Municipal Committee, Amritsar vs Lal Chand

S.C. Mital, J.—Lal Chand was convicted u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) by the trial Magistrate and sentences to two years'' rigorous imprisonment and a fine of Rs. 2000/-. The appeal filed by lal Chand was accepted by the Additional Sessions Judge, Amritsar. Against the order of acquittal, the Municipal Committee has preferred this appeal.

It was alleged against Lal Chand that on 22nd August, 1967, Om Parkash, Food Inspector, on checking his shop situate in the town of Amritsar found 7 kilograms of ladoos of bundi for sale. In the presence of Harbhajan Singh and Daulat Ram, the Food Inspector observed the formalities and took sample of the ladoos weighing 1500 grams on payment of Rs. 6.37. The sample was divided into three parts and transferred in three dry bottles which were duly stoppered and labelled. One of the bottles was made over to Lal Chand. The second was kept in deposit and the third bottle was sent to the Public Analyist whose report Exhibit P.F. showed that the ladoos contained prohibited yellow coaltar dye.

At the trial, lal Chand denied the prosecution allegations including the taking of sample from him.

In the course of the trial, the Magistrate sent one of the two remaining samples to the Director, Central Food Laboratory, Calcutta (hereinafter referred to as the Director). Upon receiving the certificate of the Director that the ladoos in questions were adulterated, the Magistrate used it against Lal Chana. The action taken by the Magistrate did not find favour with the Additional Sessions Judge who expressed the view that the Magistrate had no jurisdiction to do so. Support was sought from the provisions of subsection (2) of section 13 of the Act which empowered either the vendor or the complainant to send his sample to the Director. In expressing himself in rather strong language, the Additional Sessions Judge completely lost sight of the fact that section 540 of the Code of Criminal Procedure (hereinafter referred to as the Code) was all the same there to authorise the Magistrate to do so. It is pertinent that section 5 of the Code provides that all offences shall be tried and otherwise dealt with according to the provisions of the Code if the offences are under the Penal Code, and trial of offences under any other law shall also be according to the provisions of the Code, but subject to any enactment regulating the manner of trial. Nothing has been brought to our notice depriving a Magistrate of his power u/s 540 of the Code.

As regards the exercise of such power, in Jamatraj Kewalji Govani Vs. The State of Maharashtra, , their Lordships of the Supreme Court have laid down:--

As section 540 of the Code stands there is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that for the just decision of the case, the step must be taken. It is clear that the requirement of just decision of the case does not limit the action to something in the interest of the accused only. The action may equally benefit the prosecution.

Apart from his report, the Public Analyist was examined as a witness. Upon a consideration of the various points urged against the evidence of the Public Analyist, the Magistrate directed the sample of the ladoos to be tested by the Director. The soundness of the reasons given by the Magistrate has not been assailed before us. The view of the Additional Sessions Judge that "courts of law are not supposed to fill up the lacunae in the cases of the prosecution and are expected to have balanced attitude is clearly inapplicable to the facts of the present case. The simple reason being that when the sample was sent to the Director, his certificate could not necessarily be expected to be in favour of the prosecution, it could as well favour the accused. Above all, as laid down by their Lordships of the Supreme Court, an action taken by a Court cannot be held objectionable simply because it benefits the prosecution.

The learned counsel then raised objection to the direction in the order to the accused to pay the fee for testing the sample. The contention was that it amounted to testimonial compulsion as envisaged by Article 20 (3) of the Constitution of India. M.P. Sharma and Others Vs. Satish Chandra, District Magistrate, Delhi and Others, , relied on by the learned counsel, laid down that the guarantee under Article 20 (3) would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against an accused. The compulsion being an essential ingredient, what is required to be seen is whether the accused in the case in hand was compelled. According to his learned counsel, the order of the Magistrate directing him to pay the test fee amounted to compulsion. But at the same time it is patent that at no stage did the accused raise such an objection. It may as well be that just as the report and evidence of the Public Analyist were not then wholly helpful to the prosecution the accused thought that the certificate of the Director would also be such. The acquiescence of the accused, therefore, cannot be ruled out. The other aspect of the matter, as laid down by their Lordships is the prohibition against the production of evidentiary documents by an accused. In the case in hand, the accused was not required to produce anything. However, his learned counsel argued that if the accused had not paid the fee, the sample would not have been tested by the Director and his certificate would not have been forthcoming. To my mind, the contention is not tenable. Article 20 (3) says that an accused shall not be compelled to be a witness against himself. Their Lordships of the Supreme Court considered the taking of specimen handwriting or impressions of fingers, palms or foot in The State of Bombay Vs. Kathi Kalu Oghad and Others, , and observed that the said specimens by themselves did not incriminate the accused or even tended to do so. The accused, therefore, could not be held to furnish evidence against himself. For the same reason, I am of the view that by making payment of the test fee, the accused did not incriminate himself. More over as indicated already, at that stage, it could not be expected for certain that the certificate of the Director would be against the accused. For the foregoing reasons, the Additional Sessions Judge was wholly wrong in finding fault with the order of the Magistrate and in ruling out of consideration the certificate of the Director.

