State vs Selvam and Kathalinga Nadar

Arunachalam, J.—The State represented by the learned Public Prosecutor, has chosen to challenge the acquittal of the Respondents, of an

offence punishable u/s 7(1) and 16(1)(a)(i) read with Section 2(1a)(a) and (m) of the Prevention of Food Adulteration Act recorded by the

Judicial First Class Magistrate, Devakottai, in C.C. No. 316 of 1984.

The prosecution case will have to be stated in brief for the disposal of this Criminal Appeal. P.W.1, the Food Inspector attached to Karaikudi

Municipality, visited the shop of the Respondents situated at door No. 9, Alankudiyar Street, Karaikudi, at or about 11.30 a.m. on 24-12-1983.

The second Respondent was not available in the grocery shop then. The first Respondent who is the son of the second Respondent was present in

the shop and was transacting business. P.W.1 expressed his intention to purchase cinnamon (Dalchi) known in Tamil as for the purpose of analysis.

P.W.1 purchased from the first Respondent 600 grams of cinnamon after paying the sale consideration of Rs. 12/- vouchsafed by Ex.P.2, the

receipt issued. After complying with the formalities prescribed under the Act and the Rules, one part of the sample was forwarded to Public

Analyst, Guindy, for test and report. Ex.P.12, the report of the Public Analyst showed, that the sample did not conform to the standard for

cinnamon whole"", in respect of volatile oil content. Hence the sample was adulterated. As per clause A.05.06 Appendix B to the Prevention of

Food Adulteration Rules, 1955, cinnamon (Dalchi whole) shall contain not less than 0.5% (v/w) of volatile oil. The sample analysed contained only

0.34% (v/w). After initiating prosecution, intimation u/s 13(2) of the Act was served on the Respondents.

The plea of the Respondents before the trial Magistrate was that they had purchased the cinnamon from Annamalai Nadar and Sons on 2-10-

1983 and therefore they were not responsible for lesser percentage of volatile oil in the sample. The second Respondent examined himself as

D.W.1 and produced Ex.D-1, a bill dated 2-10-1983 issued to him by Annamalai Nadar and Sons showing that one kilogram of costing Rs.

16.15 had been sold.

The learned Magistrate chose to acquit the Respondents on the sole ground, that the Respondents were not manufacturers of cinnamon and the

prosecution had not established, that the volatile oil content in the sample, could not get reduced by natural process without interference by a

human agency. The learned Magistrate took note of the evidence of P.W.1 that he was unaware of those details and only the Public Analyst should

be questioned regarding the said details. The learned Magistrate also observed, that without the examination of Public Analyst, it was not possible

to arrive at any definite conclusion.

Mr. A.S. Chakravarthy, learned Government Advocate contended that u/s 13(5) of the Act any document purporting to be a report signed by a

Public Analyst unless it had been superseded under Sub-section (3), could be used in evidence of the facts stated therein in any proceeding and if

that be so, the non-examination of the Public Analyst cannot enure in favour of the Respondents and the contents of Ex.P.12 will have to be taken

at their face value. Therefore, he would submit that on the basis of the non-examination of Public Analyst, the Respondents could not have been

acquitted.

Per contra, Mr. M. Karpagavinayagam, learned Counsel appearing on behalf of the Respondents, contended that the acquittal of the

Respondents may have to be sustained in view of Sections 14 and 19 of the Act. The case of the defence had not been disbelieved by the trial

Magistrate and Ex.D-1, the bill produced by the Respondents, will have to e treated as a warranty, given by the distributor or dealer of cinnamon,

to the Respondents as provided u/s 14 of the Act. The learned Counsel went on to add, that u/s 19 of the Act, such a defence was opened to the

Respondents. His further contention was that the report of the Public Analyst marked as Ex.P.12, did not contain the nature of tests, that had been

conducted before a decision was arrived at, in respect of volatile oil content. When the report of the Analyst had been challenged, by the cross-

examination of P.W.1, specifically on this aspect, the prosecution owed a duty to place the best evidence before court by examining the Public

Analyst and thereby furnishing an opportunity to the Respondents to challenge Ex.P.12. That not having been done, the acquittal of Respondents

will have to be sustained on this ground as well.

I have carefully considered the rival contentions of the opposing counsel

Though the leaned Magistrate had not gone into the question of the (Sic)ents being protected by Sections 14 and 19 of the Act, specifically, it

looks apparent, that only on the basis of the inference, that can be drawn on these sections, the learned Magistrate had chosen to observe that the

Respondents were not manufacturers of the food article sampled. A little more discussion on Ex.D-1, would have been better, especially when

accused-2 had chosen to get into the witness box as D.W.1 to substantiate the defence. When cross-examined, P.W.1, the Food Inspector, has

stated that on the date of sampling the bill dated 2-10-1983 was available. Therefore, it can safely be concluded, that Ex.D-1 could not be a

subsequent creation for the purpose of this prosecution, but was admittedly available even at the time when sampling was done by P.W.1. The

defence of the Respondents therefore gets strengthened. The evidence of P.W.1 would further indicate that he had purchased 600 grams of

cinnamon, from the available stock of one kilogram with the Respondents. Therefore, it is reasonably possible to hold, that the Respondents had

kept cinnamon for sale in the same state as they had obtained it, from Annamalai Nadar and Sons. On this basis, the Respondents were justified in

having sought protection u/s 14 and 19 of the Act. The acquittal of the Respondents will have to be confirmed, on this sole ground.

