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Kamal Oil and Allied Industries Pvt. Ltd., New Delhi and Another Vs. Delhi Administration - Court Judgment

LegalCrystal Citation
Subject Criminal;Food Adulteration
CourtDelhi High Court
Decided On
Case NumberCriminal Revn. No. 253 of 1979 (To revise order of V. B. Gupta Metropolitan Magistrate Delhi, D/- 25
Judge
Reported in1982CriLJ2046; 1983(4)DRJ102
ActsPrevention of Food Adulteration Act, 1954 - Sections 13(2) and 14A; Code of Criminal Procedure (CrPC) , 1973 - 243, 243(2), 247, 311 and 313; Prevention of Food Adulteration (Amendment) Act, 1954
AppellantKamal Oil and Allied Industries Pvt. Ltd., New Delhi and Another
RespondentDelhi Administration
Advocates: D.S. Sawhney,; Laxmi Grover,; A.K. Malhotra and;
Cases ReferredState of Uttar Pradesh v. Gauri Shanker
Excerpt:
prevention of food adulteration act, 1954 - section 13(2).sample of rape-seed oil (refined) was found by public analyst as refined groundnut oil and the petitioner was charged. after the conclusion of evidence, and part hearing of arguments, the petitioner applied for a certificate by director, central food laboratory, under section 13(2) read with section 243, cr.p.c. the application was rejected by the trial magistrate against which the petitioner filed revision petition in the high court.;that the accused cannot on the expiry of the time limit claim, as a matter of right that a counter part of the sample be sent to the director. he can, however, seek condensation of delay on the ground that there was sufficient cause for not moving an application earlier. but the accused is not.....order1. the petitioner kamal oil and allied industries private limited is dealing in the trade of manufacture and sale of edible oil at b-29, lawrence road, new delhi. on 23rd of may, 1977, shri kulwant singh, food inspector, lifted a sample of rape-seed oil (refined) for analysis from kamal kishore, petitioner no. 2 under the provisions of prevention of food adulteration act, 1954 (hereinafter referred to as the act) and the rules made there under. kamal kishore, petitioner, was allegedly found selling, exposing storing for sale the said article of food as managing director on behalf of petitioner no. 1 and the said sample was taken out of a sealed tin containing 2 kgs. of rape-seed oil (refined), white-horse brand and petitioner no. 1 is alleged to be the manufacturer of the same. on.....
Judgment:
ORDER

1. The petitioner Kamal Oil and Allied Industries Private Limited is dealing in the trade of manufacture and sale of edible oil at B-29, Lawrence Road, New Delhi. On 23rd of May, 1977, Shri Kulwant Singh, Food Inspector, lifted a sample of rape-seed oil (refined) for analysis from Kamal Kishore, petitioner No. 2 under the provisions of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and the Rules made there under. Kamal Kishore, petitioner, was allegedly found selling, exposing storing for sale the said article of food as Managing Director on behalf of Petitioner No. 1 and the said sample was taken out of a sealed tin containing 2 kgs. of rape-seed oil (refined), white-horse brand and petitioner No. 1 is alleged to be the manufacturer of the same. On analysis the Public Analyst found that it was not refined rape-seed oil and instead it was refined groundnut oil. A complaint dated 24th of February, 1978 was thereupon instituted by the Assistant Municipal Prosecutor Municipal Corporation of Delhi, against the petitioners for the offence of misbranding. The Local (Health) Authority vide letter dated 1st March, 1978, copy Ex. PW 3/A, sent a copy of the report of the Public Analyst to the petitioners as required by S. 13(2) of the Act and informed them that in case they wished the sample to be analysed by the Central Food Laboratory they may make an application to that effect to the Magistrate concerned within a period of ten days from the receipt of the said letter. Charge was framed against the petitioners on 21st of August, 1978. The prosecution evidence concluded on 5th of July, 1979 and the petitioner was examined under S. 313, Criminal P.C. (hereinafter referred to as the Code), on the next following day. Thereafter the petitioners adduced defense evidence which concluded on 26th of July 1979 and the case was adjourned for arguments. After part of the arguments had been heard, the petitioners moved an application dated 27th of September, 1979 purporting to be under S. 13(2) of the Act read with S. 243 of the Code. It was stated therein that the petitioners wanted to challenge the report of the Public Analyst and, thereforee, a prayer was made that a counter-part of the sample in possession of the local (Health) Authority be sent to the Director, Central Food Laboratory, for his certificate. It was urged that even though with the passage of time the sample oil might have undergone Chemical changes but even then having regard to the allegation that the sample of rape-seed oil (refined) was found to be that of groundnut oil, it was still possible to perform qualitative analysis to determine whether the sample oil was rape-seed oil or groundnut oil. The application was opposed by the prosecution, inter alia, on the ground that the time limit of ten days prescribed for such an application under S. 13(2) of the Act had expired long ago and that even the defense evidence had concluded. So, the application was made only with a view to delay or defeat the prosecution. The learned trial Magistrate vide impugned order dated 25th October, 1979 rejected the application holding that the same was not maintainable in view of the time limit prescribed by S. 13(2) and that amounted to an abuse of the process of law.

