D.P. Desai, J.
1. The main question raised in this appeal is: Whether the report of a Public Analyst under Section 13 of the Prevention of Pood Adulteration Act. 1954 (hereinafter referred to as 'the Act') which is not in the form No. III prescribed by Rule 7 of the Prevention of Food Adulteration Rules. 1955 (hereinafter referred to as 'the Rules'), is admissible in evidence under Section 13(5) of 'the Act without examining the Public Analyst? Together with this question, the question which may collaterally arise has also been posed in this proceeding. It is whether in a case where the report is not in the prescribed form as stated above is it open for the prosecution to examine the Public Analyst and prove the facts stated in the report?
2. The matter has come up before (us on a difference of opinion on the first question which arose as a result of our learned brother Surti. J. having found himself unable to see eye to eye with the interpretation of Section 13(5) of the Act ny our learned brother D. A. Desai J in Criminal Revn. Appln. No. 587 of 1972 decided on 17-7-1973 (Guj). On account of this, Surti, J. has referred the matter to a Division Bench.
3. The facts necessary for the present purpose may be stated briefly The appellant is a food-grains dealer; arid respondent No. 2 being the Food Inspector of Ahmedabad Municipal Corporation purchased from the appellant's shop on August 3. 1971. Tuver Dal. Admittedly, he did this for the purposes of the Act. Therefore, ihaving divided this article into three samples and sealing them, he sent one of the samples to the public Analyst. The Public Analyst gave his report at Exh. 5 stating as the result of his analysis that metanyle yellow colour had been added to Tuver Dal which is not allowed under the Act. This report was given in form No. Ill as prescribed bv Rule 7 of the Rules. But the difficulty in this case for the prosecution arose out of the fact that instead of utilising the amended form No. HI as substituted in the year 1968 in tihe Rules, the old form No. Ill was utilised1. The report has been made on August 5. 1971. In view of this report, the appellant came to be prosecuted for the offence punishable under Section 16(1)(a)(i) read with Section 7 of the Act. At the trial, the appellant pleaded not guilty to the charge. The aforesaid report of the Public Analyst was admitted into evidence as evidence of the facts stated therein without examining the Public Analyst. We are not much 'concerned with the defence raised1 by the appellant to the effect that the had purchased the Tuver Dal from a whole-seller and had sold it in the same condition.
4. The learned City Magistrate did not accept this defence, and having held that Tuyer-dal was adutlerated, convicted the appellant under Section 16(1)(a)(i) read with Section 7 of the Act. sentencing him to six months' simple imprisonment and a fine of Rs. 1000/- with further simple imprisonment for three months in case of default Hence this appeal.
5. In the case which arose before D. A Desai. J. in Criminal Revn. Appln. No. 587 of 1972 also the reiport of the Public Analyst was in the old form and not in the amended form. The question about admissibility of this report without examining the Public Analyst, therefore, arose before the learned Judge. The learned Judge expressed himself on this question as under:
Surprisingly this form No. III was amended on 8th July 1968 and even after a lapse of five years the Ahmedabad Municipal Corporation has not awakened to its duty to amend its printed forms in which the reports are submitted. Only that report which is in the prescribed form becomes admissible in evidence without the evidence of the public Analyst. If the report is not in the prescribed form and Public Analyst is not examined, obviously the report would be inadmissible. If the report is excluded from the evidence, there is nothing to show that article of food in question was an adulterated article of food. I am expressing no opinion on the question whether oral examination of the Public Analyst would supply the lacuna. That question may be examined in an appropriate case.
6. Surti J. in his differing judgment differed from this view and observed as under:
Thus, the language employed by the legislature in sub-sectioin (5) of Section 13 is sufficiently clear to come at a conclusion that it was open to the learned Magistrate to receive in evidence Exh. 5 though Exh. 5 namely the report of the Public Analyst might not have been in prescribed form as required by the Rules.
