FOOD INSPECTOR v. AMBUHUNJI — 1978 DIGILAW 125 (KER)

Judgment :- 1. The Food Inspector, Cannanore Municipality has, with leave of this court, appealed against the decision of the Chief Judicial Magistrate, Tellicherry in C. C. 401 of 1972 acquitting the 3 accused in the case. The appellant here was the complainant in C. C. 401 of 1972. The complainant's case is that on 9 5 1972 at about 8 A. M he purchased from the first accused 650 ml of buffalo milk for sampling. At that time the fust accused was taking the milk for sale to the Cannanore Co-operative Milk Supply Union. The milk belonged to the Thnkkaripur Co-operative Society of which second accused is said to be the Secretary and the 3rd accused is said to be the Chairman. The first accused was taking the milk on behalf of the Society to be delivered to the Milk Supply Union. The report of the Public Analyst showed that the sample did not conform to the standard prescribed under the Prevention of Food Adulteration Act (hereinafter called as the Act). The trial magistrate held that there was no evidence to show that accused 2 and 3 were respectively Secretary and Chairman of the Society. On that account accused 2 and 3 were acquitted. The first accused was acquitted on the ground that the specimen impression of the seal used to seal while sampling was not shown to have been forwarded to the Public Analyst separately as contemplated by R.18 of the Prevention of Food Adulteration Rules. It is this acquittal that is under challenge here. 2. Though complainant's case is that accused 2 and 3 represent the Thrikkaripur Co-operative Society as Secretary and Chairman respectively no material is shown in support of such a case. It is not the appellant's case that any material available has not been noticed by the learned trial Magistrate. I have necessarily to find that there is no case for implicating accused 2 and 3 in the absence of any evidence to substantiate the plea that they were respectively the Secretary and Chairman of the Society. 3. The case seriously urged by the appellant's counsel concerns the guilt of the first accused. According to learned counsel the evidence in the case establishes that the first accused was taking milk for sale to the Milk Supply Union, that the Food Inspector purchased 650 ml. 3. The case seriously urged by the appellant's counsel concerns the guilt of the first accused. According to learned counsel the evidence in the case establishes that the first accused was taking milk for sale to the Milk Supply Union, that the Food Inspector purchased 650 ml. of the milk for sampling in accordance with the provisions of the Act and Rules and that in view of the report of the Public Analyst finding that the milk was adulterated conviction of the first accused should in any event follow. But there seems to be a link missing in the evidence that may be necessary to implicate the first accused. The report of the Public Analyst which finds the milk to be adulterated can be depended upon only if the sample that was analysed is shown to be the sample despatched by the Food Inspector received by the Public Analyst in the same condition in which it was sent. To ensure this safeguards are envisaged in the Prevention of Food Adulteration Act and Rules. Particular reference may be made in this context to R.17 and 18 of the said Rules. R.18 requires that a copy of the memorandum and specimen impression of the seal used to seal the packet be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him. The memorandum mentioned in this rule is the memorandum referred to in R.17, namely that in Form VII. A similar copy of the memorandum is to be sent to the Public Analyst along with the sample. These are not to be sent together and evidently that is to avoid tampering. R 7 of the said rules obliges the Public Analyst, on receipt of package containing a sample for analysis, to compare the seals on the container and the outer cover with specimen impression received separately and note the condition of the seals thereon. This it a very important safeguard to as accused charged with an offence of adulteration. It is only the comparison of the seal on the container of the sample and the outer cover with the specimen impression of the seal received separately that could indicate that the seal found in tact on the container and the outer cover h really the seal affixed by the Food Inspector while sampling. It is only the comparison of the seal on the container of the sample and the outer cover with the specimen impression of the seal received separately that could indicate that the seal found in tact on the container and the outer cover h really the seal affixed by the Food Inspector while sampling. If there is tampering the result of the analysis may not be sufficient to find that the material sold by the accused was adulterated. 4. In support of the prosecution case the Food Inspector was examined as pw.1. pw. 2 was examined to prove the sampling. It may be taken from the evidence of these witnesses that the Food Inspector took samples in accordance with law. But the further question is whether, apart from forwarding a sealed container of the sample along with the memorandum in Form VII which is marked as Ext. P3 in the case, the Food Inspector separately forwarded a specimen impression of the seal alongwith a copy of the memorandum to the Public Analyst. This is a matter for proof. pw.1 is silent on this He does not speak to having forwarded this. No witness speaks to this. It may be taken that there is no oral testimony on this point, The learned trial Magistrate found that the provision requiring the specimen impression of the seal to be forwarded separately to the Public Analyst is a mandatory provision and in as much as it is seen to be violated the prosecution must be found to have failed to prove the case against the accused. 5. Counsel for the appellant relies on S.13 (5) of the Act in support of his case that there was evidence to show that the specimen impression of the seal had been forwarded to the Public Analyst. That the requirement under R.18 is mandatory, is apparent. The object of the rule is to ensure that the sample analysed is the same as the sample sent and that it is received without any tamp ring. That the provision in the rule is mandatory has been held by the High Court of Bombay in the decision in Laxmandas Sarvotamdas Doshi & Co. v. State of Maharashtra, (1975 F A J. 606) and in State of Maharashtra v. Laxman N. Khamkar (1977 F.A.J. 197), with which view I agree. 