2. This revision petition raises two legal questions of vital importance. The first question is whether after the expiry of the time limit of ten days as laid down in S. 13(2) itself, an accused is entitled to ask for sending of the second counterpart of the sample of the food article in possession of the Local (Health) Authority to the Director, Central Food Laboratory, for second opinion by way of certificate. The submission of the learned counsel for the petitioners precisely is that the time limit of ten days prescribed by S. 13(2) for the said purpose is merely directory and an accused is not debarred from making such an application even after the expiry of the prescribed time limit because the provisions contained in S. 13 are designed for the benefit of the accused and not that of prosecution and as such the valuable right of an accused to seek second opinion of a senior expert conferred by the said Section cannot be denied to him merely because the application is made beyond the prescribed time limit.

S. 13(2) reads as under :

'On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under S. 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons or as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory'.

3. This sub-section has been substituted for the old sub-section (2) of S. 13 by Amendment Act 34 of 1976 with effect from 1st April 1976. It has introduced extensive changes. Under sub-section (2) before its amendment there was no time fixed within which application for getting the sample examined by the Director of the Central Food Laboratory should be made and, thereforee, having regard to the mandatory nature of the provision and the valuable right the same conferred on the accused to apply to the Court to have the second sample analysed by the Director of the Central Food Laboratory, it was consistently held that the Court could not reject the application of the accused for second opinion on the ground of delay in making the application. However, it was equally well settled that if by the delay the sample became deteriorated and unfit for analysis the accused could not be absolved from liability and could not take advantage of his own wrong in making the application after long delay. It is with a view to avoid such uncertainties that the legislature has now fixed a limit of ten days only. If that be so, the right conferred on the accused to move the Court is circumscribed by this important limitation, viz., that he moves the Court within a particular time limit, i.e., ten days from the date on which the information contemplated under section 13(2) of the Act is conveyed to him. It imparts a certain element of urgency in having the sample of the food article analysed by the Director. The amended Section 13, inter alia, postulates that the Local (Health) Authority shall after institution of the prosecution against the person from whom the sample was taken and the person, if any, whose name has been disclosed under section 14-A of the Act, forward a copy of the report to him/them, and that the said persons shall also be informed that, if it is so desired an application may be made to the Court to get the sample of the article of food analysed by the Central Food Laboratory within ten days from the date of receipt of the copy of report. This has obviously been done with a view to ensure that there is virtually no loss of time and the accused can avail himself of the benefit of the option given to him by Section 13(2) at the earliest possible opportunity. It may also be noticed that when such an application is made to the Court then the Court shall require the Local (Health) Authority to send within a period of five days of the receipt of the requisition the part or parts of the sample sent to it by the Food Inspector. (See sub-section (2A). Further sub-section (2B) lays down that the Director of the Central Food Laboratory shall send a certificate to the Court in the prescribed form within one month from the date of the receipt of the part of the sample specifying the result of the analysis. Not only that, sub-section (2D) precludes the Court from continuing the proceedings pending before it in relation to the complaint until the receipt of the certificate of the result of the analysis from the Director, Central Food Laboratory. Significantly this right to apply for certificate of the Director, Central Food Laboratory, is no longer available to the prosecution. It is evidently a safeguard provided for the benefit of the accused. Thus, the entire scheme of the Section is such that should the report of the Director of the Central Food Laboratory be favorable to the accused, then the prosecution will end because the certificate issued by the Director supersedes the report given by the Public Analyst. Hence the whole purpose of providing certain time limits within which action is to be taken is for working the provisions of the Act efficiently and to provide a safeguard to an honest person against avoidable harassment and botheration of a protracted trial. Needless to say that this right of the accused to move the Court and the corresponding power in the Court to take appropriate steps are conferred by the statute. Hence, the right and the power must necessarily be subject to limitation imposed in Section 13(2) of the Act. The time given to the accused for the purpose of making an application contemplated in Section 13(2) of the Act is quite reasonable and he must decide within that time whether to exercise his option or not. Surely he cannot on the expiry of the time limit claim as a matter of right that a counterpart of the sample lying in deposit with the Local (Health) Authority be sent to the Director.

