Samir Kumar Das v. Khagen Ghosh — 1985 DIGILAW 23 (CAL)

JUDGMENT 1. THE petitioner, a Food Inspector of the Corporation of calcutta, filed a petition of complaint before the learned Metropolitan Magistrate, calcutta on September 11, 1975 the learned Magistrate took cognizance of the case and issued summons on the opposite parties Nos. 1 to 4 under section 16 (1) " (a) (i) read with section 7 of the prevention of Food Adulteration act (hereinafter referred to as the Act). The accused opposite parties'' appeared and the learned magistrate proceeded with the enquiry of the case as the case was triable by a Court of Session. Subsequently the learned Magistrate, on February 15, 1979 recorded an order that the instant case was triable by him in view of a decision of this Court and the case need not be sent to any Court of Session, the learned Magistrate thus, proceeded to hear the case. On November 16, 1979 an application was filed on behalf of the accused persons for sending the sample given to them to the Director of Central Food Laboratory. The sample was produced by the accused. The learned magistrate found that the seals were in tact but the bottle was leaking and he rejected the said prayer of the accused. The learned Magistrate, however, by the same order directed the prosecution to produce a part of the sample kept by the prosecution for analysis by the Director of the Central Food Laboratory. The said sample was produced by the prosecution and was sent to the Director of the Central Food Laboratory for analysis. The report dated January 7, 1980 of the Director of the Central Food laboratory showed that the sample was found decomposed and unfit for analysis. The learned Magistrate by an order dated January 25, 1980 discharged the accused persons under section 245 (2) of the code of Criminal Procedure. 1973 observing' that there was no other part of the sample which could be sent for analysis. The learned Magistrate has further observed that the seized article of food is an adulterated product has not been prima facie established. ' Being aggrieved, the petitioner has obtained the present Rule. 2. 1973 observing' that there was no other part of the sample which could be sent for analysis. The learned Magistrate has further observed that the seized article of food is an adulterated product has not been prima facie established. ' Being aggrieved, the petitioner has obtained the present Rule. 2. THE prosecution case is that on 5th august, 1975 the accused opposite parties were selling an article of food, namely, Kamalabhog (sweets) at their place of business, 208, Vivekananda Road calcutta which was unfit for human consumption The petitioner after observing all legal formalities purchased the sample from the accused opposite party no. 4 and handed over one part of the same to the opposite party no. 4 who was a seller and sent the other part to the Public Analyst on 5th August 1975. The Public Analyst submitted a report stating that the article of food sent for analysis was adulterated and unfit for human consumption. Mr. Chatterjee, learned Advocate for the petitioner, has contended that the learned Magistrate committed grave error and irregularity in discharging the accused persons under section 245 (2) of the Cr. P. C. It is contended that the report of the Public Analyst is there and the same shows that the seized food was adulterated and unfit for human consumption. Referring to the case of State of Kerala vs. Parameswaran P. Vasude van Nair, 1975 Cr. L. J. 97. Mr. Chatterjee has argued that as there is no report of the Director of the Central Food Laboratory the report of the Public Analyst has to be taken into account. It has been further argued that the report of the Public Analysis evidence unless tit is superseded by the certificate issued by the Director of the Central food Laboratory. Mr. Chatterjee contends that in the instant case there was an. inordinate delay on the part of the accused in making prayer for sending the sample to the Director of the Central Food La-, boratory and the prosecution cannot be deprived of its right to refer to the report of the Public Analyst in such circumstances. Mr. Chatterjee contends that the accused should have asked for sending the sample to the Director of the central Food Laboratory within 10 days from the date of the coming into force of the amended provision of section 13 (2)of the Act. Mr. Mr. Chatterjee contends that the accused should have asked for sending the sample to the Director of the central Food Laboratory within 10 days from the date of the coming into force of the amended provision of section 13 (2)of the Act. Mr. Chatterjee has referred to the case of V. K. Chowdhury. State, 1980 (1) C. L. J. 490 and has argued that this decision shows that the Amendment act of 1976 has retrospective operation and the accused persons were required to file an application under section 13 (2)of the Act within ten days from April 1, 1976 when the amendment came into force. The contention of Mr. Chatterjee is that the application was filed on November 16, 1979 and no satisfactory reasons were given by the accused persons for the delay in making the prayer, mr. Chatterjee has also referred to the; municipal Corporation of Delhi v. Ghisa ram, AIR 1967 S. C. 970. Mr. Chatterjee has argued that the order of the learned magistrate should be set aside and the case should be sent back to the learned magistrate for trial in accordance with law. 3. MR. Sanyal, learned Advocate for the accused opposite parties, Has contended that as the case was previously proceeding in