Udai Singh v. State of U. P — 1985 DIGILAW 452 (ALL)

JUDGMENT B.D. Agarwal, J. - This revision is directed against the conviction and sentence recorded against Udai Singh for offence under Sections 7/16 Prevention of Food Adulteration Act. He has been sentenced to six months rigorous imprisonment and fine of Rs. 1000/- in the default rigorous imprisonment for 1 months. 2. On June 23, 1977 according to the prosecution, the applicant was carrying for sale about 12 litres of goat milk on his bicycle. A sample was taken by the Food Inspector which on analysis by the Public Analyst was found to contain barely 2.5% fat contended and 9.2% non fatty solid thereby being deficit in fat contents to the tune of about 29% according to the prescribed standard for goat milk. The defence that the milk was not for sale has not been accepted upon evidence by the courts below. 3. Upon the revision coming up before the learned Single Judge earlier the only point pressed for the applicant was that the delay in filing the complaint has prejudiced the right of the applicant to secure analysis from the Director Central Food Laboratory. The sample taken was divided into three parts of which one was sent the following day to the Public Analyst and the other two deposited with the local (Health) Authority. The Public Analyst received the sample on June 28, 1977 and submitted his report on July 22, 1977. The Food Inspector gave report to the Local (Health) Authority on December 20, 1977. The complaint was filed on May 1, 1978, a copy of the report of the Public Analyst accompanied with the notice required under section 13(2) read with rule 9-A of the Act was sent to the applicant under registered cover on May 2, 1978 and this was admittedly served on 5th May 1978. The applicant did not apply for the sample that in the custody of the Local (Health) Authority being sent to the Director Central Food Laboratory for examination. The applicant did not apply for the sample that in the custody of the Local (Health) Authority being sent to the Director Central Food Laboratory for examination. Learned Single Judge referred the' following question on March 11, 1981 in this case for decision by a larger Bench:- "Where in the plains of U.P. the prosecution under the Prevention of Food Adulteration Act is launched more than ten months after the taking of the milk sample by the Food Inspector, can the accused relying on the Full Bench decision in Nagar Swasthya Adhikari Nagar Mahapalika v. Mangalia, 1970 (7) A.C.C. 317 (F.B.) claim deprivation of his right under Section 13(2) of the Act even though he does not apply for analysis of the other phial of the sample by the Director, Central Food Laboratory." 4. The Division Bench on December 20, answered the question in the negative. The decision taken is:- "Thus it would now not be proper to draw any presumption in favour of the accused regarding the sample of milk being unfit for analysis if the prosecution is launched more than ten months after it has been taken as it cannot be rebutted by the prosecution (complainant). If the accused makes an application under Section 13(2) of the Act to get the sample of milk analysed by the Director Central Food Laboratory but due to the delay in the launching of the prosecution the Director Central Food Laboratory in his report mentions that the sample of milk was not fit for analysis then the right of the accused under Section 13(2) of the Act to get the sample of milk analysed by the Director Central Food Laboratory is lost and his conviction under Section 7/16 of the Act cannot be sustained but if he does not apply for the analysis of the sample of milk by the Director Central Food Laboratory under Section 13(2) of the Act he cannot now complain regarding the loss of this right even if the prosecution is launched after more than ten months of the taking of the sample of milk. In view of the change in Section 13(2) of the Act as pointed out above the decision of this Courts in Nagar Swasthya Adhikari Nagar Mahapalika v. Mangalia (supra) that the Court may presume that the sample of milk is unfit for analysis after the lapse of more than ten months and that the conviction of the accused under Section 7/16 of the Act cannot be sustained even if he has not applied for getting the sample of milk analysed by the Director Central Food Laboratory as his right to get the sample of milk analysed by the Director Central Food Laboratory is lost is, in our opinion, no longer good law." 5. Faced with this answer given by the Division Bench to the question referred Sri Tejpal learned counsel for the revisionist has put in application on 4th April, 1985 contending that Sections 13 and 20 of the Act he declared ultra vires Articles 14 and 21 of the Constitution. It was urged by him in support of this application that Section 13(2) does not provide time limit within which the prosecution is to be instituted subsequent to the receipt of the report of the Public Analyst. This is left to unguided discretion of the Executive. The delay might lead to decomposition of the sample and thereby render it unfit for examination by the Director of the Central Food Laboratory. The submission is that those provisions suffer from arbitrariness and excessive delegation. I am not impressed with the contention of the learned counsel. 