KANAI LAL DUTTA v. STATE OF WEST BENGAL — 1991 DIGILAW 399 (CAL)

S. K. GUIN, J. ( 1 ) -THIS revisional application is directed against the order passed by the learned Senior Municipal Magistrate, Calcutta on 13. 9. 90 in Case No. 220 of 1990 whereby he held that the report of the Public Analyst had not been superseded by the certificate issued by the Director of the Central Food Laboratory and proceeded to try the case. ( 2 ) ON 2. 1. 90 Sri A. B. Roy disclosing his identity as the Food Inspector of the Calcutta Municipal Corporation purchased nine packages of Cookme Brand Lanka Powder (Chilli Powder) of 50 grams each from the petitioner no. 2 Asit Dutta who was looking after the grocery shop of petitioner no. 1 at 33/1a/12 Manicktola Main Road, Bagmary, Calcutta. One part of the sample was sent to the Public Analyst for analysis and the remaining two parts of the said sample were packed into one packet and sealed and sent to the Local (Health) Authority (Chief Municipal Health Officer ). As per report of the Public Analyst the said sample was misled inasmuch as there was no declaration anywhere on the packet regarding the manufacturing date as required under rule 32 (f) of the Prevention of Food Adulteration Rules 1955. After the prosecution had instituted against the petitioner under section 16 (1) (a) (i) read with section 7 of Prevention of Food Adulteration Act (hereinafter referred to as the Act) in the first Court of Municipal and Metropolitan Magistrate Calcutta, the Chief Municipal Health Officer and Local (Health) Authority by his letter dated 12. 3. 90 sent a copy of the report of the Public Analyst to the petitioner no. 2 the seller and requested him to make an application before the learned Municipal and Metropolitan Magistrate within 10 days from the date of receipt of the copy of the said report to get the sample of the article of food analysed by the Central Food Laboratory. Thereafter the Director, Central Food Laboratory as per his certificate dated 10. 9. 90 opined that the sample of Chilli Powder conformed to the standard of Chilli Powder as per P. F. A. Rules 1955. His certificate does not show that the sample was misbranded. Thereafter the Director, Central Food Laboratory as per his certificate dated 10. 9. 90 opined that the sample of Chilli Powder conformed to the standard of Chilli Powder as per P. F. A. Rules 1955. His certificate does not show that the sample was misbranded. After receipt of the certificate from the Director of Central Food Laboratory , the petitioner prayed for their discharge on the ground that since the report of the Public Analyst stands superseded by the certificate issued by the Director of Central Food Laboratory, there are no materials to proceed against them in the instant case. The learned Senior Municipal Magistrate, however, by his order dated 13. 9. 90 held that since there was no finding of the Director of the Central Food Laboratory on the score of misbranding, the report of the Public Analyst on that score cannot be said to have been superseded. With this finding he proceeded to try the case. ( 3 ) BEING aggrieved by such order the petitioners have filed the instant revisional application challenging the propriety and legality of the impugned order and for quashing the entire proceeding in which the impugned order was made. ( 4 ) MR. Sachindra Nath Sen, learned advocate for the petitioner has argued that the report of the Public Analyst stands superseded by the certificate issued by the Director of the Central Food Laboratory as per provision of section 13 (3) of the Act and that since there are no other materials except the report of the Public Analyst which stands superseded, to show that the seized sample of chilli powder was misbranded, the learned Senior Municipal Magistrate should have discharged the petitioner. In support of his argument he has referred to decision of the learned Judge of Gujarat High Court sitting singly in the case of the State of Gujarat v. Kutubuddin lsaf Ali etc. reported in 1981 CRI. LJ 908 and also to the decision of the Supreme Court in the case of Chetumol v. State of Madhya Pradesh reported in AIR 1981 Supreme Court 1387. Mr. Sen has also argued that in the matter of filing the instant petition of complaint there has been non-application of mind inasmuch as the complainant did not state how the sample was misbranded and did not implead the manufacturer of the said sample. Mr. Mr. Sen has also argued that in the matter of filing the instant petition of complaint there has been non-application of mind inasmuch as the complainant did not state how the sample was misbranded and did not implead the manufacturer of the said sample. Mr. Chowdhuri, learned advocate appearing for the Calcutta Municipal Corporation has argued that the Director of the Central Food Laboratory had no jurisdiction to consider and opine whether the sample was misbranded or not, that only on receipt of the report of the Public Analyst to the effect that the sample is adulterated, the Local (Health) Authority may inform the person from whom the sample was taken that he, if he so desires, may get the sample analysed by the Central Food Laboratory, that as the report of the Public Analyst shows that the sample is misbranded, the Local (Health) Authority committed