1. Mr. Desai, the learned advocate for the applicants, contends that the additional sample bottle kept by the complainant was required to be so sent, on a complaint filed against them, and the accused making a request to the Court for having it be analyzed by the Director, and the Court was wrong in compelling the accused to produce the sample bottle given to them for that purpose. The accused has a right to take alternative defence putting the complainant to the proof of all the ingredients of the offence said to have been committed by them. In order to appreciate the contention, it is necessary to set out relevant part of Sections 11 and 13 of the Act. Section 11(1) of the Act is as follows:
(1) When a food inspector takes a sample of food for analysis, he shall-
(a) give notice in writing then and there of his intention to have it so analyzed to the person from whom he has taken the sample;
(b) except in special oases provided by rules under his Act separate the sample then and there into three parts and mark and Beal or fasten op each part in each a manner as its nature permits; and
(c)(i) deliver one of the parts to the person from whom the sample has been taken;
(ii) send another part for analysis to the public analyst; and
(iii) retain the third part for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under Sub-section (2) of Section 13, as the case may be.
Then Section 13 of the Act runs thus:
(1) 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 submitted to him for analysis.
(2) After the institution of a prosecution under this Act the 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) or Sub-clause (iii) of Clause (c) of Sub-section (1) of Section 11 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 (b) of Sub-section (1) of Section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon end a certificate to the Court in the proscribed form within one month from the data of receipt of the sample specifying the result of his analysis.
(3) The certificate issued by the Director the Central Food Laboratory under Sub-section (2) shall supersede the report given by the public analyst under Sub-section (1).
(4) Where a certificate obtained from the Director of the Central Food Laboratory under Sub-section (2) is produced in any proceeding under this Act, or under Sections 272 to 276 of the Penal Code (Act XLV of 1860) it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.
(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under Sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the Penal Code (Act XLV of 1860). Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.
The effect of Section 11(1)(a) and Section 13 Sub-section (1) and (2) of the Act read together is that a right is-given both to the accused and the complainant to make an application to the Court for sending a part of the sample to the Director of the Central Food Laboratory for obtaining a certificate. That sample shall be either as contemplated in Sub-clauses (i) or (iii) of Clause (e) of Sub-Section (1) of Section 11 of the Act. In other words, the sample bottle which can be sent through the Court at the instance of either the complainant or the accused-vendor, must be either the sample bottle which has been given to the accused vendor or taken by the Food Inspector-the complainant for the purpose of retaining the same for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under Sub-section (2) of Section 18 of the Act. The next requirement before the Court can exercise its powers of sending any such sample bottle to the Director is that he shall ascertain on receipt of the application from any such person that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and it is only then i.e., after he is satisfied about it that he may despatch that part of the sample under its own seal to the Director, who shall then examine the same and send a certificate to the Court specifying the result of Ma analysis in respect thereof. Now it appears obvious that the legislature has clearly intended to have one - additional sample made out from any such food-item purchased by the Complainant under the Act and it has to be retained by the complainant. That retention is for a purpose-viz., that if a complaint is to be lodged, he has to make it available to the Court for enabling it to Bend to Director for - analysis - if any application is received from Sitter side. The use of the word 'retain' in sub. Clause (iii) of Section 11(1)(c) is thus significant. It has to be produced before the Court and the Court has to verify that it was intact and under proper seal etc., as required in law. That can be used not necessarily for the complainant - If he were to move the Court, for sending it to the Director for analysis. It can be used by even the accused in the case. To say that one given by the complainant has to be sent if moved by him, and the other given to the accused - has to be sent if he so desired - can hardly be so correct. If that were so intended, we would have found the word - 'respectively' after the words 'of Section 11' and before the words 'to the Director...for a certificate in Section 13(2) of the Act. Not only that, but the words following that sentence viz.' or for analysis by the Director of the Central Food Laboratory under Sub-section (2) of Section 13, as the case may be' in Section 11(1)(iii) of the Act make that position amply clear. In other words, the additional sentence i.e., which is required to be retained by the complainant has been obviously for such a purpose which may arise under Section 13(2) of the Act. That has of course a basis on the complainant taking legal proceedings against the accused-vendor. In the present case, it appears rightly or wrongly that the complainant had chosen to produce the third sample bottle which was retained by him and it is that sample bottle which the accused insisted on being sent for analysis to the Director of the Central Food Laboratory under Sub-section (2) of Section 18 of the Act. The learned Magistrate, however, thought that since the accused was given one similar bottle which the Food Inspector - the complainant was required to give under Sub-clause (1) of Clause (c) of Sub-section (1) of Section 11 of the Act, he must produce it and have it sent under the orders of the Court to the Director of the Central Food Laboratory for obtaining a certificafce in that respect. The simple answer to that is that the accused is entitled to have alternative defence - the first being in the nature of absolute denial of everything that is alleged against him and when the provisions contemplate for the retention of the third sample bottle obviously for such a purpose though no doubt on an application made under Section 13(2) of the Act, there cannot be any justification to order him to produce the sample bottle and allow him to suffer without having the third sample bottle being sent to the Director of the Central Food Laboratory. The learned Magistrate also appears to think that since the accused denies to have sold any such vegetable oil, he is no longer an accused-vendor and it is only if he happens to be an accused-vendor that he is entitled to claim such a right of having the sample bottle analyzed by the Director of the Central Food Laboratory.
