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Prahladbhai Ambalal Patel Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1984CriLJ1642; (1984)2GLR1380(GJ)
AppellantPrahladbhai Ambalal Patel
RespondentState of Gujarat and anr.
Cases ReferredCharanji Lal v. State of Punjab
Excerpt:
- - the said question reads as follows- whether, after the report of the public analyst gets superseded by the certificate of the director, central food laboratory who examines the part of the sample of food article collected under the relevant provisions of the prevention of food adulteration act 1954 (hereinafter referred to as 'the act'), it is open to the accused to plead that if there is any variance between the aforesaid two reports, the prosecution must explain the said variance or otherwise fail. the accused contend that as the reports of the public analyst on the one hand and the certificates of the director of the central food laboratory in each of the cases on the other hand, showed marked variance regarding material particulars about the contents of the samples analysed, in.....s.b. majmudar, j.1. in this group of revision applications, a short question has been referred for our consideration. the said question reads as follows-whether, after the report of the public analyst gets superseded by the certificate of the director, central food laboratory who examines the part of the sample of food article collected under the relevant provisions of the prevention of food adulteration act 1954 (hereinafter referred to as 'the act'), it is open to the accused to plead that if there is any variance between the aforesaid two reports, the prosecution must explain the said variance or otherwise fail.2 to 5. * * * * *6. before embarking upon the consideration of the question posed for our decision, it will be advantageous to have a bird's eye view of the relevant provisions.....
Judgment:

S.B. Majmudar, J.

1. In this group of revision applications, a short question has been referred for our consideration. The said question reads as follows-

Whether, after the report of the public analyst gets superseded by the certificate of the Director, Central Food Laboratory who examines the part of the sample of food article collected under the relevant provisions of the Prevention of Food Adulteration Act 1954 (hereinafter referred to as 'the Act'), it is open to the accused to plead that if there is any variance between the aforesaid two reports, the prosecution must explain the said variance or otherwise fail.

2 to 5. * * * * *

6. Before embarking upon the consideration of the question posed for our decision, it will be advantageous to have a bird's eye view of the relevant provisions of the statute governing the field. The Act has been enacted by the Parliament with a view to making provisions for prevention of adulteration of food. Section 2(v) defines 'food' to mean any article used as food or drink for human consumption other than drugs and water and includes-

(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,

(b) any favouring matter or condiments; and

(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the official gazette, as food for the purposes of this Act.

Section 11 lays down the procedure to be followed by Food Inspectors functioning under the Act for taking samples of food for analysis. As per Section 11(1)(a), the Food Inspector has to give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under Section 11. Sub-section (1)(b) of Section 11 provides that when the food inspector takes a sample of food for analysis, he shall except in special cases provided by rules under the Act, divide the sample then and there into three parts, mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed. As per Section 11(1)(c), the food inspector has to send one of the parts for analysis to the public analyst under intimation to the local Health Authority and to send the remaining two parts to the local Health Authority for the purposes of Sub-section (2) of this section and Sub-section (2A) and (2E) of Section 13. When we turn to Section 11(2), we find that it provides that where the part of the sample sent to the public analyst under Sub-clause (i) of Clause (c) of Sub-section (1) is lost or damaged, the local health authority shall, on a requisition made to it by the Public Analyst or the Food Inspector despatch one of the parts of the sample sent to it under Sub-clause (ii) of the said Clause (c) to the Public Analyst for analysis. Section 13 of the Act deals with report of Public Analyst. As the resolution of the question posed for our consideration revolves round the relevant provisions contained in the said section, it would be profitable to reproduce the said section in extenso as under:

13. (1) The public analyst shall deliver, in such form as may be prescribed, a report to the local health authority of the result of the analysis of any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food 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 other particulars have been disclosed 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.

(2A) When an application is made to the Court under Sub-section (2), the Court shall require the local, health authority to forward the part or parts of the sample kept by the said authority and upon such requisition being made, the said authority shall forward the part or parts of the sample to the Court within a period bf five days from the date of receipt of such requisition.

(2B) On receipt of the part or parts of the sample from the local health authority under Sub-section (2A), 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 the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be one of the parts of the sample under its own seal to the 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 part of the sample specifying the result of the analysis.

(2C) Where two parts of the sample have been sent to the Court and only one part of the sample has been sent by the Court to the Director of the Central Food Laboratory under Sub-section (2B), the Court shall, as soon as practicable, return the remaining part to the Local health authority and that authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the Court

Provided that where the part of the sample sent by the Court to the Director of the Central Food Laboratory is lost or damaged, the Court shall require the local health authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof, the Court shall proceed in the manner provided in Sub-section (2B).

(2D) Until the receipt of the certificate of the result of, the analysis from the Director of the Central Food Laboratory, the Court shall not continue with the proceedings pending before it in relation to the prosecution.

(2E) If, after considering the report, if any, of the food inspector or otherwise, the local health authority is of the opinion that the report delivered by the public analyst under Sub-section (1) is erroneous, the said authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of Sub-section (2), (2D) shall, so far as may be, apply.

(3) The certificate issued by the Director of the Central Food Laboratory under Sub-section (2B) 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 (2B) is produced in any proceeding under this Act, or under Sections 272 to 276 of the Penal Code, it shall not be necessary in such proceedings 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:

Provided that any document purporting to be a certificate signed by the director of the Central Food Laboratory not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to Sub-section (1A) of Section 16, shall be final and conclusive evidence of the facts stated therein.

Explanation - In this section, and in Clause (f) of Sub-section (1) of Section 16, 'Director of the Central Food Laboratory' shall include the officer for the time being in charge of any food laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section.

