P. K. Ali v. Food Inspector, Tellicherry — 1967 DIGILAW 202 (KER)

Judgment :- 1. This revision petition is filed by the accused in the case. The 1st accused is the father of the 2nd ccused. The Food Inspector, Tellicherry, filed a complaint against them under S.16(1) (a) (i) read with S.7(1) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act, in that they sold sweets containing non-permitted coaltar dye. The 1st accused contended that the 2nd accused was the owner of the trade and that he had nothing to do with it. The 2nd accused, from whom the Food Inspector purchased the sample, pleaded not guilty. 2. he trial court found the accused guilty and convicted them of offence punishable under S.16(1)(a)(i) of the Act and sentenced the 1st accused to undergo S. I. for one year, and to pay a fine of Rs. 2,000/-, in default to undergo S. I. for a period of six months; and the 2nd accused to pay a fine of Rs. 100/-, in default to undergo S. I. for three months. 3. here was an appeal by the accused to the Sessions Court, Tellicherry. The Sessions Court confirmed the convictions, but reduced the sentence to 4 months' S. I. and to a fine of Rs. 1,000/- so far as the 1st accused was concerned. The sentence imposed by the trial court on the 2nd accused was confirmed. 4. Mr. Rama Shenoi, appearing for the petitioners submitted that there is no evidence to show that the 1st accused was conducting a trade in sweets or that the sample of sweets was adulterated, that the certificate of the Director of Central Food Laboratory does not conform to the requirements of law, and should not be looked into, that the local areas have not been defined under S.2 (vii) of the Act, that no Food Inspectors have been appointed under S.9 of the Act with reference to the local areas, that there is no evidence that PW.1 was appointed as 'Food Inspector', or was authorised under S.20 of the Act to file the complaint, and that the punishments are out of proportion to the gravity of the offences. 5. On the first point, there is the concurrent findings of the lower courts that the 1st accused was the owner of the trade. Mr. 5. On the first point, there is the concurrent findings of the lower courts that the 1st accused was the owner of the trade. Mr. Shenoi contended that apart from the evidence of pw.1, there is no other evidence to show that the 1st accused was the owner of the trade and that the best evidence to show that the 1st accused was the owner of the trade would have been the licence granted from the Municipality to the 1st accused, permitting him to carry on the trade, and in the absence of the best evidence in the matter, it should not have been found that the 1st accused was the owner of the trade. I am satisfied that the evidence of pw.1 was sufficient for holding that the 1st accused was the owner of the trade. The courts below have given sufficient reason for holding that the 1st accused was the owner of the trade. I, therefore, overrule the contention. 6. The next argument of Mr. Shenoi was that Ex. P-4 certificate issued by the Director of Central Food Laboratory has superseded the certificate, Ex. P-3, issued by the Public Analyst, but should not have been acted upon as that certificate did not specify the particular variety of non-permitted coaltar dye used in the preparation of the sweets. The certificate states: "Certifies that the sample bearing number 581 purporting to be a sample of Adulterated Sweets received on 15 71965 with Memorandum No. C. C. 275/64 dated 28 61965 from Smt. Aley Alexander, District Magistrate (n, Tellicherry, Kerala State, has been tested/ analysed and that the result/results of such tests (s)/analysis is/ are stated below: Added colouring matter A non-permitted basic coalter dye, rose in shade, is present along with permitted colours, Tartrazine, blue V. R. S. and Sunset Yellow. Opinion: The sample of Sweets is adulterated." Mr. Shenoi's contention is that the particular variety of non-permitted coaltar dye used in the preparation of the sweets should have been specified in the certificate, and as it has not been so specified, the certificate is not sufficient to bring home the case that the sample was adulterated. In support of this contention he referred me to the ruling in City Corporation v. Reddiar 1962 KLT.199. In Para.4 of the judgment it is observed. In support of this contention he referred me to the ruling in City Corporation v. Reddiar 1962 KLT.199. In Para.4 of the judgment it is observed. "Several decisions, English and Indian, were cited before us in support of the argument that a certificate containing merely the opinion, and not the data on which the same is based, cannot be acted upon. In Nerby v. Sims (1894-1 Q. B. 478), the conviction of the accused was set aside on the ground that the certificate did not "state the proportion of water mixed with rum. Fortune v. Hanson, 1896-1 Q. B. 202, was a case in which the certificate was held to be bad as evidence of adulteration, as it did not state the constituent parts of the sample of milk analysed. The judgment in Goulder v. Rook, Dent v. Ormerod, Lee v. Bent, and Burlow v. Noblett.1901-2 K. B. 290 four cases disposed of together, is also to the above effect. The absence of relevant data was held to be bad in Din Dayal v. State (AIR. 1956 All. 520), State v. Shanti (1958 All. 34), Municipal Board v. Badloo (1960 All. 504). and Gurucharan Das v. The State (1957 Punj.109). These were cases of adulteration of ghee, milk and pepper". He also referred to the decision in Food Inspector v. Muthuswamy Nadar 1962 KLT. 865. There Smt. Anna Chandy J., in considering a certificate which stated that the sample analysed is adulterated as it contained "coaltar dye other than those permitted to be used in food by the Prevention of Food Adulteration Rules", observed that the certificate is not in conformity with law. She observed: "Now, not all coaltar dyes are forbidden. What is prohibited is the use of coalter dyes other than those enumerated in