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2000 DIGILAW 1481 (ALL)

GYAN CHANDRA v. NAGAR SWASTHYA ADHIKARI,kanpur

2000-12-01

VINEET SARAN

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V. SARAN, J. ( 1 ) ). Gyan Chandra has preferred this revision against the judgment and order dated 10-4-1986 of Shri R. C. Pandey, II Additional Sessions Judge, Kanpur Nagar dismissing criminal appeal No. 59m of 1984 against the judgment and order dated 23-2-1984 of Sri K. K. Tyagi, Metropolitan Magistrate (Corporation) Kanpur convicting and sentencing the applicant under Section 7/16 of the Prevention of Food Adulteration Act (for short the Act) to six months R. I. and a fine of Rs. 1000. ( 2 ) ACCORDING to the case of the prosecution a sample of mustard oil was collected from the applicant by Sri K. P. Singh, Food Inspector on 22-4-1982. It was sent for analysis to the public analyst who by his report dated 11-6-1982 found the sample adulterated. This adulteration consisted of the fact that the sample was found positive for the presence of argemone oil. In other respects there was nothing wrong with the mustard oil. According to the report of the public analyst saponification value was 174. 4 and the sample was found negative in Polybromides test. According to the prescribed standard the saponification value can be up to the maximum limit of 177. Similarly polybromides test ought to be negative. On the basis of the report of public analyst that the sample was found positive for presence of argemone, the applicant was prosecuted. ( 3 ) AT the trial the applicant gave an application under Section 13 (2) of the Act for getting the sample analysed by the Central Food Laboratory. Accordingly the sample was sent to the Central Food Laboratory and the report of Central Food Laboratory was received in Court. According to this report the sample was found negative for the presence of argemone oil. At the same time according to the report of Central Food Laboratory the saponification value was found to be 180. 3 and test for polybromides was found to be "trace positive". In view of the report of the Central Food Laboratory the prosecution gave up its case that the sample was adulterated on account of presence of argemone oil. However, the applicant was prosecuted and convicted on the ground that the saponification value was 180. 3 as against the prescribed maximum limit of 177 and that the polybromides was found to be "trace positive. However, the applicant was prosecuted and convicted on the ground that the saponification value was 180. 3 as against the prescribed maximum limit of 177 and that the polybromides was found to be "trace positive. " ( 4 ) I have heard learned counsel for the applicant and learned State counsel and have gone through the evidence on the record. ( 5 ) AS has been mentioned above, theconviction of the appellant is not based on the adulteration as described in the report of the public analyst. According to the report of the public analyst the presence of argemone oil was found positive in the sample of the mustard oil. However, the applicant has not been convicted on that amount because according to the Central Food Laboratory, the sample was found negative for the presence of argemone oil. ( 6 ) SO far as the saponification value and polybromides test are concerned, there is force in the contention of the learned counsel for the applicant that in the facts and circumstances of the present case and in view of the evidence of DW 1 Ajay Kumar Dixit it does appear that there is some error at the level of the Central Food Laboratory. So far as the saponification value is concerned it may be noted that the public analyst had analysed the sample on 11-6-1982 and found that the saponification value was 174. 4. According to the prescribed standard the saponification value can be up to 177. According to the report dated 8-10-1982 of the Central Food Laboratory the saponification value was 180. 3, that is, marginally in excess of the prescribed standard. There is force in the argument of learned counsel for the applicant that due to long lapse of time there might have been some qualitative change in mustard oil the sample of which was taken on 22-4-1982. The defence has examined Sri Ajay Kumar Dixit who belongs to Ag Mark Quality Control of Government of India as DW 1 who has deposed that he had 10 years of experience in the field of examining various kinds of oils and that he must have analysed thousands of sample of oils. According to the evidence of DW 1 Ajay Kumar Dixit the saponification value in edible oil can increase due to a variety of other reasons during storage. According to the evidence of DW 1 Ajay Kumar Dixit the saponification value in edible oil can increase due to a variety of other reasons during storage. The most important fact which has been stated by DW 1 Ajay Kumar Dixist is that if the saponification value in mustard oil was more it will be accompanied by increase in B. R. Reading and Bellier test which is not to be found in the report of the Central Food Laboratory. ( 7 ) ADVERTING to the polybromides test it may be observed that the public analyst found it to be negative. In the report of the Central Food Laboratory it is noted to be "trace positive". According to the evidence of the expert examined by the defence, that is, Sri Dixit polybromides test in mustard oil is to be either negative or positive. Sri Dixit was emphatic that polybromides test is positive only in linseed oild and that in linseed oil the iodine value as at least 170 whereas in mustard oil polybromides test can be positive only after iodine value is above 108. In other words, if in a sample of mustard oil the polybromides test is positive the iodine value is bound to be more than 108 and the B,r. Reading will exceed 60. 5. This is not so in the present case as according to the Central Food Laboratory the iodine value was below 108 and B. R. Reading was below 60. Sri Dixit has further stated that polybromides test in oils has either to be positive or negative. He further stated that there is no test for "trace positive". After seeing the report of the Central Food Laboratory he stated that the iodine value is noted below 108 and the B. R. Reading was noted to be 60. 5 and hence on the face of it, the finding that the sample was trace positive was not correct. The defence expert was cross-examined by the prosecution but nothing could be elicited to discredit his statement. 5 and hence on the face of it, the finding that the sample was trace positive was not correct. The defence expert was cross-examined by the prosecution but nothing could be elicited to discredit his statement. ( 8 ) TAKING into consideration the entire facts and circumstances of this case and the evidence on the record I am of the considered opinion that there might be some mistake at the level of the Central Food Laboratory or due to lapse of time due to which there was marginal variation in the saponification value I am further of the opinion that the finding that the sample was trace positive in polybromides test was also on account of some error. ( 9 ) IN expressing my above view I am conscious of the provisions of proviso to Section 13 (5) of the Act which state:"[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 (1-A) of Section 16] shall be final and conclusive evidence of the facts stated therein. ]" ( 10 ) INTERPRETING the above provision in a reasonable and fair manner it is legitimate to hold that the conclusiveness of the evidence is only in respect of facts stated in certificate of the Central Food Laboratory. At the same time such facts in the certificate still remain opinion evidence and theconclusiveness of the fact stated in the report is not to be taken as substitute to a judgment of conviction but on the other hand, it is the duty of the Court to apply its mind to decide whether to base a conviction on such evidence or not. I am fortified in my view by the erudite articulation of this Court in the case of Nagar Mahapalika, Kanpur v. Ram Niwas, AIR 1964 All 349 in which this Court observed (Para 4) :"under the proviso to sub-section (5) of Section 13 of the Prevention of Food Adulteration Act the certificate of the Director of the Central Food Laboratory is final and conclusive evidence of the facts stated therein, but not of any opinion expressed therein. Courts of law can record a finding of their own after taking into consideration the facts stated in the certificate of the Director and other evidence on record. In other words, the Courts are not bound to accept the opinion of the Director and in suitable circumstances can reject it. "i am in respectful agreement with the view of law expressed in the case law referred to above. In the result, this revision is allowed. The conviction and sentences passed against the applicant are set aside. The applicant is on bail. He need not surrender and his bail bonds are discharged. Fine, if paid by the applicant shall be refunded to him. Revision allowed. .