Leila Seth, J.
(1) The salient point in this case pertains to the amended Section 13(2) of the Prevent'on of Food Adulteration Act. 1954 (hereinafter referred to as the Act). The question posed is whether the amended provisions of the said sub-section of the Act amount to testimonial compulsion and thus violate the constitutional guarantee provided in Article 20(3) of the Constitution of India.
(2) The petitioner, Ashok Kumar, is carrying on business of selling and storing Deshi Ghee at his shop No. 633, Khari Baoli, Delhi. He is a partner of M/s. Amar Dass Chaman Lal. It is alleged that a sample of Amar Special Sudh Ghee was taken by Food Inspector Shri S. C. Bhalla on 24th January, 1977 from the petitioner. The said sample was sent to the Public Analyst who by his report dated 29th January. 1977 found the said Sudh Ghee to be adulterated. On or about 4th April, 1978 Ashok Kumar received a memorandum dated 1st' April, 1978 from the Local Food Health Authority, Delhi Administration enclosing therein a report of the Public Analyst dated 29th January, 1977. By the said memorandum, the petitioner was informed, that if he so desired, he could get the sample analysed by the Central Food Laboratory and make an application for this purpose in the court of Shri B. N. Chaturvvdi, Metropolitan Magistrate/Judicial Magistrate 1st Class. Delhi within a period of ten days from the receipt of the letter. He was also informed that a prosecution had been instituted against him in the same court. He was served with summons dated 31st March, 197.S, thereafter, intimating him that a complaint had been filed against him and two others under Section 7 read with Section 16 of the Act. Ashok Kumar made an application on 14th April, 1978 requesting that the sample be analysed by the Central Food Laboratory. However, on or about 29th April, 1978 Ashok Kumar moved another application before the Metropolitan Magistrate in which he, inter alia, averred as follows: '4. That the right to get the sample analysed from the Central Food Laboratory u/s 13(2) P.F.A. Act would thus according to law, be available to a 'person from whom the sample of article of food was takcn by the food Inspector. Thus the moment. an application u/s 13(2) P.F.A. Act is filed by the applicant by the fiction of law he becomes a ''person from whom the sample of the article of food was taken. This fact otherwise that is the applicant is the person from whom the sample of the article of Food was taken is lu he proved by the prosecution by a cogent, reliable and substantive evidence. The legal compulsion created by the period of limitation at the very start of the inquiry trial, when the prosecution is yet to lead evidence to establish a prima facie case, against the applicant that he is the person from whom the sample of the article of food was taken, for the purposes of framing a charge. Thus at the very opening of the case of prosecution the exercise of the right u/s 13(2) P.F.A. Act, creates a legal compulsion upon She applicant to lead evidence by way of an application u/s. 13(2) P.F.A. Act, admitting therein that he is the person from whom the article of food was taken and thus estopping him from challenging during the trial that he is not the person from whom the sample of article of. food was taken. If thus, compels the applicant to become a witness against himself and such like compulsion is specifically barred under Article 20(3) Constitution of India. 5. That thus for the purposes of limitation, this application be deemed to have been filed, within the prescribed period of limitation but the further exercise of sending the sample to the Central Food Laboratory. He dispensed with till the time the prosecution establishes with the help of reliable and substantive evidence that the applicant is the person from whom the sample of the article of food was taken. This right may be kept alive till the time when the applicant at the appropriate stage prays to this Hon'ble Court for getting the sample analysed from Central Food Laboratory.'
(3) This, in fact, is the grievance of the petitioner. In the writ. petition which he has filed in this Court, he has prayed, inter alias that Section 13(2) and Section 13(5) of the Act as amended by Amendment Act, 34 of 1976 be struck down as being ultra-vires the Constitution as it infringes the fundamental rights of the petitioner contained in Articles 14, 19(l)(g), 20(3) and 21 of the Constitution of India.