a mistake in informing the seller that he might get the sample analysed by the Central Food Laboratory. So he has further argued that the report of the Public Analyst in the winstant case cannot be said to have been superseded by the certificate of the Director of the Central Food Laboratory and that it still stands. He has further contended that there has been no non-application mind in the matter of filing the instant complaint or in the matter of according consent for prosecution. He has further argued that the prosecution should not be quashed on slender ground like the one as has been taken on behalf of the petitioner. In support of his view he has referred to a decision of the Supreme Court in the case of State of Punjab v. Devinder Kumar reported in AIR 1983 Supreme Court 545. ( 5 ) IT appears that on 2. 1. 90 A. B. Roy, Food Inspector of the Calcutta Municipal Corporation disclosing his identity purchased nine packets of Powder from the petitioner no. 2 the seller at the shop situated at 38/1a/12 Manicktola Main Road, Calcutta and one part of the sample of Chilli Powder was sent to the Public Analyst for analysis and report. The Public Analyst by his report dated 1. 2. 90 opined that the said Chilli Powder was misbranded inasmuch as the packets did not contain any declaration as to manufacturing date. The Public Analyst by his report dated 1. 2. 90 opined that the said Chilli Powder was misbranded inasmuch as the packets did not contain any declaration as to manufacturing date. On receipt of such report of the Public Analyst, the complainant A. B. Roy, Food Inspector filed the instant petition of complaint against the petitioner with the consent of Local (Health) Authority. Though the sample was not found to be adulterated by the Public Analyst still the Local (Health) Authority by his letter dated 12. 3. 90 while sending a copy of the report of the Public Analyst to the petitioner no. 2 informed him that he might get the sample analysed by the Central Food Laboratory. Accordingly on the prayer of the petitioner a sample was sent to the Director, Central Food Laboratory and the Director in his certificate opined that the sample conformed to the standard of the Chilli Powder as per P. F. A. Rules 1955. There is no mention about misbranding of the sample in the said certificate. ( 6 ) NOW the question arises whether the report of the Public Analyst who has opined that the sample was misbranded stands superseded by the certificate of the Director of the Central Food Laboratory as per provision of section 13 (3) of the Act. According to learned advocate for the petitioners, the report of the Public Analyst stands totally superseded by the certificate of the Director of Central Food Laboratory as per provision of section 13 (3) of the Act. He has further argued that by the certificate Director of Central Food Laboratory the report of the Public Analyst has been completely erased and that no part of it can be referred to or relied upon by the prosecution any longer. In support of his view he has referred to the decisions as mentioned above. The learned advocate appearing for the Municipal Corporation, on the other hand, has argued that the Director of the Central Food Laboratory has no jurisdiction to issue certificate when the sample has been found to be misbranded by the Public Analyst and that by mistake the Local (Health) Authority informed the petitioner to get the sample analysed by the Central Food Laboratory. It is true that under section 13 (2) of the Act in the case when the Public Analyst has found the sample to be adulterated, a statutory obligation has been imposed upon the Local (Health) Authority to inform the person from whom the samples were taken that he may get the sample analysed by the Central Food Laboratory. But there is no such statutory obligation in the case when the sample is found to be misbranded by the Public Analyst. However, the Local (Health) Authority in its wisdom chose to inform the petitioner that he might get the sample analysed by the Central Food Laboratory even though the sample has been found to be misbranded by the Public Analyst and the sample has accordingly been analysed by the Central Food Laboratory as per certificate issued by its Director the said Authority in my opinion cannot now back out and say that by mistake the sample was sent to the Central Food Laboratory for analysis and report. Since the sample has been sent to the Central Food Laboratory and since the certificate has been given by the Director of the Central Food Laboratory after analysis, the consequence envisaged in section 13 (3) of the Act will follow. The certificate of the Director of Central Food Laboratory shall supersede the report of the Public Analyst even if that report related to misbranding of the sample. In the case of the State of Gujarat v. Kutubuddin Isafali (Supra), the learned Judge of Gujarat High Court sitting singly has held that the report of the Director of the Central Food Laboratory not only supersedes the one issued by the Public Analyst but it is final and conclusive evidence of the facts stated therein. In that view of the matter it has further been held that when there is a report of the Central Food Laboratory, the report of the Public Analyst will, for all practical purposes, be