A.D. Desai, J.
1. This appeal is directed against order of acquittal passed by Mr. I.D. Trivedi, Special Judicial Magistrate, First Class, Baroda, acquitting the accrued of the charge of havirg committed an offence under: Section 7 of the Prevention of Pood Adulteration Act (hereinafter referred to as the Act) punishable under Section 16 of the Act.
2. The prosecution case was that the accused was a dealer in chilly powder and bad his shop in Kalupura Brahman Falia in the City of Baroda. The complainant, Champak. lal Parbhudas Parikh, was the Food Inspector of Baroda Borough Municipality. The Food Inspector visited the shop of the accused on October 1, 1964 at 8.30 A.M. and found that the accused was keeping approximately 40 kilos of chilly powder in a large bos for the purpose of sale. The complainsnt called Champaklal Maneklal and Luhar Bhikhabhai Parsottam as panch witnesses and in their presence he gave the accused a notice in writing to the effect that he wanted to purchase 450 grams chilli powder for the purpose of analysis. Then the accused gave him 450 grama of chilly powder from an oil barrel. The complainant asked the accused to divide the chilly powder into three equal part?. the accused divided the powder into three parts and the Inspector put each part in a separate clean bottle. The bottles were then corked and slips bearing the signature of the accused, panchas and himself were affixed to the battles. The bottles were then sealed and a lahel containing the name of the vendor, the serial number, the nature of sample and the date of collection of the sample, was affixed on each of the bottles. the complainant then took back the notice from the accused and prepared a panchnama. One of the three bottles was given to the accused, and the other was sent to Public Analyst along with a forwarding memo. He also sent to him in a separate cover, a memo of the spesimen seal impression. On receipt of the report of the Public Analyst showing that the sample was adulte rated and after obtaining requisite sanction the complainant filed a complaint in the Court of Special Judicial Magistrate, First Class, Baroda and the accused was charged for having committed an offence under Section 16(1)(a) read with S, 7 of the Prevention of Food Adulteration Act.
3. The defence of the accused was that be bad not committed any offence, that he was not given any notice according to law and that be was not in possession of adulterated chillies. The accused admitted that he had signed a notice given by the food Inspector informing him that be was purchasing chilly powder for the purpose of analysis.
4. During the trial the prosecution gave a purshis ststiing that thay did not want to lead any further evidence. The accused there, after filed an application Ex. 10 in the Court which reaids as under:
That the accused of this case most respect. fully submits that the complainant has cited the Public Analyst as a witness in the case. The accised will not get any chance to cross examire. if the prosecution does not examine him as his witness. Therefore, it is requested that the said witness be called and produced for the purpose of cross examination. If he is not produced for the purpose of corss-examination, the accused will suffer in his defence and will not get justice in the case.
The learned trial Magistrate rejected the ap. plication and passed the following order:
The prosecution cannot be compelled to examine the witness. The accused may examine if he so desires.
It is an admitted fact that Public Analyst was not examined in this case.
5. The learned trial Magistrate after bearing the complainant and the accused passed a final order acquitting the accused. The learned trial Magistrate came to the conclusion that in this case the report of the public Analyst was challenged and it would not be proper to give any weight to that report, specially in view of the fact that the Public Analyst was not examined. The learned trial. Magistrate also held that the complainant had not followed the procedure laid down under Section 11 of the Act for taking the sample as the sample was not taken by the complainant personally. It was for these reasons that the learned Magis. trate passed an order acquitting the accused of the offence with which he was charged. It is against this order of acquittal that the complainant has filed this appeal.
6. Mr. S.M. Shah appearing for the accused contended that the report of the Public Analyst was admissible in evidince under the provisions of( Section 510 of the Criminal Procedure Code and that the accused had given an application for examination of the public Analyst as a witness under Sub-section (2) of Section 510 of the Criminal Procedure Code, and therefore, it was obligatory for the trial Court to summon and examine the public Analyst as a witness in the Court. The argument was that as no summons was issued to the public Analyst and as he was not examined as a witness in this case, no reliance should be placed on the report of the Pablic Analyst for proving that the sample was adulterated. This argument of Mr. Shah proceeds on an erroneous assumption that the report of the Pablic Analyst is admissible under Section 510 of the Criminal Procedure Code. Section 510 of Criminal Procedure Code reads as under:
Section 510(1):Any document purporting to be a report under the hand of any Chemical Examiner or Assistant Chemical Examiner to Government or the Chief Inspector of Explosives or the Director of Finger Print Bureau or an officer of the Mint, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the subject-matter of his report.