(4) Mr. R. K. Naseem, learned counsel for the petitioner, who bus argued the ease with a great deal of force, has however, concentrted on the point, that the provisions of the amended Section 13(2) of the Act. limiting the period within which an application, for analysis of the article of food by the Central Food Laboratory, is to be made by the petitioner, amounts to complusion and thus violates the guarantee contained in Article 20(3) of the Constitution of India.
(5) In order to appreciate the argument, as averred in paragraph 4 of the application dated 29th April, 197S, set out above, it is necessary to see the relevant provisions. The relevant provision of the Act, prior to Amendment Act 34 of 1976 were as follows :
'AFTERthe institution ol' a prosecution under this Act tile accused vendor or the complainant may, on payment of the prescribed fee make an application to the Court for sending the part of the sample mentioned in sub-clause (i) of sub-clause (ii) of clause (c) of sub-section (1) of Section Ii 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 7 (b) of sub-section (1) of Sectin Ii are intact and may then dispatch the part of the sample under its own seal to Ihe 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.'
By Amendment Act 34 of 1976. Section 13 was substantially altered, inter aliu, in order to avoid the cumbersome proceedings and unduc harassment of vendors. The amended Section 13(2) is as follows:
'ONreceipt of the report, of the result of the analysis under sub-section ( I ) to the effect that the article of rood 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 particulars have been disclossd under Section 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, 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.'
(6) The changes in the above mentioned sub-section which are challenged pertain to the words 'the person from whom the sample of the article of food was taken' and the fact that a limitation of ten days has been now prescribed within which the application has to be moved for the sample to be analysed by the Central Food Laboratory.
(7) Article 20(3) of the Constitution of India guarantees that 'no person accused of any offence shall be compelled to be a witness against himself'. This provision postulates three conditions to be present to provide the protection ; ( I ) the person is accused of an offence ; (2) there is compulsion to be a witness : and (3) this is against himself.
(8) The stage from which the immunity is available has been me, subject of many decisions. When does a person become an accused Docs it require a formal charge We need not dilate on this aspect as in this case it is conceded that a complaint had been filed and prosecution started and Ashok Kumar was accused of an offence.
(9) As to what amounts 'to be a witness' has also been the subjectmatter of many discussions and decisions. In M. P. Sharma and others v. Satish Chandra, District Magistrate, Delhi : 1978(2)ELT287(SC) , it was held that this protection afforded to an accused was not merely in respect of testimonial compulsion in Court but could well extend to compelled testimony previously obtained after a formal accusation had been leveled. It was thus held that the protection would extend to any compulsory process for prt)duction of evidentiary documents, if they are reasonably likely to support a prosecution against him. However. in State of Bombay v. Kathi Kalu Oghad, : 1961CriLJ856 . the proposition laid down in M. P. Sharma's case that the protection of Article 20(3) extends to all documentary evidence has been narrowed down by the majority judgment. In giving their conclusions in Paragraph 16 the Court held as follows :
'(1)An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the 469 inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in any enquiry whether or not the accused person had been compelled to make the impugned statement. (2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'. (3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4) Giving thumb impressions or impressions of food or palm or fingers or specimen writings or showings part of the body by way of identification are not included in the expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. (6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. '(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.' It would thus appear that the application dated 14th April, 1978 made by Ashok Kumar and signed by him is a statement in writing of the person accused and as such would amount 'to be a witness' within the provisions of Article 20(3). This application requesting for the sample to be analysed by the Central Food Laboratory is to be made by the person from whom the sample of the article of food was taken. Thus, knowledge regarding a relevant fact, that the sample of food was taken from Ashok Kumar, is imparted. In view of the conclusions set out in sub-paragraphs 16(5) and (6) of State of Bombay v. Kathi Kalu Oghad (supra), this application would amount 'to be a witness' in its wider meaning.
(10) There are two essential ingredients to be established before a prosecution under the Act can succeed : (1) That the sample of the article of food was taken from the accused, and (2) that the said sample is adulterated. If one of the ingredients which the prosecution would have to prove is admitted by virtue of this application, requesting for analysis by the Central Food Laboratory, then this certainly would be an incriminating document.
