District Board, Patna v. Baijoo Sao — 1974 DIGILAW 132 (PAT)

JUDGMENT S.P. Sinha, J. Respondent Baijoo Sao was convicted under section 16. (1) (a) (i) read with Section 7 (i) of the Prevention of Food Adulteration Act, 1954 (Act 37 of 1954) for selling mustard oil adulterated with linseed oil and was sentenced by the trial court to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- in default to undergo rigorous imprisonment for three months. The appellate court acquitted the respondent for the reasons inter alia that there was non-compliance with the requirement of rules 7 and 18 of the Prevention of Food Adulteration Rules, 1955 inasmuch as there was no evidence of the fact that the public analyst had compared the seals on the container (containing mustard oil in question) and outer cover with the specimen of the seals put thereon, and that the report of the Public Analyst was, not admissible. According to the appellate Court, the provisions of the above rules were mandatory in nature. The State of Bihar, (2) aggrieved by the acquittal, has preferred this appeal. 2. The facts are simple. 'The respondent runs a grocery shop at Kurji within Digha Police Station, one of the quarters of the town of Patna. On the 10th of July, 1965 Ramji Pd. Singh (P. W. 3), Health' and Food Inspector attached to the District Board, Patna got a sample of the mustard oil which the respondent was keeping for sale in his shop. After performing the formalities for collecting the sample, he divided the sample in three containers putting seal on each of the containers and also on the outer cover thereof. Thereafter he handed over one of those sealed containers to the respondent keeping the other with himself for production in court and sent the third one to the Public Analyst along with a "memorandum (Ext. 3) stating in it the person from whom the sample had been collected and the place from where it was collected and also the date on which it was collected. He further mentioned in the said memorandum that :- "A copy of this memo and specimen impression of the seal used to seal the packet is being sent separately by hand." The Public Analyst submitted his report (Ext. 6) in form no. He further mentioned in the said memorandum that :- "A copy of this memo and specimen impression of the seal used to seal the packet is being sent separately by hand." The Public Analyst submitted his report (Ext. 6) in form no. 3 prescribed under the Rules stating therein that the sample had a strongly positive reaction under hexabromide test for linseed oil and that therefore in his opinion the sample of mustard oil was adulterated with linseed oil. This report is dated 21st. of December, 1965, i. e. roughly five and a half months after the date the sample had been sent. It may be stated here that the report was given on form no. 3 of the Rules which has since been amended on the 8th of July, 1968 by adding a certificate to the effect that- "The seal on the container of the sample tallied with specimen impression of the seal separately sent by Food Inspector and the sample was in a condition fit for analysis." Previous to this amendment, as the certificate given by the Public Analyst (Ext. 6) shows, the only certificate with regard to the seal on the container and its outer cover was that it was "properly sealed and fastened". 3. Consequent upon the said report of the Public Analyst a complaint was filed by the District Medical Officer of Health of the District Board, Patna before the Sub-divisional Officer, Sadar, Patna charging the respondent with the offence of selling adulterated mustard oil. This complaint petition was filed on the 7th of February, 1966. The respondent was convicted by order dated 8th of July, 1966 on his pleading guilty & sentenced to undergo rigorous imprisonment for six months. There was an appeal and the learned Sessions Judge set aside the order of conviction. The case was remanded for retrial in accordance with the procedure for trial of warrant cases. This time the respondent did not plead guilty, but took the defence that he was not selling adulterated mustard oil. The sample collected from him was pure mustard oil and that it had been adulterated after the sample had been collected from him. In his written statement the respondent specifically mentioned that the conduct of the Food Inspector was not above board and the manner in which he took the sample was equally so. The sample collected from him was pure mustard oil and that it had been adulterated after the sample had been collected from him. In his written statement the respondent specifically mentioned that the conduct of the Food Inspector was not above board and the manner in which he took the sample was equally so. For the prosecution three persons were examined in proof of the charge against the respondent. Besides the District Inspector of Health (P. W. 3), a disinfector under the District Board was examined as P. W. 2. The trial court convicted and sentenced the respondent as aforesaid. In appeal it was urged before the appellate court that since there was no mention in the Public Analyst report (Ext. 6) that the seal on the container and the outer cover had been compared with the specimen seal separately sent, the report was invalid and it could not be taken in evidence. The appellate court observed that there was no evidence of the fact that the specimen of the seal used to seal the container and the outer cover had been received by the Public Analyst and that it was on a comparison of the seal on the container and the outer cover with the specimen seal that the Public Analyst had certified that the containers were properly sealed and, fastened. The appellate Court then observed by reference to a decision reported in 1967 Criminal Law Journal 1723 that since formalities regarding the seal, as required under the Rules, had not been observed, the report could not be made admissible. The rules prescribed and the formalities were not directory but mandatory. The appellant was, therefore, acquitted. 