treated non-existent. In the case of Chetumal v. State of Madhya Pradesh (Supra), a sample of ground-nut oil purchased by the Food Inspector from the appellant before the Court was found to be adulterated by the Public Analyst. The appellant challenged the opinion of the Public Analyst and on his request the Court sent apart of the sample to the Director of the Central Food Laboratory for analysis. The appellant challenged the opinion of the Public Analyst and on his request the Court sent apart of the sample to the Director of the Central Food Laboratory for analysis. The certificate of the Director, Central Food Laboratory was that the article of food was adulterated. In the trial Court an objection was taken that the certificate of the Director of the Central Food Laboratory should be excluded from consideration as the specimen impression seal sent to the Director did not tally with the seal of the container in which the sample of oil was sent to him. The trial Court sustained the objection and did not take the certificate of the Director of the Central Food Laboratory into consideration. The trial Court, however, relied upon the report of the Public Analyst and convicted the appellant and passed a sentence of imprisonment and fine. The conviction and sentence were confirmed by the Sessions Judge on appeal and by the High Court in revision. In setting aside the order of conviction and sentence the Supreme Court held that under section 13 (3) of the Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory and that having been so superseded, the report of the Public Analyst could not, therefore, be relied upon to base a conviction. It has further been held that the certificate of the Director of the Central Food Laboratory having been excluded from consideration because of the tampering of the seal, there was really no evidence before the Court on the basis of which the appellant could be convicted and that the Court could not fall back on the report of the Public Analyst which had already been superseded. From the aforesaid decision as well as from the provision of section 13 (3) it is very such clear that as soon as the certificate the Director of the Central Food Laboratory is received the report of the Public Analyst stands superseded even if the said certificate cannot be taken into consideration in arriving at a decision in the case. If the report of the Public Analyst goes, then practically there will be no evidence to prove the prosecution case that the sample was misbranded. If the report of the Public Analyst goes, then practically there will be no evidence to prove the prosecution case that the sample was misbranded. There is no chance of conviction of the petitioner on the charge that the sample was misbranded and the continuation of the proceeding against the petitioner would, therefore, amount to an abuse of process of the Court. That being so the instant proceeding should be quashed. ( 7 ) THE learned advocate for the opposite party no. 2 has argued that the Court should not quash the proceeding on slender ground like the one as taken by the present petitioner and in support of his view he has referred to the decision of the Supreme Court in the case of State of Punjab v. Devinder Kumar (Supra ). But the ground taken by the petitioner is not a slender ground. A sample of Chilli Powder taken from the petitioner was sent to the Public Analyst for analysis and report. According to the Public Analyst the sample was not adulterated but was misbranded. A sample of Chilli Powder was also sent to the Central Food Laboratory for analysis and report. The certificate of the Director of Central Food Laboratory shows that the sample was not adulterated. It does not show that the sample was misbranded. Since the certificate of the Director of the Central Food Laboratory has totally superseded report of the Public Analyst as per provision of section 13 (3) of the Act, there is practically no evidence to prove that the sample was misbranded. On this ground the petitioner has prayed for quashing the instant proceeding and such ground in my opinion is not at all slender. ( 8 ) SINCE the instant revisional application is going to succeed on the finding of the first point as argued on behalf of the petitioner. I do not think it necessary to consider and decide the second point as urged by Mr. Sen, learned advocate appearing for the petitioner. Moreover, the question whether the complainant in the instant case properly applied his mind in the matter of filing of the petition of complaint can only be decided after the complainant is examined and evidence is gone into. So in any view of the matter, this Court is not inclined to consider and decide the second point as urged on behalf of the petitioner. So in any view of the matter, this Court is not inclined to consider and decide the second point as urged on behalf of the petitioner. ( 9 ) SO in view of finding on the first point, the instant revisional application is allowed. The impugned order dated 13. 9. 90 is set aside. The proceeding being Case No. 22d of the 1990 pending before the learned Senior Municipal Magistrate, Calcutta is hereby quashed. ( 10 ) LET a copy of this order be sent to the learned Magistrate concerned as expeditiously as possible. Application allowed.