Man Mohan Singh Gujral, J.
1. On a corn-plaint bv the Food Inspector under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act Shadi Lall son of Hans Rai respondent was tried bv the Judicial Magistrate First Class. Amritsar. and' was acquitted by order dated ,30th July 1971. Being aggrieved, the Municipal Committee, Amritsar, has filed this appeal bv special leave.
2. Pal Dass, Municipal Food Inspector, had eone to the shop of the ac-cusedi on 29th August 1970 at 10.45 a. m. and had purchased turmeric oowder for. Rs. 1.50. The powder was divided into three parts and was put into three clean and dry bottles. One of the bottles was left with the accused after it was proner-lv stoppered and sealed. Out of the other two bottles, one was sent to the Public Analyst and on receipt of the report thaJ the turmeric was adulterated, a complaint was filed against the accused.
3. During the trial the Food Inspector made an application to the Court and obtained' an order for sending the second bottle to the Director. Central Food Laboratory. This bottle was dulv sent after its seals were found intact and a report of the Director was obtained. This report is materially different from the report of the Public Analyst and shows that the turmeric was adulterated on; account of the presence of non-permitted coaltar dves.
4. The learned trial Court held that the taking of the sample had been established beyond doubt. He, however, came to the conclusion that the sample was not taken in a proper manner and it was possible that some colour or dve may have got mixed with the sample in.- - advertently while the sample was being taken. The reason advanced for coming to this conclusion is that the Food Ins* ipector had made use of scales, a piece of newspaper and a Piece of bamboo Wing in the shop of the accused for taking the sample weighing it and putting it into bottles. It was noticed that the scales and the bamboo had not been washed and that earlier these articles had been used by the accused] for weighing and selling colour and other articles. While taking this view the learned trial Magistrate made the following observations:
The Food Inspector nowhere stated that he cleaned the bamboo or the pair of scales before taking the sample and there is also possibilitv that the newspaper which was taken from the shoo was besmeared with some sort of colouring matter. Hans Raj P.W. has stated that the Food Inspector did, not wash the scales nor the bamboo nor the weights when sample was taken and in these cir-' cumstances the contention of the learned counsel has to be accepted and it has to be concluded that the sample was not taken bv the Food; Inspector in a proper manner and there is possibility that some sort of colouring matter, even though unknowing, got added in the sample turmeric while the sample was being taken bv the Food Inspector.
It appears that the learned trial Magistrate proceeded entirelv on conjectures. It was nowhere suggested to the Food Inspector that the weighing scales had in fact been besmeared or that- there was any colouring matter on the newspaper which was used for taking the sample. The question of the Food Inspector wash-Ing the weighing scales or the bamboo would have onlv arisen if any dust or colour had been noticed on these articles. There being no indication that at the time of taking the sample it was pointed out that there was some colour on these articles, it was not open to the learned trial Magistrate to resort to coniecture and to draw conclusion that some colouring matter sot mixed up in the sample of turmeric.
5. Faced with this situation, it was contended on behalf of the accused that he was entitled to acquittal as there was a conflict between the report of the Public Analyst and that of the Director, Central Food Laboratory. -In support of this contention, the ratio of the decision in Rattan Lai v. The State (1974) 76 Pun LR 43. was pressed into service. Reliance was particularly placed oni the following observations made, in Rattan Lai's case :
The two reports were so inconsistent and contradictory that thev mav seem to lend support to the petitioner's argument that the sample tested respectively bv the Public Analyst and the Director could not have originated from the same source. The Director's report is final and conclusive onlv on the point that the sample reached his office with seals intact and that the various tests mentioned therein were duly carried out and that the conclusdon drawn were correct. This report is no guarantee of the safe storage and transit of the sample while it was in the custody of the complainant. The conflicting reports may. on the other hand, show that the two samples had different origins. The Director's report cannot be final or conclusive with regard to the safe keeping of samples during storage and transit while thev were in the complainant's possession.
