Municipal Committee, Amritsar vs Shri Dheru Ram

S.S. Sandhawalia, J.—The essential requisites of the report of the Public Analyst and the probative value to be attached thereto, is the primary question which arises for determination in this appeal directed against the acquittal of the respondent u/s 16 of the Prevention of Food Adulteration Act, 1954.

The facts are not in dispute and a brief reference thereto would suffice. Ram Parkash, Food Inspector of the Municipal Committee of Amritsar after complying with the requisite formalities purchased a sample of 1500 grams of Ladoos from the shop of Dheru Ram respondent. This was done in the presence of P.W. 2 Hakim Dewan Chand and P.W. 3 Dr. Ved Kumar Sharma. In conformity with the requirements of the law and rules the ladoos were divided into three equal parts and sealed in three clean and dry bottles, of which one was duly delivered to the respondent. The report of the Public Analyst in respect of the above-said sample declared that a yellow prohibited coal tar dye had been used in the preparation of the Ladoos. In the prosecution that followed, Ram Parkash Food Inspector, Hakim Dewan Chand and Dr. Ved Kumar Sharma. consistently supported the case for the prosecution. Apparently on the request of the respondent, Shri R.N. Beri, the Public Analyst who had prepared the report Exhibit P.F. was called as a witness and duly examined in Court. Subsequently in order to clarify certain alleged obscurities in his statement he was recalled as a Court witness and further questioned.

The respondent in his statement u/s 342, Criminal Procedure Code, did not seriously dispute either the presence of the prosecution witnesses or the fact of the taking into possession of the sample, though it was alleged that it was done under threat of immediate arrest. He further admitted that one of the sample bottles was left with him by the Food Inspector but stated that no money was paid to him. He alleged that his prosecution was due to a misconception and took up a plea that he had told the Inspector that the Ladoos were not for sale but were prepared for one Kartar Chand. A positive plea taken by him in this context was that one Kartar Chand had brought his own material etc., and he had prepared the Ladoos for and on his behalf only and had charged merely for his labour. It was pleaded that no article was put by the respondent himself in the preparation of the said Ladoos.

The trial Court accepted the prosecution evidence regarding the taking of the sample which in fact was hardly disputed. Rejecting an argument on that score it held that the evidence of the Food Inspector was free from blemish and the two witnesses examined in support thereof were independent and in no way under his influence. On a detailed consideration of the defence evidence and the plea of the respondent, the Court rejected the counter-version and held that no reliance could be placed on the same. It further took the view that the respondent was a seller of sweets and the presumption that the sweets in his possession were for sale could fairly arise in his case.

Though the trial Court categorically rejected the defence case on merits it nevertheless entered into a long scientific dissertation regarding the validity of the premises on which the report of the Public Analyst, and his evidence on oath in Court was based. It also doubted the nature and conclusiveness of the scientific test conducted by the Public Analyst. For a variety of reasons which are noticed hereafter the Court was sceptical as to whether the coal tar dye used in the sample was a prohibited one or otherwise. Referring to the text of the Pharmacopia of India and quoting profusely therefrom it concluded its discussion on this point in the following terms:-

In order to achieve this, three chromatographs are prepared on the same sheet of proper one of these pertains to the substance under test, the second to the specimen of the known substance, while the third is prepared from a mixture of merely equal amount of the substance under test and the known substance. If the substance under test and the known substance are identical, the three chromatograms will agree in respect of colour and Rf value. The mixed chromatogram yields a single spot, i.e., Rr is 1.O. This direction also does not appear to have been complied with by the Public Analyst. Therefore, in my opinion it cannot be said beyond all doubt that the dye used in this case is a prohibited coal tar dye. The penalty is under the Prevention of Food Adulteration Act, particularly when the adulteration is not under clause (1) of sub-section (1) of Section 2 are very high because it is not permissible for the Court to impose sentence less than six months R.I. and a fine of Rs. 1000/-. It would not be safe to convict the accused in these circumstances.

It is the above-said approach and the conclusion arrived at, in regard to the evidence and the report of the Public Analyst which is the subject-matter of debate in this case.

The certificate of the Public Analyst duly proved on the record is Exhibit PF. As the validity of the same has been put in issue, the relevant part thereof deserves notice in extenso:-

I further certify that I have caused to be analysed the aforementioned sample, and declared the result of my analysis to be as follows.

BRV of fat = 53.1; Melting point=32.00C. FFA=0.2%; BT & UC.

A yellow coal tar dye has been used in the preparation and am of the opinion that this sample of Ladoo-bundi prepared with Vanaspati contains a yellow prohibited coal tar dye. Signed this 31st day of March, 1967. The chromatograph showing difference in the distances travelled by the permitted yellow coal tar dye and the dye used is attached herewith.

Address: Shri Ram Parkash E.I. M.C. Amritsar.

Sd/- Ravinder Nath Beri Public Analyst.

Attached to the above-said report was Exhibit P.F/1 which is the chromatograph duly prepared by the Analyst.