The other ground of acquittal in the impugned judgment is noncompliance of the provisions of sub section (7)of section 10 of the Act according to which while taking sample, the Food Inspector shall call one or more persons to be present and he shall taken is or their signatures. The testimony of Om Parkash, Food Inspector, is that he called Daulat Ram and Harbhajan Singh, the sample of the ladoos was taken in their presence and they attested the memos prepared by him. Daulat Ram was given up as having been wonover. It is not the contention before us that it was so done with any ulterior motive. As such the reason of his being given up appears true. Our attention has not been drawn to any material to contradict the Food Inspector so far as the presence of Daulat Ram at the relevant time is concerned. The Additional Sessions Judge was highly influenced by the testimony of Harbhajan Singh to the effect that when he arrived on the scene, the sample had been taken and that even the price thereof was not paid to the accused in his presence. This witness was not got declared hostile. The finding of the Additional Sessions Judge that he could not be held to be present at the relevant time is thus well-based but the fact remains that in his judgment now here has the Additional Sessions Judge excluded the presence of Daulat Ram. The requirement of section 10 (7) of the Act there fore stands satisfied. State v. Sadhu Singh AIR 1962 P&H SIC , lays down that it is duty of the Food Inspector to call not less than two persons to be present at the time of taking sample. That was the law before the amendment of the Act by Act No.49 of 1964 which now makes the presence of one or two persons essential. The Additional Sessions Judge erred in relying not only on that decision but also on Om Sarup Nand Lal Vs. Gur Narain and Others, , because the same is based on Sadhu Singh''s case (supra).The next ruling referred to is Vishnu Kumar v. The State (169) PLR D 290,in which it was held that the provisions of sub-section(7) of section 10 of the Act are mandatory and non-compliance with the same render the conviction illegal. To the contrary, their Lordships of the Supreme Court in Babu Lal Hargovindas Vs. The State of Gujarat, , have held that the provisions of section 10(7) of the Act and section 103 of the Code of Criminal Procedure are enacted to "safeguard against any possible allegations of excesses or resort to unfair means either by the Police Officers or by the Food inspectors under the Act. This being the object, it is in the interests of the prosecuting authorities concerned to comply with the provisions of the Act, the non-compliance of which may in some cases result in their testimony being rejected. While this is so we are not to be understood as in any way minimizing the need to comply with the aforesaid salutary provisions". That being so, with due respect the view of the Delhi High Court cannot be followed. For the foregoing reasons, the ground of acquittal under consideration is set aside.

We have gone through the testimony of Om Parkash, Food Inspector that on 22nd August, 1967, he checked the shop of Lal Chand accused in Lohgarh in Amritsar and found 7 kilograms of ladoos of bundi kept for sale. Harbhajan Singh and Daulat Ram witnesses were present. After giving notice Exhibit P.A. conveying the intention to take sample of the ladoos for analysis, he purchased 1500 grams of ladoos and paid Rs. 6.35 against receipt Exhibit P.B. The ladoos were divided into three equal parts and transferred into three dried and clean bottles which were stoppered, labelled and sealed. One of them was made over to the accused, another kept in record and the third was sent to the Public Analyst. Nothing material was pointed out in the cross-examination of the Food Inspector to impair his veracity. In Babu Lal Hargovindas Vs. The State of Gujarat, , their Lordships of the Supreme Court have laid down that the evidence of the Food Inspector is not that of an accomplice and it is not a rule of law that his evidence cannot be accepted without corroboration. The same if believed can be relied on for proving that the samples were taken as required by law. Each case will depend on its own circumstances. Applying these principles to the facts of the present case, I find that the testimony of the Food Inspector, but for the fact that Harbhajan Singh arrived a bit later, is reliable.