(11) It appears to us, that the conditions postulated in Article 20(3) of the Constitution of India with regard to the petitioner being accused of an offence and the testimony being incriminating, are present in this case. As such, the only query that remains is whether the testimony is compelled. Is there compulsion to be a witness The crux of the matter, thereforee, is whether there is any compulsion to make the application under Section 13(2) of the Act. After all, it is not all testimony that is protected under Article 20(3) but only compelled testimony.
(12) Learned counsel for the petitioner has strenuously argued that the provisions of Section 13(2) of the Act as amended amount to compulsion. He urges that the compulsion is, because a time limit has been imposed on his right to make the application. He says that he has no option but to exercise this right at a stage when the prosecution has not yet established that the petitioner is the person from whom the sample of the article of food was taken. If he does not make this application within the ten days' period, he will lose his right to have the sample of food analysed by the Central Food Laboratory. This is a valuable right which is available to him especially as the certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst, and is final and conclusive evidence of the facts stated therein. His complaint is two fold. First, if the words used in Section 13(2) had been 'accused vendor' instead of 'the person from whom the sample of the article of food was taken', as was the case in the unamended section, there would be no admission of the sample of food having been taken from him while making the application under Section 13(2) of the Act. Second, if there was no limiting period within which the application had to be made, he could exercise his right at an appropriate stage of the proceedings. This could be done if the prosecution had established that he was the person from whom the sample of food was taken and/or after he had failed to successfully challenge the report of the Public Analyst. The compulsion, he submits, is a psychologised compulsion, that if he fails to exercise This right within ten days, he loses it. In other words, the compulsion of making the application under Section 13(2) is because of the stage at which the option is to be exercised and because of the period of limitation prescribed. This results in a fear phychosis of losing the right for ever if not exercised within ten days. It is further urged that since there is no provision for condensation of delay, one avenue is closed for ever and his right to get the sample analysed by the Central Food Laboratory is forfeited. He urges that compulsion is not only a matter of physical duress or threats but as a result of 'crypto coercion'. He relies on Nandini Satpathy v. P. L. Dani, : 1978CriLJ968 .
(13) Mr. Charanju Taiwar, learned counsel for Union of India, respondent No. 1 and Mr. K. K. Sud, learned counsel appearing for Delhi A.i.imi^istl ation, respondent No. 2 made complementary submissions. Learned cc-unsel for the respondents have vehemently argued that there is in fact no compulsion. The moment a person has a choice to make or not to make an application, there is no compulsion. He is then exercising an option. The exercising of an option can never amount to a compulsion, ?t is further urged that waiving a right of defense can never amount to a compulsion. It is also argued that the prosecution will have to establish by cogent evidence who is the person from whom the sample of the article of food was taken. It is submitted that the application under Section 13(2) of the Act docs not amount to proof of this fact. It is only if the accused goes into the witness box under Section 315 of the Code of Criminal Procedure, of his own volition and the application is put to him that it will become legal evidence. It is then submitted that the 'crypto coercion' referred to by the Supreme Court in Nandini Satpathy's case (supra) was in connection with inquisitional proceedings and methods and is quite distinct from the report of the Public Analyst becoming final. In any event, it is submitted, that the virus of the unamended Section 13 was challenged earlier and the Supreme Court in Andhra Pradesh Grain and Seed Mer- chants Association and others v. Union of India and another, : 1971CriLJ1556 , upheld the section. The fact that a period of ten days for making the application has been introduced in the amended section, is no reason to strike down the sub-section. The scheme of the amended section also indicates that a safeguard is being provided to the petitioner, as this right to get the sample analysed by the Centra? Food Laboratory is now no longer available to the prosecution.