4. Mr. A. K. Saran, learned counsel appearing for the respondent raised a preliminary objection as to whether in terms of section 20 of the Prevention of Food Adulteration Act the District Board was at all a local authority entitled to institute a prosecution. Preliminary objection was, however, withdrawn. I need not, therefore, deal with it. Appearing on behalf of appellant, Mr. Sidheshwari Pd. Preliminary objection was, however, withdrawn. I need not, therefore, deal with it. Appearing on behalf of appellant, Mr. Sidheshwari Pd. Singh submitted firstly, that the rules were not mandatory but only directory and secondly, which is the main contention, that the specimen impression of the seal which had been used to seal the packet and the outer cover having been sent by P.W. 3, the Food Inspector, to the Public Analyst and the Public Analyst being satisfied that the sample of the musatrd oil sent for analysis had been properly sealed and fastened, the presumption under section 114 illustration (e) thereof, of the Indian Evidence Act should be applied and it should be held that the Analyst had regularly performed his act. In other words, according to Mr. Singh when the Public Analyst gave the certificate of the sample container being properly sealed and fastened, the Analyst must be presumed to have-given that certificate only after comparing it with the specimen of the seal used to seal the container. Mr. Saran for the respondent has replied saying that the rules were mandatory in nature and their non-observance vitiated the Public Analyst's report. He further submitted that in the absence of evidence of the fact that the specimen of the seal had been received by the Public Analyst, no presumption could be raised that the 'Public Analyst's report had been given after due observance of all the necessary formalities under the Rules. Each side has tried to support his argument with a plethora of case laws. I will deal with them at the appropriate place. 5. The provisions which are relevant to be read for the purposes of this case are rules 7 and 113 of the Rules. Rule 7 prescribes the duties of a Public Analyst and the part which is relevant reads as under-“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." Rule 113 of the Rules requires the memorandum and impression of seal to be sent separately. It reads. It reads. "A copy of the memorandum and 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." In terms of rule 7, after analysing the sample sent to him, the Public Analyst is required to send two copies of the report of the result of the analysis in form III within a period of sixty days of the receipt of the sample. As to whether these rules were mandatory or merely directory in nature this Court has held in the case of Daitari Mahto Vs. The State I that the said rules were mandatory in nature and that any non-compliance of the same would vitiate the conviction. "The reason which impelled their Lordships to come to that conclusion was that the requirement to send the specimen impression of the seal used by Food Inspector in a separate packet was to safeguard the interest of the prosecutor and the prosecuted both. It was a guarantee against tampering and it was a sure guide to a Public Analyst that the sample before him which he was required to analyse was the self same sample which the Inspector had collected from the accused. I must, therefore, reject Mr. Singh's arguments that rules 7 and 18 of the, Rules were not mandatory in nature but only directory. 6. The contention which has been mainly stressed on behalf of the appellant is that notwithstanding the absence of evidence about the receipt of the specimen of the seal used in scaling the container and the outer cover, observance of rule 7 of the Rules by the' Analyst must be presumed by virtue of section 114 illustration (e) of the Evidence Act. It is not necessary to, quote the provisions of section 114 of the Evidence Act, but it is of significance to note that in the illustration given under the said provisions of the said Act the word is; "court may presume". Under section 4 of the 'Evidence Act it is provided that when the Act says that the court "may presume" a fact, it may regard such fact as proved unless and until it is disproved or may call for proof of it. Under section 4 of the 'Evidence Act it is provided that when the Act says that the court "may presume" a fact, it may regard such fact as proved unless and until it is disproved or may call for proof of it. In the instant case if all the steps, which are necessary to be taken before a particular official act is performed, are proved to have been taken, the court may presume that the official act has been regularly performed. It, therefore, follows that for bringing in the legal presumption of an official act having been regularly performed, it must be proved that all the required steps for performing that act had been duly taken. That the required steps had been taken, however, cannot be presumed but has to be proved as a fact. Thus for example, in order to presume that the Public Analysts report about the intactness of the seal on the container was a regularly performed act, it must be proved as a fact that the specimen of the seal had not only been sent to him but had been received by him. Once it is established that the specimen of the seal had been duly received by him and he had also received the sealed container, his report regarding intactness of the seal must be presumed to have been given after duly performing the comparison which he was required to make in terms of rule 7 of the Rules. 