With utmost respect to the learned Judge who decided Rattan Lai's case, we are unable to agree with the above view as being the correct interpretation of Section 13 of the prevention of Food Adulteration Act. Sub-section (5) of Section 13 clearly envisages that once the report of the Director of the Central Food Laboratory has been obtained the report of the Public Analyst cannot be used as evidence of the facts stated therein. This being the position, it is not open to the accused to contend that it was inconsistent with! the report of the Director of the Central Food Laboratory. Once the report of the Director has been obtained, for all intents and purposes the report of the Public Analyst is to be ignored, as it cannot be used as evidence of anv facts1 stated therein.
6. The second part of the argument that the Director's report is no guarantee of the safe storage and transit of the sample while it was in the custody of the complainant could have been plausible if necessarv safeguard had not been provided in Sub-section (2)' of Section 13. According to this provision, on receipt of the application from the accused or the complainant the Court has to ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact, If these marks and seals were found intact there is no room for contending that the sample had been tampered with during storage and transit. In fact, the existence of proper^ mark and seal or fastening in accordance with Section 11(1) of the Act would be guarantee of the safe storage and transit of the sample while it was in the custody of the complainant or of the accused for that matter. Unless the Court was fully satisfied about these matters the sample cannot be despatched to the Director, Central Food Laboratory. In the face of this provision, the view taken in Rattan Lai's case (1974) 76 Pun LR 43, does not appear to be correct.
7. Another interesting argument was advanced on. behalf of the accused and support for it was again sought from, Rattan Lai's case (1974) 76 Pun LR 43. It was pointed out that the application for sending the sample in his possession to the, Director was declined bv the trial Court and that this amounted to denial of opportunity to him to prove his innocence. In this respect, our attention was drawn to the following observations in Rattan Lai's case;-
The turning down of the petitioner's application under Section 13(2) of the Act for the sample in his possession being sent to the Director was, therefore, an unjustified denial of an opportunity to .prove his innocence.
It may be mentioned that the above observations were made in a case where earlier the sample kept bv the Municipal Committee was sent to the Director. Central Food Laboratory, and his reiport was obtained. Subsequently the accused had applied that his sample be sent. Similar are the facts in the present case. The question would, therefore, arise as to whether if once a sample has been sent to the Director. Central Food Laboratory, under Section 13(2) and a certificate has been obtained, can another sample be sent bv the other partv for getting another certificate from the Director. The language of Section 13(2) gives a clear indication that only one certificate can be obtained. The opening words of Section 13(2), namely, 'After the institution of a prosecution...the accused... or the complainant may...make an application to the Court...' do indicate that either of the parties may apply but not both unless the application of one of them has been rejected. In fact. Section 13 does not envisage two reports by the Director. Central Food Laboratory, even though the legislature was fully aware that besides the sample sent to the Public Analyst there were two other samples which couldl be sent to the Director. Central Food Laboratory. The reason which favours this view is also not far to seek. Sub-section (2} of Section 13 envisages that the application of either party would be decided after examining the sample and hearing the opposite partv and in this situation normally there would be no occasion for sending two samples to the Director. Central Food Laboratory, Moreover, proviso to Sub-section (5) of Section 13(2) lavs down that a certificate sent by the Director shall be final and oonclusive evidence of the facts stated therein. This proviso can only aoolv to one certificate and does not envisage that there mav be more than one certificate. I am. therefore, of the view that if an application has been made bv the complainant and has been allowed especially if there is no opposition to it, it is not open to the accused to press another application for obtaining an order for sending the second sample t0 the Director, Central Food Laboratory. If ttie second application is declined in these circumstances, no right of the accused i infringed.
8. For the reasons indicated above, I find that the acquittal of the accused respondent was1 erroneous and that a case punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act has been fully established against him. We, therefore, find the accused respondent guilty of this offence. Having regard to the fact that the sample was taken as far back as 1970 and the accused has been suffering the aeony of the'trial for the last four years. I am of the view that the sentence of fine alone would meet the ends of iustice. 1. therefore, while convicting Shadi Lai respondent under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act sentence him to pay a fine of Rs. 1,000 in default of payment of which he shall suffer six months' rigorous imprisonment. The appeal of the Municipal Committee is allowed to the extent ordered above.
D.S. Tewatia, J.
9. I agree.