Harbans Lal vs State of Punjab

V.S. Aggarwal, J.—This is a petition filed by Harbans Lal (hereinafter described as ''the petitioner'') seeking quashing of the complaint and the subsequent proceedings pending in the Court of Judicial Magistrate 1st Class, Patti.

The relevant facts are that Food Inspector inspected the premises of the petitioner on 24-6-1987. He found petitioner to be in possession of 8 Kilogram of curd. It was for sale. The Food Inspector demanded a sample of curd by giving him a notice in writing in the prescribed form. 750 grams of curd was purchased for Rs. 4/-. It was divided into three equal parts. Formaline was added. It was put into three bottles. The same were labelled and stoppered. The bottles were wrapped in a strong thick paper. The signatures of the petitioner were taken in such manner as prescribed. One part was sent to Public Analyst, Punjab. The other two sealed containers were sent to the Local Health Authority. The report of the Public Analyst was received to the effect that curd was adulterated. This led to the filing of the complaint against the petitioner.

The petitioner contends that the complaint and the subsequent proceedings are liable to be quashed. According to the petitioner, the Local Health Authority intimated the petitioner that if he so desires, he could send the second portion of the sample to the Director, Central Food Laboratory within 10 days. The petitioner exercised his right. The second sample was sent to the Central Food Laboratory. A report was received that contents of the sample had leaked leaving behind a solid mass. After receipt of the report, the third portion of the sample was sent to the Director, Central Food Laboratory. A similar report was received that contents of the sample had leaked. Despite that a charge had been framed against the petitioner with respect to an offence punishable under the Prevention of Food Adulteration Act. As per the petitioner a valuable right to get the samples analysed from the Central Food Laboratory has been lost and, therefore, prejudice has been caused to him. The complaint and the subsequent proceedings, therefore, are liable to be quashed.

The State has opposed the application. When the case was listed for arguments, none appeared for the petitioner.

To set the controversy at right, one can conveniently refer to some of the admitted facts. The Public Analyst, Punjab, after finding that the seals were intact had reported :-

I, further certify that I have/had caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows:-

Milk fat: 7.3%

Milk SOLIDS NOT FAT : 8.6%

Starch : Abt.

Sucrose : Abt.

AND am of the opinion that the contents of the sample are deficient in milk-fat by - per cent and in Milk solids - Not fat by 4.4% of the minimum prescribed standards.

Signed this 24th day of July, 1987.

When the second sample was sent to the Central Food Laboratory, the report dated 3-2-1988 indicated:-

The liquid portion of the contents of the sample bottle had leaked out leaving behind a solid mass, thereby rendering the sample unfit to carry out tests/analysis for the standards laid down for curd under the provisions of PFA Act, 1954 and Rules thereof.

The condition of the seals on the container and the outer covering on receipt was as follows :

Intact and unbroken. The seal fixed on the container and cover tallied with the specimen seal impression sent separately along with the copy of the memo.

Subsequent report of the Central Food Laboratory was no different and reads :-

The liquid portion of the contents of the sample bottle had leaked out leaving behind a small quantity of solid mass, thereby rendering the sample unfit to carry out tests/analysis for standard laid down for curd under provisions of PFA Act, 1954 and rules thereof.

The condition of the seals on the container and the outer covering on receipt was as follows :-

Intact and unbroken. The seal fixed on the container and cover tallied with the specimen seal impression sent separately along with the copy of the memo.

It is obvious from aforesaid that by the time, the Central Food Laboratory tested the sample, the contents had leaked. Section 13(1), sub-sections (2-A) (2-B), (2-C) and Sub-section (3) of the Prevention of Food Adulteration Act, 1954 read :-

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.

(2-A) When an application is made to the Court under Sub-section (2), 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, the said 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.

(2-B) On receipt of the part or parts of the sample from the Local (Health) Authority under Sub-section (2-A), the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of Sub-section (1) of Section 11 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 who 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.

(2-C) Where two parts of the sample have been sent to the Court and only one part of the sample has been sent by the Court to the Director of the Central Food Laboratory under Sub-section (2-B), the Court shall, as soon as practicable, return the remaining part to Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the Court:

Provided that where the part of the sample sent by the Court to the Director of the Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof, the Court shall proceed in the manner provided in sub-sec (2-B)

(3) The certificate issued by the Director of the Central Food Laboratory (under Sub-section (2-B) shall supersede the report given by the public analyst under Sub-section (1).

It is apparent from the conjoint reading of the above said provisions that after the report of the Public Analyst is received, a statutory right has been conferred on the person to make an application to the Court to get the other sample tested from the Central Food Laboratory. On receipt of such an application, the Court has to ascertain that the mark and the seal or fastening as provided u/s 11 of the Act are intact. If the same is not being tampered with, the second sample can be sent to the Central Food Laboratory. Sub-section (3) of Section 12 makes it clear that certificate by the Director of Central Food Laboratory supersedes the report given by the Public Analyst. Thus, it is clear that it is a valuable right of the accused to have the second or third sample tested from the Central Food Laboratory.