4. While saying so I am not unmindful of the fact that many a time an accused person is precluded for valid and cogent reasons from exercising the option available to him under S. 13(2). I do not think that the Court will be helpless to grant the necessary relief even in a case of genuine hardship. In such an eventuality it will be open to an accused to seek condensation of delay in making an application for sending the second counterpart of the sample to the Director, Central Food Laboratory, on the ground that there was sufficient cause for his not moving an application earlier and if the Court is satisfied that the delay on the part of the accused in making such an application was bona fide and for genuine and valid reasons he was prevented from making an application earlier, it may in its discretion condone the delay in deserving cases. These will be, however, exceptions rather than the rule. One of the circumstances which the Court may be called upon to consider in such a situation would be whether the sample of the food article having regard to its perishable nature would have, in all probability, decomposed/deteriorated in quality and thus rendered unfit for analysis and it will not be bound to send the second counterpart of the sample for analysis just ceremoniously. At any rate, if it is ultimately found that the sample got decomposed or deteriorated in quality owing to the delay on the part of the accused in making the application, he cannot turn round and take the benefit of the same contending that he has been deprived of a valuable right given to him under Section 13(2) of the Act. To my mind this time limit has been prescribed on the hypothesis that if the counterpart of the sample is eventually found to have decomposed or rendered unfit for analysis, notwithstanding that the application was made for that purpose within the prescribed time limit, the blame for the same can be squarely laid on the prosecution. It may be attributed to delay, if any, in launching the prosecution or fault on the part of the Food Inspector in taking the food sample and adding the requisite preservative etc. It may also be due to the fact that the counterpart of the sample was not kept in proper hygienic conditions by the Local (Health) Authority. Thus, this provision seems to absolve the accused from all blame or responsibility for decomposition or deterioration in quality of the counterpart of the sample if he adheres to the time limit prescribed in the sub-section. In other words, the petitioner who does not make an application as contemplated by Section 13(2) within the time limit prescribed there under takes a calculated risk and he may have to thank his own stars in case the Explanationn furnished by him for delay in making the application is not accepted to be bona fide and genuine by the Court or even if accepted, the counterpart of the sample is ultimately found to have deteriorated in quality/decomposed and thus rendered unfit for analysis.