At this very stage a brief reference to the statutory provisions attracted to the case becomes equally inevitable. Section 13(1) and (5) are in the following terms:-

13(1) The Public analyst shall deliver, in such form as may be prescribed, a report to the food inspector of the result of the analysis of any article of food submitted to him for analysis;

(2) X X X X

(3) X X X X

(4) X X X X

(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code.

Part VI of the rules framed under the Act deal with the colouring matter which may be used in articles of food. Rule 23 thereof prohibits the use of any colouring matter except as specifically permitted in these rules. Specifically rule 28 lays down that no coal tar dyes for a mixture thereof except those specified thereunder shall be used in the food. Rule 29 further limits the use of those coal tar dyes only to the food specified in the sub-clauses of that rule. Rules 30 and 31 provide the maximum limit of permitted colour and qualify further that the qualities of permitted colour so used shall be pure and free from any harmful impurities.

At the very outset it may be noticed that Mr. Chibbar the Learned Counsel for the respondent posed no challenge to the findings of the trial Court rejecting the case of the respondent on merits. These findings on an independent appraisal also appear to us to be unassailable. It was further conceded by Mr. Chhibbar that in view of the statutory provisions quoted above. Exhibit P.F. is patently admissible evidence in the case. Equally so it is common ground that the statutory mode of challenging the report of the public Analyst by claiming analysis and the certificate of the Director of Central Food Laboratory at Calcutta, which is provided u/s 13(2) of the Act, was never availed of on behalf of the respondent. It is significant that in his statement u/s 342, Criminal Procedure Code, the respondent had admitted that one sealed bottle out of the three samples taken was duly delivered to him and at no stage did he produce the same or claimed the remedy under the provisions above-said. It is thus evident that the respondent on his own accord had denied himself a remedy which could have been conclusive in his favour if he wished to seriously assail the report of the public Analyst.

What next deserves notice is that the prosecution case was that an ingredient, the use of which is absolutely prohibited by the statute, had been used for colouring Ladoos by the respondent. Both, Mr. Beri as a witness and his report Exhibit P.F. had opined that a prohibited coal dye had been used in the sample analysed by him. That being so it was not necessary for the Analyst to give any quantitative analysis regarding the quantum of adulteration. This is so on the authority of the Division Bench in Municipal Corporation of Delhi Vs. Satpal Kapoor and Another, , in the following terms:-

* * * * When the foreign substance happens to be one, the presence of which is absolutely prohibited in that particular article of food, it would be unnecessary to State the quantity.

The above enunciation has been followed and further elaborated in V.K. Abdul Azeeze and another''s case AIR 1964 Kar 197, in these terms:-

* * * *. The certificate shows that Metanil Yellow a prohibited coal tar dye was used. In such a case there is no need for the court to insist that the report should contain the technical processes by which the presence of the dye was identified. If the defence had any bona fide dispute as to the correctness of the. analyst''s report it was always open to them as provided for in Section 13 to send a sample for analysis by the Central Food Technological Institute,

In view of the above said enunciation, no defect on the above-said score exists or is traceable either in the report Exhibit P.F. or the evidence of the Expert given in Court.

A perusal of the relevant portion of the judgment under appeal however would show that the learned Magistrate set himself up as a super Scientific expert in order to doubt and ultimately reject the report Exhibit P,F. and the evidence of Mr. Beri P.W. 3. We believe that the learned Magistrate was in patent error both in his approach to, and the mode of evaluation of export testimony in the cases pertaining to food adulteration.

We have closely examined the reasoning of the trial Judge. Mr. Chhiblar for the respondent had with considerable vehemence merely reiterated the same before us without materially adding anything thereto. We believe that the rationale is wholly untenable and the learned Magistrate seems to have fallen into patent pitfalls: Firstly it deserves notice that in 1 is evidence R.N. Beri categorically stated that the had applied the double dyeing wool test in the present case to distinguish whether it was a natural colouring matter or a coal tar dye. The trial Court suspected this evidence and rejected the same primarily on the score that the fact of the double (sic) test having been applied did not find specific mention in the report Exhibit P.F. As will appear hereafter it is not the requirement of the law that each detail and particular test in the analysis conducted must be specifically mentioned in the report of the Analyst. Yet again the Court found the evidence and the report to be defective on the ground that the specimen dye had not been subjected to the identical process of manufacture which the sample dye used in the Ladoos had under-gone. We are unable to find any warrant either in law or practice which requires that the specimen dyes used by the expert for comparison during the course of the analysis must be subjected to the same process of food manufacture. In actual practice in the present case it would require that the expert must first prepare Ladoos with the specimen dye used and subject it to frying in hot Vanaspati etc. before he could arrive at an adequate opinion. We do not think any such impossible or impracticable criterion is necessary. Thirdly the trial Court took an adverse inference against the expert because he staled that on the chromatograph Exhibit P.F/1, he did not precisely measure the distance travelled by the sample and the specimen dyes used. Nothing has been brought to our notice which requires such measurement. A reference to Exhibit P.F./1 would show the wide and prominent disparity in the distance travelled by the sample and the specimen dyes with which the chromatograph was prepared. Mr. R.N. Beri in no uncertain terms had stated that he had compared the distance travelled by the dyes but he did not measure the same. When the disparity was so obvious and patent, measurement was neither necessary nor was it a requirement of the statute and no adverse inference could be drawn against the testimony on this ground. Lastly as has already been noticed, the learned Judge adverted to appendix 34 of what he termed a standard book, namely, "Pharmacopta of India" and referring to certain passages therefrom inferred that the procedure for paper chromatography and certain other tests which are also possible, had not been either conducted or mentioned in the report Exhibit P.F. It is significant to notice that the relevant passage to which the trial Court referred was never put or suggested to the Expert when he was in the witness-box. The precise meaning of the technical terms Rf. and Rr. values etc. was never elicited from him. It is nowhere shown that it was incumbent on the Public Analyst to conduct every conceivable test which may be suggested in a wide variety of scientific works on the point.