R.28. Though it might not be correct to hold with the learned Magistrate that the expert should have specified the particular dye that was found, I feel that it is not unreasonable to say that the court which is confronted with the duty to find that a dye other than the permissible varieties was in fact used, should be told something of the data on which the expert based his opinion that such a dye was used. We do not know how it is that the expert arrived at his final opinion. We do not know how it is that the expert arrived at his final opinion. For instance, we do not know whether he conducted a test to show that some type of coaltar dye was present in the sample and then went on with other tests to eliminate the possibility that the dye was one of the permissible types, or whether having suspected the use of a particular dye of the prohibited varieties he conducted a test to positively prove its presence. As we do not know what tests were conducted by the expert all arguments whether a particular test is of a conclusive nature or whether more than one test is needed for an acceptable verdict are in the realm of conjecture. I therefore think the learned Magistrate was right in refusing to act on the certificate". In re Abdul Azeeze 1963 KLT. 698 which was relied on by the court below, the question was whether the certificate of the Public Analyst was inadmissible in evidence because no quantitative analysis was conducted by the Analyst. The certificate in that case stated the particular variety of non-permitted coaltar dye used. It was contended in that case on the strength of the ruling in Food Inspector v. Muthuswamy Nadar 1962 KLT. 865 that the certificate was inadmissible in evidence as it did not mention the nature of the test conducted by the Public Analyst. The court over-ruled that contention, but approved the principle laid down in Food Inspector v. Muthuswamy Nadar, and stated that "there is no need for the court to insist that the report should contain the technical processes by which the presence of the dye was identified." As regards the decision in Food Inspector v. Muthuswamy Nadar 1962 KLT. 865, the court said: "In that case where some sweets were certified to be adulterated as they contained "a prohibited variety of coaltar dye", it was held that the certificate which did not reveal the data on which the opinion was based was insufficient. Though the adulterant is of the same type in these two cases the crucial difference is that there the Analyst did not name the extraneous matter found, but merely stated it was coaltar dye of "the prohibited variety". Though the adulterant is of the same type in these two cases the crucial difference is that there the Analyst did not name the extraneous matter found, but merely stated it was coaltar dye of "the prohibited variety". Such a certificate which does not even identify the adulterant was considered entirely valueless and it was held that as the Analyst failed to name the dye used he should have given the data on which he based his conclusion that a certain type of dye was used, namely, whether he positively identified a prohibited variety of coaltar dye or whether his tests were directed to prove that none of the permitted varieties were used". In P. Sreedharan v. Food Inspector 1965 MLJ. (Crl). 452 the decision in City Corporation v. Reddiar 1962 KLT. 199 was quoted with approval by a Division Bench of this Court. This is what the Court said: "Under the proviso to S.13 (5) 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 in any proceedings under this Act. But it has been repeatedly laid down that the certificate of the Analyst should contain factual data and not merely his opinion as to what the data indicated about the nature of the article and if the certificate only gives the final opinion of the Analyst and if such an opinion is treated to be conclusive about the nature of the article the evidence against the accused is really decided by the Public Analyst and not by the Court and that it cannot be the position in law". 7. In Rupert Cross on Evidence, 1958 Edn., page 333, the learned author speaking about the duty of Public Analysts says: "Their duty is to furnish the judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence." Hawkins J., in Fortune v. Henson 1696-1 Q.B. 202, 205 observed: "The certificate must state such facts as would enable the justices themselves to come to a conclusion whether the article of food in question had or had not been adulterated." In Suleman v. State of Gujarat AIR. 1961 Gujarat 120,125 Bhagwati J., said: "It must, however, be remembered that the opinion of the Chemical Examiner is merely a piece of evidence on the point regarding concentration of alcohol in the blood of the accused and it is the court which has to form its opinion on the entire evidence as to whether the concentration of alcohol in the blood of the accused was not less than 0.05 per cent. The report of he Chemical Examiner containing his opinion must, therefore disclose the factual data on which the opinion is based and the reasons in support of the opinion Opinion is no evidence unless reasons in support of the opinion are given, for it is then only that the court can scrutinize the reasons and decide for itself as to what weight should be attached to the opinion". In Titli v. Alfred Robert Jones AIR. 1934 Allahabad 273, 280 it is observed: "The opinion of an expert by itself may be relevant but would carry little weight with a court unless it is supported by a clear statement of what he noticed and on what he based his opinion. The expert, should, if he expects his opinion to be accepted, put before the Court all the materials which induced him to come to his conclusion, so that the Court, although not an expert, may form its own judgment on those materials: S.51, Evidence Act." In Behram Sheria Irani v. Emperor AIR. 1944 Bombay 321, 323 it is stated: "If the Chemical Analyser's report alone is to be considered sufficient, it should