Mehar Chand vs State of H.P.

R.S. Thakur, J.—This revision petition is directed against the order of The earned Sessions. Judge, Hamirpur, dated September 26, 1986.

The facts and the circumstances giving rise to the same are that the Petitioner in October 1982 was running a Karyana shop in village Chilihan, District Hamirpur and on October, 26,1982, the Food Inspector T.S. Vera, visited his shop and found that the Petitioner had exposed hard boiled sugar confectionery for public sale in his shop. The Food Inspector then after observing deal formalities purchased 900 grams of the said confectionary from the Petitioner for sampling against payment of Rs. 9.40 p. vide receipt Ex. PB. He then divided the purchased confectionery into three equal parts and put them in three clean and dry bottles where after all of them were duly wrapped, stopper and sealed and out of the three samples, he sent one of the samples to the Public Analyst while the remaining two were sent to the Local (Health) Authority in accordance with the procedure laid down under the provisions of the Prevention of Food Adulteration Act and the Rules (hereinafter referred to as ''the Act'' and the Rules''). The report of the Public Analyst (Ex. PE.) revealed that the sample in question was adulterated since it contained orange coal tar dye other than that prescribed and thus prohibited. A complaint was thus filed against the Petitioner in the Court of the Chief Judicial Magistrate at Hamirpur and notice thereof was sent to the Petitioner in accordance with the provisions of Sub-section (2) of Section 13 of the Act. Thereafter the Court concerned sent one of the samples lying with the Local (Health) Authority, to the Director, Central Food Laboratory, at the instance of the accused and the certificate issued by the Director, Central Food Laboratory (Ex. P.F) revealed that the sample was adulterated since it contained ''ash insoluble in dill more than the maximum prescribed limit and also presence of mineral oil. The Petitioner was then charge-sheeted u/s 16(1)(a)(i) of the Act by the Chief Judicial Magistrate and after his trial on the charge, he was found guilty there under and was sentenced to undergo rigorous imprisonment for ones year and to pay fine of Rs. 2,000/- and in default to undergo further simple imprisonment for four months.

The Petitioner went in appeal before the learned Sessions Judge, Hamirpur, who found that since the trial court had misdirected itself while framing the charge against the accused by not taking into consideration the certificate issued by the Director, Central Food Laboratory alone, as he ought to have done, but also partly relying on the finding, of the report of the Public Analyst as well, which vitiated the trial. He thus set-aside the conviction of the Petitioner and directed that the trial court should frame fresh charge on the basis of the certificate (Ex. PP) issued by the Director, Central Food Laboratory treating the same as final and superseding the report of the Public Analyst and then hold retrial of the Petitioner and dispose of the case in accordance with law.

The learned Counsel for the Petitioner in this revision petition before me has assailed this order of trade learned Sessions Judge on the ground that in view of the ruling of a learned single Judge of this Court in Voltas Ltd., New Delhi v. The Food Inspector, Chamba and Ors. ILR 1985 HP 796 v. the learned Sessions Judge could not have passed an order remanding the case for retrial but he should have ordered the dropping of the proceedings and returned the complaint to the complainant to institute fresh proceedings, if so desired, after obtaining the sanction to prosecute from the competent authority.