On a close scrutiny of the reasoning and on an over all view it appears to us that the view expressed by the trial Judge was not only clearly unreasonable but he seems to have over-extended himself on to a ground on which even the most expert chemist may well fear to tread. Two extremes are possible in the approach to and in the evaluation of expert testimony and the report of the Public Analyst in the cases under the Act. On the one hand there are the cases where the Public Analysts report gives neither the data, the reasoning of the result of the analysis on which the opinion of the expert has been based. The Courts have rightly rejected such reports of the Public Analyst and hell that his mere ipse dixit that the sample of food is adulterated is not worthy of acceptance and cannot form the basis for a conviction. Reference on this point may be made to Din Dayal Vs. State, and The State Vs. Shanti Prakash, The other extreme is presented by the present case where the Court sets itself up as the super-expert and on its personal predilection, overrides or suspects valid expert opinion. This approach appears to be as equally unsustainable as the other. The law shuns the falsehood of both these extremes. The correct rule is a golden mean between these two widely divergent approaches to expert testimony.

That the statute intended to attach weight and significance to the Public Analyst''s report is evident on a reference to the plain language of the provisions of section 13 of the Act. The report has been made admissible in evidence per se without the expert himself stepping into the witness-box to prove it. It is prima facie evidence of the facts stated therein. It is to be in a prescribed form and statutory rules have been framed under the Act. Para 6 of the Prevention of Food Adulteration Rules 1955 provides for the qualifications of the Public Analyst and its duties. By way of analogy a reference may well be made to the other expert opinion provided under the statute, namely, the certificate of the Director of the Central, Food Laboratory u/s 13(2). It is noticeable that by the proviso to sub section (5) to section 13 of the Act the certificate of the Director has been made final and conclusive evidence of the facts stated therein and by statutory provision has been placed beyond challenge. Whilst the report of the Public Analyst has not been placed on that high pedestal, nevertheless obviously the intention of the legislature, is that, this document is also entitled to weight and consideration and has not to be overruled or thrown out on individual whimsicalities.

The view we take is not unsupported by authority. In Nagar Mahapalika of Kanpur Vs. Sri Ram and Another, also the sample purchased was of Ladoos and the subsequent analysis disclosed the use of a prohibited coal tar dye identified as Metanil yellow. An identical contention, as has been raised in this case, was repelled in no uncertain terms by the Division Bench as follows:-

The well-settled view of this Court is that the report of the Public Analyst u/s 13 of the Act need not contain the mode or particulars of analysis, not the tests applied, but should contain the result of analysis, namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in Section 2(1) of the Act. We find no reason to depart from that view. In fact, we are in respectful agreement with the law as laid down in the earlier decisions of this Court.

The above-said observations were expressly quoted and approved by their Lordships in Dhian Singh Vs. Municipal Board, Saharanpur, . It deserves notice that the Supreme Court case also was a case of coloured sweets wherein a prohibited coal tar dye namely, Metanil yellow had been discovered after analysis.

Adverting to the present case it is manifest that the report Exhibit P.F. expressly mentions the adequate data on which the same was based. The chromatograph duly prepared after conducting the earlier test was not only specifically mentioned therein but was attached with the same and proved on the record. A categorical opinion was expressed that the sample contained a yellow prohibited coal tar dye. The expert Mr. R.N. Beri when examined in court adhered to that opinion in his consistent testimony. He was an independent, disinterested official witness and his testimony on close examination discloses no blemish. The prosecution has thus established on the record that the sample virtually admitted to have been taken from the respondent contained a prohibited coal tar dye.

We are constrained to hold that the trial Court was in patent error in distrusting and rejecting without cogent cause the disinterested expert opinion expressed both in Exhibit P.F. and the evidence in Court of Mr. R.N. Beri. The view it took was unreasonable and its approach towards expert testimony in our view was patently erroneous. Accepting the report, Exhibit P.F, as also the evidence of Mr. Beri we reverse the acquittal of the respondent and convict him u/s 16(1)(a)(i) of Prevention of Food Adulteration Act and impose the minimum statutory sentence of six months rigorous imprisonment and a fine of Rs. 1000/- ; in default thereof further rigorous imprisonment for two months The appeal consequently succeeds and is allowed.