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State of Gujarat Vs. Shantaben Wife of Bhol Dhulabhai - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 388 of 1962
Judge
Reported inAIR1964Guj136; 1964CriLJ32; (1964)0GLR578
ActsPrevention of Food Adulteration Act, 1954 - Sections 13; Code of Criminal Procedure (CrPC) , 1898 - Sections 510 and 510(2); Evidence Act - Sections 45; Prevention of Food Adulteration Rules - Rules 7 and 18
AppellantState of Gujarat
RespondentShantaben Wife of Bhol Dhulabhai
Appellant Advocate H.M. Choksi, Govt. Pleader
Respondent Advocate N.Y. Pathan, Adv. (appointed)
DispositionAppeal dismissed
Cases ReferredBayley v. Cook
Excerpt:
criminal - adulteration - sections 7, 13 and 16 of prevention of food adulteration act, 1954, sections 510 and 510 (2) of criminal procedure code, 1898, section 45 of evidence act and rules 7 and 18 of prevention of food adulteration rules - appeal against acquittal under sections 7 and 16 - report of public analyst does not show that seal on container were compared with specimen seals sent by post to public analyst - non-compliance of rules 7 and 18 - provisions of rule 13 violated - no reason to interfere with acquittal - appeal liable to be dismissed. - .....had sold milk, but the learned magistrate did not attach any value to the report, ex. 6, of the public analyst on the ground that the prosecution did not examine the public analyst. the learned magistrate relied on suleman usman v. state of gujarat, 1961-2 guj lr 402 : (air 1951 guj 120), and observed that in view of this ruling a report of the chemical analyser could have no probative value and no weight could be attached to the report unless the report is full and complete and discloses the test or experiments performed by the chemical analyse, the factual data revealed by such test or experiments and the reason which led the chemical analyser to form such factual data. in that case, my learned brother, with respect, rightly rejected the contention that no weight should be attached.....
Judgment:

V.B. Raju, J.

1. This is an appeal by the State against the acquittal of the respondent, who was prosecuted under Sections 7 and 16 of the Prevention of Feed Adulteration Act. Upon the evidence and on the admission of the accused, the learned Magistrate found that the accused had sold milk, but the learned Magistrate did not attach any value to the report, Ex. 6, of the public analyst on the ground that the prosecution did not examine the public analyst. The learned Magistrate relied on Suleman Usman v. State of Gujarat, 1961-2 Guj LR 402 : (AIR 1951 Guj 120), and observed that in view of this ruling a report of the Chemical Analyser could have no probative value and no weight could be attached to the report unless the report is full and complete and discloses the test or experiments performed by the Chemical Analyse, the factual data revealed by such test or experiments and the reason which led the Chemical Analyser to form such factual data. In that case, my learned brother, with respect, rightly rejected the contention that no weight should be attached to the report of the Chemical Analyser. My learned brother observed that the case of Happu v. Emperor : AIR1933All837 , was not applicable after the amendment of Section 510, Criminal Procedure Code in 1955 by Act 26 of 1955. My learned brother, however, accepted the contention that the report of the Chemical Analyser and the opinion of the Chamical Analyser had little or no value unless supported by reasons or factual data. In support of that contention, a judgment of the Bombay High Court in Emperor v. Behram Irani, 46 Bom LR 481 : (AIR 1944 Bom 321), was relied on. But that decision of the Bombay High Court relied on the judgment of the Allahabad High Court in : AIR1933All837 , on which my learned brother was not prepared to rely having regard to the amendment of Section 510, Criminal Procedure Code. The Bombay High Court in 46-Bom LR 481 : (AIR 1944 Bom 321) (supra) observed as follows :

'It is obvious, however, that the weight to be attached to such a report must depend to a considerable extent on the reasons which the Chemical Analyser gives, for the conclusion which he has arrived at, and in some-cases, as in the one before us, where the matter to be reported on is the presence of certain substances in the article submitted for examination, much would turn on the quantity of the incriminating substance found in the article. If the Chemical Analyser's report atone, is to be considered sufficient, it should contain all the information which that officer himself would have been able to furnish if hg had been examined as a witness. In the present case the report merely says that wheat products had been used in the manufacture of the cakes. The danger of accepting a mere report of the Chemical Analyser in criminal cases has been very forcibly pointed out by Young, J. : AIR1933All837 . It is true that the learned Magistrate offered,, though at a late stage, to call the Chemical Analyser as a witness if the accused wanted him to do so and the accused's counsel declined at that stage to avail himself of this order. But it was for the prosecution to prove that wheat products had been used in the manufacture of these cakes .....'