contain all the information which that officer himself would have been able to furnish if he had been examined as a witness." In Nagar Mahapalika Kanpur a. Ram Niwas AIR. 1964 Allahabad 349 the court said: "Under the proviso to sub-section (5) of S.13 of the Prevention of Food Adulteration Act the certificate of the Director of the Central Food Laboratory is final and conclusive evidence of the facts stated therein, but not of any opinion expressed therein. Courts of law can record a finding of their own after taking into consideration the facts stated in the certificate of the Director and other evidence on record. In other words, the courts are not bound to accept the opinion of the Director and in suitable circumstances can reject it." 8. Courts of law can record a finding of their own after taking into consideration the facts stated in the certificate of the Director and other evidence on record. In other words, the courts are not bound to accept the opinion of the Director and in suitable circumstances can reject it." 8. The decisions relied on by the respondent for the proposition that the report need not contain the particular non -permitted coaltar day used are Mangaldas v. Maharashtra State AIR. 1966 SC. 128 and T. A. Ouseph v. State of Kerala 1967 KLT. 290. These decisions are only authorities for the proposition that the report need not state the quantity of the non-permitted coal-tar dye used in the preparation of the article of food sent for analysis or the nature of the analysis conducted by the analyst to detect it. 9. In Mangal Das v. Maharashtra State (AIR. 1966 SC. 128) the Court said: "Mr. Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves and quite apart from the fact that it was not challenged by any of the appellants as inadequate when it was put into evidence, we are satisfied that it contains the necessary data in support of the conclusion that the sample of turmeric powder examined by him showed adulteration. The report sets out the result of the analysis and the tests performed in the public health laboratory. Two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder. The microscopic examination showed the presence of pollen stalks. This could well be regarded as adequate to satisfy the mind of a judge or magistrate dealing with the facts. Mr. Ganatra then said that the report shows that the analysis was not made by the Public Analyst himself but by someone else. What the report says is "I further certify that I have caused to be analysed the afore mentioned sample and declare the result of the analysis to be as follows." This would show that what was done was done under the supervision of the Public Analyst and that should be regarded as quite sufficient". 10. What the report says is "I further certify that I have caused to be analysed the afore mentioned sample and declare the result of the analysis to be as follows." This would show that what was done was done under the supervision of the Public Analyst and that should be regarded as quite sufficient". 10. The non-permitted variety of coaltar dye has varied from time to time and I think it only proper that the analyst should detect and specify in the certificate the particular variety of non-permitted coaltar dye found in the sample. In Woodman's book on'Food Analysis', it is stated at page 73: "Although the identification of a coaltar colour is much more difficult than its simple detection in a food, the examination of a product for colour can hardly be considered complete unless this be done". I think, I am bound to follow the decision in Food Inspector v. Muthuswamy Nadar 1962 KLT. 865 in view of the fact that the Division Bench in Inre Abdul Azeeze has approved it. 11. Mr Shenoi submitted that S.13 (5) of the Act, which makes the certificate of the Director of Central Food Laboratory conclusive as regards the facts stated in it is bad as it ousts the jurisdiction of the Court to enquire into the truth of the facts stated. S.13 (5) is as follows: "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 S.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." Counsel said that by making the certificate conclusive evidence of the facts stated, the jurisdiction of the Court to adjudicate the truth of those facts has been taken away and given to a non judicial functionary and to that extent there is usurpation of the judicial function of the Court. In support of this contention, he relied upon the ruling of the Privy Council in Liyanage v. Reginam 1966-1 All E. R.650. In support of this contention, he relied upon the ruling of the Privy Council in Liyanage v. Reginam 1966-1 All E. R.650. There, the Privy Council said that the legislations in question in that case were invalid on the ground that they were aimed only to cover the cases pending against the accused there, and so they were legislative judgments and that the judicial function of the court was usurped by the legislature. This is what Lord Pearce said: "Counsel for the appellants succinctly summarises his attack on the Acts in question as follows. The first Act was wholly bad in that it was a special direction to the judiciary as to the trial of particular prisoners who were identifiable (in view of the White Paper) and charged with particular offences on a particular occasion. The pith and substance of both Acts was a legislative plan ex post facto to secure the conviction and enhance the punishment of those particular individuals. It legalised their imprisonment while they were awaiting trial. It made admissible their statements inadmissibly obtained during that period. It altered the fundamental law of evidence so as to facilitate their conviction. And finally it altered ex post facto the punishment to be imposed on them. In their Lordships' view that cogent summary fairly described the effect of the Acts. As has been indicated already, legislation ad hominem which is thus directed to the course of particular proceedings may not always amount to an interference with