The case of Voltas Ltd. New Delhi cited (supra) was decided by brother Gupta, J. on September 5, 1985. The facts in that case were that the Food Inspector, Chamba, purchased. meal chunks for a sampling from M/s Suresh Kumar and Bros. of village and Post Office SarolParg district Chamba, which Were found to be adulterated and, therefore, a complaint was lodged, on July, 14, 1983, against the said firm and also Mitha Ram Puran Chand of Chogan Bazar Chamba, who were alleged to have sold the aforesaid meal chunks to Suresh Kumar and Bros. Later on in accordance with the provisions of Section 20A of the Act/ Volta Ltd., of New Delhi were also arrayed as Co-accused as they were the suppliers of the adulterated meal chunks to Mitha Ram Puran Chand. Later, then during the tendency of the proceedings Voltas Ltd. filed an application before the trial court that one of the samples in the possession of the Local (Health) Authority, be sent to the Director, Central Food Laboratory, Gaziahad which application was allowed and the certificate dated August 19, 1983, of the Director, Central Food Laboratory-Contained the findings which were in conflict with those of the Public Analyst in as much as though the sample was held to be adulterated but on different findings. The learned Chief Judicial Magistrate then "; sought to try the accused on the basis of the certificate issued by the Director, Central Food Laboratory. Voltas Ltd., one of the accused, however, challenged this action cm the part of the Chief Judicial Magistrate in the High Court On the ground that since the complaint against the accused dated July 14, 1983, was based on the report of the Public Analyst, dated June 15, 1983, which was in conflict with the certificate of the Director, Central Food Laboratory, therefore, the accused in the complaint could be prosecuted only on the basis of the certificate issued by the Director, Central Food Laboratory, and for this purpose a fresh complaint was required to be filed and that such a fresh complaint could not be instituted by the Food Inspector without obtaining the sanction in this behalf in accordance with Section 20 of the Act from the Chief Medical Officer, Chamba, as vide notification dated October 17, 1983, the State of Himachal Pradesh in super session of all the earlier notifications in this behalf, have authorized the Chief Medical Officer in their respective districts to either themselves institute legal prosecution or to give written consent in this behalf for prosecution of offences under the Act. This contention found favor with the learned brother Gupta, J. who observed as under:

The Petitioner (Voltas Ltd.), therefore, cannot be accused of having committed an offence for which there was no proper complaint. The Food Inspector was at liberty file fresh complaint on the basis of the report of the Director, Central Food Laboratory, in accordance with the provisions of the law.

In the present case, however, there is no such complaint as yet and, therefore,, the present proceedings against the Petitioner have to be quashed at the present stage. Similar is. The position with respect to Respondents Nos. 2 and 3 (also accused in the original complaint) and the proceedings against them should also be quashed to avoid any unnecessary harassment to them and in the interest of justice......

In the present case as no proper complaint was filed by the Food Inspector prior to October 17, 1983, on the basis of the report of the Director, Central Food Laboratory and for filing complaint after October 17, 1983 it was necessary for him to have taken the written consent of the Chief Medical Officer, Chamba, district, therefore, it is held that there is no proper and valid com plaint. Hence it is ordered that this complainant be returned to the complainant and the present proceedings are dropped....

With utmost respect to the learned Judge, I do not think this ruling has laid down the correct law.

The learned brother has based this finding on a single Bench ruling of the Bombay High Court, reported in 1979 Cri LJ 274, State of Maharashtra v. Nizamuddin Haji Mohamed Kasam. In that case sanction for prosecution was granted on: the basis of the report of the Public Analyst which showed that the sample of drink contained prohibited color. Before the, charge was, however, framed .in the case the accused tendered the sample which was with him for being sent to the Central Food Laboratory. The Certificate of the Director of the Laboratory, however, showed that the sample of drink was adulterated not for congaing prohibited color but for having saccharin beyond the prescribed limit The learned single Judge in that, case held that since the certificate issued by the Central Food Laboratory superseded the report of the Public Analyst, a charge in terms of the finding in that certificate was required to be framed which could not be framed unless a fresh sanction to institute prosecution in this behalf was obtained.

It, however, appears that this does not lay down a correct proposition of law. It is clear from the perusal of Section 13 of the Act that after the Local (Health) Authority receives the report of the Public Analyst disclosing the sample in question as being adulterated, it is required to forward the same to the Food, Inspector to launch prosecution and immediately after the intimation of the institution of prosecution against the person concerned is received by the Local (Health) Authority from the Food Inspector, the said authority is required to send a copy of the report of Public Analyst to the concerned person along with a notice intimating that the sample in question ha4 been found to be adulterated and that he could apply to the court concerned within ten days of this notice to send one of the samples kept by the Local (Health) Authority to the Director, Central Food Laboratory for analysis and if the accused chooses to do so, the proceedings before the court concerned are held in abeyance till the receipt of the certificate of the Director of the Central Food Laboratory. Sub-section (3) of Section 13 of the act lays down that the certificate issued by the Director, Central Food Laboratory shall supersede the report given by the Public Analyst.

