Municipal Corporation of Delhi vs Shankar Lal

P.N. Khanna, J.

(1) This is an appeal against the order dated 7/12/1965 passed by Magistrate 1st Class, Delhi, acquitting the respondent who had been tried under sections 7/16 of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act.

(2) According to the complainant, a sample of ghee had been taken from the stock of ghee which the respondent was selling as"Pure Desi Ghee." The said sample on examination by the Public Analyst proved to be adulterated due to 0 -44 excess of moisture per cent. The accused-respondent when examined u/s 342, Criminal Procedure Code, stated that although the sample was taken from him, his ghee was pure.

(3) At the request of the accused the duly sealed bottle of a second sample given to him was sent to the Director, Central Food Laboratory, Calcutta, who reported that it was adulterated but the moisture was only 0 -14 per cent which was up to the standard. It was ,however, declared to be adulterated due to added coloring matter ,faintly positive. The learned Magistrate found that the facts based on the report of the Director, Central Food Laboratory, on which the prosecution wanted to obtain conviction, had not been alleged in the complaint which is the foundation of the prosecution. He felt bound by the observations of the Punjab High Court in Criminal Appeal No. M. 251/65 decided on 1/04/1965 by a Bench consisting of Falshaw C.J. andS. K. Kapur J., in the case Municipal Corporation, Delhi v.Niranjan Kumar and others (now reported as (1965) P.L.R.941. He, Therefore, acquitted the accused.

(4) The question that arises for consideration is whether a conviction can be based on the certificate of the Director, Central Food Laboratory ,Calcutta, which declare an article of food to be adulterated on a basis entirely different from that adopted by the Public Analyst, although the complaint against the accused was based on the -report of the Public Analyst alone which u/s 13(5) of the Act is superseded by the certificate from the Central Food Laboratory. An argument was advanced that the certificate of the Director of Central Food Laboratory is always obtained long after the complaint has been made which necessarily has to be based on the report of the Public Analyst. the accused, thereafter, should not be allowed to go free after having adulterated the article of food stored or sold by him, merely because the Central Food Laboratory adopts a basis for the purpose of holding an article of food as adulterated which is entirely different from the one adopted by the Public Analyst.

(5) There does not appear to be any justification for the prosecution to entertain the apprehensions expressed as above. the accused can always be afforded full opportunity to meet the changed situation and precaution can be taken to avoid any prejudice being caused to him. But there can be no justification for convicting an accused on allegations which did not find a place in the complaint against him, and which he did not get an opportunity to contest. In Niranjan Kumar''s case 1965P.L.R. 941, as in the case before us, the Public Analyst had not referred to the presence of coloring matter. The same was detected only by the Director of Central Food Laboratory.Calcutta. S. K. Kapoor J., speaking for the Bench, in that context ,while maintaining the acquittal, observed that the presence of coloring matter was not the complaint against the accused.

(6) In an earlier Division Bench decision of the same Court, State v. Gunj Lal 1964 P.L.R. 1102, with reference to a sample of chillies, the Public Analyst had failed to state the percentage of foreign matter, though he noticed its presence. D. K. Mahajan J. speaking for I. D. Dua J. (as he then was) and himself, observed as follows :-

"MR.Bishambar Dayal, learned counsel for the State sought to contend that the content of insoluble ash was slightly higher, but that is not the basis on which the Public Analyst has held the ground chillies to be adulterated. Moreover ,the respondent was never tried on that ground. In this situation, this contention does not need any further examination "

(7) It has been urged before us that the attention of the learned Judges had not been drawn to section 246, Criminal Procedure Code ,which enables the Court to convict a person, who could be convicted either u/s 243 or section 245, criminal Procedure Code, of any offence which, from the facts admitted or proved, he appears to have committed, whatever may be the nature of the complaint or summons. The legal position ,without doubt, is that if the learned Magistrate had chosen to convict the accused on the ground of the sample containing coloring matter, after drawing his attention specifically to it and after giving him an opportunity of meeting it the conviction would not have been illegal merely on the ground that he was not informed about it at the outset. In fact, this was not known to start with, for the Public Analyst had not referred to the presence of coloring matter at all.

(8) The report of the Central Food Laboratory, Calcutta had been received even before the accused was questioned u/s 342, Criminal Procedure Code, and he was also asked about the report. But there was no reference made by the Court to the coloring matter having been detected at the Central Food Laboratory ,Calcutta. The questions put by the Court and the answer of the respondent show that the charge against him was understood as having reference only to the excess moisture content noticed by the Public Analyst and not to the presence of coloring matter detected at the Central Food Laboratory, Calcutta .In these circumstances, we are satisfied that the respondent did not have the opportunity of meeting the new facts brought out in the certificate of the Central Food Laboratory, Calcutta .

(9) Reliance was placed by the learned counsel for the Municipal Corporation of Delhi upon a judgment of our learned brother H. R. Khanna J" made in Criminal Revision No. 156-D/65-Harbans Lal v. State of Delhi, decided on 24/03/1966, where the conviction of the accused under sections 7/16 of the Prevention of Food Adulteration Act, was maintained, The learned Judge observed:-

" IT also cannot be said that the accused have in anyway been prejudiced because the adulteration specified in the complaint was that which had been revealed by the report of the Public Analyst and not that shown by the certificate of the Director of Central Food Laboratory."

(10) In that case a complaint had been filed on the basis of the report of Public Analyst; while the certificate of the Director of Central Food Laboratory showed the article of food in question to be adulterated on a basis, different from that found by the Public Analyst.

(11) The observations of our learned brother H. R. Khanna J.,in that case would not help the prosecution as the Magistrate in that case had obviously exercised his discretion u/s 246, Criminal Procedure Code, which is an enabling section, to convict the accused and no prejudice had been caused to him. the conviction under those circumstances was rightly upheld.

(12) In the case before us, nothing is shown to have been done to enable the respondent-accused to meet the changed situation and the Magistrate did not exercise his discretion to convict the accused. The certificate with its seal of finality has not proved the case which the accused was required to meet. The accused cannot be punished for something which was never alleged in the complaint and against which he did not have an opportunity to defend. This Court, under the circumstances, would not interfere an '' give directions for the exercise of discretion in a particular manner, when no reasons have been shown for adopting such a course.

(13) In view of the above, there is no merit in this appeal and the same is dismissed.