However, the second ground urged by the learned Counsel for the Respondents also deserves consideration. Ex.P.12, the report of the Analyst,

does not give any indication as to the nature of tests conducted to arrive at the conclusion of lesser volatile oil content in the sample analysed. It is

no doubt true, that the report of the Analyst will be admissible in evidence and the contents of the report could be accepted without the

examination of the Public Analyst. Once the contents are challenged and the Food Inspector was unable to speak about the details of the tests

conducted by the Analyst, in some cases, it may still be necessary to examine the Public Analyst, before acceptance of his report. The examination

of Public Analyst, undoubtedly, will not be necessary to prove the report in every case, where a challenge had been made, irrespective of its

effective content, though in certain cases, where there are peculiar facts and circumstances with reference to the article of food which had been

subjected to analysis, it may be necessary, that the Public Analyst will have to be examined in the interest of justice, so that an opportunity will be

available to the accused to cross-examine the Analyst with reference to the various tests prescribed under the Act and the finality of those tests. I

am satisfied that this is one of those cases where the evidence furnished by the report Ex.P.12 alone, may not be sufficient and it would have been

better on the part of the prosecution to have examined the Analyst. The prosecution must have adopted that course, especially when P.W.1 was

unable to state the possible reduction of the volatile oil content in the sample due to natural causes and had also expressed that only the Public

Analyst may be in a position to clarify the said question.

For this view of mine, I derive support from the judgment of the apex court in Jagdish Chandra Vs. State of Uttar Pradesh, . That was also a

case of Dalchini which was subjected to analysis. The Public Analyst was examined in that prosecution and he conceded that only microscopic test

had been conducted by him. Sarkaria, J. speaking on behalf of Bench observed as hereunder:

Rules (Items) A.05.06 and A.05.06.01 of the Prevention of Food Adulteration Rules provide as under:

A.05.06. Cinnamon (Dalchini whole) means the dried pieces of the inner bark of Cinnamomum Zeaylanicum. It shall not contain Chinese cassia

(Chini Dalichini) or any other foreign vegetable matter. It shall contain not less than 0.5 per cent (v/w) of volatile oil.

The amount of insect damaged matter shall not exceed 5 per cent by weight.

Explanation: The ''term insect damaged matter means spices that are partially or wholly bored by insects.''

A.05.06.01. Cinnamon (Dalchini) powder means the powder obtained by grinding the dried inner bark of Cinnamomum Zeylanicum Knees. The

cinnamoear powder shall conform to the following standards:

Moisture.... Not more than 12.0 per cent by weight. Total ash.... Not more than 8.0 per cent by weight. Ash insoluble in dilute HC1.... Not more

than 2.0 per cent by weight. Volatile oil... Not less than 0.5 per cent (v/w)

A glance at the above Rules would show that the percentage of the various ingredients such as ash, insoluble in HC1, or volatile oil or moisture in

the sample in question, cannot be ascertained with any degree of accuracy by mere ocular examination under a microscope. Chemical tests,

including treatment of the ash in the sample with Hydrochloric Acid would be a must. Since in the instant case, the sample was not subjected to any

chemical test or analytical process, the opinion of the Public Analyst was not entitled to any weight whatever.

Singaravelu, J. in Arumainayagam and Another Vs. The State, has observed as hereunder:

Although normally the prosecution was not bound to examine the Public Analyst to prove the offences under the Prevention of Food Adulteration

Act, in the peculiar facts and circumstances of this case, which related to compounded asafoetida it was but proper that he was examined so that

the accused could cross-examine him in respect of the various tests performed and the finality of such tests. Non-examination of the analyst vitiated

the conviction.

In the case decided by the Apex Court, the Analyst had been examined. Though in this prosecution, the Analyst had not been examined, the

principle laid down, still gets attracted. Ex.P.12, the report of the Public Analyst, does not contain the details of the tests conducted by him. P.W.1

had been cross-examined effectively, challenging the acceptability of Ex.P.12 at its face value. It may be, that the defence could have further

challenged Ex.P.12, by examining an expert, but that possibility cannot erase the onus cast on the prosecution to establish that Ex.P.12 was entitled

to weight, without examination of the Analyst and his being tendered for cross-examination, inspite of the effective challenge by the defence.

The examination of Public Analyst cannot be a rule and the particularity of facts unfurled in a given case, inclusive of the nature of details found

in the report of the Analyst, may dictate the need or otherwise for such examination.

On the peculiar facts of this case, the Respondents are bound to succeed, on the second ground as well, urged by their learned Counsel. This

appeal which has no merits shall stand dismissed.