6. That the provision in the rule is mandatory has been held by the High Court of Bombay in the decision in Laxmandas Sarvotamdas Doshi & Co. v. State of Maharashtra, (1975 F A J. 606) and in State of Maharashtra v. Laxman N. Khamkar (1977 F.A.J. 197), with which view I agree. 6. S.13 (5) of the Act, leaving out the proviso which is not relevant for the purpose of this case, reads thus: "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 (herein in any proceeding under this Act or under S.272 to 276 of the Indian Penal Code (Act XLV of 1860):" Sub-section (!) of that Section provides that the Public Analyst should deliver, in such form as may be prescribed, to the Health authorities, the result of the analysis of any article of food submitted to him for analysis. It is said for the appellant that in view of sub-section (5) the facts stated in the statutory report issued by the Public Analyst must be taken as evidence even without any independent proof. According to learned counsel for the accused it is not any and every fact stated in the report that should be taken as proved by the issue of a report but only the result of the analysis Learned counsel Sri. Chandramohan Das argues that the reference in sub-section (5) of S.13 to the supersession of the report of the Public Analyst by the certificate under sub-section (3) or any document purporting to be a certificate signed by the Director of the Central Food Laboratory would indicate that what is contemplated in the subsection as evidence is only the result of the analysis, for, a certificate of the Director of the Central Food Laboratory is one concerning the analysis and not the condition of the sample received by the public analyst. At first sight this argument may sound attractive. At first sight this argument may sound attractive. But looking at the object of the provision which dispenses with the examination of the Public Analyst to prove the report issued by him it cannot be said that it is only the result of the analysis that should be taken as evidence on the strength of sub-section (5) of S 13 Evidently the object of providing that a report would be evidence by itself is to obviate the examination of the Public Analyst in each and every case. In fact, if that were necessary the Public Analyst would find little time to attend to his work of analysis as he may have to spend most of his time in courts to prove the reports issued by him. The report which, in the normal course, may have to be proved through him is to be treated as evidence even without his examination. In a prosecution under the Act the prosecution is bound to prove that the sample was properly taken, it was properly despatched to the Public Analyst, that it was in proper condition when it was received by the Public Analyst and the result of the analysis showed that the material was adulterated. The proof of the proper condition of the sample when received by the Public Analyst is as important and vital to the prosecution as the fact of adulteration proved by the report. If the receipt of the sample in proper condition is normally to be proved by the examination of the Public Analyst it would mean that notwithstanding the provision to accept the report as evidence the Public Analyst will have to be examined to prove that the sample was received in proper condition if the report was not to be relied upon as evidence on that point without his examination. In other words the object of providing for receiving a report as evidence without examination of the Public Analyst would be defeated by confining sub-section (5) only to that part of the report which relates to the result of the analysis. To read sub-section (5) in the restricted manner is therefore not justified keeping in view the apparent object of the provision. Further it is evident that the form of report to be issued by him is statutorily prescribed and the Public Analyst is required to issue his report in such form. To read sub-section (5) in the restricted manner is therefore not justified keeping in view the apparent object of the provision. Further it is evident that the form of report to be issued by him is statutorily prescribed and the Public Analyst is required to issue his report in such form. Form III provides for certifying not only the result of the analysis but also the fact that the sample was received properly sealed and fastened and that the seal is found intact and unbroken. There is a further statement in Form III prescribed under R.7 (3) of the Rules that "The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis." I find that this part of the report is as much to be treated as evidence by reason of S.13 (5) as the result of analysis. 7. From the foregoing discussion it follows that the Public Analyst's report would be evidence of the fact that the specimen impression of the seal was also forwarded, for, without the same it could not be verified as mentioned in the report. But the further question is whether on the finding that this is evidence I could convict the accused in this case. It is one thing to say that there is evidence in a case and another thing to find on the evidence the accused could be convicted. The weight of the evidence would depend upon the circumstances and in some cases it may be so light as not sufficient to be acted upon without corroboration. It is particularly so when the evidence is not that of any witness who may be in a position to speak to the tact but the result of inference drawn such as from the issue of a report when there has been no opportunity to challenge the correctness of that report. In this case there is absolutely no other evidence to show that the specimen impression of the seal had been forwarded separately to the Public Analyst. This is a fact to which pw.1 could have spoken and possibly bad he spoken so even without any corroborative evidence the circumstance that the report mentions this fact might have been taken as possibly proving the prosecution case on this. This is a fact to which pw.1 could have spoken and possibly bad he spoken so even without any corroborative evidence the circumstance that the report mentions this fact might have been taken as possibly proving the