Before coming to the main question posed before us. one observation need be made, betausa the learned Magistrate, in paragraph 2 of his judgment, has stated that the sample of Tuver-dal was found adulterated and that the accused had not challenged inter alia this fact. Now. admittedly, the only evidence to prove that this sample was adulterated, was the report of the Public Analyst at Exh. 5. The learned Magistrate, while examining the accused under Section 342 of the Code of Criminal Procedure, has not put to him any question with regard to this report. Unless, therefore, the accused is given an opportunity to explain this evidence which was the only evidence, it is .difficult to agree with the observation of the learned Magistrate that the fact that the sample was found adulterated, has not been challenged. In this view, the prosecution is not relieved of its duty to prove that this sample was adulterated; and the prosecution will fail if on a correct interpretation of the provisions of the Act and the Rules, it is held that this report Exh. 5 is not admissible in evidence. If on the contrary, as contended by Mr. G. T. Nanavati far the State, the report can be held admissible in evidence, but only the weight to be attached to it has to be determined, other conten- tions raised on behalf of the appellant may have to be examined.
7. The relevant provisions of the Act and the Rules may now be stated:
8. Sections 11(1)(b), 11(3), 13 and 23(1)(e) of the Act read as under:
11. (1) When a food inspector takes a sample of food for analysis, he shall:
(a) x x x(b) except in special cases provided by rules under this Act separate the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits; and
(c) x x x(3) When a sample of any article of food is taken under Sub-section (1) or subsection (2) of Section 10. the food inspector shall send a sample of it in accordance with the rules prescribed for sampling to 'the public analyst for the local area concerned-
13. (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 (in) 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 subsection (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 send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis.
(3) The certificate issued by the Director of 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 Indian Penal Code, 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 tinder Sections 272 to 276 of the Indian 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.23- (1) The Central Government may, after consultation with the Committee and subject to the condition of previous obligation. make rules:
x x x(e) defining the qualifications, powers end duties of food inspectors and public analysts; . x x x
9. So far as the Rules are concerned. Rules 7. 16, 17 and 18 are relevant for our purposes; and they read as under:
7. Duties of a public analyst: (1) On receipt of a package containing a sample for analysis from a food inspector or any other person, the public analyst or an officer authorised by him shall compare the seals on the container and 'the outer cover with specimen impression received separately and shall note the condition of the seals thereon.
(2) The public analyst shall cause to fee analysed such samples of articles of food as may be sent to him by the food Inspector or by any other person under the Act.
(3) After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in Form III within a period of sixty days of the receipt of the sample.
16. Manner of packing and sealing 'the samples: All samples of food sent fort analysis shall be packed, fastened and sealed in the following manner, namely:
(a)The stopper shall first be securely fastened so as to prevent leakage of the contents in transit.
(b) The bottle, jar or other container shall than be completely wrapped in fairly strong, thick paper. The ends of 'the paper shall be neatly folded in and affixed by means of gum or other adhesive.
(c) The paper cover shall be further secured by means of strong twine, or thread both above and across the bottle, jar or other container, and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which 'there shall be at least four distinct and clear impressions of the seal of the sender, of which, one shall be at the top of the packet, one at the 'bottom and! the other two on the body of the packet The knots of the twine or thread shall be covered by mean of sealing wax bearing the impression of the seal of the sender
17. Containers of samples how to be sent to the public analyst: The container of sample for analysis shall be sent to the .public analyst by registered post or railway parcel or air freight, or by hand in a sealed packet, enclosed together with a memorandum in Form VII in an outer (cover addressed to the public analyst.
Provided that in the case of a sample of food which has been taken from Agmark sealed container, the memorandum in Form VII shall bear the following additional information:
(ii) Agmark label No./Batch No.
(iii) Name of packing station.