5. I may now advert to a couple of reported decisions of Allahabad High Court on which reliance has been placed by the learned counsel for the petitioner. The first of them, viz., Murari Lal v. State, 1981 (1) FAC 157 : 1981 All LJ 320, undoubtedly lends support to his contention. A sample of boiled milk was taken in the said case on 24th December, 1976. The complaint was instituted on 25th of March, 1977 and copy of the report of the Public Analyst was sent by the Local (Health) Authority to the accused on 26th March, 1977. The accused appeared in Court for the first time on 31st of May, 1977 and the case was adjourned to 14th of July, 1977, for prosecution evidence. On that day the accused put in an application that he wanted the sample phial to be requisitioned from the Health Authority and sent to the Central Food Laboratory. The said application was finally rejected on 3rd of June, 1978 as delayed. It was on these facts that the learned Judge allowed the revision petition. He observed that'

'There may be cases where for one reason or the other the accused could not apply within 10 days for sending the sample to the Central Food Laboratory but later on bona fide wants this testing to be done. Should the court reject such a request on the bare ground that it is delayed : this does not appear to be the law. The most important feature is that Section 13 does not anywhere prescribe that the effect of failure to apply within ten days for sending the sample to the Central Food Laboratory would be forfeiture of the right to get this analysis done. In accordance with the basic principles of criminal jurisprudence any procedural omission or error by the accused should lead to the minimum possible adverse result that the statute prescribes. Here the intimation to apply within ten days is an enabling one and in the absence of any specific bar against an application after ten days cannot be read as denying any right to have Central Food Laboratory analysis if application is not made within ten days of the intimation. The matter may be looked at from another angle. The option to apply and have the sample analysed by the Central Food Laboratory is not a special right conferred upon the accused. It is a right for both the complainant and the accused to obtain a second opinion and thus minimise any chances of error in the Public Analyst's report. It is thus only a part of the general right of the accused to dispute the report of the Public Analyst'.

6. With great respect I find myself unable to subscribe to the view taken by the learned Judge that 'the intimation to apply within ten days is an enabling one and in the absence of any specific bar against an application after ten days cannot be read as denying any right to have Central Food Laboratory analysis if application is not made within ten days of the intimation'. It is not comprehensible that if the purpose of prescribing a time limit of ten days was not to debar any accused from making an application on the expiry of the time limit as a matter or right, what else could be its purpose. An interpretation which will have the effect of stultifying the mandate of the legislature as contained in amended S. 13(2) is difficult to accept. It would obviously tantamount to deletion of the time limit and restore Section 13(2) to its original position before its amendment. Further the learned Judge seems to have overlooked that under the amended sub-section (2) the application can be made only by (i) the person from whom the sample of the article was taken; and (ii) the person whose name, address and other particulars have been disclosed under Section 14A. The complainant can no longer exercise a right to have the food sample analysed by the Direct, Central Food Laboratory. So it cannot be said that it is only a part of the general right of the accused to dispute the report of the Public Analyst. As observed above, it is a right conferred by the statute and it has to be exercised within the limits circumscribed by the statute. It may, however, be pertinent to note here that even the learned Judge accepts the position that 'if the request is unduly delayed so much so that the sample can reasonably be expected to have decomposed or deteriorated or the request can be regarded as not bona fide and calculated to obstruct the trial, the Court may reject the prayer. A judicial decision in each case after considering the extent of delay and the Explanationn of the accused for the delay will have to be given on the application'.

7. As for the second case, Ram Kumar v. State of U.P. 1981 (1) FAC 240 : 1981 All LJ 695, suffice it to remark that the delay on the part of the accused therein to make an application for analysis of a counterpart of the sample by he Director, Central Food Laboratory, was attributed to non-compliance by the prosecution with the requirement of Section 13(2) of giving an intimation to the accused that he could have the sample in question reanalyzed within ten days of the receipt of the report. Thus, this case is not an authority on the point in issue.