accordance with (the procedure laid down for an enquiry into offences triable by a Court of Session), the accused persons had no opportunity to make any application for sending the sample for analysis by the" Director of the Central Food Laboratory. Mr. Sanyal has contended that before the learned magistrate recorded that he was to try the case himself there was no occasion for the accused opposite parties to make any prayer for examination of the sample by the Director of the Central Food laboratory. The accused persons cannot be deprived of their right to have the sample examined by the Director of the central Food Laboratory as the report of the Director will supersede the report of the Public Analyst. In such circumstances, as the part of the sample which was given to the accused and the part which was retained by the petitioner were both unfit for analysis, the accused has been deprived of a valuable right given to him by law to have the authoritative report of the Director. The learned Magistrate was thus justified in taking into consideration this aspect of the question and discharging the accused persons. The learned Magistrate was thus justified in taking into consideration this aspect of the question and discharging the accused persons. Mr. Sanyal has contended that if section 13 (2) be considered to be retrospective in operation by virtue of the amendment; from 1st April, 1976, the time limit would not only apply to the accused, but the duties cast upon the prosecution would also be applicable with retrospective effect Mr. Sanyal has contended that in the instant case there was nothing on record to show that the copy of the report of the Public analyst was given to the accused opposite parties prior to April 1, 1976. The contention is that they incident occurred long ago and no useful purpose will be served in sending the case back to the court of the learned Magistrate as the samples have become unfit for analysis. It has been further contended that the prosecution did not take steps for adding preservatives to the samples as required by Rule 19 of Prevention of Food adulteration Rules. The fact that the sample kept by the petitioner became unfit for analysis is due to the absence of the addition of preservatives and the prosecution cannot take advantage of their own wrong. 4. THE date of the incident is alleged to be August 5, 1975. Samples were taken under section 11 of the Act. One part of the sample was given to the opposite party no. 4 who was alleged to be the seller and one part was sent for analysis to the Public Analyst and the third part was retained by the petitioner, On November 16, 1979 the accused persons produced the sample in their possession and prayed for examination of the same by the Director of the Central Food Laboratory. The said sample was found to be leaking though the seal was in tact and the learned Magistrate rejected the prayer of the accused-persons for sending the sample to the Director. The learned Magistrate however directed the petitioner to produce the sample which was in his possession and the same was sent to the Director, of the central Food Laboratory. The report of the Director dated January 7 1980 shows that the sample was decomposed and unfit for analysis and the counter part sample might be sent for analysis and report. The sample of the food was taken on august 5, 1975. The report of the Director dated January 7 1980 shows that the sample was decomposed and unfit for analysis and the counter part sample might be sent for analysis and report. The sample of the food was taken on august 5, 1975. There was no other sample to be sent for examination. The question is whether in such circumstances the learned Magistrate was justified in discharging the accused. Prior to February 15, 1979 the learned Magistrate was proceeding with the case as an enquiry into offence triable by a Court of Session. In Henry Ah Hoc and another vs. The State, 1978 C. H. N. 588 it has been held that after the Amendment Act came into force on April 1, 1976, all proceedings which were pending under the principal Act as amended by the State Act and had not been concluded will cease to be governed by the said Acts and would come under the provisions of the principal Act as amended-by the Central Amendment Act. In view of this decision, the learned Magistrate proceeded with the trial of the case. In the State of Kerala vs. P. P. Vasudevan Nair, 1975 Cri. L. J. 97 it has been held that if in respect of the same article there is the report of the Public analyst and the certificate of the Director of the Central Food Laboratory, the latter should, to the extent it goes, supersede the former. If in respect of it, there are more than one report of the analyst and they conflict with each other regarding particulars, the error in conclusion or in isolation, the accused can be given benefit of doubt. That can be done also if there are more than One certificate by the Director of the Central Food Laboratory and they conflict with each other in material particulars. But where there is only one report or one certificate, there is no warrant for the assumption about inaccuracy in any detail mentioned in it or regarding error in calculation or isolation at the stage of final analysis. It has been further held that under section 13 of the Act the re port of the public analyst in the prescribed form containing the result of analysis is admissible in evidence unless it is superseded by the certificate issued by the Director of the Central Food laboratory. It has been further held that under section 13 of the Act the re port of the public analyst in the prescribed form containing the result of analysis is admissible in evidence unless it is superseded by the certificate issued by the Director of the Central Food laboratory. By virtue of this section the report of the Public Analyst is perse evidence. 