6. Under the scheme of the Act (as amended) upon taking sample the Food Inspector is enjoined to send one part for analysis to Public Analyst by the immediately succeeding working day vide Section 11(1)/(3). The Public Analyst has to send his report according to Rule 7(3), within 45 days of the receipt of the sample. Local (Health) Authority thereupon considers the feasibility of launching prosecution. The Public Analyst has to send his report according to Rule 7(3), within 45 days of the receipt of the sample. Local (Health) Authority thereupon considers the feasibility of launching prosecution. If prosecution is instituted, the Authority shall immediately after the institution of the prosecution send a copy of the report of the Public Analyst to the delinquent under registered cover together with notice intimating that he may apply within ten days of the receipt of the copy of the report to the Court for the sample of the article of food kept by the Local (Health) Authority to the Director, Central Food Laboratory for analysis vide Section 13(2) read with Rule 9-A. If the accused avails of this right, the court requires report from the Director Central Food Laboratory who has to certify within one month from the receipt of the sample and this certificate supersedes the Public Analyst's report- Section 13(2-B)/(3). Prosecution for offence under Sections 7/16 of the Act cannot be instituted save with the consent of Government or the officer authorised in this behalf (Section 20). 7. From the above it is evident that Section 13(2), or, any other provision in the Act or the Rules framed thereunder, does not in express terms lay down the time limit for institution of the prosecution. It is not correct, however, in my opinion, to contend that this is left blank and not indicated even by implication. There is as mentioned above, specific schedule limit for time upto which the report of the Public Analyst may be received. The intention behind is clearly to avert delay in the process. The question to accord opportunity to the delinquent to apply for analysis by the Director of the Central Food Laboratory can arise only if prosecution is instituted on considering the Public Analyst's report. If the report of the Public Analyst is exonerative in character, or to institute prosecution is not regarded expedient for any other reason, there is no occasion to burden the accused with seeking analysis from the Central Food Laboratory True, Section 13(2) is silent on the point as to how much time may elapse between the receipt of report from the Public Analyst and the institution of the prosecution but, in the scheme of things which is made manifest by the allied provisions, the filing of the complaint cannot brook unreasonable delay. The reasonableness would depend on the facts and circumstances of each case. In my view if in a case the delay appears designed or mala fide or inspired with the object to defect an otherwise valuable right of the accused, the prosecution may fail on that account. In that event the exercise of power conferred under Section 13(2)/20 of the Act would be characterised as unfair and arbitrary, but to contend that these provisions be nullified irrespective of fact situation in a particular case is unwarranted. The accused in the present case did not choose to exercise the right under Section, 13(2). If, in any case, the accused does not choose to exercise, this right, the case against him can be decided on the basis of the report of the Public Analyst Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 and 971. 8. In Municipal Corporation of Delhi (supra), the finding was that the decomposition of the sample which the accused desired should be analysed by the Director of the Central Food Laboratory took place because of the long delay that had occurred in sending the sample to the Director Commenting upon this the Supreme Court laid down:- "It appears to us that when a valuable right is 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, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be above to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted. "It appears to us that when a valuable right is 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, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. "It appears to us that when a valuable right is 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, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. We are not to be understood as laying down 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 on the basis of the report of the Public Analyst. We consider that 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. