Research › Browse › Judgment

Gauhati High Court · body

1992 DIGILAW 116 (GAU)

KAILASH CHAND GAGGAR v. STATE OF ASSAM

1992-07-23

U.L.BHAT

body1992
JUDGEMENT Urban Health Officer, Nagaon Municipality (P.W. 1) accompanied by Food Inspector and others visited the Oil Mill of revision petition on 10-9-1978. When they went to the godown they saw two labourers sealing tins. The labourers escaped. Revision petitioner and his father came there. In response to questions, revision petitioner stated that the tins contained rape seed oil. After observing all legal formalities. P.W. 1 purchased requisite quantity of rape seed oil for the purpose of analysis. He divided the sample into three equal parts and dealt with the same as required by the provisions of the Food Adulteration Act, 1954 (for short "the Act") and the Rules framed thereunder. One part of the sample was sent to the Public Analyst with memorandum by special messenger and two samples were similarly sent to the Local Health Authority. Report of Public Analyst showed that the sample was adulterated inasmuch as it contained prohibited coal tar dye. After duly obtaining sanction. Food Inspector lodged complaint under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954 against the revision petitioner. Copy of report with intimation was sent to the revision petitioner by registered post. Revision petitioner moved the trial court to send for another part of the sample and to forward it to the Director, Central Food Laboratory for analysis. That was done. The Director reported that the sample was adulterated inasmuch as it contained oil soluble coal tar dye. Revision petitioner pleaded not guilty to the charge framed against him by the trial court. Prosecution examined P.W. 1 and an independent witness P.W. 2. Revision petitioner did not examine any witness hut denied the truth of the prosecution evidence. The trial court upheld the prosecution case and convicted the revision petitioner and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 2000/- and in default to undergo rigorous imprisonment for one month. Appeal filed by him before the Sessions Court was dismissed. Hence this revision. 2 There is no dispute before me that sample of rape seed oil kept in the godown attached to the Oil Mill of the revision petitioner was taken for analysis. There is also no dispute that the certificate issued by the Director. Central Food Laboratory superseding the report of the Public Analyst showed that the sample was adulterated. 2 There is no dispute before me that sample of rape seed oil kept in the godown attached to the Oil Mill of the revision petitioner was taken for analysis. There is also no dispute that the certificate issued by the Director. Central Food Laboratory superseding the report of the Public Analyst showed that the sample was adulterated. It is not argued before the for the revision petitioner that there has been any illegality or irregularity in taking the sample or dealing with the sample in the further stages of the process or that there has been information of any of the Rules governing the matter. 3 The only contention urged by the learned counsel for the revision petitioner is that the learned Magistrate, who sent for the second part of the sample from the Local Health Authority and despatched it to the Director, Central Food Laboratory, has not recorded that he acted in conformity with the requirements of Section 13(2B) of the Act and therefore the certificate of the Director cannot be relied on. Sub-Section (1) of Section 13 of the Act requires the Public Analyst to deliver his report to the Local Health Authority of the result of the analysis of any article of food submitted to him for analysis. Sub-Section 121 requires the Local Health Authority, after institution of the prosecution, to forward in the prescribed manner a copy of the report to the accused informing him that if he so desired he may make an application to the court within a period of 10 days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. Sub-Section (2A) states that when an application is so made, the court shall require the Local Health Authority to forward the part or parts of the sample kept by the said authority and upon such requisition being made, Local Health Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition. On receipt of the part or parts of the sample from the Local Health Authority, Sub-Section (2B) requires the Court to ascertain that the mark and seal or fastening as reprovided in Section 11 (1)(b) are intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory. The Director shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. Thus it can he seen that when part of the sample is received from the Local Health Authority, the court is required to perform a threefold function, namely, ascertaining that the mark and seal or fastening are intact, ascertaining that the signature or thumb impression is not tampered with and despatching the part or parts under its own seal to the Director of Central Food Laboratory. 4 On an application filed by revision petitioner to send one part of the sample to the Director, Central Food Laboratory, the learned Magistrate on 6-11-1978 passed an order directing production of the part before the court. The part of the sample was duly produced. Learned Magistrate on 16-11-1978 passed an order that the sample was received from the Local Health Authority and the sample is sent to the Director of Central Food Laboratory. Learned counsel for the revision petitioner points out that the learned Magistrate has not recorded in the order sheet that he had ascertained that the mark and seal or fastening, as required under Section 11(1)(b) are intact and the signature of the accused is not tampered with. Accordingly it is argued that there has been violation of the requirements of Sub-Section (2B) of Section 13 of the Act. Learned Public Prosecutor contends that relying on Section 114(e) of the Evidence Act the court may presume that judicial and official acts have been regularly performed. 5 Section 114 of the Evidence Act states that the court may presume existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. 