18. Memorandum and impression of seal to (be sent separately: A copv of the memorandum and a specimen impression of the seal used to seal the (packet shall be sent to 'the public analyst separately by registered post or delivered! to him or to any person authorised by him.' Florin III appended to the Rules is also relevant and may be reproduced:
(See Rule 7 (3))1
(Report by the Public Analyst)
I hereby certify that I...Public Analyst for...duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954. received on the...day of...19...from...a sample of...for analysis, properly sealed and fastened. (The seal on the container of the sample tallied with the specimen impression; of the seal separately sent (by the Food1 Inspector and the sample was in a condition fit for analysis)
I further certify that I have/have caused to be analysed the aforementioned sample, and declare the result of my analysis to be as follows: and am of the opinion that. Signed this...day of...19 Address...(SignatureV Public Analyst.
10. It may be mentioned &t; this stage that the bracketed (portion in the aforesaid form was substituted by G. S. R. 1533 dated July 8. 1968 for the original (portion thereof. The fault in the present case lies in the fact 'that the report of the Public Analyst (Exh. 5) has been sent in the fonm prior to its amendment by G. S. R. 1533 dated 8-7-1968. The result is that instead of the bracketed portion, the portion with regard to the sealing which is to be found in Exh. 5 reads as under:
I hereby certify that...for analysis, properly sealed and fastened and I found the seal intact and unbroken.
Thus the statement of fact made in. th old form relates to the finding of th seal intact and unbroken. But it does not relate to comparison of this seal found on ths sample with the specimen impression of the said seal sent separately by the food inspector to the Public Analyst; nor does it contain the statement that the sample was in a condition fit for analysis. As will be shown in due course, a duty is oast On the public analyst under the law not only to note the condition of the seal or the container of the sample bottle but also to compare the seals thereon with the specimen impression received separately. It is clear that the report Exh. 5 in the present case does not comply with a very material direction as regards the comparison of the seals with the specimen impression, and therefore, it can well be said that the report in question is not in the form prescribled. The controversy in the present case, however, has arisen on account of the view canvassed on behalf of the State and the Corporation that in order to be admissible under Sub-section (5) of Section 13 of the Act, the report of the public analyst need not be in a prescribed form. It is urged that even though Sub-section (I)1 of Section 13 provides for 'the delivery of a report by the public analyst to the food inspector in such form as may be urescribed. Sub-section (5) does not contain 'the words 'in the prescribed form'. It is also urged in support of the view canvassed on behalf of the State and the Corporation that the word 'document' used in Sub-section (5) goes to show that the legislature did not require that the report in order to b'e admissible as evidence of the facts stated therein, without examining the public analyst, should be in the prescribed form. It was further urged that what is made admissible by the terms of Sub-section (5) is 'Any document purporting to be a report signed) by a public analyst.' Lastly, a contention was posed in the form of e. question based1 on the possibility that the Government may not prescribe any form whatsoever under Section 13(1). The question was: What would happen if in such a case the public analyst sends a report?
11. It is not in dispute that ibut for the provisions of sulb-section (5), this report of a public analyst, whether it is in the (prescribed form or not. would not by itself, be evidence of its contents without examining the public analyst. If this (provision was not there, it would have become necessary to call the public analyst in support of formal proof of this report and the contents thereof. As observed by thig Court in Mohanlal v, Vipanchandra : AIR1962Guj44 , the report and the certificate under subsection (5) are made evidence with the object not to necessitate a formal proof.
