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1988 DIGILAW 372 (KAR)

STATE OF KARNATAKA v. AHMED

1988-08-17

A.K.LAXMESHWAR, K.B.NAVADGI, R.G.DESAI

body1988
DESAI, J. ( 1 ) IN Cr. A. No. 30/83 the following point, namely, whether the report of the public analyst is admissible as substantive evidence to prove the fact that the specimen seal tallied with the seals affixed on the sample, has been referred to the Full Bench. In food INSPECTOR v V. V. GANGADHARAN 1983 (2) Kar. LJ. 142. It is held that the report of the public Analyst is substantive evidence in the case and the recital in the certificate that the specimen seal tallied with the seals affixed on the bottles is admissible in proof of the fact. In state OF KARNATAKA v DOLPHY albuquerque 1983 (2) KAR. LJ. 481, it is held that it is obligatory for the prosecution to prove that the seal on the container and the outer cover of the sample sent to the Analyst were compared with the specimen sent separately and that the condition of the seals thereon was noted and what is stated in the report of the Analyst about the comparison of the seals cannot be read as substantive evidence. The same view was taken in FOOD INSPECTOR v A. G. SUVARNA 1985 (1) Kar LJ. l: ILR 1984 (2) rar. 752. In view of the said conflicting decisions of the Division Bench of this Court, the said point has been referred to the Full bench. As the same point is involved in Cr. A. No. 322/86 the said appeal also has been referred to the Full Bench without formulating the point for decision. ( 2 ) THE learned State Public Prosecutor and Mr. R. G. Devadhar, counsel for the appellant in Cr. A. 322/86 supported the view taken in GANGADHARAN's case referred to above. Mr. TJ. Chouta and Mr. V. V. Upadhyaya learned Advocates for the respondents- accused in Cr. A. No. 30/86 supported the view taken in SUVARNA's case. ( 3 ) TO determine the said point, it is necessary to refer to the relevant provisions. Sub-sections (l) and (5) of Section 13 of the prevention of Food Adulteration Act, 1954 (for short the 'act') which are relevant for our purpose, read thus: "13 (1 ). A. No. 30/86 supported the view taken in SUVARNA's case. ( 3 ) TO determine the said point, it is necessary to refer to the relevant provisions. Sub-sections (l) and (5) of Section 13 of the prevention of Food Adulteration Act, 1954 (for short the 'act') which are relevant for our purpose, read thus: "13 (1 ). The public Analyst shall deliver, in such form as may be prescribed, a report to the local (Health) authority of the result of the analysis of any article of food submitted to him for analysis; (5) 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 1985 (1) Kar LJ. 1 : ILR 1984 (2) Kar. 752, dissented; ( 4 ) A. P. Grain and Seed Merchants association v union of India, AIR 1971 SC 2346 . ref. ; ( 5 ) BABU Lal Hargovindas v State of gujarat, 1971 (1) SCC 767 , foll. ; ( 6 ) KASSIM Kunju Pookunju v ramakrishna Pillai, 1969 Ker. L. T. 50, ref. ; ( 7 ) MUNICIPAL Corporation, Delhi v Jai dayal Jawanda Mal- air1964 Punjab 520, foll. ; state Public Prosecutor for Appellant sri. TJ. Chouta and V. V. Upadhaya, advocates for Respondents. Sri. R. G. Devadhar, Advocate for appellant (in Cr. A. 322 of 1986 ). S. P. P. for Respondent. Cr. A. No. 30 of 1983 C/w Cr. A. No. 322 of 1986. Desai, J. , Made the following order ON REFERENCE desai, J : in Cr. A. NO. 30/83 the following point, namely, whether the report of the public analyst is admissible as substantive evidence to prove the fact that the specimen seal tallied with the seals affixed on the sample, has been referred to the Full Bench. In food INSPECTOR v V. V. GANGADHARAN 1983 (2) Kar. LJ. 142. It is held that the report of the public Analyst is substantive evidence in the case and the recital in the certificate that the specimen seal tallied with the seals affixed on the bottles is admissible in proof of the fact. In state OF KARNATAKA v DOLPHY albuquerque 1983 (2) KAR. LJ. LJ. 142. It is held that the report of the public Analyst is substantive evidence in the case and the recital in the certificate that the specimen seal tallied with the seals affixed on the bottles is admissible in proof of the fact. In state OF KARNATAKA v DOLPHY albuquerque 1983 (2) KAR. LJ. 481, it is held that it is obligatory for the prosecution to prove that the seal on the container and the outer cover of the sample sent to the Analyst were compared with the specimen sent separately and that the condition of the seals thereon was noted and what is stated in the report of the Analyst about the comparison of the seals cannot be read as substantive evidence. The same view was taken in FOOD INSPECTOR v A. G. SUVARNA 1985 (1) Kar LJ. 1: ILR 1984 (2) kar. 752. In view of the said conflicting decisions of the Division Bench of this Court, the said point has been referred to the Full bench. As the same point is involved in Cr. A. No. 322/86 the said appeal also has been referred to the Full Bench without formulating the point for decision. 2. The learned State Public Prosecutor and Mr. R. G. Devadhar, counsel for the appellant in Cr. A. 322/86 supported the view taken in GANGADHARAN's case referred to above. Mr. TJ. Chouta and Mr. V. V. Upadhyaya learned Advocates for the respondents- accused in Cr. A. No. 30/86 supported the view taken in SUVARNA's case. 3. To determine the said point, it is necessary to refer to the relevant provisions. Sub-sections (l) and (5) of Section 13 of the prevention of Food Adulteration Act, 1954 (for short the 'act') which are relevant for our purpose, read thus: "13 (1 ). The public Analyst shall deliver, in such form as may be prescribed, a report to the local (Health) authority of the result of the analysis of any article of food submitted to him for analysis; (5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code. Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory (not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1a) of section 16) shall be final and conclusive evidence of the facts stated therein. " rule-7 of the Prevention of Food adulteration Rules, 1965 (for short the 'rules') reads thus: "7. DUTIES OF PUBLIC ANALYST: (1) 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. (2) The Public Analyst shall cause to be analysed such samples of articles of food as may be sent to him by Food Inspector or by any other person under the Act. (3) After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in Form III within a period of sixty days of the receipt of the sample. Provided that where any such sample does not conform to the provisions of the Act or these rules, the Public Analyst shall deliver four copies of such report to the said authority. Provided further that Public Analyst shall forward a copy of such report also to the person who purchased an article of food and forward the same to him for analysis under section-12 of the Act". The Validity of the Act and the Rules has been upheld by the Supreme Court in andhra PRADESH GRAIN AND seed MERCHANTS ASSOCIATION and OTHERS v UNION OF INDIA AND another (AIR S. C. 2346 ). It is clearly held therein that the Act and the Rules do not infringe Article 14 of the Constitution and section 13 (5) of the Act does not infringe the guarantee of Article 20 (3) of the constitution. 4. From a plain reading of sub-section (5) of Section 13 of the Act, it is clear that the report of the public Analyst is admissible as evidence of all the facts stated therein and not merely the facts relating to the result of the analysis. 4. From a plain reading of sub-section (5) of Section 13 of the Act, it is clear that the report of the public Analyst is admissible as evidence of all the facts stated therein and not merely the facts relating to the result of the analysis. The said provision apparently has been made with a view to secure formal evidence of facts without requiring the Public analyst to attend the Court and to give evidence in every case, and in the interest of effective administration of the Act. The said object of the Legislature would be defeated if we hold that the report of the Public analyst can be used as evidence only in respect of the result of the analysis and not in respect of the other facts stated therein. 5. IN SUVARNA's case, it has been held that sub-Rules (l) and (3) of Rule-7 of the rules, requiring the public Analyst to compare the seals and to give a report in form No. III are in excess of the rule making power. But, in BABU LAL hargovindas v THE STATE OF gujarat ( 1971 (1) SCC 767 ) it has been held by the Supreme Court that Sub-rules (1) and (3) of Rule 7 of the Rules are not ultra vires sections 13 (1) and 23 (1) (c) of the Act and that the said Rule is within the scope of rule making power under Section 23 (l) (c) of the Act. Therefore, with respect, we beg to differ from the said view taken in suvarna's case. 6. As the public Analyst has to send many reports every day, it cannot be expected of him to write down everything in his own hand and as it is open to him to score off the relevant printed portion regarding the seals and to write that the seals did not tally, the fact that the report has to be in printed form does not by itself show that the Public analyst had not observed the seal at all and he had not applied his mind to that aspect, as observed in GANGADHARAN's case. 7. 7. In SUVARNA's case, it has been held that it cannot be laid down as a general proposition of law that if once the Public analyst issues a report regarding the result of the analysis, it may also be presumed that the public Analyst or the person authorised by him has discharged his duties in compliance with rule 7 (1) of the Rules. The decision of the Supreme Court in KASSIM kunju POOKUNJU v RAMAKRISHNA p1llai (1969 Kerala Law Times, 50) is a complete answer to the said contention. In that case, the report of the Public Analyst stated inter alia that he had received from the Food Inspector a sample for analysis, properly sealed and packed and that he had found the seal intact and unbroken. It was held that the official Acts must be presumed to have been regularly performed; that under rule-7, the public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis and so it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container. Therefore, the said view of the Division Bench to the contrary in suvarna's case cannot be sustained. ( 8 ) IN MUNICIPAL CORPORATION, delhi v JAI DAYAL JAWANDA MAL (AIR 1964 Punjab 520), the Division Bench of the Punjab High Court was pleased to hold that the statement in report of the public Analyst to the effect that the sample was kept in refrigerator before analysis is admissible in evidence without the production of the Analyst as a witness. This also supports the view that the report of the public Analyst is admissible in proof of the facts stated therein apart from the result of the analysis without production of the analyst as a witness. ( 9 ) IN view of the said reasons, with respect, we disagree with the view taken in suvarna's case and agree with the view taken in GANGADHARAN's case and hold that the report of the Public Analyst is admissible as substantive evidence to prove the fact that the specimen seal tallied with the seals affixed on the sample. Hence, we answer the point referred to the Full Bench accordingly. Hence, we answer the point referred to the Full Bench accordingly. ( 10 ) THE appeals may be posted before the concerned Bench for disposal according to law in the light of the said opinion of the Full bench. --- *** --- .