Municipality Jammu vs Khem Raj

Bhat, J.

(1) This is an appeal against the order of acquittal passed by the Municipal Magistrate in favour of the respondent, dated 21121967. The

respondent was prosecuted under Section 16 P. F. A. Act. The prosecution story was that the complainant Bansi Lal Food Inspector purchased

370 grams of Dessi Ghee from the accused which was found to be substandard by the Public Analyst. The prosecution produced Bansi Lal, Food

Inspector, M, L. Sharabi, Public Analyst, Madan Lal. and Dr. J. K. Sharma. The accused also produced two witnesses. The trial court has

dismissed the complaint of the Municipality holding that the prosecution, has failed to establish that M. L. Sharabi possesses any of such

qualifications as are laid down under the rules He has not treated the evidence of this M. L. Sharabi as that of an expert. The trial court has further

remarked that uptil the time of his decision no notification regarding the appointment of Public Analyst had been made and neither any Food

Laboratory had been notified. On these technical defects the accused has been acquitted;

We have heard the arguments of the learned counsellor the parties.

(2) Mr. Nanda on behalf of the Municipality has argued that the trial court has erred in acquitting the accused, firstly, that the Public Analyst is

properly appointed by the Government; secondly he possesses the necessary qualifications; thirdly the trial court was wrong in discrediting the

statement of this witness on the basis of some alleged reports received contrary to his opinion without having allowed the Public Analyst to explain

his position with respect to them.

(3) The learned counsel for the respondent has argued that under the Prevention of Food Adulteration Act, Section 8 it is necessary for the Govt.

to appoint a person as a Public Analyst and the person appointed must possess the prescribed qualifications. The learned counsel for the

respondent has further argued that the prescribed qualifications are given in rules made under this Act. Rule 5 of the Act lays down the

qualifications of the Public Analyst. This rule has been reproduced by the learned trial Magistrate in his order and we need not again quote it in

extenso. He has further argued that the evidence of this witness is no evidence and no conviction can be passed on such a testimony. He has

referred us to a number of authorities on this point viz. AIR 1959Patna 182, AIR 1965 Allahabad 170, and AIR 1960 Allahabad 546 (FB)

Beginning with the last authority, this has laid down that a person who was appointed as a Public Analyst under the provisions of U. P. Pure Food

Act 1950 which was repealed could not be treated as a Public Analyst under the Prevention of Food Adulteration Act 1954. This Full Bench

authority differed from the earlier authority of that court reported as AIR 1960 ALI 117.

(4). In 1965 All 170 there were two dates given of the appointment of the Public Analyst, one in Hindi and the other in English. The English date

was subsequent to the Hindi date. In between the two dates the Public Analyst had examined some food articles and it was held that the Public

Analyst would be deemed to have been appointed on the date given in the English notification.

(5) In AIR 1959 Patna 132, an Inspector had been appointed under the Bihar Prevention of Food Adulteration Act, 1947 which was repealed by

the provisions of the Central Act, known as Prevention of Food Adulteration Act 1954 and it was held that

any complaint filed by the inspector by virtue Sec. 21 of the Bihar Act must be deemed to be a complaint filed by a person who was not

authorised to do so.

(6) Against this Mr. Nanda learned counsel for the appellant referred us to AIR 1960 Gujrat 34. His argument was that the Prevention of Food

Adulteration Act laid a special rule of evidence u/s 13. The report of the Public Analyst could be treated as evidence without the Public Analyst

having been examined as a witness as such. If the Public Analyst were not appointed under the Act strictly according to the terms of the Act all that

the accused could claim is that his opinion cannot be treated as evidence but as a witness, his statement could be treated as a piece of evidence in

the case. This is the ratio decidendi of the Gujrat ruling. But in our opinion all these authorities are not strictly relevant to this case. The Prevention

of Food Adulteration Act was passed in the year 1958 as Act No. 12 of 1958. It came into force from 171962. Mr. Nanda has placed on record

the Govt. Order of the appointment of Mr. Sharabi as Public Analyst. He was appointed as such on 1103962 by means of a Govt. Order No.

151 of 1962. Till that time no qualifications for a Public Analyst were prescribed. The rules under the Act came into force on 1521963, which

clearly means upto the time of appointment of Mr. Sharabi as a Public Analyst no special qualifications were laid down for holding such a job. But

when the rules were framed it became necessary to work out the provisions of the Prevention of Food Adulteration Act properly to see that

officers appointed under the Act possessed the requisite qualifications. The authorities cited by Mr. Inderjeet Gupta are not applicable because

when those persons were appointed as Public Analysts, the requisite qualifications were prescribed and if anyone of those persons did not possess

the requisite qualifications, such a person would not be deemed to be a Public Analyst in the eyes of law. Therefore we hold that the initial

appointment of Mr. M. L. Sharabi as a Public Analyst is not bad as it did not contravene the provisions of any law or rule.

(7) Mr. Nanda has further argued that Mr. Sharabi possessed all the requisite qualifications as laid down by the rules and a Notification under

section 8 has now been made by the Government but we need not refer to that notification as that is of a date subsequent to this present complaint

He has however placed on record some material to show that Mr. Sharabi possesses the requisite qualification and he has been properly

appointed after taking into consideration the requirements as laid down by the law and the rules which were promulgated after the appointment of

Mr. Sharabi. Mr. Inderjeet Gupta has however made a grievance that Mr. Nanda has placed on record material after the conclusion of the case,

which has prejudiced the accused. According to him no such record should be looked into and the order of acquittal passed in favour of the

respondent should be upheld. But we feel that we cannot oblige either counsel by accepting the extreme position adopted by both of them. Mr.

Nanda's case is that Mr. Sharabi appeared as a witness even after the enforcement of the rules. No question in crossexamination was put to him

about his qualifications. Therefore it will be presumed that he possesses all the necessary qualifications. We would have accepted this argument of

Mr. Nanda as correct if Mr. Sharabi had been appointed as a Public Analyst after the rules were enforced. Mr. Nanda could safely bank on the

provisions of Section 114 of the Evidence Act by invoking the presumption of official acts having been properly and regularly performed. In the

absence of any crossexamination in that behalf, he would be right in making us hold that Mr. Sharabi would be presumed to have had the

necessary qualifications. But Mr. Sharabi's appointment has been ordered before the rules were enforced. We therefore think it proper to accept

this appeal and remand the whole case to the trial court, which will go into these aspects of the case and then decide the case afresh.

(8) Before concluding we would like to point out that the procedure adopted by the trial court in rejecting the evidence of Mr. Sharabi because

some contrary opinion was given in a certain case by some other expert. In the fitness of things and in fairness to the witness it is necessary to put

the facts of each case to him and seek his explanation before any comment can be made upon his reliability or otherwise.

(9) Mr. Inderjit Gupta then had tried to make out another argument that the Food Inspector did not possess the necessary qualifications but that is

entirely a new point, which was never taken by him in the trial court or at any stage upto the time of arguments in this appeal. When Shri Bansi Lal

appeared as a witness no question was put to him in crossexamination. In this case we would not therefore permit Mr. Inderjit Gupta to raise this

point.

(10) The result is that the appeal is accepted and the case remanded to the trial court to dispose it in the light of the remarks made by us.