Thus, in making this provision, the normal rule as to proof of a document allog-ed Ho have been signed by any person as Iccntained in Section 67 of the Indian Evidence Act ha9 been dispensed with. Subsection (5) also makes, a certificate signed by the Director of the Central Food Laboratory, admissible in evidence to prove the facts stated therein. This certificate, as per Sub-section (2) is also required to be given in the prescribed form; and the prescribed form is form No. II. Now. the words 'report' and 'certificate' used in Sub-section (5) should b'e construed to refer to the report and certificate contemplated by Sub-sections (l)i and- (2) respectively, if the whole section is to be read in construing the provisions of subsection (5), The legislature having provided for a report and a certificate in the (prescribed form under Sub-sections (1) and (2). .proceeded to dispense within the formal proof thereof and to make these documents admissible as evidence of the facts stated' therein. In the nature of things, therefore, the report and the certificate mentioned in Sub-section (5)> have reference to the report and the certificate which, are given as contemplated by subsections 11) and (2) of Section 13. This is clear on a plain reading of the provisions of Section 13 of the Act. The absence of the words 'in the prescribed form' in Sub-section (5) is not indicative of the fact that even a report which does not comply with the requirements of Sub-section (1) was intended to be made admissible as evidence of the facts stated therein without requiring the examination of the public analyst, The use of the word 'document' as well as the phrase 'Any document purporting to be a report signed by a public analyst' in Sub-section (5) is not indicative of the fact that the legislature intended any report which may not be in the prescribed form to be admissible as evidence of the facts stated therein. The phrase 'any document purporting to be a report signed by a (public analyst' is only descriptive of the document which can be used as evidence of the facts stated therein under Sub-section (5) dispensing with the formal proof thereof. All that it shows is that the signature of the public analyst below the report need not be proved to be in his handwritings by oral evidence thus dispensing with the proof of signature contemplated by Section 67 of the Indian Evidence Act. It is also not understood why the legislature having insisted upon the furnishing of a report in a prescribed form, should have thought of making any other report which is not in the prescribed form, admissible in evidence by waiving the ordinary rules of proof of the contents end proof of the signature of the document as contemplated by the provisions of Section 67 of the Indian Evidence Act. This provision has been made, as observed by a Division Bench of this Court in Mohanlal's case (supra) inter alia with the object that the Jesse or the trial under the Act should be concluded as expeditiously as possible and that delay in the trial by reason of a certificate from the Director having been sought foB. should be avoided as far as possilble. , While making a .provision for a Speedy trial, the legislature also tried to safeguard! the interest of the accused persona who may be brought up before the Court for contravention of the provisions of the Act and the Rules framed thereunder. Some of these safeguards are to be found in Section 11(1)(b) which lays down a duty on. the food inspector to separate the sample on the spot into three parts and mark and seal or fasten up each .part in such manner as its nature permits. The other safeguard is to be found in Section 11(3) which requires the sample taken toy the food inspector to be sent in accordance with the Rules prescribed for sampling to the public analyst for the local are? concerned. Section 23(11)(e) provides for making of rules inter alia for the purpose of defining the duties of food inspector and public analyst. Rule 7 clearly lays down the duty of the public analyst to compare the seals on the container and the outer cover with specimen impression received separately and to note the condition of the seals thereon. At this stage if we turn to Rule 18. it lays - a duty on the food inspector to send a loopy of the memorandum and a specimen impression of the seal used to seal the packet to the public analyst separately by registered post or to deliver to him or to any person authorised by him. This specimen impression has to be compared under Sub-rule (1) of Rule 7 bv the public analyst with the seals on the con-'trainer. Sub-rule (2) of Rule 7 basts a duty upon the public analyst to cause to be analysed the samples sent to him. Sub-rule (3) of Rule 7 in terms states that after the completion of the analysis, the public analyst has to send to the person concerned 'two copies of the report of the result of the analysis in form No. Ill within a Period of sixty days of the receipt of the sample. Rule 16 provides for the manner of packing and sealing the samples in details. Rule 17 provides for the manner of sending the containers of sample to the public analyst. Thus, detailed provisions 'have been made in. order to safeguard the interest of a person who is likely to be tried for the contravention of the ipro-visions of the Act and who is likely to be convicted if the sample is found adulterated on the strength of the report of the public analyst alone. If this object of the legislature is kept in mind, it is clear that the provisions of Sub-section (51 of Section 13 apply to a report or a certificate issued in the prescribed form. It appears that even though Sub-rule (1) of Rule 7 had' already provided for comparison of seals on the container and the outer cover with specimen impression received separately from the food inspector, form No. Ill before its amendment in 1968 merely provided for the satisfaction of the public analyst that the container was properly sealed and fastened and that the seal was intact and unbroken. In order 'to make the duty of the public analyst more effective, the legislature by amending form No. Ill in the year 1968 provided for a statement to be made by the public analyst in the form about 'Comparison of the seals, and also about the satisfaction of the public analyst that the sample was in a condition fit for analysis. Now. the result of the comparison of seals as stated in form No. III as amended in 1968 would be evidence of the fact of the public analyst having discharged his duty under Sub-rule (1) of Rule 7 which lays a duty on Mm to compare the seals on the container end the outer cover with specimen impression received separately and to note condition of the seals thereon. In the absence of this statement in the report it would be difficult to establish that the very sample sent by the food inspector to the public analyst alleged to have been seized from a particular vendor, was examined by the public analyst. In the nature of things, the office of the public analyst is likely to receive a number of samples for analysis duly sealed. In order, therefore, that there may not creer in an error in communicating the result of the analysis of one sample as that pertaining to another sample, the form has been amended.