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible." 9. The submission of the learned counsel that the power of the Executive in this behalf is unguided and hence excessive does not bear scrutiny. The constitutional mandate under Article 21 read with Article 14 of the Constitution undoubtedly is that the procedure established by law affecting personal liberty of the individual be just, fair and reasonable. But applying this dictum it cannot be claimed as incumbent that the guidelines to regulate or control the time limit for filing of a complaint should have been provided for expressly or contained as such in Sections 13 or 20 themselves. But applying this dictum it cannot be claimed as incumbent that the guidelines to regulate or control the time limit for filing of a complaint should have been provided for expressly or contained as such in Sections 13 or 20 themselves. The time schedule prescribed for steps upto the receipt of report of the Public Analyst and the mandate that on the complaint being filed notice must issue accompanied with a copy of the report intimating the accused of his right to apply within a short period of ten days for examination by the Director of the Central Food Laboratory are strong pointers in the direction that the time taken to institute the prosecution must not be such as leads to decomposition of the preserved sample. This serves as to the governing factor. The latitude accorded by the legislation is not unlimited are legislative intent is clear namely, that things must move with expedition so as not to deprive the accused of his right to obtain certificate from the Director of Central Food Laboratory which is conclusive in character. The requirement for sanction by Government or an officer empowered in this behalf under Section 20 is aimed then to serve as an additional check against a prosecution which on its face is stale, frivolous or vexatious. All this is relevant to the context. In interpreting Rule 22 read with Section 11(3) of the Act, the Supreme Court held that if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst, the case may end in acquittal. But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical grounds which have no substance State of Kerala etc. v. Alasserry Mohd. etc., AIR 1978 S.C. 933 . The principle applicable to interpretation of Sections 13(2)/20 is not different. 10. Valuable, assistance in this connection is also received from the interpretation given by the Supreme Court to Rule 9-A in force since January 4, 1977 which refrains from mentioning any definite limit of time such as was found in old Rule 9(j) that gave rise to the controversy whether the rule was mandatory or directory. 10. Valuable, assistance in this connection is also received from the interpretation given by the Supreme Court to Rule 9-A in force since January 4, 1977 which refrains from mentioning any definite limit of time such as was found in old Rule 9(j) that gave rise to the controversy whether the rule was mandatory or directory. Though the new rule 9-A employees the expression 'immediately', this was construed in its setting as denoting that the report be sent to the accused at the earliest opportunity, so as to facilitate the exercise of the statutory right under Section 13(2) vide Tulsiram v. State of U.P., 1985(22) A.C.C. 28 (S.C.). It was observed:- "Rule. 9-A is made in the context of the amended Section 13(2) which provides for the forwarding of the Public Analyst's report to the person from whom the sample was taken after the institution of prosecution and enables that person to apply to the court to have analysed by the Central Food Laboratory the sample kept with the Local (Health) Authority. In the context the expression 'immediately' is only meant to convey 'reasonable dispatch and promptitude' and no more. The idea is to avoid dilatoriness on the part of official demand and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to prove a technical defence. First to construe 'immediately' as meaning 'at once' or 'forthwith' and next to hold delay to be fatal to the prosecution would perhaps be to make Rule 9-A ultra vires Section 13(2). We do not think it is permissible to interpret Rule 9-A in such a way. The real question is, was the Public Analyst's report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the court to send one of the samples to the Central Food Laboratory for analysis. If after receiving the Public Analyst's report he never sought to apply to the court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him unless, of course, he is able to establish some other prejudice. If after receiving the Public Analyst's report he never sought to apply to the court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him unless, of course, he is able to establish some other prejudice. Our conclusions on this question are: The expression 'immediately' in Rule 9-A is intended to convey a sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under Section 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with Rule 9-A is not fatal. It is a question of prejudice. Applying these principles, we find no merit in the submissions based on Rule 9-A." 11. Upon true construction, therefore, it will be noticed, there is implicit in section 13(2), the same standard that permeates the allied provisions in this behalf. The safeguard is inbuilt. The time taken to institute the prosecution must not be such as tends to defeat the valuable right of the accused to get the sample examined by the Director, Central Food Laboratory. In face thereof there is no justification to label these provisions as unfair or arbitrary. 