5. IN Municipal Corporation of Delhi vs. Ghisa Ram, AIR 1967 S. C. 970 it has been held that the provisions of section 13 (3) and 13 (5) of the Act are attracted when, in. fact, an analysis of the sample sent to the Director of the Central Food laboratory is made by him on the basis of which he issues a certificate. If for any reasons no certificate is issued the report given by the Public Analyst does not c ease to be evidence of the facts contained in it and. does not become in effective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory. Further, when there is no certificate issued by the Director of the Central Food laboratory, no question can arise of the certificate being final and conclusive evidence of the report contained in it The supreme Court has also considered the question of delay on the part Of prosecution and the accused being deprived of his valuable right. The Supreme Court has held that the right conferred by section 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food laboratory is a valuable one because a certificate by the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. The Supreme Court has observed that in a case when there is, denial of this right because of the deliberate conduct of the prosecution, e. g. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed the vendor in his trial is so seriously prejudiced, it would not be proper to uphold the conviction on the basis of the report of the public Analyst. The Supreme court has further observed that this principle must be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible. In v. K. Chowdhury vs the State,, 1980 (1)G. L. J. 490, it has been held by a Bench decision of this Court that the Amendment' Act of 1976 has' retrospective operation and the accused was required to file ah application under section 13 (3)of the Act within ten days from April 1, 1976 when the Amendment came into force 6. THE samples were taken on August 5, 1975. An application was made on behalf of the accused persons on November 16, 1979 for having the sample which was with them for being analysed by the director of the Central Food Laboratory (hereinafter referred to as the 'director'). The learned Magistrate found that the bottle was leaking. Thereafter on the direction of the learned Magistrate the petitioner produced the third part of the sample which was with him and the same was sent for analysis by the Director. The report of the Director dated 7.1.80 is that the sample was decomposed and unfit for analysis. Mr. Chatterjee argued that there was inordinate delay on the part of the accused in making the application for analysis of the sample by the Director. The contention of Mr. Chatterjee is that the report of the Public Analyst is evidence and the learned Magistrate should not have discharged the accused persons on the ground that there was no other sample. This contention of Mr. Chatterjee has force. The learned Magistrate failed to take into consideration that the report of the Analyst is evidence under section 13 of the Act. There is much force in the contention of Mr. Chatterjee that the learned. Magistrate should not have discharged the accused persons for the reasons mentioned by him. In answer to this contention Mr. Sanyal has argued that even assuming that there was unusual delay on the part of the accused persons in making the prayer for analysis of the sample by the director but in the fads and circumstances of the case if the discharge is set aside and the trial of the case is direct-ed the accused would-be seriously prejudiced. Mr. Sanyal has argued that even assuming that there was unusual delay on the part of the accused persons in making the prayer for analysis of the sample by the director but in the fads and circumstances of the case if the discharge is set aside and the trial of the case is direct-ed the accused would-be seriously prejudiced. Mr. Sanyal argued that the prosecution did not supply the copy of the report of the Analyst, before 19. 8. 76. Even at that time the sample of food would have been decomposed and the accused-persons would have been deprived, of their right to have the same examined by the Director. Mr. Sanyal has referred to the case of Bhoia Nath nayek vs. State and anr., reported in 1977 Cri. L. J. 154. 7. IN the instant case, the right of the vendor to have the sample tested by the Director has become frustrated. The main question is whether the said frustration is due to the conduct of the prosecution or the frustration is for reasons for which the prosecution is not responsible. In AIR 1967 S. C. 970 ("municipal Corpn. of Delhi v. Ghisa Ram) the supreme Court has observed that it is not to be understood that in every case where the right of the vendor to have his sample tested by the Director of the central Food Laboratory is frustrated, the vendor cannot be convicted. The principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. The Supreme Court has further observed that different considerations may arise if right gets frustrated for reasons for which the prosecution is not responsible. Mr. Chatterjee 's contention is that in view of the decision in V. K. Chowdhury's case, 1980 (1) CIJ 490, the accused opposite parties, had the right to apply to have the sample analysed by the Director and