1. This revision application is by one Ratan Lal and is directed against an appellate judgment of the learned Additional Sessions Judge No. 2 Jaipur City whereby the learned Judge, while dismissing the appeal lodged by the petitioner against judgment of the Municipal Magistrate First Class, Jaipur City dated 31st July, 1964 convicting the petitioner for an offence under Section 7/16 of the Prevention of Food Adulteration Act (hereinafter to be referred to as the Act) and sentencing him to one year's rigorous imprisonment together with a fine of Rs. 2,000, maintained both the conviction and the sentence.
2. The prosecution story was a short one. On 25th July, 1962 at about 8.30 A.M. a Food Inspector visited the shop of the accused petitioner where he sells ghee and the Inspector took a sample of ghee weighing about 12 ounces for test purposes after paying him Rs. 2.87 P. The ghee thus obtained was divided in three phials which were sealed in the presence of the motbirs. One phial was handed over to the accused, the other one was sent to the Municipal Council and the third one was sent to the Chief Public Analyst, Rajasthan for examination. The Chief Public Analyst gave his report to the effect that the ghee in question was found to he adulterated After obtaining the necessary sanction the accused was put on trial before the learned Municipal Magistrate. Jaipur The learned Magistrate recorded the evidence of the Food Inspector and the motbirs about the taking of the sample of ghee In the course of the trial the accused made an application before the learned Magistrate that the sample be sent to the Director of Central Food Laboratory. Accordingly the learned Magistrate sent the sample to the Director of Central Food Laboratory and the Director in due course is said to have issued a certificate about the examination of the sample at the Central Food Laboratory The accused while not contesting the taking of the sample from his shop in the manner alleged by the prosecution did not admit that the same was adulterated. The point of controversy that emerged was whether the sample was an adulterated one and for proving this the prosecution placed reliance in the first instance on the report of the Chief Public Analyst Rajasthan, and in view of the subsequent report of the Director of Central Food Laboratory they placed reliance on the certificate of the Director. However, the original certificate that the Director had sent to the court did not reach the court and consequently the court asked for a copy of the same from the Director of Central Food Laboratory. In compliance the Director sent a copy of his certificate sent earlier and that copy was placed on the record. The fate of this revision turns on the determination of the Question whether the copy of the certificate of the Director as distinct from the original certificate could legitimately furnish a basis for the drawing of the inference about the adulterated nature of the sample examined by the Central Food Laboratory. Both the courts had treated that certified copy as the requisite certificate for proof of the facts stated therein. The Additional Sessions Judge observed that a certificate issued by the Director being a Public document within the meaning of Section 74 of the Evidence Act a certified copy thereof could be taken in evidence when the original was not forthcoming. The learned counsel for the petitioner has challenged the admissibility of the certified copy of the certificate of the Director. He submits that what Sub-section (5) of Section 13 of the Act makes admissible in evidence regarding the proof of its contents is the certificate purporting to be signed by the Director and not a mere copy though a certified one of the same. Section 18 which falls for consideration in this regard runs as follows: (Section 13 reproduced.)
3. This section makes the report of a Public Analyst admissible in evidence. Sub-section (2) thereof enables either of the parties to seek a reference of the sample to the Director of the Central Food Laboratory and it ha* been made incumbent on the Director of the Central Food Laboratory to examine the sample and send his certificate in the prescribed form within one month from the date of the receipt of the sample, specifying therein the result of the analysis. The issuance of the certificate by the Director has the effect of completely superseding the report of the Public Analyst. Sub-section (5) enacts that any document purporting to be a certificate signed by the Director may be used a' evidence of the facts stated therein in any proceeding under the Act. The proviso appended thereto further provides that any document purporting to be certificate signed by the Director shall be final and conclusive evidence of the facts stated therein. The reference of the sample to the Director of the Central Food Laboratory is in the nature of a safeguard for the parties. It has been given an ever-riding effect and the moment it is issued it completely displaces the earlier report given by the Public Analyst. However, the rule about the admissibility of the document is a departure from the normal rule about adducing of evidence in a criminal trial, that the evidence furnished by the certificate is not given by the person issuing the certificate in the presence of the accused with the opportunity of cross examination but the certificate itself becomes evidence of the analysis conducted at the laboratory. Thus the rule being in the nature of a departure, in some way, from the normal procedure of a criminal trial has to be construed as it is. We have not be to set our sights higher and wider than what is warranted or permitted by the statute. The statute in clear terms permits only the use of a certificate purporting to he signed by the Director. In so many words it does notsay that a copy of the certificate could take the place of the certificate itself for the purposes of drawing inference therefrom as is envisaged in Sub-section (8) of Section 13 of the Act. The words 'any document purporting to be a certificate signed by the Director' do mean only the document by looking at which one can unhesitatingly say that it bears the signature of the Director. To my mind, a copy of certificate will not convey to the mind the very impression about the authorship of the certificate as would be conveyed by the original certificate.