Now the question to be determined is, whether the prosecution has proved that in the manufacture of the ladoos in question, the dye used was not the permitted one. The general principle is that the written opinion of an Expert is not admissible and that he must come to the witness-box and make deposition. But, section 13 of the Act makes two exceptions by providing that the report of the Public Analyst and the certificate issued by the Director, may be used as evidence. Sub-section (3) of section 13 further enacts that the certificate issued by the Director shall supercede the report of the Public Analyst. In the case in hand Exhibit P.F. is the report of the Public Analyst and then is the certificate of the Director. But these two documents have been rendered insignificant because Shri R.N. Beri, Public Analyst was examined at the trial and re-examined in this Court. As regards the Director, Shri S.N. Mitra, interrogatories of both the parties were sent to him by the trial Magistrate and he answered them on oath. With respect to the report of the Public Analyst, it could be said without any shadow of doubt that it stood superceded by the certificate of the Director vide sub-section (3) of section 13 of the Act. But, so far as the statement of Shri R.N. Beri, Public Analyst, made on oath is concerned, the said provisions would not apply. In other words, his testimony cannot be said to have been superceded by the statement of the Director, Shri S.N. Mitra. The Additional Session Judge did not apply his mind to this aspect of the matter and he erred in not considering the statement of the Director.

The decision of the case now rests on the evidence of the two experts. Before dealing with the same, it may be pointed out that in order to understand the nature of the tests performed by them, it was considered essential for the just decision of the case to re-examine Shri R.N. Beri, Public Analyst, in this Court. According to him, this is how the double dyeing wool test is performed. Pure white knitting wool is boiled in a very dilute solution of sodium hydrooxide and then in water. A strip of the wool is acidified and boiled and then washed in cold tap water. On the other hand, from the sample the dye in question is first taken in water. It is slightly acidified. A strip of the white wool is out into it and the whole is boiled. The colour from acquas solution is then taken on the wool. The dyed strip of wool is boiled in water to remove any adherent material and also to remove the natural dye that may be there. Afterwards the strip of wool, having colour on it, is put into water which is made alkaline with ammonia. The whole is boiled. The colour from the wool comes into the water and then the strip of wool is discarded. In the coloured water another fresh strip of white wool is immersed and dyed. It is acidified and boiled again. If the colour is taken up on the wool it shows that presence of coal-tar dye. According to the Public Analyst this is the way to detect coal-tar dye used in the manufacture of foodstuffs.

In order to find out whether the coal-tar dye is the one permitted by Rule 28 of the Prevention of Food Adulteration Rues, 1955, the Public Analyst stated that chromatographic test is performed in the following manner. The colour of the dye taken up on the wool in the course of the preceding test is taken in water and concentrated. On Whatman Chromatographic Filter Paper are spotted the colour of the questioned dye and matching colour of the permitted coal-tar dye. The paper is hung in a solvent which is permitted to rise. The dyes travel along with the solution. If the distance travelled by the spots of the two dyes on the paper be the same the dye in question is declared to be permitted one, failing which a prohibited one. Shri R.N. Beri lastly said that further details of the method followed by him were given in "Chemical Analysis of Food" by Pearson (1962 Edition) at pages 88-89.

Learned counsel for the accused contended that the double dyeing wool test was not a sure test to form an opinion that the dye used was a coal-tar dye. Support was sought from the admission of the Public Analyst that lichen colours, namely, archill, cudbear and litmus which are natural and not coal-tar dyes also satisfy the double dyeing wool test. As such, the argument proceeded that for coming to a definite conclusion as to the use of coal-tar dye the use of the said natural dyes has got to be excluded by some other test. The argument, though plausible cannot hold good, so far as the facts of the case in hand are concerned. The dye used for preparing the ladoos was yellow. To the contrary, we have it in the evidence of the Public Analyst that in water archill and cudbear are of purple (lilac) colour and litmus of blue. So is the statement of Shri S.N. Mitra, the Director. Furthermore, according to the Director, lichen colours do not doubly dye the wool in the same way as coal-tar dyes. One of the reasons advanced was that lichen colours, even though of good quality do not impart the same brilliant hue as coal-tar dye. The exclusion of the three natural dyes is thus obvious. Emphasis was then laid on another natural dye namely, cochineal or carmine. In the first place, this dye is of orange red colour; not yellow. In the second place, there is nothing to contradict the Public Analyst that this dye could not stand the double dyeing wool test. In other words, the use of this dye would be excluded in the process of the first dyeing of the wool.