12. Therefore, considering the provisions of Sections 11 and 13 of the Act and the relevant Rules, it is clear that in order that a report of the public analyst may be admissible in evidence without examining the public analyst, it must comply strictly with the requirements of form No. Ill which inter alia furnishes evidence of the public analyst having discharged his duty under Sub-rule (1) of Rule 7 as regards the identity of the sample examined by him. So far as the contention raised on behalf of the State 'based in the form of a question 'as to what would happen if no form is prescribed by the Government?' is concerned, the same need not detain us. as the form has already been prescribed under the Rules; and the question of interpretation of subsection (5) does not turn upon such consideration now.
13. Considering the language of the provisions of Sub-sections (l), (21i and (51 of Section 13 with the provisions of Rules 7, 16. 17 and 18. it is clear that the requirements of these provisions are mandatory. Therefore, strict compliance with the same is necessary. In Mary Lazrado v State of MysoreAIR 1966 Mys 244 : (1966 Cri LJ 1036). a learned Single Judge of Mysore High Court came to the conclusion that the provisions ol R. 7 and 18 are mandatory. Having stated so._ the learned Judge said that non-compliance with those provisions affelcts the evidentiary value of the report of the public analyst With great respect, we are unable to agree with 'the observations made by the learned Judge in the latter part of his judgment. This part is to be found in the last paragraph of the judgment under report. However, certain observations made in paragraphs 10 and 11 of that judgment bring out the need for strict compliance with the provisions contained in Section 13 and the Rules. These observations read as under :
10. In 'this context, it is worthy of note that Section 13 itself makes a distinction between the evidentiary value of the report of tihe Public Analyst and that of the Certificate issued by the Direlctor of the Central Food Laboratory. While Section 13(5) lays down that a report signed by the public Analyst 'may be used as evidence of the facts stated therein' the proviso ta it lays down the certificate singed by the Director 'shall be final end conclusive evidence of the facts stated therein'. Further when a certificate of the Director is produced in the case, it shall not be necessary in such a proceeding to produce any sample of food taken for analysis. Since the report of the Public Analyst has neither finality nor conclusiveness as evidence of the facts stated therein, it becomes all the more obligatory on the Court to require strict and imperative compliance with the Rules before it decides to use the report of the public Analyst as proof of the accused's guilt,'
11. Looking to the scheme of the various sections and the Rules made under the Act it is manifest that the Magistrate can accept the report as evidence only if the report is prepared after full and thorough compliance with the Rules....Speaking again with respect, if the report submitted in a particular form shows non-compliance with the provisions of the Rules as regards the comparison of the seals. it cannot be used as evidence of the facts stated therein and the question is one of its admissibility. No question of giving due weight thereon arises. That would arise only when a report of the public analyst in full compliance with the Rules has been brought on record.