(14) In order to asccrtain whether the opportunity to make an application under Section 13(2) of the Act, by tile petitioner amounted to a compulsion, in view of the fact, that this had to be done within ten days of the receipt of the report of the Public Analyst, it is necessary to examine the scheme of the amended section. The amended Section 13 of the Act. inter (ilia, postulates that the Pubic Analyst will deliver a report to the Local (Health) Authority of the result of the analysis of the article of food. If the said report is to the effect that the article of food is adulterated, then the Local (Health) Authority shall after institution of 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. The persons shall also be informed that, if 'it is so desired' an application may he made to the Court to get the sample of the article of food analysed by the Central Pood Laboratory. This application is to be made within a period of ten days from the date of receipt of the copy of the report. 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. On receipt of the part or parts of the sample, the Court shall, after ascertaining that the seals etc. arc intact and not tampered with dispatch it to the Director of the Central Food Laboratory under its own seal. The Director of the Centra! Food Laboratory shall then send a certificate to the Court, within a month of the date of receipt, specifying the result of the analysis. In the meantime, the Court shall not continue with the proceedings, until it receives the certificate of the result of the analysis from the Director of the Central Food Laboratory. The certificate of the Director of the Central Food Laboratory will supersede the report of the Public Analyst and be final and conclusive evidence of the facts stated therein (except in cases when it relates to Section 16(A) proviso).
(15) It thus appears, that the report of the Public Analyst, that the article of food is adulterated, is a condition precedent for initiating prosecution. This report is, however, not conclusive and an option is given to the petitioner to have the sample re-examined by the Director of the Central Food Laboratory. This right is no longer available to the prosecution. It is clearly a safeguard provided for the benefit of the petitioner. He is being given an opportunity to adduce evidence, through the assistance of the Court. The proceedings are stayed under Section 13(2-D) until the receipt of the certificate, of the result of the analysis, from Hie Director of the Central Food Laboratory. The entire scheme of the section is such that should the report of the Director of the Central Food Laboratory be favorable to the petitioner, then the prosecution will end as this report supersedes the report given by the Public Analyst. Further, the certificate of the Director of the Central Food Laboratory, as provided in Section 13(5) of the Act, is conclusive and final. If the petitioner is confident that the article of food is not adulterated, he will exercise this option and thus avoid undue harassment and short circuit the trial. There is no obligation imposed in the amended Section 13(2) of the Act that the person must make an application. There is a persuasion in the statute that 'if it is so desired', an application may be made within ten days, but there is no compulsion. A reasonable period has been provided within which he must decide whether to exercise his option. We are concerned with analysis of articles of food, which are perishable commodities. Unreasonable delay in analysis of the article of food, makes it unfit for analysis. Food adulteration is a social evil. The Directive Principles of State Policy as embodied in Article 47 of the Constitution of India provide that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties. The object of the Act is the prevention of adulteration of food. Thus it is clear that the purpose of providing the safeguard is that an honest person shall not be harassed, not that a dishonest person should benefit if the analysis is delayed and the article becomes unfit.
(16) There must be a certain element of urgency in analysing an article of food (which is a perishable commodity) and this is apparent from the scheme of the Act and the Amendments introduced thereto. In Section Ii of the Act as amended by Act 34 of 1976, a Food Inspector who takes a sample for analysis has to give a notice in writing 'then and there' of his intention to have it analysed and under Section 11(3), he has to 'by the immediately succeeding working day' send the sample of the article of food to the Public Analyst. Prior to the amendment by Act 34 of 1976, there was no time limit in the Act for sending the sample to the Public Analyst. Once the report of the. Public Analyst has been received by the person from whom the sample was taken, he may if he so desires, make an application for analysis by the Director of the Central Food Laboratory within ten days as per Section 13(2). Thereafter the Local (Health) Authority must forward the part or parts of the sample to the Court within five days from the date of receipt of the requisition as provided in Section 13(2A). The Director of the Central Food Laboratory has to send his certificate specifying the result of the analysis within one month from the date of receipt of the sample. It is clear, that the purpose of providing certain time limits within which action is to be taken, is for efficiently working the provisions of the Act and not as a psychological threat to coerce the petitioner in giving compelled testimony.
