be used, as evidence of the facts stated therein any proceeding under the Act.
The material facts stated in the report pertaining to Rules 7 and 18 are that the Public Analyst certified that the sample was properly sealed and fastened, and that he found the seal intact and unbroken. This certificate is given by the Public Analyst under Rule 7(3) after the conditions laid down in Rule 7(1) & (2) are fulfilled. In other words, on receipt of the packet containing the sample for analysis from Food Inspector or any other person, the Public Analyst shall compare the seal on the container and the outer conver with specimen impression received separately and shall note the condition of the seals thereon. Thereafter, under Sub-rule (2) he would make the analysis and then he would send the report in Form No. III. The report in Form No. III is thus preceded by certain ostensible acts which are, (i) comparison as prescribed in Sub-rule (1) and (ii) analysis referred to in Sub-rule (2) of Rule 7 of the Rules. The report of the Public Analyst is thus by itself evidence of fact of the compliance of Rules 7(1) and 18.
6. Added to this, the presumption under Section 114 of the Evidence Act may be invoked by the Court. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (e) appended to the Section is that the Court may presume that judicial and official acts have been regularly performed.
From the certificate of the public Analyst given in the report, presumption can be drawn particularly with reference to the mandatory procedures that in the absence of evidence to the contrary, the Court would presume that rules and legal formalities were com. plied with as the officer is not presumed to deviate from the rules and formalities laid down for his guidance, See AIR 1928 Mad 77 Sonachalam Piliai v. Kumaravalu Chettiar.
The same view has been taken in : AIR1966Ori81 , State v. Uma Charan, though all the reasons discussed above were not mentioned therein. I am inclined to accept that decision as laying down the correct law. For clarity, the position may be summed up. Prosecution may lead positive evidence that the conditions prescribed in Rules 7(1) and 18 were fulfilled. If, however there is dearth of such evidence for the prosecution, in the absence of contrary evidence, the report of the Public Analyst would be proof of the compliance of provisions of Rules 18 and 7(1).
The first condition has no substance and is accordingly rejected.
7. To appreciate the second contention, certain facts are to be stated. Samples were taken on 15.6.1963. A part of the sample was despatched to the Public Analyst under Section 11, Sub-section (1)(c)(ii) for analysis. The Public Analyst submitted his report on 29.8.1963. Prosecution was launched on 5.12.1963. Thus, about five and half months elapsed from the date of seizure till the date of the prosecution. On the aforesaid facts, two contentions are advanced. Firstly, by the time the Public Analyst made analysis, the milk bad decomposed - on decomposition, the constituent elements were changed and accordingly the report of the Public Analyst cannot be basis of conviction.
8. Rule 5 lays down that standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that Appendix.
A. II deals with milk and milk products-
A. II-O. 101 runs thus:
Cow milk shall contain not lass than 3.5 per cent of milk fat, except in Orissa, where it shall be not less than 3 per cent and in Punjab and Pepsu where it shall be not less than 4.0 per cent. The milk solids other than milk fat shall be not lees than 8.5 per cent.
The report of the Public Analyst shows that the fat content in the sample was 1.8 per cent, and the milk solids other than milk fat constituted 7.9 per cent. It is on this comparison the Public Analyst is of opinion that the milk in the sample was adulterated.
To get over this difficulty the contention advanced that the analysis was made by the Public Analyst about 21/2 months after when the milk had decomposed resulting in variation of the fat and other constituents. There are no materials in support of such an argument. Formalin was added as a preservative. Though the report of the Public Analyst constitutes evidence under the Act, even without his being examined as a witness in the court, it was open to the petitioner to summon the Public Analyst and cross, examine on relevant matters to establish the proposition that at the time of examination the milk in the sample had decomposed and did not constitute the basis of a comparison with the standards of quality. No authoritative literature on the point has been placed before me to reach the conclusion that despite the prescribed preservativ 'formalin' as prescribed in Rule 20 being added the milk had decomposed for analysis. This part of the contention is accordingly rejected.
9. The next point argued is that though the report of the Public Analyst was seat on 29.8.1963. soon after the analysis of the sample, prosecution was launched on 5.12.1963 about more than three months after. As a result of delayed prosecution, the petitioner was deprived of the opportunity of sending or challenging the report of the Public Analyst by asking for further analysis by the Director of the Central Food Laboratory whose certificate would statutorily supersede the report of the Public Analyst. This contention is supported by : 1967CriLJ939 . Municipal Corporation of Delhi v. Ghisa Ram. It is to be noted that the petitioner did not exercise his right in asking the court to send a part of the sample to the Director of the Central Food Laboratory. But as has been discussed in paragraph 7 of the Supreme Court decision, prosecution must be launched with promtitute so that the right given to the accused would not be illusory. Their Lordships observed thus:
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.
The case related to 'curd'. In paragraph 6 of the Judgment, their Lordships referred to the period after which it gets decomposed. Taking the observations in paragraph 6 into consideration, I am clearly of opinion that the milk would get decomposed after a period of five and half months, even if the petitioner did not exercise his right under Section 13(2), no useful purpose would have been served by doing it after such a long time. In the fasts and circumstances of this case, the delay in prosecution affected the petitioner's right to challenge the report of the Public Analyst which could be superseded by the certificate of a greater expert. The petitioner is entitled to take advantage of the aforesaid defect of the prosecution. He is entitled to benefit of doubt.
10. In the result the order of conviction and sentence is sot aside and the revision is allowed.