7. In all these cases, initially a part of the sample was analysed by the public analyst, but on the request of the concerned accused in each of these cases, as per the provisions of Section 13(2), parts of the sample were sent to the Central Food Laboratory for analysis and pending trials, reports of the Director of the said Laboratory were received. As provided by Sub-section (3) of Section 13, the certificates issued by the said Director superseded the reports given by the public analyst under Section 13(11) in each of these cases. Still, the controversy between the parties ranges within a very narrow compass, though all the same, it is a very serious controversy. The accused contend that as the reports of the public analyst on the one hand and the certificates of the Director of the Central Food Laboratory in each of the cases on the other hand, showed marked variance regarding material particulars about the contents of the samples analysed, in the absence of any explanation offered by the prosecution regarding this variance, the prosecution must fail. The concerned accused leaned heavily in support of their aforesaid contention on a decision of the Division Bench of this Court consisting of A.N. Surti and D.H. Shukla, JJ. to which we have already made a reference in the earlier part of this judgment. Before we switch over to the consideration of the said judgment, it would be necessary to keep in view the statutory settings of Section 13. A mere look at Section 13(3) shows that once the certificate as issued by the Director of the Central Food Laboratory after analysing part of the sample sent to it for analysis at the request of the concerned accused as laid down by Section 13(2) read with Section 13(2A), the earlier report of the public analyst analysing part of the very same sample gets superseded. The nature and extent of the supersession is highlighted by the provisions of Sub-section (5) of Section 13 read with the proviso to the said Sub-section (5). A bare look at Sub-section (5) of Section 13 shows that a document purporting to be a report signed by the public analyst can be used as evidence of the facts stated therein even though no formal proof as required by the Indian Evidence Act is adduced, provided it is not superseded under Sub-section (3) of Section 13. Thus, prior to its supersession, it may hold the field and mere tendering of such report would be enough to bring it on record as evidence of its contents. But the moment it gets superseded under Section 13(3) by a superior report so to say, of the Director of the Central Food Laboratory on the basis of examination of any part of the same sample as sent to him through Court at the request of the accused as provided by Section 13(2) read with Section 13(2A), it ceases to exist of its own and there would remain no occasion for referring to it as evidence of the facts stated therein. In other words, it gets totally exhausted in (hat eventuality and it is only the certificate of the Director of the Central Food Laboratory which would hold the field. Proviso to Section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central. Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by Section 13(3) read with Section 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record. Once this conclusion is found to clearly follow from the aforesaid statutory scheme of Section 13, it must logically follow that there can be no question of any variance between the nonexistent report of the public analyst and existing certificate of the Director of Central Food Laboratory in connection with analysis of the part of the same sample as initially taken by the Food Inspector. If such a question is ruled out, further question as to whether the prosecution should explain the variance at the pain if otherwise falling through would become totally irrelevant and besides the point.

8. Once Sub-sections (3) and (5) of Section 13 are kept in view, it is impossible to countenance the submission of the accused that despite these provisions, non-existing report of the public analyst can still be looked at for the purpose of finding out the alleged variance between the contents of that report and the superseding certificate of the Director of the Central Food Laboratory. The word 'supersede', according to Oxford English Dictionary means 'to make of no effect; to render void, nugatory or useless; to annul; to override; to be set aside as useless or obsolete'. The word 'supersede', according to Corpus Juris Secundum, Vol. 83, means to make void or useless or unnecessary by v superior power or by coming in the place of; to make unnecessary or superfluous; to set aside; to annul; to repeal, to suspend, to stay, to overrule, to obliterate; to neutralise. The word 'supersede' is further defined as meaning to supplant, to replace, to displace or set aside etc. Therefore when Sub-section (3) of Section 13 says that the certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the public analyst under Sub-section (1), it clearly means that it replaces the public analyst's report, meaning thereby that once the report of the Director is received, the earlier report given by the public analyst is rendered obsolete and stands wiped out. Sub-section (5) of Section 13 also makes this position clear when it says that any document purporting to be a report signed by a public analyst, unless it has been superseded under Sub-section (3) may be used as evidence of the facts stated therein in any proceeding under the Act. It is obvious that once the report of the public analyst is superseded by the certificate issued by the Director of Central Food Laboratory after analysing another part of the sample, the report of the public analyst cannot be used as evidence of facts stated therein. In other words, it is rendered nugatory or non est. The proviso to Sub-section (5) which was inserted in Act 34 of 1976 with effect from 1.4.1976 makes the certificate issued by the Director final and conclusive in regard to the facts stated therein. We are, therefore, of the opinion that having regard to the language of Sub-sections (3) and (5) of Section 13, it is not permissible to the Court to rely on the report of the public analyst once it is superseded by the certificate issued by the Director of the Central Food Laboratory. In this connection, we may usefully refer to two decisions of the Supreme Court. In the case of Andhra Pradesh Grain and Seed Merchants Association v. Union of India : 1971CriLJ1556 , the Supreme Court had an occasion to consider the constitutional validity of the provisions of Section 13(5) and its proviso as they stood in those days. The provisions read as under:

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 proceedings under this Act or under Sections 272 to 276 of the Penal Code:

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.

Upholding the constitutional validity of the aforesaid provision, Shah, J. speaking for the Supreme Court made the following observations in para 14 of the report:

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 Court.

9. The question posed for our consideration is squarely covered by a later decision of the Supreme Court in the case of Chetumal v. State of M.P. : 1981CriLJ1009 . In that case, the accused was convicted for adulteration of oil on the basis of the report of the public analyst. The certificate of Director of Central Food Laboratory having been brushed aside on the ground that the Director had reported that the specimen impression did not tally with the seal on the container in which sample of oil was sent to him. Conviction was confirmed by the learned Sessions Judge as well as by the High Court. Chinnappa Reddy, J. speaking for the Supreme Court held that (Para 2):

Under Section 13(3) of the Prevention of Food Adulteration Act, the report of the public analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded, the report of the public analyst could not, therefore, be relied upon to base a conviction.

It was further observed that once supersession takes effect, it is not permissible to rely on the report of the public analyst for the purpose of basing a conviction. That is so because the report of the Director is made final and conclusive. The Supreme Court in the aforesaid decision held that the public analyst's report stood superseded by the certificate of the Director and once the certificate of the Director was found to be unreliable, there would not remain on record any evidence on which accused could be convicted. In the light of the aforesaid decision of the Supreme Court, it is obvious that even in a converse case where the accused claims acquittal on the ground of any important variance between the earlier report of the public analyst and the later certificate of the Director of the Central Food Laboratory which supersedes it, it would not be open to the Court to rely upon the contents of the superseded report of the public analyst for doubting correctness of the certificate issued by the Director. In our view, the aforesaid decision of the Supreme Court really clinches the issue and in its wake, the question referred to us has to be answered in the negative.

10. Before we deal with the judgment of the Division Bench in criminal appeal No. 36 of 1979 which has resulted into this reference, we may note certain other judgments of this Court which had earlier taken the same view which ultimately found favour with the Supreme Court in the aforesaid decision in Chetumal's case 1981 Cri LJ 1009 (Supra).

11. In the case of Kantilal v. I.G. Patel (1972) 13 Guj LR 725, J.M. Sheth, J. repelled the contention on behalf of the accused by which reliance was sought to be placed on the report of the public analyst which had been superseded by the certificate issued by the Director. Having considered various judgments on the point, the following pertinent observations were made by the learned Judge:

In view of the provisions of Section 13 of the Act referred to by me earlier, it is evident that the certificate Ex. 10 issued by the Director of the Central Food Laboratory under Sub-section (2) will supersede the report Ex. 7 given by the public analyst, given under Sub-section (1) of Section 13 of the Act. In view of the proviso to Sub-section (6) of Section 13 of the Act, this certificate shall be final and conclusive evidence of the facts stated therein. I am, therefore, of the opinion that the Court has to take into consideration the facts stated in this report, Ex. 10. It cannot take into consideration the public analyst's report, which is superseded by this certificate Ex. 10.