As already observed, reliance is placed on the judgment of the Allahabad High Court in : AIR1933All837 , which has no value after the amendment of Section 510, Criminal Procedure Code, and my learned brother himself refused to follow the Allahabad case on that ground.

2. The Bombay case was also a peculiar one. From She report of the Chemical Analyser, it appears that he merely gave an opinion that wheat products were used in the manufacture of cakes. As observed by the learned Judges of the Bombay High Court, where the report mentioned the presence of certain substances in the article submitted for examination, much would turn on the quantity of the substances found in the article submitted for examination. Merely to stale that products were found in the cakes without mentioning what the wheat products were and what were the wheat products found in the articles would not be of much help. It was in those peculiar circumstances that the learned Judges of the Bombay High Court made the observations above referred to. But, in the case before me the public analyst has reported that he found 12.2 per cent of solids in the milk submitted to him for examination, that he found 6 per cent of fat in the milk submitted to him for examination and 6.2 per cent of solids other than fat in the milk submitted to him for examination. These are facts observed by the public analyst and they do not contain any opinion. It is true that those facts cannot be seen by a layman, but those facts can be seen by scientists, and a scientist who is appointed as public analyst is supposed to know the science that he is expected to apply. Section 13 of the Prevention of Food Adulteration Act provides that any document purporting to be a report signed by a public analyst may be used as evidence. It is not open for Judges, with great respect, to eviscerate this provision in Section 13 of the Prevention of Food Adulteration Act and hold that before the report can be relied on, it must contain more details than those prescribed in Section 13 of the Act.

3. In this case, it is difficult to see what other helpful evidence the public analyst would have given in cross-examination. He could, at the most, have explained the scientific principles involved in the analysis made by him. As already observed, the public analyst is sup-posed to know how to make the analysis of the milk submitted to him for examination, and it is not necessary for him to explain the scientific principles involved in the procedural of the analysis. He would have only stated that the test consists of taking 2 c. c. of milk and adding a chemical substance. These details would not help the Court, but if in addition to the factual data observed by him in the test performed by him, the Public Analyst proceeds further to give opinion evidence, that evidence stands on a different footing. But to state that in the milk submitted to him for analysis, he found 6 per cent fat is not the statement of an opinion but the statement of a fact. However, the statement that the sample submitted to him for examination was adulterated 31.1 per cent was the result of mere arithmetic. If the sample contained 6.2 per cent of solids other than fat instead of containing 9 per cent as required by the standard, the deficiency is 2.8 in 9, that is 31 per cent in 100.

Thus figure 31.1 per cent given by the public analyst is, therefore, a matter of mere arithmetic. But instead of stating that the deficiency is 31.1 per cent, he has stated that water added was 31.1 per cent. Whether the deficiency is due to additional water or otherwise is a matter of opinion. The words 'water added 31.1 per cent' would therefore be a matter of opinion. The public analyst should have observed that the deficiency of solids other than fats is 31.1 per cent. In such a case; if he had done so, he would not have expressed an opinion, but he would have done some arithmetic upon the factual data and the standard required under the rules. But it is for the Court to determine whether the sample supplied for test conformed to the standard prescribed by the rules or not, and it is not for the public analyst to say so. But so far as the report mentions that the milk submitted for analysis contained 6.0 per cent fat, 6.2 per cent of solids other than fat, in my opinion, with great respect, there is nothing to hold that that report has no value, because the public analyst has not been examined in the Court. In the English case of Bayley v. Cook, (1905) 92 LT 170 : 69 JP 139 : 53 WR 410 : 21 TLR 235 : 3 LGR 304 : 20 Cox C.C. 779, it was held that the certificate was sufficient for convicting the accused.