7. On the question as to how far the presumption under section 114 of the Evidence Act is to be taken in aid in a case of such a nature as is the one before me where there is absence about the receipt of the specimen of the seal, the various High courts have held varying opinion. In the following cases the view expressed is that notwithstanding the absence of evidence of the specimen of the seal having been received, the Public Analyst's report could not be described as irregular or treated as vitiated: (The State Vs. Uma Charan Ram;2 Subbayyan Muthukomaran vrs. State of Kerla and others.3 8. In the following cases the view expressed is that notwithstanding the absence of evidence of the specimen of the seal having been received, the Public Analyst's report could not be described as irregular or treated as vitiated: (The State Vs. Uma Charan Ram;2 Subbayyan Muthukomaran vrs. State of Kerla and others.3 8. Now the cases which have taken the view that the unless it was proved that all the steps required to be taken before the Public Analyst gave his report relating to the intactness of the seal were proved to have been duly taken, the presumption under section 114 of the Evidence Act would not be available are these : Gopal Sao Vrs. State Bihar4 Daitari Mahto Vrs. The State and Badri Sah Vrs. State of Bihar5. The view which I have expressed in an earlier part of my Judgment finds support from these decisions. My first reaction on reading the decision of the Supreme Court in Kasim Kunju Pookuniu's6 case was to follow the view expressed by the other High Courts referred to above. Reading this decision c1mely, however, I find that it does not decide the question as to whether or not in the absence of evidence with regard to the receipt of the specimen of the seal by the Analyst, the presumption under section 114 of the Evidence Act should be applied. It only says that since the High Court had accepted the evidence furnished by the prosecution there was no ground left for interference. Where, however, the question was whether or not a particular step had been taken before the official act can be presumed to have been regularly performed, the Supreme court in Food Inspector, Cannanore Municipality, Cannanore vrs. Pandavalappil Kannan7 (This decision, however, adds a rider that if the due performance is challenged by the party in the inquiry itself, possibly the presumption under section 114 of the Evidence Act may not be available). Then there is a case of our own High court in Dilo Sao vrs. State of Bihar8, in which Shambhu Pd. Singh, J. has preferred to follow the line taken by the above mentioned High courts on the ground that in the case of Kasim Kunju PookunJu and another Vrs. Then there is a case of our own High court in Dilo Sao vrs. State of Bihar8, in which Shambhu Pd. Singh, J. has preferred to follow the line taken by the above mentioned High courts on the ground that in the case of Kasim Kunju PookunJu and another Vrs. K. K. Ramkrishna Pillai and another6, the presumption that the Public Analyst had acted in accordance with the rules, as had been presumed by the Kerala High court in that case, had been approved. In the case of Kasim Kunju 'Pookunju, referred to above, the Kerala High court had presumed that the Public Analyst had acted in accordance with the rules and he must have compared the specimen impression received by him with the seal on the container. Their Lordships observed that : "...At any rate, the question was one of accepting the evidence furnished by the prosecution on the point and the High court having found on that evidence that the requirements of the Rules had been satisfied there will be hardly any ground left on which this court can interfere." In the case of Collector of Customs, Baroda vrs. Digvijay Sinhji Spinning & Weaving Mills Ltd.9 observed: "...... The High court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this where the validity of an order depends upon the fulfillment of a condition, the party relying upon the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the Statute....." In this case the question was whether' the condition for the exercise of a power had been fulfilled before the imposition of fine by the Chief Customs authority, namely, by the Board of Revenue confiscation of goods and a fine had been imposed on a person by the Collector of Customs for breach of certain provisions of the Sea Customs Act 1873. The Central Board of Revenue interfered in it by reducing the penalty. The said person did not pay the penalty and under the said Act the Collector of Customs notified the default in writing to a first class magistrate for recovery of the penalty. The Central Board of Revenue interfered in it by reducing the penalty. The said person did not pay the penalty and under the said Act the Collector of Customs notified the default in writing to a first class magistrate for recovery of the penalty. The magistrate issued warrant of attachment against the said person who filed a petition before the magistrate for cancellation of the said order on the ground that the order of Central Board of Revenue was illegal and also on the ground that the Collector of Customs had no jurisdiction to take action for recovery of the penalty by this procedure. The magistrate held that he could validly realise penalty from the said person. The matter was taken in revision before the High Court of Bombay which held that since the penalty was imposed by the Central Board of Revenue which was the Chief Customs authority, the Magistrate could not realise the penalty. The High court also expressed an opinion that the final order of the Central Board of Revenue was not without jurisdiction as it was not proved that it had not been done with the consent of the owner of the goods, before the order commuting the penalty of confiscation to a penalty of fine was passed. In relation to the question as to whether the condition for the exercise of the power by the Central Board of Revenue had been regularly performed their Lordships of the Supreme Court made the above observation namely that if the validity of the order depends upon the fulfillment of a condition, the party relying upon presumption should atleast show that the order on the face of ids regular and is in conformity with the provisions of the statuts. This decision, therefore, is an authority which lays down the law that the prosecutor must prove that the required step had been duly taken or the required condition had been duly fulfilled, before the final official act can be presumed to have been regularly performed. In the instant case the steps necessary to be taken before a public Analyst's report can be said to be a regularly performed official act, are those which are laid under section 11(1) of the act and Rules 7 and 18 of the Rules. In the instant case the steps necessary to be taken