14. On this point Mr, Nanavati for the State urged that in insisting upon the strict compliance with the requirements of form No. III. we would make a report which does not contain even an insignificant particular of that form inadmissible in evidence. In support of this contention,he gave illustration of a report which is otherwise in the prescribed form but does not contain the report number or does not contain the heading of the report as the report of the public analyst. This apprehension is misplaced What is required is the strict compliance and not literal or mechanical compliance.
15. It is interesting to find 'that a similar contention came to be raised before the Allahabad High Court in Munici-,pal Board. Faizabad v. Lai Chand : AIR1964All199 . In that case the actual words used in the report were :
I further certify that I have caused to be analysed the aforementioned sample end declare the result of the analysis to foe as follows.
The contention in that case was based upon the following words of form No. Ill:
I further certify that I have/have caused to be analysed the aforementioned sample and defclare the result of 'mv analysis' to be as follows:' The contention was that in the certificate given, instead of the words 'my analysis' the words 'the analysis' were used. The High Court, with respect, rightly rejected the argument that the certificate in the report was not in the prescribed form-But then, in paragraph n as an alternative to the aforesaid contention another observation was made; and to an extent Mr. Nanavati for the State relied thereon. The observation is:In any case, even if the report was not on the prescribed form under the provision of law. it was a document purporting to be a report signed by a Public Analyst within the meaning of tliat term under this provision of law and was evidence of the facts stated therein.' If these observations mean that any report purporting to have been signed by a public analyst even though it is not in the prescribed form, is made admissible as evidence of the facts stated therein without examining the public analyst, we with very great respect, are unable to agree with the same.
16. Having considered the relevant (provisions bearing upon the main question iposed before us. we agree with the view of our learned brother D. A. Desai, J-that a report of a public analyst which is not in the prescribed form as required by law, is not admissible in evidence as evidence of the facts stated therein without examining the public analyst. This will be sufficient to dispose of the present matter as observed by us earlier.
17. However, a collateral question has been raised in this proceeding and in order 'that the present decision may not be taken as laying down that in case of a report Which is not in the prescribed form, the prosecution is debarred from proving the fact of adulteration of the article concerned by examining the public analyst, we proceed to express our opinion on the collateral question as well. As observed earlier, Sub-section (o) dispenses with 'the formal -proof of the contents of the Report and the proof of the signature of the public analyst on the report. But it does not debar other manner of proof of 'the result of the examination of the sample by the public analyst. Nothing from the Act or the Rules has been pointed out to us which would suggest that this other mode of proof by examining the Public Analyst) that the sample in question is adulterated is- prohibited. A Division Bench of this High Court in State v. Karson Zayer : AIR1960Guj34 had to deal with 'the contention that the oral evidence of the public analyst was not admissible. In this connection, it was observed at page 37 of AIR : 1535 of Cri LJ as under:
Although such a special rule of evidence has been laid down in the Act, it cannot abrogate the general rule of evidence, regarding proof of facts. Facts can always be proved by oral evidence and by the evidence of experts.
Therefore, it is clear that in a case where the report given by the public analyst is not in the prescribed form, the contents of the report can be proved by examining the public analyst. It will be open for the prosecution to decide in each case having regard tot the contents of the report as compared with the prescribed form, whether the public analyst should be examined or not.
18. Thus, our decision on the first question is that 'the report contemplated bv first question is not admissible in evidence; and our opinion on the second question is that it is open for the prosecution to examine the public analyst where it finds that the report given by him is not in the prescribed form.
19. As the report Exh. 5 in the present case is not admissible in evidence, it is clear that there is no other evidence in proof of the fact that the sample purchased from the appellant was adulterated. On this ground, the appellant will be entitled to be acquitted.
20. In the result, the appeal is allowed. The order of conviction and sentence passed against the appellant is set aside; and the appellant is acquitted of the offences punishable under Section 16(1)(a) dill read with Section 7 of the Prevention of Food Adulteration Act. Fine, if paid, should be refunded to him. His bail bound will stand cancelled.