On behalf of the State it had been urged that in any case no prejudice has been caused to the petitioner and, therefore, merely because if the sample has leaked, there is no ground to quash the proceedings. But the said contention indeed must be taken to be without merit. Reference to some of the precedents on the subject would be advantageous. In the case of Municipal Corporation of Delhi Vs. Ghisa Ram, , the Supreme Court recognized that it was a valuable right of an accused to get the sample re-analysed from the Central Food Laboratory. In paragraph 7 the Court held :-

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 a 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.

Same was the view of the Madhya Pradesh High Court in the case of Rajendra S. Pathak v. Nagar Palika Ratlam (1986) 1 FAC 140. In the cited case Section 13(2) of the Prevention of Food Adulteration Act was again subject-matter to be considered. The sample herein was not available for re-analysis. It was held that the accused for no fault of his stands deprived of a statutory right. It was concluded that prejudice has been caused and the charge as such was framed, had been quashed.

The Gauhati High Court in the case of Hiranand Agarwalla Vs. Area Food Inspector and Another, considered the same question. The answer was in line with that of the Madhya Pradesh High Court and in paragraph 8 it was held :-

As in the present case, from what has been stated above it has to be held that the petitioner was denied the valuable right conferred by Section 13(2) for which he was not responsible in any way as decomposition had occurred due to defective packing, it would be highly unjust to ask the petitioner to face the trial to enable the State to find out as to why the defective packing had appeared and who was responsible for the same, for which purpose, according to the learned Public Prosecutor, the case should go back. I have come to this conclusion as the sample sent subsequently to the Director has come from the custody of the Food Inspector, and as the petitioner could not have reasonably had any hand in its defective packing. I am, therefore, satisfied that it is a fit case where the proceeding may not be allowed to be continued inasmuch as the same will only harass the petitioner without any benefit to the State in so far as the punishment for the alleged commission of crime is concerned, as the petitioner is bound to be acquitted at the end of the day on the ground of denial of right u/s 13(2) of the Act.

Before the Himachal Pradesh High Court in the case Madan Lal Anand Vs. Union of India and others, it had again come up for consideration. In paragraph 6 the Court held :-

The second reason which was accepted by the learned Sessions Judge for acquitting the respondent Prem Chand was also a valid one. Section 13(2-B) of the Act says that:

On receipt of the part or parts of the sample from the Local (Health) Authority under sub section (2-A), the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of Section 11 are infact 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 Central Food Laboratory who 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.

The intendment of this sub-section clearly is to ensure that the possibility of any tampering with the sample should not only be excluded but the fact that there existed no possibility of tampering with a sample should also appear from some observation recorded by the Court that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 of the Act were all intact and the signature or thumb impression not tampered with. In the absence of such record by the Court, the accused would be perfectly justified in taking the plea that the sample, which had been sent for examination, was not proved to be one which had not been tampered with.

The Orissa High Court similarly in the case Nestle India Limited Vs. Shri A.K. Chand, Food Inspector and Another, agreed with the above said view reiterated earlier. This Court in the case Rajinder Singh v. State of Haryana ILR (1988) P & H 117 considered various precedents on the subject. The facts were that when the sample was sent to the Central Food Laboratory, it was found to be broken. This Court held that a valuable right was deprived to the accused. In paragraph 7 the conclusions arrived at were :-

In this view of the matter, I am of the opinion that clearly the accused petitioner has been deprived of his right to get the sample tested from the Director and, therefore, has been prejudiced in his defence.

All these precedents draw their strength and colour from the decision of the Supreme Court in the case of Chetumal Vs. State of Madhya Pradesh and Anr, . In the cited case when the sample was sent to the Central Food Laboratory the seals were not intact. It was held that prejudice is caused by depriving the petitioner in getting the other sample tested from the Central Food Laboratory. The accused had been acquitted and it was held (Para 2):-

It is clear that the conviction cannot stand. u/s 13(3) of the Prevention of Food Adulteration Act, the report of the Public Analyst stood superseded by the certificate issued by the Director of the Central Food Laboratory. Having been so superseded the report of the Public Analyst could not, therefore, be relied upon to base a conviction. 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. The Court could not fall back on the report of the Public Analyst as it had been superseded. The only method of challenging the report of the Public Analyst was by having the sample tested by the Director of the Central Food Laboratory. In the present case the appellant was deprived of the opportunity to which he was entitled for no fault of his. It was not, therefore, open to the Court to fall back upon the report of the Public Analyst to convict the appellant. The appeal is allowed, the conviction and sentence are set aside.

It is obvious from aforesaid that the consistent view of all the Courts is that when a valuable right is lost to the petitioner/accused to get the sample re-analysed from the Director, Central Food Laboratory, he can well claim that prejudice has been caused to him. This is because of the reason that the report of the Director, Central Food Laboratory supersedes that of the Public Analyst. As noted above, in the present case the sample had leaked and a valuable right was lost to the petitioner. The proceedings, therefore, are liable to be quashed.

For these reasons, the petition is allowed. The complaint and the subsequent proceedings pending before the Judicial Magistrate, Patti are quashed.