The section refers to a document purporting to be a report of Chemical Examiner or Assistant Chemical Examiner to the Government or Chief Inspector of Explosives or Director of Finger Print Bureau or the Officer of Mint. In this case the report that the sample was adulterated was given by the public Analyst Barod Borough Municipality Area. Section 8 of the Act provides that the Central Government or the State Government may by notification in the Official Gazette, appoint such persons as it thinks fit having the prescribed qualifications to be Public Analyst for such local area as may be assigned to them by the Central Government or the State Government, as the case may be. There is a proviso to that section with which we are not concerned in this case. Rule 6 of the Prevention of Food Adulteration Rules, lays down the qualifications of the public analyst. Rule 7 lays down duties of public analyst. Sub-section (1) of Section 18 of the Act provides that the public Analyst shall deliver, in such form as may be prescribed a report to the Food Inspector of the result of the analysis of any article of food snbmitted to him for analysis. The form is prescribed by Sub-rule (8) of Rule 7 of the Prevention of Food Adulteration Bales. Sub-section (2) of Section 18 provides that the accused or the complainant may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample sent to the Court to the Director of the Central Food Laboratory for a certificate and on such application being made the Court is bound to send the sample to the Director of Central Food Laboratory after following the ptocedure laid down in the faction. The certificate issued by the Centra! Food Laboratory is made final and supersedes the report given by the public Analyst. Sub-section (5) of Section 13 provides that any document purporting to be a report signed by a public analyst unless it has been superseded or any document purporting to be a certificate signed by the Director of Central Food Laboratory, may be used as evidence of the facts stated in it in any proceeding under the Act. There is a proviso to the section which make] the report of the Director of the Central Food Laboratory final and conclusive evidence of the facts stated therein. These provisions make it amply clear that the report of the public Analyst is admissible in evidence under Sub-section (5) of Section 13 of the sot the report of the public Analyst cannot be admitted in evidence or is not admissible in evidence under the provisions of Section 510 of the Criminal Procedure Code because the said provisions refer to the report of a Chemical Examiner or Assistant Chemical Examiner or the Chief Inspector of the Explosives or the Finger Print Bureau or an Officer of Mint. Section 510 of the Criminal Procedure Code does not at all refer to the report of a public Analyst and therefore, it is obvious that the said provision cannot apply to the report of the public Analyst. The report of the Public Analyst is not admissible in evidence under the provisions of Section 510 but is admissible in evidence under the provisions of Sub-section (5) of Section 13 of the sot. This interpretation also receives support from the observations made by their Lordships in Mangaldas Raghavji v. State of Maharashtra : 1966CriLJ106 . The facts in that case were that the accused were charged for selling adulterated turmeric powder. The prosecution relied upon the report of the Public Analyst for the purpose of proving that the turmeric powder was aduterated. The report of the Public Analyst was accepted by the Court and the learned trial Magistrate convicted the accused for contravention of the provisions of the Act. The case was ultimately taken by the accused to the Supreme Court. Two contentions were raised in the Supreme Court and they were (1) that the report of the public Analyst by itself was not sufficient for the purpose of conviction of the accused persona and (2) that the public Analyst was not called as a witness in the case and, therefore conviction of the accused was improper. Daring the course of the arguments in that case the lawyer of the accused relied on the decision in State v. Bhausa Hanmantsa Pawar : AIR1962Bom229 . That was the case under the Bombay Prohibition Act, 1949 and the accused was charged for being in possession of a drug which contained alcohol in contravention of the provisions of the Bombay Prohibition Act, the samples of the drug were sent for analysis to the Chemical Analyser. The report of the Chemical Analyser was relied upon by the Court for the purpose of proving that the drug contained alcohol which was in contravention of the provisions of the Bombay Prohibition Act. In the case the High Court had observed as follows:
It is beyond controversy that, normally, in Order that a certificate could be received in evidence, the person who has issued the certificate must be called and examined as a witness before the Court. A certificate is nothing more than a mere opinion of the person who purports to have issued the certificate, and opinion is not evidence until the person who has given the particular opinion is brought before the Court and is subjected to the test of cross-examination.