if expired on April 10, 1976. The relevant question for consideration would be whether the report of the Public Analyst was given to the seller prior to April 1, 1976. Mr. Sanyal has referred to the order No. 12 dated 19.8.76 recorded by the learned magistrate that the prosecution supplied copies of documents to the learned defence lawyer. The contention of Mr. The relevant question for consideration would be whether the report of the Public Analyst was given to the seller prior to April 1, 1976. Mr. Sanyal has referred to the order No. 12 dated 19.8.76 recorded by the learned magistrate that the prosecution supplied copies of documents to the learned defence lawyer. The contention of Mr. Sanyal is that prior to this date, there wall be no question of making any application. His further contention is that even if the accused-persons had applied within ten days from 19.8.76, no useful purpose would have been served as the sample being of food product Would have been decomposed. Mr. Chatterjee argued that as the order of the learned" Magistrate cannot be maintained, the prosecution should be given an opportunity to) prove by evidence that copy of the report of the Public Analyst was supplied much earlier and within the time prescribed and the frustration was not for the conduct of the prosecution. According to Mr. Chatterjee, the frustration occurred because of delay on the part of the accused to avail themselves of the opportunity to have the sample examined by the Director. In Bhola Nath nayer's case the sample was taken on 25.6.74 and the Public Analyst analysed the same on September 5, 1974 and made a report. The petition of complaint was made on 26. 12. 74. The report of the public Analyst was given to the accused on november 10, 1975. It has been held in this decision that the failure on the part of the Food Inspector to comply with the terms of Rule 9 (j) of the Prevention of Food Adulteration Rules would be tantamount to the copy of the report of the Public Analyst being honest. The intent was to give opportunity to the person from whom the sample was taken to have such sample examined by an expert of his choice. It was further held that because of the delay of more than l0 1/2 months the accused could not avail of the benefit of the provision of section 13 (2) of the Act. The intent was to give opportunity to the person from whom the sample was taken to have such sample examined by an expert of his choice. It was further held that because of the delay of more than l0 1/2 months the accused could not avail of the benefit of the provision of section 13 (2) of the Act. Thus in the instant case, though the order of the learned magistrate discharging the accused on the ground that there was no other sample kept for analysis and that the sample of food is an adulterated product has not been prima facie established may not be on sound basis as the learned Magistrate did not consider the relevant question whether the decomposition of the sample was due to the fault of the prosecution of the accused. There are other considerations for which I do not think that the case should be sent back. The record shows that copies of document were made over to the learned defence lawyer on 19.8.76. The sample was taken on 5.8.75 and the Public Analyst analysed the same on 14.8.75. The report reached the Food Inspector before the filing of the petition of complaint on 11.9.75. There is nothing on record to show that the copy of the report was given by the Food Inspector to the accused at any time prior to 19.8.76. in such circumstances, the accused may not get any benefit of the prayer made by them on 16.11.79 but the question is even if they had made the prayer within 10 days from 19.8.76, whether any useful purpose would have been served. There was delay of nearly a year from the date of the report of the Public Analyst. It would appear that before the amendment of section 13 (2) of the Act there was no time limit but Rule 9 (j) required the Food Inspector to send by hand or registered post a copy of the report of the Public Analyst to the person from whom the sample was taken as soon as the case is filed in Court. The record of the learned Magistrate, does not indicate that any such step was taken immediately after the filing of the case in court. The report of the Public Analyst would undoubtedly be evidence but the report is liable to be superseded by a certificate of the Director. The record of the learned Magistrate, does not indicate that any such step was taken immediately after the filing of the case in court. The report of the Public Analyst would undoubtedly be evidence but the report is liable to be superseded by a certificate of the Director. This gives a valuable right to the accused to have the sample examined by the Director. The article being food product, it is not at all likely that it would be kept fit for analysis for, about a year after the sample is taken. The case is pending for a long time and in this circumstance and in view of the reasons recorded earlier, i do not think that, the case should be sent back for hearing. The order of the learned Magistrate may not be supported on the ground, given by him but having regard to the relevant consideration and keeping in view that the delay in giving copy of the report Caused prejudice to the accused, I am not inclined to send back the case when so many years have elapsed since the date of incident. 8. IN the circumstances, I do not think that the interest of justice requires that the revision petition should be accepted. The Rule is accordingly discharged.