The Public Analyst deposed that in consequence of the double dyeing wool test performed by him he detected that in the sample in question coal-tar dye had been used. For finding out whether the coal-tar dye used was one of the permitted ones he performed chrom trographic test and placed on record chromatograph Exhibit P.F./1. In this test, the permitted coal-tar dye used was tartarzine and sunset yellow FCF. Since the distance traversed by the dye in question was much less than the distance traversed by tartarzine and sunset yellow FCF, therefore, he arrived at the conclusion that the dye in question was not a permitted one Hence his final opinion that the sample of ladoos sent to him was adulterated. The Additional Sessions Judge was wholly wrong in observing that on the chromatograph Exhibit P.F./1 there was no spot of the dye in question. It is very much there, though of course faint.

The statement of Director, Shri S.N. Mitra, is also to the effect that in consequence of the two tests performed by him, he concluded that in the sample in question, the dye present was not a permitted one. In arriving at the finding that the analysis was not done by the Director personally, the Additional Sessions Judge only took into account the contents of the Director''s certificate and not the statement made by him on oath in answer to the interogatories sent to him by the accused in particular. As regards the facts of the present case, the two tests mentioned above could only show that the coal-tar dye present in the sample was not the one permitted by Rule 28 of the prevention of Food Adulteration Rules, 1955. For detecting which prohibited dye had been used, soma other test was required. Accordingly, it was urged by the learned counsel for the accused that in his statement the Director did not clarify the performance of that additional test for the detection of metanil yellow. Be that as it may, Rule 23 of the aforesaid Rules provides that the addition of a colouring matter to any article of food, except as specifically permitted by these rules, is prohibited.. For yellow colour, the coal-tar dyes prescribed by Rule 28 are Tartarzine and sunset yellow FCF. The two experts have found that none of the two permitted dyes was present. Hence, the presence of a prohibited dye or colour follows. More over, nowhere is it the requirement of law that the complainant has to further prove which prohibited dye was used. The sworn testimony of the Food Inspsctor has falsified the denial of the accused that the sample of ladoos kept for sale in his shop was taken. It is true that the onus is always on the complainant to prove its case but the fact remains when positive evidence against the accused had come on record, in his statement u/s 342, Criminal Procedure Code, he could explain which colouring matter was used by him. In Ram Dayal Vs. Municipal Corporation of Delhi and Another, , their Lordships observed :--

The accused knows what colour he added, he could have easily said that that colour was one of the permitted colours, but he did not say so in his examination u/s 34-.

On this ground, their Lordships did not find merit in the application of the accused for summoning the public Analyst. As an analogy, it can be said in this case that the accused has nothing to say in rebuttal notwithstanding that he was in a position to disclose which yellow colour was used by him in the ladoos.

For the foregoing reasons, I find that the charge u/s 16 (1) (a) (i) of the prevention of Food Adulteration Act, 1954, has been proved to the hilt against the accused and he has been wrongly acquitted. The impugned order of acquittal is accordingly set aside. The next question is : Should Lal Chand be given benefit of the provisions of section 4 (1) of the Probation of Offenders Act of 1954. Ordinarily, it would not have been so done. The incident occurred in August 1967. Now that over 6� years have elapsed, we are inclined to do so. It is accordingly directed that instead of restoring the sentence passed by the trial Magistrate, Lal Chand be released on probation of good conduct for a period of one year on his entering into the requisite bond to the satisfaction of the trial Magistrate on or before the 15th February, 1974. The said period to commence from the date the requisite bond is furnished by lal Chand.

Bhopinder Singh Dhillon, J.

I agree.