12. As mentioned above, in the present case the applicant did not apply at any stage that the sample with the Local (Health) Authority be sent for examination to the Director Central Food Laboratory. In the absence of any report from the Director, Central Food Laboratory or ------ any other material placed on the record, there is left no basis to assume that the sample will have been decomposed nor any on this ground the accused maintained that his right to have the sample analysed by the Director is affected adversely. The larger Bench has ruled that there is no presumption arising on this account and this is binding so far as this Bench is concerned. In the case of Ajit Prasad v. State of Maharashtra, A.I.R. 1972 S.C. 1631. It was held in reference to section 13(2) that the appellant should have made an application after paying the prescribed fee if he wanted part of the sample available with him to be sent to the Director for analysis. In the case of Ajit Prasad v. State of Maharashtra, A.I.R. 1972 S.C. 1631. It was held in reference to section 13(2) that the appellant should have made an application after paying the prescribed fee if he wanted part of the sample available with him to be sent to the Director for analysis. Unless an application to send the sample to the Director is made, the vendor cannot be allowed to say that he was deprived of his right in having the sample analysed by the Director. Reference was made to the earlier decision of the Supreme Court in Babu Lal Hargovindas v. State of Gujarat, A.I.R. 1971 S.C. 1277. A learned single Judge followed this decision ad took the same view in Nagar Mahapalika Lucknow v. Mushir Ahmad, 1978 F.A.J. 358. This is also the view taken by the Rajasthan High Court in Kan Singh Parohit v. State of Rajasthan, 1978 F.A.J. 302. I am in respectful agreement therewith. 13. Having regard to the discussion made above, the revision is devoid of merit and is dismissed accordingly. B.N. KATJU and R.K. SHUKLA, JJ. (Delivered by B.N. KATJU, J.) 14. The question that has been referred to us for decision is:- "Where in the plains of U.P. the prosecution under the Prevention of Food Adulteration Act is launched more than ten months after the taking of the milk sample by the Food Inspector, can the accused relying on the Full Bench decision in Nagar Swasthya Adhikari, Naqar Mahapalika v. Mangalia (supra) claim deprivation of his right under Section 13(1) of the Act even though he does not apply for analysis of the other phial of the sample by the Director, Central Food Laboratory." 15. In the case of Nagar Swasthya Adhikari, Nagar Mahapalika v. Margalia(supra) it was observed:- "Taking the facts and circumstances of each case into consideration it is for the Court to determine when it may become unsafe to rely on an analysis of the contents of the milk. There may not be any hard and fast time limit because conditions may differ from case to case. Refrigeration or the addition of greater quantity of formalin might make the milk last longer for accurate and reliable analysis. The climate of the places at high altitudes might by itself serve the purpose of refrigeration. There may not be any hard and fast time limit because conditions may differ from case to case. Refrigeration or the addition of greater quantity of formalin might make the milk last longer for accurate and reliable analysis. The climate of the places at high altitudes might by itself serve the purpose of refrigeration. However, on the basis of what has been held in earlier cases in known set of circumstances the court may safely presume that in the plains of Uttar Pradesh the composition of milk is likely to be affected after a period of ten month or so, if (1) only two drops of formalin of 40% strength are added to announce of milk, and (2) the milk is not kept in a refrigerator or at a cool place". 16. And it approved the decision of the Division Bench of this Court in Nagar Swasthya Adhikari v. Rambabu, 1969 A.C.C. 273; in which it was held that where a prosecution under the Act in respect of milk is launched after 308 days of the taking of the milk the accused is deprived of a valuable right conferred on him by Section 13(2) of the Act of getting the sample in his possession analysed by the Director, Central Food Laboratory and therefore, the delay is fatal to the prosecution. It was further held that such an assumption could be made even if the accused did not make any application under section 13(2) of the Act for getting the sample of milk analysed by the Director. 17. In the case of Ajit Prasad v. State of Maharashtra (supra) after quoting Section 13(2) of the Act it was held:- "It is clear from the sub-section that the applicant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis, if he made the application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysis by the Director. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the appellant could perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, since the appellant never applied under Section 13(2) of the Act, he cannot complain that he has been deprived of any right. In Babulal Hargovindas v. The State of Gujarat Jagmohan Reddy, J., speaking for the Court, said that unless an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by the Director. The learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed...........There was, therefore no evidence that the part of the sample available with the appellant had so deteriorated at the time the summon was served as to be incapable of being analysed." 