8. Reverting to the application in question it bears repetition that it was made on 27th of September, 1979 when the case was at the stage of arguments. The only ground for delay mentioned by the petitioner therein was that the copy of the report of the Public Analyst was not forwarded to him by the Local (Health) Authority as contemplated by law with the result that he could not exercise his right under section 13(2) of the Act. This Explanationn of his has not been accepted by the learned Magistrate apparently for cogent reasons. Rameshwar Sharma (PW 3) who was a Lower Division Clerk in the office of Food (Health) Authority has deposed that a copy of the Report of the Public Analyst relating to the sample in question was sent to the petitioner by registered post along with a covering letter, copy of which is Ex. PW 3/A. A cursory glance on the office copy, Ex. PW 3/a, shows that it was signed by Shri S. P. Luthra, Local (Health) Authority. It further shows that the petitioner was duly apprised that he could make an application for getting the counterpart of the sample analysed by the Central Food Laboratory by making an application to that effect within ten days of the receipt of the letter. Ex. PW 3/C is the acknowledgment due receipt showing delivery of the said letter to the petitioner. Of course the A.D. card purports to have emanated from the Drug Inspector as would appear from the rubber stamp mark on the A.D. receipt itself against the column 'Sender's address'. The petitioner during his supplementary examination under section 313 of the Code on 6th of July, 1979, admitted his signatures on the A.D. receipt, Ex. PW 3/C. However, he took the stand that the report of the Public Analyst did not reach him as his staff used to receive the dak and he had merely signed the A.D. receipt. In support of his contention he examined one Sudershan Khanna as DW 5 who deposed that the petitioner left the office after signing the A.D. receipt, Ex. PW 3/C and after his departure he i.e., Shri Khanna opened the envelope. The same contained the report of the Public Analyst but there was no other letter in it. He then placed the same in the drawer of his table and forgot all about it. For obvious reasons this Explanationn of the petitioner fails to carry conviction. It is rather difficult be believe that the office of the Local (Health) Authority would not have sent copy of the Public Analyst's report along with covering letter adverted to above. No such suggestion was made to PW 3. thereforee, the petitioner is to blame himself if due to negligence on the part of his staff the same was not delivered to him. Indeed, to my mind, the whole story smacks of concoction. Hence, the Explanationn furnished for the delay has been rightly rejected by the learned Magistrate. That being so it follows as a necessary corollary that the purported exercise of his right under section 13(2) of the Act after the expiry of one year and seven months was absolutely meaningless. Allowing an application of an accused after the conclusion of the whole trial is clearly contrary to the letter and spirit of Section 13(2) and it tends to defeat the very object which is sought to be achieved by the said provision. Hence this part of the order of the learned Magistrate is in perfect accord with the legal position enunciated above.

9. The next submission made by the learned counsel for the petitioner is that even if the petitioner could not be permitted to exercise the right conferred on him by Section 13(2) of the Act at this late stage he was nevertheless entitled to summon the Director, Central Food Laboratory, as an expert in defense and for that purpose he could make a request to the Court to send the second counterpart of the sample in possession of the Local (Health) Authority to the Director, Central Food Laboratory, for his opinion. Under sub-section (2) of S. 243 of the Code, an accused after he has entered upon his defense is entitled to apply to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination or production of any document or other thing and it is obligatory on the Magistrate to issue such a process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and he is required to record the ground for rejection of such an application. The right available to an accused under Section 13(2) of the Act is one conferred by a special law which lays down not only the procedure for exercising such right but also the consequences flowing there from. In particular it provides that the certificate of the Director, Central Food Laboratory, shall supersede the report given by the Public Analyst and shall be final and conclusive evidence of the facts stated therein. In other words, in addition to laying down the procedure and the time limit for making an application under section 13(2), the Act also lays down what evidentiary value is to be attached to the certificate issued by the Director, Central Food Laboratory. Thus, it constitutes a substantive piece of evidence. However, the field of operation of Sections, 243 & 247 is quite distinct. It only confers a right on the accused to lead evidence in support of his defense and it casts an obligation on the Court to summon such of the witnesses to whom the accused wants to examine in defense unless of course the prayer of the accused is liable to be rejected on one of the grounds stated in Section 243. It may be pertinent to notice here that an application under section 13(2) is required to be made before the trial actually begins in view of sub-section (2-D) which lays down that until the receipt of the certificate of the result of analysis from the Director, Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution. On the other hand, the right of the accused to require summoning of witnesses/production of documents granted under section 243 accrues only after prosecution evidence has concluded and the accused has entered upon his defense.