The Supreme Court considered these observations and said:
It will thus be clear that the High Court did not hold that the certificate was by itself insufficient in law to sustain the conviction and indeed it could not well have said so in view of the provisions of Section 510, Criminal P. C. What the High Court seems to have felt was that in circumstances like those present in the case before it, a Court may be justified in not acting upon a certificate of the Chemical Analyser unless that person was examined as a witness in the case. Sub-section (1) of Section 510 permits the use of the certificate of a Chemical Examiner as evidence in any enquiry or other proceeding under the Code and Sub-section (2) thereof empowers the Court to summon and examine the Chemical Examiner if it thinks fit and requires it to examine him as a witness upon an application either by the prosecution or accused in this regard. It would, therefore, not be correct to Bay tout where the provisions of Sub-section (2) of Section 510 have not been availed of, the report of a Chemical Examiner is rendered inadmissible or is even to be treated as having no weight. Whatever that may be, we are concerned in this case not with the report of Chemical Examiner but with that of a public Analyst. In so far as the report of the public Analyst is concerned we have the provisions of Section 13 of the Act.
Their Lordships of the Supreme Court have observed that in the case before them, they had to consider the report of Public Analyst and not that of Chemical Examiner, and therefore, they were not concerned with the provisions of Section 510 of the Criminal P. C. They further observed that the report of the public Analyst was admissible in evidence under Sub-section (5) of Section 13 of the Act. The aforesaid observations completely support the view I am taking viz., that the report of the Public Analyst is admissible in evidence under Subs. (5) of Section 13. and not under Section 510 of the Criminal P. C.
7. Mr. Shah also argued that if suah an interpretation is given to Section 510 of the Criminal P. C, the effect is that the accused will be put to a great disadvantage and the prosecution will never examine the Public Analyst as a witness in any case. This contention is devoid of any merits. The Act has provided that a sample of the sale be given to the accused. The accused can get the said sample analysed or make an application to the Court to send the sample before the Court to the Director of Central Food Laboratory for analysis. He can also examine the public Analyst as his witness. It is therefore not possible, to accept this contention of Mr. Shah in view of the remedies which are available to the accused to prove his innocence.
8. As the report of the public Analyst is admissible in evidence under Sub-section (5) of Section 13, it is obvious that the accused has no right to mate an application to the Court to call the public Analyst as a witness. There is no provision in the act giving such a right to the accused. Moreover, even under Sub-section (2) of Section 510, the accused can make an application to the Court only to examine the public Analyst as a witness. In this case an application was given by the accused to call the Public Analyst as a witness for the purpose of cross-examination and there is no provision in Criminal Procedure Code or the Prevention of Food Adulteration Act which gives such a right to the accused. The report of the public Analyst is admissible in evidence under Sub-section (5) of Section 13 of the Act and the act provides that it may be used in evidence without examining the person who gives the report. In this case report of the public Analyst clearly shows that chilli powder which was sold by the accused to the complainant was adulterated and did not conform to standard specified in the Rules. Thus the argument of Mr. Shah that the report is admissible under Section 510 of Criminal P. C, and that the Court was bound to call the Public Analyst as a witness for cross-examination cannot be accepted. It is true that the Court has a discretion under Sub-section (5) of Section 13 to admit the report of the Public Analyst in evidence, but in This case the learned trial Magistrate did exercise his discretion and admitted the report and Mr, Shah has not been able to point any reason why no reliance should be placed on the report.
9. Mr. Shah then argued that in This case the provisions of Section 11 of the Act have not been followed by the Food Inspector and, therefore the report of the Public Analyst should not be treated as sufficient evidence to prove the guilt of the accused. The contention was that in This case the sample was not taken by the Food Inspector himself. The accused weighed 450 grams Chilli powder and then divided the powder into 3 equal parts. The complainant thereafter filled the powder in 3 bottles and sealed the bottles. Mr. Shah, therefore, contended that under the provisions of Section 11 it is the Food Inspector himself who has to divide the samp's into three parts and fill in the bottles. In this case the physical act of dividing the sample purchased for the analysis was done by the accused in the prefence of the Food Inspector and, therefore, there is no contravention of the provisions of the section.
10. Mr. shah then argued that in This case the complainant had taken back the notice which was given by the Food Inspector to the accused intimating him that the complainant wanted to purchase chilly powder for the purpose of analysis. The evidence dearly disclosed that a notice of purchase was given by the complainant to the accused. The accused had admittedly signed the notice, and there, after procedure laid down under Section 11 of the act was followed. After the sale was completed the complainant demanded back the notice and the accused returned it. Now Section 11 only requires that the Food Inspector should give a notice of purchase for analysis and that provision has been followed in this case. The argument of Mr. Shah that in taking back the notice Ex. 4 the Food Inspector had contravened the provisions of Section 11 cannot be accepted.
11. The result is that order of acquittal passed by the learned trial Magistrate is set aside and the case is remanded to the lower court for disposal according to law.