In a criminal case, the accused is not required to admit anything with regard to the commission of the offence and he can only be said to be the alleged vendor. The fact that he is the vendor in respect of vegetable oil is yet to be established by the evidence led by the prosecution. The rights given to the accused for having any such sample bottle analyzed by the Director of the Central; Food Laboratory cannot, therefore, be taken away by the mere fact that he does hot admit; to be the person who had sold the vegetable oil', to the Food Inspector. There is nothing to show; that this right is denied to the accused if he doe3, not admit to be a vendor in respect of that food item. The protection given to the accused is thus | of a two fold character. One is that he can produce the sample bottle before Court and request it to send for analysis to the Director of the Central Food Laboratory under Section 13(2) of the Act. But the fact that the accused is able to avail of that provision does not debar him from requiring the third sample bottle which has come to be retained by the complainant. Food Inspector; for being produced and sent to the Director of; the Central Food Laboratory for its analysis. He may as well have lost it. It may have become useless for any such analysis. He may not admit to have got any as alleged by prosecution. In all such contingencies! he cannot be deprived of such an important right given to an accused; person in the Act. The learned Magistrate, was, I thus, wrong in interpreting the provisions contained in Section 13(2) read with Section 11(1)(b) of the Act, in a manner as to deprive him of a right given to him for the sample bottle produced by the complainant and sent to the Director.
2. As I said above, on receipt of any such? application as in the present case from the accused, the Court has to ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact before directing the sample to be sent to the Director. It appears unfortunate that the learned Magistrate did not choose to decide this application before the labels from the two bottles before the Court were removed and allowed the sameto be removed for the purpose of proving the signatures of the panamas on the slip3 etc. on 11.1.67 while the evidence of the peon was being recorded. It would have done well if the application of the accused was decided immediately after receiving the objections filed by the accused with regard to the either order passed by him on 24-1967 so that the accused would not have any cause of the grievance in the sense that these bottles cannot be sent for analysis to the Director of the Central Food Laboratory. No useful purpose would be served, as has been felt by the learned Magistrate, in sending these bottles now to the Director of the Central Food Laboratory particularly when its wrappers are removed and the bottles cannot be said to be intact as required under the law. It may well be said that no sooner an application is received for any such purpose contemplated under Section 18(2) of the Act either from the accused vendor who is alleged to be a vendor or from the complainant as the case may be, and the payment of the prescribed fee has been made, it would be the paramount duty of the Court immediately to call for that bottle from the complainant which he has retained and after it is produced, he has to ascertain himself that the mark and seal or fastening as provided in clause (b) of Sub-section (1) of Section 11 were intact. He may thereafter decide the application and if he directs it to be Bent to the Director of the Central Food Laboratory, he shall have to send it under its own seal. The provisions contained in Sections 11 and 18 of the Act have to be scrupulously observed for on that depends the decision of the case, inasmuch the report then remained supersedes the report of the Public Analyst under the Act.
3. It was, however, urged by Mr. Desai by reference to a case of Municipal Corporation of Delhi v. Ghisa Ram. Criminal Appeal No. 194 of 1966, D/- 28.11.1966 reported in : 1967CriLJ939 , that as held therein when such a right conies to be denied to the accused for no fault of his but only due to the inordinate laches of the prosecution, no weight could be given to the report of the Public Analyst. The Supreme Court, however, cautioned that it should not be understood as laying down that, in every case where the right of the vendor to have his Sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. It is, however, for the learned Magistrate to consider what effect should be given to 4he report of the Public Analyst in view of the circumstances relating to sample bottles before the Court, including the difficulty now in sending the bottles when their wrappers are opened, to the Director of the Central Food Laboratory for analysis. However, as I agree with the learned Magistrate that no useful purpose would be served in sending such bottles now to the Director of the Central Food Laboratory, the application is liable to be rejected.
4. Rule is discharged and the application is rejected.