18. If there is any data or evidence before the Court on the basis of which it could be held that the sample of milk had become unfit for analysis at the time of the launching of the prosecution then no useful purpose would be served in sending the sample for analysis to the Director Central Food Laboratory on the application of the accused. It is noteworthy that in the case of Nagar Swasthya Adhikari, Nagar Mahapalika v. Mangalia (supra) notice was taken of the data furnished by the experiments carried out in Criminal Revisions Nos. 1612 of 1962, 1309 of 1963 and 432 and 595 of 1964 decided on 30.9.1965 which was relied upon by this Court in the case of Nagar Swasthya Adhikari v. Rambabu (supra). There was, therefore, data before this court in the case of Nagar Swasthya Adhikari, Nagar Mahapalika v. Mangalia (supra) on the basis of which it was held that after a lapse of 308 days it could be presumed that the sample of milk had deteriorated and was not fit for analysis. There was, therefore, data before this court in the case of Nagar Swasthya Adhikari, Nagar Mahapalika v. Mangalia (supra) on the basis of which it was held that after a lapse of 308 days it could be presumed that the sample of milk had deteriorated and was not fit for analysis. Thus the decision of the Supreme Court in Ajit Prasad v. State of Maharashtra (supra) and in Babu Lal Hargovindas v. State of Gujarat(supra) does not specifically or by necessary implication overrule the decision of this Court in Nagar Swasthya Adhikari, Nagar Mahapalika v. Mangalia (supra). 19. The question that however, remains to be considered is whether the decision of this court in Nagar Swasthya Adhikari Nagar Mahapalika v. Mangalia (supra) is still good law in view of the amendment to Section 13(2) of the Act by Act No. 34 of 1976. Prior to the amendment under Section 13(2) of the Act both the accused and the complainant had a right to make an application to the Court after the institution of the prosecution under the Act to get the sample analysed by the Director Central Food Laboratory on payment of the prescribed fee. It was on the basis of this right that it was held in the case of Nagar Swasthya Adhikari Nagar Mahapalika v. Mangalia (supra) that it was open to the court to presume that after the lapse of more than ten months the sample of milk was unfit for analysis but even in such cases in order to negative this presumption the prosecution (complainant) could get the sample of milk analysed by the Director Central Food Laboratory and obtain a certificate from him that the sample of milk had not undergone any change so as to interfere with reliable and accurate analysis. After the amendment of Section 13(2) of the Act it is no longer open to the prosecution (complainant) to get the sample of milk analysed by the Director Central Food Laboratory. This right has now been given under Section 13(2) of the Act only to the accused and is to be exercised by him within ten days of the receipt of the notice under Section 13(2) of the Act. This right has now been given under Section 13(2) of the Act only to the accused and is to be exercised by him within ten days of the receipt of the notice under Section 13(2) of the Act. Thus under section 13(2) of the Act the prosecution (complainant) has no right to rebuke the presumption that the sample of milk is unfit for analysis if the prosecution is launched more than ten months after it was taken. It is noteworthy that in the case of Nagar Swasthya Adhikari Nagar Mahapalika v. Mangalia (supra). It was observed that even in some cases where the sample of milk is sent to the Director Central Food Laboratory after more than two years from the day it was taken it was found to be fit for analysis. 20. Thus it would now not be proper to draw any presumption in favour of the accused regarding the sample of milk being unfit for analysis if the prosecution is launched more than ten months after it has been taken as it cannot be rebutted by the prosecution (complainant). If the accused makes an application under Section 13(2) of the Act to get the sample of milk analysed by the Director Central Food Laboratory but due to the delay in the launching of the prosecution the Director Central Food Laboratory in his report mentions that the sample of milk was not fit for analysis then the right of the accused under Section 13(2) of the Act to get the sample of milk analysed by the Director Central Food Laboratory is lost and his conviction under Section 7/16 of the Act cannot be sustained but if he does not apply for the analysis of the sample of milk by the Director Central Food Laboratory under Section 13(2) of the Act he cannot now complain regarding the loss of this right even if the prosecution is launched after more than ten months of the taking of the sample of milk. 21. In view of the change in Section 13(2) of the Act as pointed out above the decision of this Court in Nagar Swasthya Adhikari Nagar Mahapalika v. Mangalia (supra) that the. 21. In view of the change in Section 13(2) of the Act as pointed out above the decision of this Court in Nagar Swasthya Adhikari Nagar Mahapalika v. Mangalia (supra) that the. Court may presume that the sample of milk is unfit for analysis after the lapse of more than ten months and that the conviction of the accused under section 7/16 of the Act cannot be sustained even if he has not applied for getting the sample of milk analysed by the Director Central Food Laboratory as his right to get the sample of milk analysed by the Director Central Food Laboratory is lost iS, in our opinion, no longer good law. 22. In the result our answer to the question referred to us is in the negative. 23. Let our opinion be placed before the appropriate Bench.