5 Section 114 of the Evidence Act states that the court may presume existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. Illustration (e) states that the court may presume that judicial and official acts have been regularly performed. This would mean that if it is proved that a judicial or official act has been performed, then in the absence of any other evidence, it may be presumed that it has been done regularly though there is no positive evidence. Illustration (e) of to Section 114 of the Evidence Act is a specific application to acts of judicial or official character of the general presumption embodied in the maxim "omnia praesumuntur rite esse acta." The basis of the presumption is that normally Courts of justice uphold official and judicial and other acts rather than render them inoperative. The presumption arises wholly on grounds of public policy. The presumption, in appropriate cases, would apply to the acts of the Food Inspector also. If an official act is proved to have been done it will be presumed to have been regularly done. If it is the duty of the court to do a particular thing, it may be presumed that the court did its duty regularly. The presumption is regarding the regular performance of the act, that the act has been one with due regard to form and procedure. I see no reason why the presumption under Section 114 of the Evidence Act should not be drawn in regard to the regularity of the act done by the learned Magistrate, particularly in the absence of any challenge in that regard before the learned Magistrate. It is of course desirable that Magistrates record the various steps taken by them, but in the absence of such a record, the superior Court can draw necessary presumption under Section 114 of the Evidence Act. 6 Learned counsel for the revision petitioner referred me to certain decisions. In State v. Joginder Lal Kapoor, 1980 (1) FAC 86 : (1981 Cri LJ (NOC) 28), the Magistrate had certified that the fastening, markings and sealing was intact and that the sample was absolutely fit for being sent, but did not specifically certify that the signature of the accused was intact. In State v. Joginder Lal Kapoor, 1980 (1) FAC 86 : (1981 Cri LJ (NOC) 28), the Magistrate had certified that the fastening, markings and sealing was intact and that the sample was absolutely fit for being sent, but did not specifically certify that the signature of the accused was intact. Delhi High Court held that the Magistrate's note that the sample was absolutely fit meant that it was in order in all aspects. In State of Maharashtra v. Dnyandeo Ramchandra Patil, 1982 FAJ 699 the Magistrate recorded that he had verified that the signature was not tampered but did not record anything else. The Bombay High Court held that there was violation of Section 13(2B) of the Evidence Act and acquitted the accused. The court did not consider the question whether presumption under Section 114 could be drawn. In Food Inspector v. Abdulla, 1986 (3) FAC 193 (also reported in 1986 Ker LT 1267), a learned single Judge of the Kerala High Court held that the presumption under Section 114 can be drawn only when there is some record of proceedings to show that the court at least substantially complied with the procedure under Section 13(2B) of the Act and since there was no such record the accused should be acquitted. Another learned single Judge of that court in Kesavan v. Food Inspector, 1987 (2) FAC 115 (also reported in 1987 (2) Ker LT 87) held that presumption under Section 114 cannot be drawn in relation to acts contemplated in Section 13(2B) of the Act. 7 A Full Bench consisting of 5 Judges of the Kerala High Court had occasion to consider the same question in Mathukutty v. State of Kerala, 1987 (2) FAC 293 (also reported in 1987 (2) Ker LT 867 : (1988 Cri LJ 898 (FB)). In that case learned Magistrate did not record that he had ascertained that the markings, sealing and fastening were intact or that the signature was not tampered with before sending the sample to the Central Food Laboratory. It was argued that the Magistrate did not perform his statutory duty, as required under Section 13(2B) of the Act. Reliance was placed on the decision of Bombay High Court in D. R. Patil's case and also the decisions of the learned single Judges of the Kerala High Court. The court noticed other decisions of the court which took a different view. Reliance was placed on the decision of Bombay High Court in D. R. Patil's case and also the decisions of the learned single Judges of the Kerala High Court. The court noticed other decisions of the court which took a different view. Fathima Beevi, J., as she then was, speaking for the Full Bench held : "The official function of the court under this Sub-Section is to despatch under its own seal to the Director of the Central Food Laboratory the sample produced by the local authority on application made in that behalf. Necessary steps are detailed in the provision. Sample has to be called for from the local authority. Court has to ascertain that the mark, seal or fastening are intact and the signature or thumb impression has not been tampered with and thereafter despatch the same to the Director as indicated in Rule 4 of the Rules. Sub-Section (2B) does not require the court to certify or make a record of these steps contemporaneously or even subsequently. The official act enjoined on the court is to despatch the sample. Essential formalities are those mentioned in S. 13(2B). There is no dispute that the official act has been performed in this case. Section 114, illustration (e) enables the court to presume that the official act has been regularity performed. The superior court may in its discretion presume that the official act of despatching the sample to the Director of Central Food Laboratory has been performed regularly, that is, after taking all such steps and precautions as are required to be taken under S. 13(2B) of the Act. Since the authority involved is a Court, we see no reason to hesitate in drawing such a presumption. This is particularly so when this aspect could have been, but was not challenged in the trial court. It is, of course, desirable that a record of the steps taken is maintained, but failure to maintain such record cannot stand in the way of the aforesaid presumption being drawn. The decisions referred to earlier that hold against the presumption being drawn and the acceptability of the certificate of the Director of Central Food Laboratory in the absence of record of all the setps taken under Section 13(2B) of the Act, do not lay down good law." (Emphasis supplied). The decisions referred to earlier that hold against the presumption being drawn and the acceptability of the certificate of the Director of Central Food Laboratory in the absence of record of all the setps taken under Section 13(2B) of the Act, do not lay down good law." (Emphasis supplied). I was a party to the above decision and I, once again, agree with the view laid down in the decision. No other contention has been argued before me. 8 I therefore decline to interfere and dismiss the revision petition. Revision dismissed.