Thus a bare reading of this section would indicate that as soon as the certificate of the Director of the Central Food Laboratory is received, that is the final and conclusive document as regards the quality of the sample. In ease the certificate discloses that the sample in question was not found to be adulterated, that is the end of the matter and even if the report of the Public Analyst on the basis of which the prosecution had been launched showed that the sample was adulterated, that is of no consequence whatsoever and the accused is entitled to discharge or acquittal as the case may be. In case, however, the certificate in question also reveals that the sample in question was an adulterated one, then in that case, even if the finding in the said certificate is completely at variance or in conflict with the report of the Public Analyst on the basis of which the prosecution was launched, the accused concerned is liable to be prosecuted on the basis Of finding given in the certificate and in such a case the Act or the Rules nowhere lay down that a fresh complaint is required to be filed by the prosecution on the basis of the certificate of the Director, Central Food Laboratory. In such a case by a fiction of law the report of the Public Analyst shall stand supplanted by the certificate of the Director, Central Food Laboratory and it would relate back to the time when the complaint was filed. As a matter of fact it is the finding of the sample being ''adulterated'' which amounts to an offence and not the variations in the report and the certificate which may impel the two authorities to conclude that the article of food in question was adulterated. The factor of variation is relevant only for the purpose of adducing evidence in proof of the offence. While viewing the impugned order of the lower appellate court in the light of these observations, I feel that the same is free from any infirmity.

It may also be observed that the two Division Bench rulings, n noticed below of the High Courts of Punjab and Haryana and Gujarat go completely contrary to the aforesaid ruling in question. In 1975 FAJ 314, Municipal Committee, Amritsar v. Shadi Lal, the facts before a Division Bench of the Punjab and Haryana High Court were that the report of the Public Analyst had returned a finding that the sample of turmeric was adulterated and a complaint was instituted on the basis of this report. During the course of the trial the second sample was sent to the Director, Central Food Laboratory for analysis and the findings of the Director, Central Food Laboratory in his � certificate were materially different from those in the report of the Public Analyst. On the basis of these conflicting findings it was argued before the Bench on the strength of a single Bench ruling of the same High Court in Rattan Lai v. The State 1974 PLR 43, that the two reports were so inconsistent and contradictory that it was difficult to say that the two. samples could have originated from the same source and further that the Director''s report was final and conclusive only on the point that the sample reached his office with seals intact and that the various tests mentioned therein were carried out and the conclusion drawn were erect but not to the safe custody of the sample during the storage and transit while they were in the complainant''s possession. The learned Judges while repelling this contention held c that the provisions of Section 13 of the Act clearly envisage that once the report of the Director, Central Food Laboratory. be beep obtained, the report of the Public Analyst cannot be used as evidence of the facts stated therein and that it was not open to the accused to take any advantage to contend inconsistency of the reports and once He report of the Director, Central Food Laboratory has been obtained, the report of the Public Analyst is to be ignored for all intents and purposes as inadmissible in evidence.

Then in The State of Gujarat Vs. Ambalal Maganlal, a Division Bench of that High Court has held:

Where, the Court on a valid written consent took cognizance of the offence in view of deficiency in fat contents from die sample of milk as per the report of Public Analyst, but afterwards the report of the Director of Central Food Laboratory which supersedes former report in view of Section 13(3) discloses the deficiency in solid non fat content i.e. reverse to the report of Public Analyst, the court can proceed with the case on the basis of the report of the Director without obtaining a fresh written consent in that respect. The consent once effectively given could not become invalid merely because the evidence i.e. analysis by which offence was sought to be proved changes as a result of subsequent event. Further the two standards fat contents and solid non fat contents in respect of milk prescribed under the Rules must be cumulatively satisfied, therefore, if a given sample falls below any one of these two standards the Article of the food is adulterated and the offence takes place. The two Standards therefore, are integral parts of one and the same offence. Hence fresh written consent for the same offence would not be necessary. Moreover, there is also no question of prejudice to the defense because if the charge is not framed the same can be. Framed on the basis of the report of the Director, and if the charge is already framed before the receipt of certificate the same can be altered or amended.

I am, respectfully, in complete agreement with the afore mentioned two Division Bench rulings, as per my opinion in paragraphs just preceding them

In view of this, it is felt that the running m question is required to be considered by a Division Bench. The matter may, therefore, be placed, before my lord the me of Justice, for passing an appropriate order in this behalf.