12. In the case of V.B. Shukla v. Prakash (1973) 14 Guj LR 381 : 1974 Cri LJ 124, T.U. Mehta, J. had an occasion to consider the very question. The learned Judge observed as under (at p. 125):

According to Section 13(3) of the Prevention of Food Adulteration Act, certificate issued by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. It is of course true that on consideration of the facts and circumstances of each case it is always open to the Court to reject the report of the Director, Central Food Laboratory as unreliable or insufficient for basing conviction, but to discard that report simply because the same is inconsistent with the report of the Public Analyst is tantamount to discarding the provisions contained in Section 13 of the Act which contemplates that it is open to the accused or the complainant to make an application to the Court for sending part of the sample to the Director of Central Food Laboratory for a certificate. The very fact that, even though the sample has been analysed by the Public Analyst the legislature has contemplated the re-examination of that sample by another authority, suggests that the legislature has recognised the possibility of both the reports being contradictory. It is to provide for such a contingency that Sub-section (3) of Section 13 has prescribed that certificate issued by the Director of the Central Food Laboratory should supersede the report given by the public analyst.

So far as the aforesaid decision is concerned, we must however pause to mention that when the learned single Judge observes that it is open to the Court to reject the report of the Director, Central Food Laboratory as unreliable, what is really meant is that in a given case, even on the basis of the certificate of the Director, Central Food Laboratory, it may not be possible to base conviction as the prosecution may not be able to establish from the analysis of the sample by the Director that the accused had sold adulterated food, irrespective of the fact that the result of the analysis as mentioned in the certificate remained final and conclusive.

13. In the case of State v. Kutubuddin Isafali (1980) 21 (2) Guj LR 167 : 1981 Cri LJ 908, M.K. Shah, J. also examined the very same question and after noticing provisions of Section 13(3) and (5), observed in para 13 of the report as under:

It is thus clear that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In this view of the matter, when there is report of Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, treated as non-existent. The report of the Central Food Laboratory will be final and conclusive evidence of the facts stated therein and the question, therefore, of any comparison of that report with the report issued by the Public Analyst which has already been superseded does not arise. There are statutory provisions and they ,have to be strictly complied with.

The aforesaid decisions of the learned single Judges of this Court have, in our view, correctly laid down the legal position which, ultimately as we have seen above, has also been approved by the Supreme Court in the case of Chetumal 1981 Cri LJ 1009 (Supra).

14. Now is the time for us to turn to the consideration of the judgment of the Division Bench of this Court in Criminal Appeal No. 36 of 1979 decided by A.N. Surti and D.H. Shukla, JJ. on 26.9.1980, the reasoning adopted wherein has resulted in the present reference. The Division Bench was concerned in that case with an appeal against acquittal. The accused in that case was alleged to have committed offences under Section 7 read with Section 16(1)(a)(i) of the Act. He was convicted and sentenced to suffer S.I. for six months and to pay a fine of Rs. 1,000/- in default, to suffer further S.I. for one month by the learned trial Magistrate. The accused carried the matter in appeal. The learned Additional Sessions Judge allowed his appeal and set aside the conviction and sentence. It was in these circumstances that the appeal against acquittal was moved before this Court by the State. While dismissing the acquittal appeal and confirming the acquittal of the accused, the learned Judges noted the arguments of the learned Advocate for the respondent-accused to the effect that so far as milk solids non-fat contents of the sample were concerned, the report of the public analyst showed them at 8.5%; whereas the certificate of the Director of Central Food Laboratory indicated them to be 8.2% and that sinoe there was variance so far as the above contents of the milk sample were concerned, it was the duty of the prosecution to explain the variance or difference. The learned advocate for the accused in support of his contention relied upon two decisions of the Supreme Court viz. (i) Mangaldas Raghavji Ruparel v. State of Maharashtra : 1966CriLJ106 and (ii) Tulsiram Kanu v. State : AIR1954SC1 .

The learned Advocate for the accused also eked decision of the Maharashtra High Court in the case of B.A. Sawant v. State (1986) 70 Bom LR 794 : 1969 Cri LJ 1344. These very authorities were relied upon by the learned Advocate for the accused in the appeal before the Sessions Court. The learned Sessions Judge accepted the contention of, the accused based on the aforesaid decisions. Having noted these judgments, the Division Bench speaking through D.H. Shukla. J. made the following observations:

In view of the authorities above considered, the learned Additional Sessions Judge was quite justified in observing '1 am, therefore, inclined to think that in view of such a large variation in respect of the fat deficiency found by the public analyst and that of the Director, it was for the prosecution to explain this difference and moreover the difference in milk solids non-fat as found by the Director is only 0.3% below the prescribed standards and as per the public analyst, it was found to be 8.5% and, therefore, it was as; per the prescribed standard. No doubt, the report of the Director supersedes the certificate of the Public analyst but the factual data as above cannot be brushed aside easily. It is in these circumstances that I am of the view that the accused ought to be given benefit of doubt.

Having approved the aforesaid observations of the learned Sessions Judge, the Division Bench in the, next para of the judgment observed:

The above discussion-shows that the learned appellate Judge was quite justified in reaching the conclusion that the prosecution had failed to bring home the guilt against the accused-respondent No. 1 as it failed to explain the substantial variance in the reports of analysis given by two different authorities.

In the last part of the judgment, it was further observed:

There is great force in the first argument advanced by Mr. Adhyaru on the question of variance in the two reports given by two different authorities and we also find that on that argument, the learned Additional Sessions Judge has reached the correct conclusion in accepting it and in acquitting the accused from the charges levelled against them on that basis.

Now, the aforesaid decision of the Division Bench runs counter to the decision of the Supreme Court in the case of Chetumal 1981 Cri LJ 1009 (Supra) and hence, it must be treated to have been implied by overruled by the decision of the Supreme Court. But even apart from that, the learned Judges, with respect, have not considered the statutory settings of Sections 13(2), (3) and (5) of the Act and the clear legislative scheme emerging therefrom. Even the earlier judgments of this Court reported in 13 and 14 G.L.R. though of learned single Judges do not appear to have been placed for consideration of the Division Bench. Leaving aside this aspect of the matter, we may note at this stage that the two decisions of the Supreme Court on which, reliance was placed by the Division Bench, did not decide the question which has been posed for our consideration and which was on the envil of inquiry before the Division Bench. In Mangaldas's case : 1966CriLJ106 (supra), there was no question of the public analyst's report getting superseded by certificate of the Director. The Public Analysis report was holding the field. It was not superseded by the certificate of the Director and the only question for consideration was how much evidentiary value should be attached to such report. In that connection, the Supreme Court held (para 9):

The provision of Section 13(5) clearly makes the report admissible in evidence. What value is to be attached to such report must necessarily be for the Court of fact which has to consider it.