before a public Analyst's report can be said to be a regularly performed official act, are those which are laid under section 11(1) of the act and Rules 7 and 18 of the Rules. The steps required to be taken by the Food Inspector in terms of section 11 (1) of the Act are : (a) 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; (b) to separate the sample then and there in three parts and mark and seal or fasten up each part in such a manner as its nature permits; (c) deliver one of the parts to the person from whom the sample had been taken; (d) Send another part for analysis to the public analyst; (e) retain the third part for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under subsection 13, as the case may be; Under rule 18 of the Rules, the Food Inspector is required to send a copy of the memorandum and specimen and impression of the seal used to seal the packet to the public analyst separately by registered post or deliver him or to any person authorised by him. The step required to be taken by the Public Analyst on receiving the sample, is to note the condition of the seal on the container and the outer cover on comparing it with the specimen of the seal separately received by him and then proceed to analyse the content. Each of these steps must be proved to have been taken before the presumption under section 114 can be applied for the benefit of the prosecutor. As observed in the Daitari Mahto's case, referred to above, the imp3rtance of the requirement to send the specimen impression of the seal used by the Food Inspector in a seprate packet and the receipt of the same by the public analyst is that the method of check and verification provided for by the rules is the only guarantee against comparing and is a definite source of confidence both to the accuser and to the accused and to court that the sample analysed was the very sample which had been submitted by the Food Inspector. The Supreme court in the case of Ukha Kolha Vrs. The State of Maharashtra 10 was considering a case under the Bombay Prohibition Act, in which blood sample of the accused had been collected once early in the morning in the hospital and then later on in the evening. On the blood which had been collected in the morning there was report of the chemical examiner that the specimen disclosed concentration of alcohol in excess of the permissible limits. The accused had challenged that report did not pertain to blood collected from his body. Their Lordships observed as under; "...The certificate of Dr. Rote dated April 13, 1961 that he had collected blood from the body of the appellant on the morning of April 3, 1961 and that the bottle containing the blood was sealed in his presence corroborates the statement. But there is no evidence on the record about the person in whose custody this phial remained till it was handed over to the Sub-Inspector of Police on April 13, 1961 when demanded. There is also no evidence about the precaution taken to ensure against tampering with the contents of the phial when it was in the Civil Hospital and later in the custody of the police between April 13, 1961 and April 18, 1961. Even the special messenger with whom the phial was not examined; and Ext. 43 which was the acknowledgement signed by some person purporting to belong to the establishment of the Chemical Examiner does not bear the official designation of the person. The report of the Chemical Examiner mentions that a sealed phial was received from the police officer by letter no. C/010 of 1961 dated April 18, 1961, but there is no evidence that the seal was the one which was affixed by Dr. Rote on the phial. These undoubtedly were defects in the prosecution evidence which appears to have occurred on account of insufficient appreciation of the character of the burden which the prosecution undertakes in proving a case of an offence under s. 66 (1) (b) relying upon the presumption under s. 66 (2)". 9. Rote on the phial. These undoubtedly were defects in the prosecution evidence which appears to have occurred on account of insufficient appreciation of the character of the burden which the prosecution undertakes in proving a case of an offence under s. 66 (1) (b) relying upon the presumption under s. 66 (2)". 9. In the instant case in spite of specific objection raised by the respondent to the admissibility of the Public Analyst's report as evidence, on the ground that there was no evidence of the fact that the specimen of the seal had been received by the Public Analyst and that his report about the intactness of the seal on the container containing the sample was after a comparison as required under rule 7 of the Rules, the prosecution did not take heed to it. It felt content by proving that the specimen of the sample had been sent to the Public Analyst. This is a defect in the prosecution evidence which can not be cured by reclining on the resumption under section 114, Evidence Act. Since the Public Analyst' report gets excluded as a proof of adulteration done by the respondent, nothing else remains to convict him for adulteration. Mr. Saran, appearing for the Respondent drew my attention to the evidence of the Food Inspector, P. W. 3, that be knew the respondent's shop from before and that he had selected this shop amongst the several others of the neighbour-hood. This with a view to suggest that the conduct of P. W. 3 was not above board and that it may be even vindictive. It is difficult to accept such a suggestion. But all the same, owing to the lacuna in the prosecution evidence it would not be proper to interfere with the judgment of acquittal. The order acquitting the respondent has, therefore, to be upheld. 10. Mr. Singh, appearing for the appellant, submitted that when the respondent was first tried, he had been convicted on admission of his guilt and that this should weigh with this court and restoring the order of conviction passed by the trial court. I cannot accept this argument for the simple reason that an order of retrial wipes out' from the record of the earlier proceeding; vide A.I.R. 1963 Supreme Court 1531, referred to above. 11. In the result the appeal is dismissed. Appeal dismissed.