4. No direct authority bearing on the question could be brought to my notice by the learned counsel. In B.B Mitra's Commentary on the Code of Criminal Procedure (Thirteenth Edition 1960) the author has however, made a mention of a case 15 W. R 49 (2) and observed (at page 943) while discussing Section 510 Cr. P. C., which in some respects is similar to Section 13 of the Act that the report of the Chemical Examiner must be the original report of the Chemical Examiner bearing his signature and not a copy of the report. I could not have the benefit of the case referred to therein as the same is not available in our library. Any way, that observation accords with my own opinion that where a special rule of evidence is in departure from the fundamental rules applying to a criminal trial then the requirements of the special rule should be fully and faithfully satisfied before the special rule can be resorted to. In this case, therefore, the copy of the certificate issued by the Director cannot be permitted to take the place of the original certificate of the Director for the purposes of applicability of Sub-section (5) of Section 13 of the Act.
5. The learned counsel appearing for the Municipal Council realising this tried to fall back on the report of the Public Analyst. The learned counsel submitted that as there was no certificate of the Director which could be taken as final and conclusive within the meaning of Sub-section (5) of Section 13 of the Act the earlier report of the Public Analyst will hold the field and should be acted upon. He has placed reliance in support of his submission on Municipal Corporation, Delhi v. Jai Dayal Jawanda Mal, AIR 1964 Punj 520. The learned Judges made the following observtions regarding the use to be made of the report of a Public Analyst:
'It is only when a certificate from the Director of Central Food Laboratory is treated by Court as final and conclusive evidence of the facts stated therein that under the law the report of fee Public Analyst may be considered superseded. If, however, the Director's certificate is not considered as final and conclusive evidence of the facts stated therein and is considered to be defective for the purpose of determining the issue of adulteration of the food stuff, then the report of the public analyst cannot be considered as superseded. This view is both in consonance with thescheme and object of Section 13 as also designed to promote the cause of justice.'
6. In the first place I have my grave doubts about the applicability of the above dicta to the facts and circumstances of the present case and secondly, for reasons to be mentioned by me hereinafter, I do not consider it necessary to take into consideration the view propounded above. The observations extracted above deal with a case where a certificate of the Director is found to be defective. In the present case the position is slightly different. The certificate in original was not forthcoming but in its place copy, though certified, was sought to be made use of. Thus it is not a case of a certificate being defective in any form. Apart from everything in the present case the report of the Public Analyst has not been properly made use of. If even after the issuance of the certificate by the Director the prosecution wanted to make use of the report then that report should have been put to the accused in his examination under Section 342 Cr. P. C. Moreover as there has been a second examination of the sample at the Central Food Laboratory and the so-called certificate placed on record does not tally in all respects with the report of the Public analyst the credibility of the report of the Public Analyst stands shaken a good deal.
7. I have pondered over the possibility of a certificate being lost by a mischance, after it is despatched and then the question is as to what is to happen if the original is not on account of its loss, available to the Court and a certified copy there as discussed above cannot be made use of. A serious question arises whether the cause of justice should be allowed to suffer on that account. The solution, in my view, lies in getting a duplicate certificate instead of a mere copy, so that the duplicate certificate which should again hear the signature of the Director himself could serve the purposes of Section 13 of the Act. The learned Municipal counsel says that it should be still possible for the court to call for a duplicate certificate bearing the signature of the Director himself.
8. In the circumstances the case, to my mind, merits a remand. The learned counsel for the petitioner submits that the incident which was the subject-matter of the trial occurred as back as July, 1962 and therefore the accused should not be subjected to a fresh trial. The delay is there, but it cannot be overlooked at the same time that the sample was sent to the Central Food Laboratory during the trial at the instance of the accused, and If by some mischance the original which was undoubtedly sent by the Directorate was not received by the court then that should not stand in the way of obtaining a duplicate certificate from the Director which could conform to the requirement of Section 13 of the Act. For the trial is not likely to be delayed.
9. In view of what I have discussed above the conviction and sentence awarded to the accused cannot be maintained.
10. In the result I accept this revision, setaside the judgment of the learned Additional Sessions Judge dated 17th April, 1965 whereby he confirmed the judgment of the learned Munsif Magistrate and remand the case to the learned Municipal Magistrate, First Class JaipurCity for a fresh trial from the stage he askedfor a certificate from the Director of the Central Food Laboratory. The learned Magistrate will try to obtain the certificate of the Director in duplicate bearing his signature if theofficer is the same, otherwise he shall dispose of the matter in the light of the observations made by me in the course of my discussion.