prosecution case on this. That again is not to be stated as a proposition since the facts and circumstances in each case will determine the weight of such evidence. But in the absence of such evidence merely on the basis of S.13 (5) could it be said that there is evidence in this case and on that would the court be justified in reversing the order passed by the learned Magistrate? It is in this context that the nature of Form III becomes relevant and significant. S.13 (1) of the Act obliges the Public Analyst to deliver a report. He cannot refuse to issue such report on the ground that the seal of the container is broken, that it was not in tact or that the seal did not compare favourably with the specimen impression of the seal separately sent or that no specimen impression was sent. Those are matters to be noticed by the Public Analyst. R.7 deals with the duties of the Public Analyst. Sub-rule (1) of this Rule obliges him to compare the seal and to note the condition of the seal on the container. This note to be made by him is certainly not on the report to be delivered by him, for such report is to be prepared subsequently after the analysis. Therefore the note is to be made elsewhere. Sub-rule (3) obliges him to deliver within a period of sixty days of the receipt of the sample for analysis a report of the result of the analysis in Form III. Strangely enough Form III does not provide for making a true note in a contingency when the seal is broken, or tampered with or specimen impression is not received or the seal on the container does not favourably compare with such specimen. The first paragraph of that form mentions of receipt of the sample for analysis 'properly sealed and fastened' and further says "that I found the seal intact and unbroken " Where there was no proper seal and fastening or where the seal is not intact or unbroken how to note the alternative is not evident from the form. The first paragraph of that form mentions of receipt of the sample for analysis 'properly sealed and fastened' and further says "that I found the seal intact and unbroken " Where there was no proper seal and fastening or where the seal is not intact or unbroken how to note the alternative is not evident from the form. May be that a very judicious Public Analyst may strike out the words and add in their place his own. Where there is a prescribed form to expect the Public Analyst to do so is not reasonable. So is the form in regard to certificate which reads: "The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis." Supposing the seal did not tally or no specimen impression was sent how the Public Analyst should certify that fact is not evident form this Form. The form should have provided for an alternative such an "tallied/ did not tally" in which event the Public Analyst could use the appropriate words in the Form to reflect the true facts. 8. I am mentioning this not in any way to indicate that the form is bad (of course it could have been so worded as to meet the situation mentioned here) but to indicate that when such a prescribed form is used and when one is under statutory obligation to deliver a report in that form the evidentiary value of the statement as to the comparison of the seal with the specimen impression of the seal which finds a permanent place in that form is very very little. That by itself may not sustain the conviction of an accused. 9. It is always for a court to consider whether the evidence available in a case is sufficient to warrant the conclusion to be reached on such evidence. The mere fact that there is some material which is said to be evidence in law and there is no counter evidence does not oblige the court to accept such evidence as proving a fact. The judicial discretion calls for exercise in such circumstances so as to ascertain whether in the circumstances of the case the material before it could warrant a finding accepting such material as sufficient to prove a fact. The judicial discretion calls for exercise in such circumstances so as to ascertain whether in the circumstances of the case the material before it could warrant a finding accepting such material as sufficient to prove a fact. In a similar situation a Division Bench of the Allahabad High Court said thus in Puran Singh v. State of U. P. (1978 F.A. J. 68): "As is clear from the language of the Section read as a whole, specially of subsection (5) of S.13 a report signed by a Public Analyst is evidence of the facts stated therein, but it would be open to the court deciding the case either to accept such evidence to be reliable or vice versa. If on the face of it the correctness of the report appears not free from reasonable doubt, a benefit of that doubt has to go to the accused." I may also notice here the observations of Jahagirdar, J of the High Court of Bombay in the decision in H. T Jadhav v. Ramniklal ( 977 F.A.J. 506), made in a case where the evidence indicated that the specimen impression of the seal was not sent separately but was sent along with the sealed container of the sample forwarded to the Public Analyst. Reliance was placed in that case on the entry made in the report of the Public Analyst in the prescribed form which provides for certifying that the seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. Referring to this the learned judge said thus: "In view of my clear finding given earlier that the memorandum and the specimen impression of the seal were not sent separately I am convinced that this printed form of the Public Analyst has been signed mechanically and the recitals that they were sent separately is incorrect. I, therefore, bold that there is a patent non-compliance with the mandatory requirement of R.18 and on that ground the prosecution must fail." I am not prepared to hold on the sole statement in the report of the Public Analyst Ext. P4 to which I have already adverted that the requirements of R 18 of the Rules have been complied with. If that be not so, then the decision of the learned Magistrate must prevail. That means that the appeal has to fail. P4 to which I have already adverted that the requirements of R 18 of the Rules have been complied with. If that be not so, then the decision of the learned Magistrate must prevail. That means that the appeal has to fail. The acquittal of the accused in the case must stand. The appeal is dismissed. Dismissed.