The certificate issued by the Director would then supersede the report given by the public analyst. This certificate is not only made admissible in evidence under Sub-section (5) but is given finality to the facts contained therein by the proviso to that sub-section, It is true that the certificate of the public analyst is not made conclusive but this only means that the Court of fact is free to act on the certificate or not as it thinks fit.

It is. therefore, obvious that the aforesaid decision is not an authority for deciding the questions as to whether any reliance can be placed on the contents of public analyst's report once it is excluded from evidence by the certificate of the Director of Central Food Laboratory. In Mangaldas case : 1966CriLJ106 (Supra), as the report of public analyst was not superseded, the question of evidentiary value of such report which went in evidence under Section 13(5) was the only question which was considered by the Supreme Court. Hence, the said decision cannot shed any light on the question which is posed for our consideration. In the case of Tulsiram 1954 Cri LJ 225 (supra), the question which cropped up for consideration of the Supreme Court was entirely a different one. It was found on evidence in that case that there was contradiction between the reports of chemical examiner and imperial serologist. It may be noted at this stage that the aforesaid reports were admitted in evidence under Section 510 Cr.P.C. 1898. There was no question of one of the reports superseding the other. Section 510 of the Cr.P.C. 1898 did not contain provisions like Section 13(3) and (5) as we find in the present case. As there was no statutory provision for superseding report of the chemical examiner by that of imperial serologist. both the reports remained on record for the purpose of appreciation. It is in that light that the Supreme Court made the following observations:

In ordinary circumstances, there would be nothing wrong in taking reports of the chemical examiner and imperial serologist on record without examining these persons as witnesses, as permitted by the Criminal Procedure Code. When, however, there is a difference of opinion in the reports so much so that the effect of the one report is to nullify the effect of the other, the duty to explain the difference is on the prosecution and the mere production of the report does not. under the circumstances, prove anything which can weigh against the accused.

The statutory scheme of Section 13(3) and (5) which was not present in Tulsiram's case (supra) clearly reflects a different legislative intention and does not countenance any comparison between the two reports when one of them viz, public analyst's report is elbowed out of record by superseding certificate of the Director. As such legislative scheme was not available in Tulsiram's case 1954 Cri LJ 225 (supra), the observations of the Supreme Court in that case cannot be of any assistance for resolving the controversy posedx before us which as noted earlier, has to be resolved in the light of an entirely different legislative scheme as projected by the relevant subsections of Section 13.

15. So far as decision of the Bombay (Maharashtra) High Court in the case of B.A. Sawant 1969 Cri LJ 1344 (supra) is concerned, even that decision does not lend any assistance in resolving the controversy between the parties as raised in the present proceedings. In Sawant's case (supra), the public analyst on analysis of the sample of buffalo milk found fat to be 4.4 per cent, Solids non-fat to be 7.4 per cent and extraneous water to be 17.7 per cent. When the sample was sent to the Central Food Laboratory, the certificate showed fat to be 5.4 per cent, milk solids non-fat to be 7.1 per cent and other than starch and milk fat cane-sugar was absent. In the opinion of the Central Food Laboratory, the sample of buffalo milk contained 21 per cent of added water. In that connection, Vaidya, J. of the Bombay High Court observed as under (Para 15):

Further a grave doubt arises with regard to the contents of the two samples which were analysed in this case because of the striking discrepancy between the analysis by the public analyst and the one by the Director of Central Food Laboratory with regard to the water contents of the two bottles.... But it is difficult to understand how there could be one bottle with 21 per cent of water and the other with 17 per cent. The main question in this case is whether the accused can be convicted merely relying on the evidence of food inspector and the report of the Director of Central Food Laboratory for holding that the accused sold adulterated milk. In view of the fact that the food inspector did not lead any evidence with regard to the following of the procedure under Rule 14 and did not try to explain how this difference in the two reports was caused, it will be difficult to convict the accused relying on the evidence of the food inspector alone.

It is difficult to appreciate how the aforesaid decision would render any assistance in deciding the question posed for our consideration. In the aforesaid decision, it was realised that the discrepancy regarding water content could be on account of presence of water in the container used. There was no finding that Rule 14 had not been adhered to. It also emerged from evidence that witness Gopinath had not seen the empty bottles. Thus, on the state of evidence before Vaidya, J. it was found that the procedural safeguards were not followed by the food inspector while collecting the sample in question. It is in the background of the aforesaid facts that it was further observed:

'The discrepancy in the two reports merely added to the doubt which arose from the other circumstances'. That case, therefore, cannot be taken to be an authority for the proposition that in all cases of discrepancy between the two reports, if the prosecution fails to offer a valid explanation, the accused would be entitled to benefit of doubt.

A careful reading of the penultimate paragraph of this judgment also makes this position clear. We must however state that to the extent to which the decision of Vaidya, J. seeks to spin out the variance between the contents of public analyst's report and the contents of the certificate of the Director of Central Food Laboratory it cannot be said to be laying down good law in view of the decision of the Supreme Court in Chetumal's case 1981 Cri LJ 1009 (supra).

16. Under these circumstances, it must be held that the two decisions of the Supreme Court in Mangaldas's case : 1966CriLJ106 and Tulsiram's case 1954 Cri LJ 225 (SC) as well as decision of the Maharashtra High Court in S.B. Sawant's case 1969 Cri LJ 1344 (supra) relied upon by the Division Bench while deciding criminal appeal No. 36 of 1979 could not have been pressed into service for supporting the proposition which is put forward by the Division Bench speaking through Shukla, J. for sustaining the acquittal of the accused before them. With respect to the learned Judges who decided the aforesaid case, we must hold that the view put forward by them in the aforesaid decision based on the variation between the contents of the report of the public analyst on the one hand and the certificate of the Director of Central Food Laboratory on the other, does not reflect the correct legal position. In our view, such an exercise is not open to any Court of law, as the report of the public analyst gets completely superseded by the certificate of the Director of the Central Food Laboratory on the combined operation of Section 13(3) and Section 13(5) of the Act.