10. Section 5 of the Code lays down that nothing contained therein shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force. There can be little doubt that the Act is a special law dealing with a particular subject and as such it must be taken to govern the subject and not the Code, in the absence of a specific provision to the contrary. However, the existence of a special law does not exclude the operation of the Code unless the specials law expressly or impliedly provides in that behalf, in which case the special law will apply while, otherwise the Code will apply. As held by a Division Bench of Calcutta High Court in Naresh Chandra Das v. Emperor : AIR1942Cal593 , that :

'The words 'in the absence of any specific provision to the contrary' in Section 1(2) mean and contemplate a provision specific in affecting the special or local law. This specific provision to the contrary need not be in the Criminal P.C. itself. It may be in the special or local law also. These words cannot be read as referring to any possible contrariety between a specific 'provision' in the Criminal Procedure Code and a provision in a special statute. In order that one provision can be said to be 'a specific provision to the contrary' it must completely cover the field of operation of the other and must lay down a contrary rule for the entire field so as altogether to nullify the other'.

11. As seen above these two provisions, viz., S. 13(2) of the Act and S. 243 of the Code operate in distinct spheres and one does not impinge on the other, either expressly or by implication. Section 13(2) has not the effect of repealing, altering or modifying Section 243 or for that matter Section 247 of the Code. Indeed, it does not even incidentally encroach upon the latter provisions of law which are fundamental to the notions of criminal justice. Hence, in my considered view, an accused will be well within his right to apply to the Court for obtaining the expert opinion of Director, Central Food Laboratory, notwithstanding that he has failed to exercise his statutory right to do so under section 13(2) of the Act and it will be obligatory on the Court to allow the request unless, of course, it considers the same to have been made for the purpose of vexation or delay or for defeating the ends of justice and it records its reasons for rejecting the request. It is, however, manifest that he will be examining the Director as a defense witness and the opinion, if any, given by the Director may be pressed into service to rebut the opinion given by the Public Analyst as regards the quality/constituents of article of food of which the sample has been taken. Surely the incidents flowing from the certificate of the Director as envisaged under section 13(2) of the Act will not attach to such an opinion and it will not be clothed with the authority of superseding the report of the Public Analyst nor the facts stated therein can be deemed to be final and conclusive. It can only be used as an opinion given by a competent expert. The Court will thus be entitled to come to its own conclusion after considering the reports of both Public Analysts and the Director, Central Food Laboratory, on their own merits.

12. This question is, however, reduced to one of academic nature only in the instant case inasmuch as the petitioners never applied for sending the second counterpart of the sample to the Director, Central Food Laboratory, for his opinion at the stage of defense. It was only after they had closed their defense and even the arguments had been mostly heard that they though of making the application in question. Hence, they cannot claim as of right that the Magistrate should have sent the second counterpart of the sample to the Director, Central Food Laboratory, for opinion.

13. The only other provisions of law to which recourse can be had under the circumstances would be Section 311 of the Code which empowers a Court to summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined, at any stage of an enquiry, trial or other proceedings under the Code and it imposes even an obligation on the Court to summon and examine or recall and re-examine any such person if his evidence appears to be essential to the just decision of the case. On its plain language the Section confers a wide discretion on the Court to act as the exigencies of justice require, its object obviously being to enable the Court to arrive at the truth or otherwise of the fact under enquiry/trial by summoning and examining the witnesses who can aid the Court in doing justice between the parties irrespective of the fact whether a particular party has summoned them or not. The words 'at any stage of an enquiry, trial or other proceedings' appearing in the Section leave no room for doubt that the Magistrate can summon and examine any witness as a Court witness at any stage till he pronounces final judgment. As observed by the Supreme Court in Jamatrai Kewalji v. State of Maharashtra, : 1968CriLJ231

'As the section stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution'.

14. Thus, in a case like the present where the prosecution and defense have closed their evidence, it is necessary that the Judge or the Magistrate must come to the conclusion that in the interests of justice it is absolutely necessary that evidence should be made available. However, it is the duty of the Court to see that neither the prosecution nor the defense is allowed to set the Court into a roaming enquiry by summoning persons in the hope that something may be elicited which would help their case. While the Court should not be an agency for further investigation into the case, no general rule can be made as to when and under what circumstances the discretion to summon the witness ought to be exercised. The paramount consideration is doing justice to the case and not filling up the gaps in the prosecution or defense evidence.