the functions of the judiciary. But in the present case their Lordships have no doubt that there was such interference; that it was not only the likely but the intended effect of the impugned enactments; and that it is fatal to their validity. The true nature and purpose of these enactments are revealed by their conjoint impact on the specific proceedings in respect of which they were designed and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective, the punishment of those convicted. These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences. These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences. They were compelled to sentence each offender on conviction to not less than ten years' imprisonment, and compelled to order confiscation of his possessions, even though his part in the conspiracy might have been trivial". I do not know what relevance has that case for the decision of the question here. I am not sure whether our Constitution embodies any rigid doctrine of separation of powers. There are numerous instances where judicial powers have been given to executive officers, and adjudications made by them as regards facts made final. The rule of law sometimes means a preference for decision by judges of regular courts rather than decisions by executive or administrative officers. "In short every citizen is entitled, first to have his rights adjudicated by a regular common law court and secondly, to call into question in such a court the legality of any act done by an administrative or executive official", said John Dickinson in "Administrative Justice and Supremacy of Law", page 35. (See the quotation at page 26 of "Administrative Law Text" by Kenneth Gulp Davis). This would mean that a judge, not a trained Analyst, should decide whether non-permitted coaltar dye has been used in an article of food. I do not think that judges are trained for that purpose. There is nothing which detracts from the supremacy of law in entrusting this function to an executive official, "The Supremacy of law demands that there shall be opportunity to have some court to decide whether an erroneous rule of law was applied and whether the proceedings in which facts were adjudicated was conducted regularly", said Justice Brandies in his concurring opinion in St. Joseph Stock Yards Co. v. United States 298 U.S. 38. Several cases there are of the Supreme Court of the United States where it has been held that courts can be prevented from reviewing questions of law. (See Chicago & Southern Air Lines Ine. v. Waterman Steamship Corp. 333 U.S. 103. Switchmen's Union v. National Mediation Board 320 U.S. 297 and Kain v. United States 177 U.S. 880. Several cases there are of the Supreme Court of the United States where it has been held that courts can be prevented from reviewing questions of law. (See Chicago & Southern Air Lines Ine. v. Waterman Steamship Corp. 333 U.S. 103. Switchmen's Union v. National Mediation Board 320 U.S. 297 and Kain v. United States 177 U.S. 880. Whether there can be a law in our country which prevents the regular courts from reviewing questions of law, is a matter on which I would like to think further before expressing an opinion. But, I think, it is open to the Legislature having power to enact a law on the subject to enact a provision making findings on questions of fact by an agency other than a court final, and that the certificate Ex. P4, had it stated all the facts, would have been final. 12. The authorities cited would indicate that all the material facts should be stated in the certificate. The opinion expressed by the public Analyst or Director of Central Food Laboratory has no conclusiveness about it. If the particular variety of non-permitted coaltar dye had been stated in the certificate, that would have been conclusive but the court cannot act upon the opinion of an individual, however highly placed, unless the basis of the opinion is also stated. 13. Mr. Shenoi contended that it was the duty of the Government to have notified the local areas under S.2 (vii) and appointed Food Inspectors under S.9 of the Act in respect of the local areas. S.2(vii) runs thus: "Local area means any area, whether urban or rural, declared by the Central Government or the State Government by notification in the Official Gazette, to be a local area for the purposes of this Act". The material part of S.9 is in these terms: "The Central Government or the State Government may, by notification in the official Gazette, appoint such persons as it thinks fit. having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be". having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be". The notification published in 1959 under S.9 of the Act, appointing certain officers as Food Inspectors in their respective jurisdictions states: "In exercise of the powers conferred by S.9 of the Prevention of Food Adulteration Act, 1954 (Central Act, 37 of 1954) and in supersession of all previous notifications on the subject the Government of Kerala hereby appoint the following officers to be Food Inspectors within their respective local jurisdiction for the purposes of the said Act. 2. In the case of a Municipality having a Health Officer, the health officer of the Municipality and the Officers under his control designated as Sanitary Inspectors, Health Inspectors and Food Inspectors. 3. In the case of a Municipality not having a Health Officer, the Sanitary Inspectors, Health Inspectors and Food Inspectors appointed by the Municipality." It might be possible to construe the above notification as a notification both under S.2(vii) and under S.9 of the Act, and if so construed there might be no substance in the contention. I do not propose to express any opinion upon this question in view of my conclusion on the other point. I set aside the orders of conviction and sentence and acquit the accused. The fine, if any, paid by the accused will be refunded. The 1st accused will be set at liberty. The revision petition is allowed. Allowed.