17. We may now refer to certain other judgments to which our attention was invited by Mr. Shelat. learned Advocate for the complainant in the respective cases. In the case of M.M. Pandya v. Bhagwandas. 1979 20 Guj LR 553 : 1979 Cri LJ 1440 a Full Bench of this Court consisting of Section H. Sheth, D.P. Desai and A.N. Surti. JJ. had an occasion to consider the scheme of the Act and the effect of supersession of the report of the public analyst by the certificate issued by the Director of the Central Food Laboratory. The Full Bench speaking through S.H. Sheth, J. made the following pertinent observations in para 19 of the report:

So far as the Prevention of Food Adulteration Act and the rules made thereunder are concerned, the report of the Public Analyst has been made admissible in evidence without its formal proof. However, the accused is entitled to have the public analyst, summoned for cross-examination. The Act and the rules nowhere provide that the accused has a right to bring on record the evidence of a private analyst to rebut what the public analyst has stated in his report. Assuming, however, that he has such a right (and we proceed on the assumption that every accused has a right to defend himself in such manner as he thinks fit), that right is illusory and without any substance because where there is a dispute between the prosecution and the defence touching upon the veracity of the findings recorded by the public analyst, it is always open to the accused to move the Court for sending one of the three samples to the Director. Central Food Laboratory at Calcutta for a further analysis. The report which the Director makes or the certificate which he issues is final and conclusive and supersedes not only the report of the public analyst but on account of the fact that finality and conclusiveness have been attached to it, it will supersede the private opinion expressed in that behalf by private analyst examined by the accused. Therefore, so far as the prejudice is concerned, it can never be said that non-compliance with the time limit specified in Rule 9(j) will prejudice in their defence the entire community of persons accused of offences under the Prevention of Food Adulteration Act.

We respectfully concur with the aforesaid reasoning and observations.

18. We may now briefly refer to judgments of some other High Courts to which reference was made in the course of arguments by the learned Counsel for the accused. In the case of Food Inspector v. Hameed 1983 Ker LT 901 : 1983 Cri LJ NOC 224, U.L. Bhat, J. of the Kerala High Court took the same view which has been taken by the learned Judges of this Court in (1972) 13 Guj LR 725 : (1973) 14 Guj LR 381 : 1974 Cri LJ 124 and (1980) 21(2) Guj LR 167 : 1981 Cri LJ 908 (supra). The observations made by the learned Single Judge in this connection read as under:

The report of the public analyst can be used as evidence by the Court of the facts stated therein unless it has been superseded. Supersession could only be by a certificate issued by the Director of the Central Food Laboratory. Certificate shall also be final and conclusive evidence of the facts therein. The word 'supersede' means 'to take the place of by reason of superior right to make useless by superior power, to replace, to set aside etc.' If that be so, the report of the public analyst shall be replaced or displaced or set aside by the certificate of the Director. In such a case, it will not be open to the Court to look at the report of the public analyst and rely on the facts stated therein as evidence.

The Gauhati High Court also considered this very question, in the case of J.L. Roy v. Amritlal Dey (1980) 1 FAC 30 : 1980 Cri LJ 24. The Division Bench consisting of Baharul Islam Actg. C.J. and D. Pathak. J. speaking through the Actg. C.J. made the following observations on the question in issue:

A perusal of Sub-section 131 of Section 13 shows that the report of the Director supersedes the report of the public analyst under Sub-section (1) of the section. In other words, when on an application by the accused under Sub-section (2) of Section 13 the Court sent the sample with the accused to the Director and when the report of the Director is received, the report of the public analyst ceases to exist in the eye of law and cannot be taken any notice of. The learned Magistrate's comparison of the report of the Director with that of the public analyst and giving the benefit of the variance between the two reports to the accused are illegal and unsustainable in law.

19. The Delhi High Court also considered a similar case in the case of Salim and Co. v. Municipal Corporation of Delhi, 1978 Cri LJ 240. F.S. Gill, J. speaking for the Delhi High Court made the following observations:

It is correct that there is wide variation in the two reports, but according to Sub-section 13 of Section 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the public analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the public analyst. Thus, the report of the public analyst loses all its value after supersession by the certificate of the Director.

In para 15, it has been further observed:

It is the superseded report in which the learned trial Magistrate has tried to put life. For that matter, he called the public-analyst and examined him as a Court witness. This procedure is not warranted by law. Instead of reviving the report of the analyst, he should have discarded the (sic).

20. In our view, the aforesaid decisions of Kerala, Gauhati and Delhi High Courts fall in line with the authoritative pronouncement of the Supreme Court in the case of Chetumal 1981 Cri LJ 1009 (supra) and lay down the correct legal, position.

21. Mr. Adhvaryu learned Advocate for the accused vehemently contended that even if the report of the public analyst gets superseded by the certificate issued by the Director, even then, as laid down by Section 13(5) proviso, it would be final and conclusive of the facts stated therein, meaning thereby, the result of the test carried out by the Director as mentioned in the certificate would be final and conclusive but his opinion as to whether the sample analysed by him was adulterated or not will not be final nor will it bind the Court. So far as the aforesaid contention is concerned, no exception can be taken to it. In case of Mohanlal v. Vipanchandra : AIR1962Guj44 , a Division Bench consisting of J.M. Shelat and A.R. Bakshi. JJ. (as they then were) considered the question of finality attached to the facts found in the certificate of the Director upon analysis of the article of food. Shelat, J. speaking for the Division Bench made the following observations in that connection (at p. 419):

The certificate of the Director of Central Food Laboratory under Section 13 contains factual data in respect of the article sent for analysis or test. Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt, after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions etc. The analyst has merely to give his opinion as to whether the article which he analysed has 'an excess or deficiency in constituents. The vender would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food. For instance, if the vendor wants to establish that some of the ingredients of the article (in this case ghee) are liable, to get evaporated from having been boiled at high temperature while manufacturing the sweetmeat in question or that some change takes place, chemical or otherwise by the ingredients of the ghee used in the preparation being mixed with the other facts, or that a change takes place in the article in question owing to lapse of time or delay in making its analysis, the vendor can do so in spite of the facts stated in the certificate of the Director though made final and conclusive under the proviso.

In our view, the aforesaid observations of the Division Bench correctly bring out the legal effect of the provisions of the proviso to Section 13(5).

22. We may mention at this stage that a learned Single Judge of the Kerala High Court in the case of M.A. Thomas v. P.J. Abraham : AIR1969Ker146 , has relied upon the ratio of the decision of the Division Bench of this Court in Mohanlal's case 1962 (1) Cri LJ 417 (supra) and has held on this question as under:

What is relevant as evidence in both the report of the public analyst and the certificate of the Director of Central Food Laboratory are only the facts stated therein, in other words, the data relating to the analysis, and not the opinion of the analyst or the Director. Thus, whether the certificate is reliable and good evidence and whether it discloses adulteration are questions to be decided by the Court. On these questions the certificate is not final and conclusive, excepting that, if the Court decides to act on the certificate, it has to accept the data found by the Director as a result, of his test as final and conclusive; and must then decide whether the sample is adulterated. On the last question, whether there is adulteration on the basis of the data supplied by the Director, even other evidence may be allowed and the proviso to Sub-section (5) of Section 13 is not a bar to this.

We concur with the view taken by T.C. Raghavan, J. as he then was, in the aforesaid decision.

