P.N. Khanna, J.
(1) This is an appeal against the order dated 7/12/1965 passed by Magistrate 1st Class, Delhi,acquitting the respondent who had been tried under sections 7/16 of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act.
(2) According to the complainant, a sample of ghee had beentaken from the stock of ghee which the respondent was selling as'Pure Desi Ghee.' The said sample on examination by thePublic Analyst proved to be adulterated due to 0 -44 excess ofmoisture per cent. The accused-respondent when examinedunder section 342, Criminal Procedure Code, stated that althoughthe sample was taken from him, his ghee was pure.
(3) At the request of the accused the duly sealed bottle of a secondsample given to him was sent to the Director, Central Food Laboratory, Calcutta, who reported that it was adulterated but themoisture was only 0 -14 per cent which was up to the standard. Itwas, however, declared to be adulterated due to added coloringmatter, faintly positive. The learned Magistrate found that thefacts based on the report of the Director, Central Food Laboratory, on which the prosecution wanted to obtain conviction,had nto been alleged in the complaint which is the foundationof the prosecution. He felt bound by the observations of thePunjab High Court in Criminal Appeal No. M. 251/65 decidedon 1/04/1965 by a Bench consisting of Falshaw C.J. andS. K. Kapur J., in the case Municipal Corporation, Delhi v.Niranjan Kumar and others (now reported as (1965) P.L.R.941. He, thereforee, acquitted the accused.
(4) The question that arises for consideration is whether a conviction can be based on the certificate of the Director, Central FoodLaboratory, Calcutta, which declare an article of food to beadulterated on a basis entirely different from that adopted by thePublic Analyst, although the complaint against the accused wasbased on the -report of the Public Analyst alone which under section 13(5) of the Act is superseded by the certificate from theCentral Food Laboratory. An argument was advanced that thecertificate of the Director of Central Food Laboratory is alwaysobtained long after the complaint has been made which necessarily has to be based on the report of the Public Analyst. the accused, thereafter, should nto be allowed to go free after havingadulterated the article of food stored or sold by him, merelybecause the Central Food Laboratory adopts a basis for thepurpose of holding an article of food as adulterated which isentirely different from the one adopted by the Public Analyst.
(5) There does nto appear to be any justification for the prosecution to entertain the apprehensions expressed as above. the accused can always be afforded full opportunity to meet thechanged situation and precaution can be taken to avoid anyprejudice being caused to him. But there can be no justification for convicting an accused on allegations which did notfind a place in the complaint against him, and which he did notget an opportunity to contest. In Niranjan Kumar's case 1965P.L.R. 941, as in the case before us, the Public Analyst had notreferred to the presence of coloring matter. The same wasdetected only by the Director of Central Food Laboratory.Calcutta. S. K. Kapoor J., speaking for the Bench, in thatcontext, while maintaing the acquittal, observed that the presenceof coloring matter was nto the complaint against the accused.
(6) In an earlier Division Bench decision of the same Court,State v. Gunj Lal 1964 P.L.R. 1102, with reference to a sampleof chillies, the Public Analyst had failed to state the percentageof foreign matter, though he noticed its presence. D. K. Mahajan J. speaking for I. D. Dua J. (as he then was) and himself,observed as follows :-
'MR.Bishambar Dayal, learned counsel for the Statesought to contend that the content of insoluble ash wasslightly higher, but that is nto the basis on which the PublicAnalyst has held the ground chillies to be adulterated.Moreover, the respondent was never tried on that ground.In this situation, this contention does nto need any furtherexamination.'
(7) It has been urged before us that the attention of the learnedJudges had nto been drawn to section 246, Criminal ProcedureCode, which enables the Court to convict a person, whocould be convicted either under section 243 or section 245, criminal Procedure Code, of any offence which, from the factsadmitted or proved, he appears to have committed, whatevermay be the nature of the complaint or summons. The legalposition, without doubt, is that if the learned Magistrate hadchosen to convict the accused on the ground of the sample containing coloring matter, after drawing his attention specificallyto it and after giving him an opportunity of meeting it the conviction would nto have been illegal merely on the ground that hewas nto informed about it at the outset. In fact, this was notknown to start with, for the Public Analyst had nto referred tothe presence of coloring matter at all.
(8) The report of the Central Food Laboratory, Calcutta hadbeen received even before the accused was questioned under section 342, Criminal Procedure Code, and he was also asked aboutthe report. But there was no reference made by the Court tothe coloring matter having been detected at the Central FoodLaboratory, Calcutta. The questions put by the Court and theanswer of the respondent show that the charge against him wasunderstood as having reference only to the excess moisture content noticed by the Public Analyst and nto to the presence ofcoloring matter detected at the Central Food Laboratory,Calcutta. In these circumstances, we are staisfied that the respondent did nto have the opportunity of meeting the new factsbrought out in the certificate of the Central Food Laboratory,Calcutta.
(9) Reliance was placed by the learned counsel for the MunicipalCorporation of Delhi upon a judgment of our learned brotherH. R. Khanna J' made in Crimnal Revision No. 156-D/65-Harbans Lal v. State of Delhi, decided on 24/03/1966, wherethe conviction of the accused under sections 7/16 of the Prevention of Food Adulteration Act, was maintained, The learnedJudge observed:-
'ITalso cannto be said that the accused have in anyway been prejudiced because the adulteration specified inthe complaint was that which had been revealed by thereport of the Public Analyst and nto that shown by thecertificate of the Director of Central Food Laboratory.'
(10) In that case a complaint had been filed on the basis of thereport of Public Analyst; while the certificate of the Director ofCentral Food Laboratory showed the article of food in questionto be adulterated on a basis, different from that found by thePublic Analyst.
(11) The observations of our learned brother H. R. Khanna J.,in that case would nto help the prosecution as the Magistratein that case had obviously exercised his discretion under section 246, Criminal Procedure Code, which is an enabling section,to convict the accused and no prejudice had been caused to him.the conviction under those circumstances was rightly upheld.
(12) In the case before us, nothing is shown to have been done toenable the respondent-accused to meet the changed situationand the Magistrate did nto exercise his discretion to convict the accused. The certificate with its seal of finality has nto provedthe case which the accused was required to meet. The accusedcannto be punished for something which was never alleged in thecomplaint and against which he did nto have an opportunityto defend. This Court, under the circumstances, would notinterfere an ' give directions for the exercise of discretion in aparticular manner, when no reasons have been shown for adoptingsuch a course.
(13) In view of the above, there is no merit in this appeal and the same is dismissed.