15. Applying the aforesaid criterion to the facts of the instant case, which are of somewhat peculiar nature, it would appear that obtaining the opinion of the Director, Central Food Laboratory, even at this late stage may come in the aid of the Court to give a just decision. The change against the petitioners is not one of adulteration but is of misbranding, there being nothing in the report of the Public Analyst to suggest that the sample in question was in any way adulterated and all that the Public Analyst has opined is that the sample is of groundnut oil (refined) and not rape-seed oil (refined) which it purported to be. The contention of the defense is that groundnut oil (refined) being a costlier item than rape-seed oil (refined) the petitioners could not possibly and profitably sell groundnut oil (refined) under the commodity name rape-seed oil (refined). In other words, there could be hardly any motive on the part of the petitioners to misbrand the commodity which would have been detrimental to their own interest. Item A.17.03 of Appendix 'B' to the Rules lays down the standard for groundnut oil and the item A.17.06 prescribed the standard of rape-seed oil. (toria oil) which includes mustard oil (Sarson Ka tel). On a mere juxta-position of these two items it would be manifest that butyro-refractometer reading at 40 degree C and iodine value is higher in the case of rape-seed oil than that in ground-nut oil. However, saponification value is supposed to be higher in groundnut oil than in rape-seed oil. There are some other variations too in the tests prescribed for determining the purity of these categories of oil. Anyhow, it is rather incomprehensible as to how groundnut oil can be sold as a rape-seed oil when they are two different commodities even by appearance and odour. Perhaps the only Explanationn is that it was being sold in sealed tins. Anyhow there is considerable force in the contention of the learned counsel for the petitioners that even though the sample oil might have undergone Chemical changes quantitatively there is hardly any possibility of its undergoing any change qualitatively. In other words, on account of passage of time groundnut oil will not be transformed into rape-seed oil. It is also pointed out that rape-seed oil is commonly used as a preservative in pickles and aches etc. of various types and no preservative is required to be added to a sample of rape-seed oil. This argument is sought to be fortified by the following observations of a Division Bench of Allahabad High Court in State of Uttar Pradesh v. Gauri Shanker, , that :

'It is significant that mustard oil does not find place anywhere in these rules or Schedule as a substance in which a preservative must be mixed at the time of taking the sample. The reason for this is obvious. Mustard oil does not deteriorate with lapse of time. On the contrary it is common experience that the quality of the mustard oil improves with the lapse of time. As a matter of fact, mustard oil itself is sometimes used as a preservative for pickles and the like'.

16. Thus, there seems to be considerable force in this contention and it would be in the interests of justice as also for removal of any doubt in the mind of the Court that second opinion of an expert of the level of the Director, Central Food Laboratory, with regard to the sample in question is obtained. Needless to say that the object of S. 311 of the Code is just as much the prevention of escape of a guilty person through some carelessness of the prosecution (Public Analyst) as the vindication of the innocence of the accused person.

17. To sum up, this revision petition succeeds in part and the impugned order is set aside as regards the rejection of the prayer of the petitioners to send the second counterpart of the food sample to the Director, central Food Laboratory, for his expert opinion. The trial Court shall now send one of the counter-parts of the food sample in the possession of the Local (Health) Authority to the Director, Central Food Laboratory, for his opinion whether contented thereof are rape-seed oil (refined) or groundnut oil (refined). The Director shall also give his opinion whether due to Chemical changes occurring by lapse of time there can be a qualitative change also resulting in transformation of rape-seed oil (refined) into groundnut oil (refined), and vice versa. On receipt of the report of the Director, Central Food Laboratory, the trial Court shall dispose of the case in accordance with law, keeping, of course, in view the foregoing observations. The parties are directed to appear before the trial Court on 18th of October, 1982.

18. Ordered accordingly.


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