23. In this connection, it is also profitable to have a look at the decision of the Supreme Court in the case of Delhi Municipal Corporation v. Kacheroo Mal : 1976CriLJ336 . In that case, the Supreme Court had considered the evidentiary value of the opinion of the public analyst as mentioned in his report. Sarkaria, J. speaking for the Supreme Court made the following observations in paras 10 and 11 of the report:

The opinion of the public analyst who examines and analyses the sample, as to the fitness or otherwise of the sample for human consumption, would constitute legal evidence. A public analyst is supposed to be specially skilled in the science of dietetics. As an expert in the science, he is competent to opine and testify about this fact.

The report of the public analyst, including his opinion on this point, is per se evidence by virtue of Section 13 of the Act. But this does not mean that this ipse dixit would be conclusive and binding on the Court. To treat it so would be to leave the determination of the guilt of the accused to the whims and fancies of the public analyst. The act would' not countenance such abdication of its judicial function by the Court, leaving the ease as it were to be tried by the analyst. It is for the Court to weigh his opinion and reach its own finding.

In view of the settled legal position as revealed by the aforesaid decisions, the apprehension voiced by Mr. Adhvaryu for the accused that what is made final and conclusive under Section 13(5) proviso in connection with the facts stated in the report of the Director of Central Food Laboratory, might not leave any judicial discretion for the Court to go by its own conclusion on facts as to whether the article of food sold by the accused was adulterated or not. does not survive.

24. Mr. Adhvaryu for the accused next invited our attention to two unreported decisions of learned Single Judges of this Court. In criminal appeal No. 996 of 1972 decided by A.A. Dave, J. on 15.2.1974. the public analyst had found the sample of ice-cream to be adulterated as it contained 5% total solid, less than the legal standard; while the report of the Central Food Laboratory showed that fat contents were 40.4% and milk fat was 16.3%. However, protein contents were found to be 1.7%; while according to rules, it should be 3.5%. Relying upon the report of the Central Food Laboratory, the accused was convicted. It was argued in appeal before this Court by the learned Counsel for the original accused that originally the complaint was based on the footing that the article of food was adulterated because it contained 5% total solid and the said content was less than the minimum prescribed under the rules while the conviction was based on the deficiency of protein content as found from the report of the Central Food Laboratory for which there was no charge against the accused. In this connection, A.A. Dave, J. held that 'it was not the case of the food inspector or the medical officer in charge of health that the ice-cream supplied by the accused was substandard because of deficiency of protein'. It was in these circumstances that it was held that the accused could not be convicted of an offence for which the main ingredient of the charge was missing both in the complaint as well as in the charge itself. It is thereafter that the following observations were made by Dave, J.:

That apart, the report of the public-analyst on which the accused were prosecuted does not seem to be true in view of the report of the Central Food Laboratory both with regard to fat contents and solid contents of the sample. When there is such a divergence in the two reports it would not be proper to convict the accused. The accused had no opportunity to explain about the deficiency of protein.

It is, therefore, clear that the aforesaid decision of Dave, J. proceeds on the facts of its own and the acquittal is based on the ground that the accused had no opportunity to explain about the deficiency of protein for which there was no charge. The said decision can be of no assistance to Mr. Adhvaryu for the accused as it does not touch upon the question which is posed for our consideration. However, we must make it clear that if the aforesaid decision is tried to be read as laying down the proposition that divergence between two reports can be demonstrated before the Court, then, we must say that such an exercise would be impermissible as it would fly in the face of the decision of the Supreme Court in the case of Chetumal 1981 Cri LJ 1009 (supra) as well as the statutory scheme envisaged by Sections 13(3) and 13(5) of the Act to which we have made a detailed reference earlier and to that extent the said observations made in the judgment of Dave, J. with respect, must be treated to be not laying down good law.

25. Mr. Adhvaryu then invited our attention to another decision of M.C. Trivedi, J. in criminal appeal No. 835 of 1973 decided on 25.3.1975. Even in that case, it was found by Trivedi, J. that the conviction rendered by the learned Magistrate was based on facts different from the facts alleged in the complaint. The complaint was filed on the basis of less fat contents than prescribed; while the report of the Central Food Laboratory showed that there was less protein content in the sample and on the basis of less protein content, the accused was convicted by the learned Magistrate. It is in these circumstances that Trivedi, J. held that the basis of the charge against the accused was entirely different from the offence for which he was ultimately convicted and his conviction was based on facts different from the facts alleged in the complaint and hence it was liable to be set aside. It is on these facts that it was held that the appellant-accused before Trivedi, J. could not be held guilty on the basis of the report of the Central Food Laboratory. In this connection, Trivedi, J. also placed reliance on the judgment of Dave, J. to which we have made a reference a short while ago. Observations of Dave, J. have been reproduced in the penultimate para of the judgment of Trivedi, J. We have already considered the judgment of Dave, J. in detail and consequently it is not necessary for us to reiterate the said consideration over again. We, however, observe that the decision of Trivedi, J. which proceeds on its own facts cannot be taken as an authority for the proposition that the Court can rely upon the alleged variation between the contents of the report of the public analyst and the contents of the certificate issued by the Director of Central Food Laboratory. Such an exercise, as already observed earlier, is completely ruled out on the scheme of relevant sub-clauses of Section 13.

26. In this connection, we may also usefully refer to a judgment of Division Bench of this Court in the case of State of Gujrat v. Ambalal Maganlal (1978) 19 Guj LR 458 : 1978 Cri LJ 1036. The Division Bench consisting of D.P. Desai and M.K. Shah, JJ, had to consider the question whether validity of written consent for prosecution given by the concerned authority acting under the Act relying on the report of public analyst would get whittled down on account of the subsequent event of receipt of the certificate of the Director of Central Food Laboratory which may show different nature of adulteration as compared to the adulteration which was earlier found in the sample on account of the analysis made by the public analyst. The Division Bench, speaking through D. P. Desai, J. in this connection made the following pertinent observations:

Under Section 20(1) of the Prevention of Food Adulteration Act, the prosecution can be launched by four different authorities mentioned in the section who can themselves institute the prosecution in which case no question of written consent arises. The prosecution can also be instituted with the written consent of any of these four authorities. Once the written consent to prosecution is given by any of the four competent authorities, the institution of prosecution should be regarded as if it is by that authority. No further question as regards the validity of written consent as a result of subsequent event would arise in such a case where cognizance of offence is taken by the Court.