4. A distinction has to be made between opinion and report of an expert. Opinion is relevant under Section 45 of the Evidence Act, but a document containing opinion is not made relevant and is not made evidence. But in the case of a report of the Chemical Analyser or a report of the public analyst, 8 document containing the report is itself made evidence. Under Section 510, Cri. P. C., any document purporting to be a report under the hand of any Chemical Analyser or the Chief Inspector of Explosives, etc., upon any matter or thing duly submitted to him for examination of analysis may be used as evidence. Similarly, under Section 13 of the Prevention of Food Adulteration Act, any document purporting to be a report signed by a public analyst may be used as evidence unless it is superseded by a document purporting to be a certificate signed by the Director of the Central Food laboratory. In fact, a document purporting to be a certificate signed by the Director of the Central Food laboratory is made conclusive evidence of the facts stated therein.

5. What is made evidence Under Section 13 of the Prevention of Food Adulteration Act and Section 510 of the Cri. P. C., is a document purporting to be a report upon any matter or thing duly submitted for examination or analysis. The report contains the result of the examination or analysis and does not contain any opinion. Opinion is not made evidence under Section 510 Cr. P. C. or under Section 13 of the Prevention of Food Adulteration Act. The result of the examination or analysis is factual and does not consist of any opinion. It has its value because the Chemical Analyser and the Public Analyst are qualified to make the examination or analysis of the articles submitted to them for examination or analysis. If the chemical analyser examines an article submitted to him and makes a report that that article contains one per cent of arsenic, there is no reason to reject that evidence, even if no reasons are given. Similarly, if a public analyst under the Prevention of Food Adulteration Act reports that an article of food submitted to him for analysis contains 6.2% of solids other than fat, he need not give any reasons in the report, and even if the Chemical Analyser or the Public Analyst is not cross-examined, there is no reason to reject that evidence. Of course, there is a provision for calling the Chemical Analyser (or cross-examination under Section 510 (2) of the Cr. P. C. Even Subsection (2) of the said section provides that the Court may, if it thinks fit, summon and examine any such person as to the subject-matter of his report. This sub-section does not make it obligatory on the Court to examine such persons as to the subject-matter, of their report. I am, therefore, of the opinion that the report of a public analyst under Section 13 of the Prevention of Food Adulteration Act should ordinarily be accepted as conclusive, unless it has been superseded under Sub-secection (3) of Section 13 of the said Act by a certificate, issued by the Director of the Central Food Laboratory.

6. For the reasons given, above, I am of the opinion that the report of the Public. Analyst in this case, if otherwise proper, is sufficient evidence, for convicting the accused.

7. But, unfortunately, there is nothing on the record of this case to show that the Food Inspector and the Public Analyst had complied with Rules 7 and 18 of the Prevention of Food Adulteration Rules. Rule 13 reads as follows :

'Memorandum and impression of seal to be sent separately by post:-- A copy of the memorandum and 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 7 provides as under :--

'Duties of Public Analyst :-- (1) On receipt of a package containing a sample for analysis from a Food inspector or any other parson Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression re-calved separately and shall note the condition of the seals thereon.

(2) The Public Analyst shall, cause to be analysed such samples of articles of food as may be sent to him by Inspector or by any other person under the Act.

(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'.

These Rules are framed in order to prevent the possibility of tampering with the sample before it reaches the Public Analyst. There is nothing on the record to show that these rules have been complied with either by the Food Inspector or by the Public Analyst. The report of the Public Analyst merely shows that the seals were intact and unbroken, but it does not show that the seals on the container were compared with the specimen seals sent by post to the Public Analyst. Unless this is done, we cannot be sure that the sample, which has reached the Public Analyst, was not tampered with on the way, and Rules 7 and 18 are framed in order to prevent such a possibility. As this has not been done, we cannot say that the report of the. Public Analyst refers to the sample of the milk that was attached from the respondent. On this ground, there is no reason to interfere with the acquittal. The appeal is dismissed.


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