(17) In Nandini Sathpathy v. P. L. Dani, : 1978CriLJ968 , the Supreme Court while holding that compulsion is not merely by physical threats but by psychic torture, atmospheric pressure, environmeantal coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like goes on to add 'The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk'. In our view the moment there is an option and the petitioner has a choice to make or not to make the application, then there can be no question of compulsion irrespective of the period within which he has to make it. It is a calculated risk that the petitioner may decide to take. The scheme of the statute may be persuasive but he need not succumb. There is no outside compulsion or duress. Of course, if he fails to make the application then the proceedings will continue and he can then challenge the report of the Public Analyst on grounds that may be available to him.
(18) The right to make an application under Section 13(2) of the Act is perhaps somewhat similar to the right of an accused to be a competent witness for the defense if he so wishes under Section 315 (old Section 342A) of the Code of Criminal Procedure. There is no obligation to appear as a witness and to substantiate the defense. We are fortified in our conclusion by decisions of the Supreme Court. In Tukaram G. Gaokar v. R. N. Shukla and others, : 1968CriLJ1234 , it has been held as follows :
'THEnecessity to enter the witness-box for substantiating his defense is not such a compulsion as would attract the protection of Article 20(3). Even in a criminal trial, any person accused of an offence is a competent witness for the defense under Section 342-A of the Criminal Procedure Code and may give evidence on oath in. disproof of. the charges made against him. It may be very necessary for the accused person to entetr the witness-box for substantiating his defense. But this is no reason for saying that the criminal trial compels him to be a witness against himself and is in violation of Article 20(3). Compulsion in the context of Article 20(3) must proceed from another person or authority. The appellant is not compelled to be a witness if he voluntarily gives evidence in his defense.'
In R. P. Kapur v. S. Pratap Singh Kairon and others : 1964CriLJ224 in paragraph 22, the Supreme Court has observed :
'IT is difficult to understand how a provision that an accused shall be required to make his defense amounts to compelling the accused to be a witness against himself. Under this Section accused is not even compelled to make his defense. The section merely compels the Inquiring Authority to require the accused to make a defense. If the accused chooses not to make any defense S. 15 could not compel him to do so. The argument that the Inquiries Act contravenes Art. 16 or Art. 20(3) of the Constitution is wholly misconceived and is rejected.'
(19) In view of the fact that we have held that there is no compulsion to make the application under Section 13(2) of the Act, it is not necessary to decide whether the application is legal evidence when made, or only becomes so, if put to the accused should he go into the witness-box under Section 315 of the Code of Criminal Procedure.
(20) The virus of the unamended Section 13 of the Act was discussed in Andhra Pradesh Grain and Seed Merchants Association and others etc. v. Union of India and another, : 1971CriLJ1556 , the Supreme Court has stated :
'THEAct does not infringe the guarantee of Article 20(3) of the Constitution. By that clause no person accused of any offence shall be compelled to be a witness against himself. But by enacting that a plea by the vendor in a prosecution for an offence pertaining to sale of adulterated or misbranded article of food, that he was ignorant of the nature, substance or quality will not be a defense, the guarantee under Article 20(3) is not infringed. The vendor when charged with an offence is not thereby compelled to be a witness against himself. Nor can it be said that by making the report of the Director of Central Food Laboratory conclusive evidence of the facts stated therein, any such infringement is intended. The provision has been made with a view to secure formal evidence of facts without requiring the Director to remain present and in the interest of effective administration of the Act, the certificate signed by the Director of the Central Food Laboratory is made final and conclusive evidence of the facts stated therein. The Director is a highly placed official, an expert in determining the nature, substance and quality of food and is wholly, disinterested in the result of any case coming before the Courts. It is difficult to appreciate how conclusiveness attributed to the certificate of the Director compels the vendor charged with an offence under the Act to be a witness against himself.'
The Supreme Court was basically dealing therein with Section 13(5) of the Act.
(21) As we are of the view that there is no compulsion imposed on the petitioner under Section 13(2) of the Act, to make an application for analysis by the Director, Central Food Laboratory, the question of striking down Section 13(2) of the Act as violating the guarantee against self incrimination in Article 20(3) of the Constitution does not arise. Accordingly, we discharge the rule but in the circumstances of the case there will be no order as to costs.