It has been further observed in connection with the sample of cow's milk as under:

Two standards in respect of cow's milk prescribed under the rules (under appendix B Item A, 11. O1.11) must be cumulatively satisfied. Therefore, if a given sample falls below any of these two standards the article of food is adulterated and the offence takes place. The two standards, therefore, are integral part of one and the same offence. If in such a case, cognizance is taken, upon a valid written consent, which consent, of course, is given on the basis that one of the two parts prescribed as standard is not complied with, and it is found, subsequent to the institution of the prosecution, as a result of the certificate of the Director under Section 13(2) that, that part is complied with, but the sample does not comply with the other part which is as integral as the former, the offence remains one and the same. The character of the offence does not change. It is only the evidence by which the offence is sought to be proved, which is changed. The consent, once effectively given cannot become invalid, or the cognizance of the offence taken upon a valid consent cannot be vitiated merely because the evidence, by which the offence is sought to be proved changes as a result of a subsequent event. Therefore, the offence being one and the same, another written consent, because of difference of opinion between the public analyst and the Director, cannot be insisted upon before proceeding with the trial of such a case.

The aforesaid decision of the Division Bench in our view succinctly brings out the correct legal position pertaining to prosecution of accused under the Act for Act offences.

27. Mr. Adhvaryu for the accused tried to seek assistance from a decision of Vaidya, J. in B.A. Sawant's case 1969 Cri LJ 1344 (supra). As we have already discussed earlier, the aforesaid decision cannot be of any assistance to Mr. Adhvaryu for supporting his contention that it is open to the Court to find out variance between the contents of the report of the public analyst on the one hand and the certificate of the Central Food Laboratory on the other. We, therefore, do not dilate upon the ratio of the said decision any further.

28. We may now refer to the latest judgment of the Supreme Court to which our attention was invited by the learned Counsel for the accused. The said judgment is rendered in the case of Charanji Lal v. State of Punjab AIR 1984 SC 80 : 1984 Cri LJ 15. In that case, the Supreme Court was concerned with the question whether the word 'damaged' as used in Section 11(2) and Section 13(2) proviso of the Act should be given wider meaning as to include 'damaged due to any cause, including decomposition'. Sen, J. speaking for the Supreme Court held that such a wider meaning is required to be given to the said phrase. The facts in Charanji Lal's case (supra) were that the appellant before the Supreme Court was the original accused who ran a sweetmeat shop at Sadar Bazar, Moga. On 3.1.1978, Medical Officer Dr. R.D. Ramnagar, visited his shop along with two witnesses. He disclosed his identity and demanded 750 grammes of kutcha khoya for analysis and purchased the same. After following the usual routine procedure of dividing the sample into three parts and adding 18 drops of formalin in each, the three parts were put in three polythene packs. One part was sent to the public analyst, Chandigarh whose report showed that fat content was 25%. That sample was found to be adulterated with Sesame oil (til oil) besides being insect infested. On the basis of the said report, a complaint was lodged against the accused before the learned J.M.F.C. Moga. The appellant having entered his appearance in Court exercised his right under Section 13(1) and requested the learned Magistrate to send one of the two. parts of the sample to the Director of the Central Food Laboratory for the purpose of analysis under Sub-section (2B) of Section 13 of the Act. The Director by his letter dt. 2.5.1978 intimated that the sample was decomposed and, therefore, unfit for analysis. It is in these circumstances that the learned Magistrate forwarded the remaining part of the sample to the Director for the purpose of analysis. This part was found to be fit for analysis by the Director and by his report dated 7.12.1978, the Director opined that the sample was adulterated. The fact content was stated to. be 53.12% with a note added that the extracted fat of 20.37% did not comply with the standards of milk fat for the State of Punjab. The learned Magistrate acquitted the accused having taken the view that the report of the public analyst was superseded by the certificate issued by the Director where earlier one part of the sample was sent and was found unfit for analysis. In these circumstances, the learned Magistrate held that there was no occasion for the Court to again send sample for fresh analysis to the Central Food Laboratory. In the alternative, it was found that even the report of the Director stated that fat content was 33.12% i.e. in excess over the minimum standard of 20% for khoya prescribed under the rules and, therefore, the khoya could not be treated to be adulterated and, therefore, the accused was entitled to be acquitted. On appeal, the High Court disagreed with the learned trial Magistrate. The High Court held that it was not possible to narrowly construe the word 'damaged' as used in Section 13(2C) and consequently, sending of the sample for fresh analysis by the Director was; held to be legal and valid. The High Court took the view that the prosecution had proved that the appellant had sold adulterated food and accordingly convicted him of the offence with which he was charged. On further appeal to the Supreme Court by the appellant-accused, the aforesaid decision was rendered by the Supreme Court, Sen, J. speaking for the' Supreme Court observed in para 8 of the report-

True it is. under proviso to Sub-section (5) of Section 13 of the Act. the certificate of the Director. Central Food Laboratory. Ghaziabad is final and conclusive evidence of the facts stated therein and it states that the sample was adulterated. At the same time, the fat content in the report was shown to be in excess of the minimum fat content prescribed under item A.11.32.17 with a note appended that the extracted fat content did not comply with the standards of milk fat for the State of Punjab.

There was ho material before the Supreme Court to show that any separate fat content for khoya had been prescribed under item. A.11.02.17 for the State of Punjab, and in spite of giving time to learned Counsel for the State to enlighten the Supteme Court on the subject, he was not in a position to do so. It is in these circumstances that the observations in para 9 on which strong reliance was placed by the learned Counsel for the accused came to be made. These observations read as under:

There are certain aspects of the case which are rather disturbing. It is not clear as to how the fat content of the same article of food, the sample of which, according to the report of the Public Analyst. Chandigarh, dt. Feb. 3, 1978, was 25%. went up to 33.12% as appears from the report of the Director. Central Food Laboratory, Ghaziabad dt. Dec. 7, 1978. Further, it is also not clear that when the fat content of the sample was 33.12% and the R.I. value of the extracted fat was 20.37%, still the Director on analysis found the sample to be adulterated. Was it due to the presence of any substance not found in milk like sesame oil (til oil) as found by the Public Analyst, Chandigarh or was it that there was a higher fat content prescribed for khoya for the State of Punjab as appears from the appended note? These are some of the aspects which require investigation. There is no other alternative but to remit the matter to the High Court for a decision afresh. The High Court may call for a clarification from the Director, Central Food Laboratory, Ghaziabad or take such other steps as it deems fit.

Now, a mere glance at the aforesaid observations of the Supreme Court in para 9 shows that the question whether any reference can be made to the contents of the report of the public analyst when the said report is superseded by the certificate of the Director was not on the anvil for consideration of the Supreme Court. The observations were made with a view to highlighting certain disturbing aspects of the matter. The Supreme Court felt that some clarification was required to be obtained from the Director and it is on that basis that the matter was remitted to the High Court. It is also pertinent to note that earlier decision of the Supreme Court in Chatumal's Case 1984 Cri LJ 15 (supra) which is directly on the point was not considered by the aforesaid decision in Charanji Lal's ease (supra). In fact, there was no occasion for the Supreme Court to consider that decision as the question which has been posed for our consideration, did not arise for decision of the Supreme Court in the above case. The ratio of the decision of the Supreme Court in Chetumals's case : 1981CriLJ1009 (supra) is in no way affected or diluted either expressly or impliedly by the decision of the Supreme Court in Charanji Lai's case (supra). Under these circumstances, it cannot be said that the observations made in para 9 of the report in Charanji Lal's case (supra) in any way lay down a proposition that in spite of supersession of the report of the public analyst, by the certificate of the Central Food Laboratory, the contents of the superseded report would still remain a part of the evidence in the case. On the contrary, effect of Section 13(5) is expressly noted by the Supreme Court in para 8 of the report. Any general observations in para 9 for supporting the order of remand to the High Court cannot be of any assistance to the learned Counsel for the accused for supporting his case.

29. Before parting with the discussion on the question posed for our consideration, we may refer to an unreported decision of a Division Bench of this Court consisting of R.C. Mankad and S.L. Talati, JJ. in Criminal Appeal No. 1140-A of 1978, decided on 11/12.8.1980. R.C. Mankad, J. speaking for the Division Bench in the aforesaid decision considered the question of supersession of the report of the public analyst by a certificate issued by the Director. While considering the nature and extent of supersession of the former by the latter under Section 13(3) read with Section 13(5), the Division Bench speaking through Mankad, J. observed as under:

in his report Ex. 9 dt. 27.8.1976, the public analyst stated inter alia that the sample of cow's milk received from the food inspector for analysis was properly sealed and fastened and that he had found the seal intact and unbroken. The report further stated that the seal on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the food inspector and that the sample was in a condition fit for analysis. Under Sub-section (5) of Section 13 of the Act, any document purporting to be a report signed by a public analyst, may be used as evidence of the facts stated therein. It is true that such use of the report cannot be made if it is superseded under Sub-section (3). In other words, if the report of the public analyst is not consistent with the certificate issued by the Director, it shall stand superseded to the extent it is inconsistent with the certificate. It is not correct to say that once the certificate is issued by the Director, the report of the public analyst stands replaced or set aside or it cannot be used for any purpose. In our opinion, when the certificate of the director is received, the report will not stand in its entirety. It, however, cannot be gainsaid that the report cannot be read as evidence insofar as it is not consistent with the certificate. In other words, the certificate issued by the Director will supersede the report only in respect of those matters for which opinion different from the one expressed in the report is given by the Director. The certificate of the Director, however, does not and cannot totally efface the report of the public analyst. In the instant case, therefore, though the Director has issued a certificate, in our opinion, the report of the public analyst cannot be ignored or discarded. The certificate of the Director will undoubtedly prevail insofar as there is difference of opinion, between the Director and the Public Analyst. For example, in his report Ex. 9, the public analyst has declared the results of analysis as follows:

Milk solids non fat 6.1%Milk fat 5.0%The Director has in his certificate given the percentage of milk fat and milk solids non fat as follows:

Milk fat 5.7%Milk solids non fat 6.4%The Director has, however, confirmed the opinion of the public analyst that the sample of milk was adulterated. In our opinion, the report of the public analyst stands superseded by the certificate of the Director insofar as the percentage of milk fat and milk solids non fat are concerned. However, the statement to the effect that the sample of milk sent by the food inspector for analysis was properly sealed and fastened and seals were found intact and unbroken contained in the report of the public analyst, does not stand effaced on account of the certificate issued by the Director. In other words, this statement can be read as evidence under Sub-section (5) of Section 13 of the Act. The statement of the public analyst that the sample was properly sealed and fastened could not mean that it was properly sealed and fastened in accordance with Rule 16. Therefore, besides the evidence of the food inspector, we have evidence in the shape of the report of the public analyst which shows that the provisions of Rule 16(d) were complied with. In this connection, it is also important to refer to the application dt. Sept. 30, 1976 made by respondent No. 1 to the learned Magistrate to send the sample bottle to the Director for analysis and the order passed below this application. In the order dt. Sept. 30, 1976 passed before this application, the learned Magistrate observed that the sample bottle was properly sealed and that it was in good condition. This statement contained in the order of the learned Magistrate also goes to show that the sample bottle was properly sealed. Therefore, apart from the presumption which could be legitimately drawn, there is evidence to establish that the provisions of Rule 16(d) were complied with by the food inspector. The finding of the learned Judge to the contrary, therefore, deserves to be set aside.

So far as the said decision is concerned, we must say, with respect, that it is not possible for us to countenance the view that once the report of the public analyst is superseded by the certificate issued by the Central Food Laboratory, the report does not get totally effaced, but it remains operative to the extent its contents are not inconsistent with those of the certificate. In our opinion, the view of the Division Bench runs counter to the settled legal position as reflected by the decision of the Supreme Court in Chetumal's case 1981 Cri LJ 1009 (supra) and a catena of other decisions on the point. Once there is supersession of the report of the public analyst by a superior certificate of the Director, the superseded report gets totally effaced and is excluded from evidence whole hog. Under these circumstances, it would not be open to the Court to try to salvage the situation by making exercise with a view to finding out as to whether any materials from the report of the public analyst are retrievable insofar as they are not inconsistent with what is stated in the superior certificate of the Director. In our view, once the public analyst's report is superseded, it goes overboard. Nothing contained in the said report thereafter can be looked into by the Court. The limited extent to which the contents of the report of the public analyst can go into evidence is laid down by Section 13(5). It is expressly made subject to the contingency that it is not superseded by the superior report of the Director. Until that eventuality occurs, the contents of the report of the public analyst may be looked into by the Court. But once the report gets superseded it gets totally excluded from evidence and hence no part of the said report can then be considered as evidence of its contents. The entire report gets totally substituted and superimposed by the superior certificate of the Director. If the public analyst has anything to say from his personal knowledge as to how he handled the sample for the purpose of analysis or in what physical state he found the sample, the public analyst concerned has to enter the witness box to establish these facts. But whatever he has stated* in his report on these aspects gets totally effaced on account of the supersession of the report by the certificate of the Director. Consequently, the contents of the superseded report cannot by themselves be relied upon by the Court for any purpose. In our view, therefore, the observations made by the Division Bench as extracted above, to the effect that in spite of supersession, the contents of the superseded report could be looked into as evidence of the facts stated therein which are other than contrary facts mentioned in the certificate, cannot be treated to be laying down good law. Such truncated supersession of the report of the public analyst as envisaged by the Division Bench in the aforesaid decision is contraindicated by Section 13(3) read with Section 13(5), of the Act.

Conclusion:- As a result of the aforesaid discussion, our answer to the I question referred to us is in the negative.

30. x x x x x x


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