STATE OF KERALA Vs. MAMMU MUSALIAR
LAWS(KER)-1974-7-22
HIGH COURT OF KERALA
Decided on July 31,1974

STATE OF KERALA Appellant
VERSUS
Mammu Musaliar Respondents

JUDGEMENT

BHASKARAN, J. - (1.) THE two appeals against acquittal are by the State; and the revision against conviction and sentence as by the accused. They were heard together, and are being disposed of by this common judgement, for, in all the three cases the prosecutions were for infringement of the provisions of the Prevention of Food Adulteration Act, 1954 (Act 37 of 1954) hereinafter referred to as the Act, and they involve the consideration of the common question relating to the particulars to be mentioned in the report submitted by the Public Analyst under Section 13 of the Act, high -lighted before us. Points peculiar to Criminal Appeal No. 330 of 1972 and Cri. Appeal No. 149 of 1973 urged before us will be considered towards the end of the judgement after dealing with the main (common) question relating to the Analyst's report.
(2.) LET us now turn to the brief facts relevant for our purpose in each case : Crl. A. No. 58 of 1972 : This appeal is against the acquittal of the accused in C. C. No. 42 of 1970 on the file of the Sub -Divisional Magistrate's Court, Hosdrug. The case arose on a complaint filed by PW. 1 the Food Inspector, Cheruvathur Panchayat alleging that the accused had stocked adulterated 'toor dhall' for sale to the public for human consumption at his grocery shop at Payyangiyil within the jurisdiction of Cheruvathur Panchayat, and had also sold a portion thereof to him for the purpose of analysis. The material portion of Ext. P -3, report by the Public Analyst, reads as follows : "I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows : 1. Microscopic examination : The sample consists of toor dhal (Cajanes Sajan) 2. Metanil yellow and an orange coal -tar dye Present ((Non -permitted coaltar dyes) (Non -permitted coaltar dyes). Present. and am of the opinion that the said sample contains coal -tar dyes and is therefore adulterated." The charge framed by the learned Sub -Divisional Magistrate was under Section 16(1)(a)(i) read with Section 7(i) of the Act. On completion of the trial the accused was acquitted under. Section 258(1) of the Code of Criminal Procedure (1898), hereinafter referred to as the Code, which Code was applicable to the proceeding, the court finding him not guilty of the offences with which he was charged, holding : "...........This certificate does not contain the result of the analysis, viz., the data from which it can be ascertained that the sample sent to the Public Analyst contained coal -tar dyes..........." In coming to this conclusion reliance was placed by the learned Sub -Divisional Magistrate on certain observations contained in a Division Bench ruling of this Court in State of Kerala v. Narayanan Nair, 1969 Ker LT 645 to which one of us was a party, and on the decision of Sadasivan, J., in Criminal Appeals Nos. 51, 52 and 53 of 1971 (Ker), which we are told, has not so far been reported. The order of reference to a Full Bench by the Division Bench consisting of Raghavan,. C.J., and Khalid, J., before whom the matter came up for consideration earlier on a reference by one of us, reads as follows : - "Whether the Supreme Court decision in Dhian Singh's case AIR 1970 SC 318 : (1970 Cri LJ 492) and the decision of our Court in In Re Abdul Azeez, 1963 Ker LT 698 : (1964 (1) Cri LJ 403 : AIR 1964 Ker 107) say exactly the same thing is doubtful; and whether the later decision of our Court in Narayanan Nair's case 1969 Ker LT 645 requires reconsideration is still more doubtful. Therefore, we consider this to be an important case requiring consideration by a Full Bench." Cri. A. No. 330 of 1972 : This appeal arises out of the acquittal of the accused in C. C. No. 211 of 1971 on the file of the Sub -Divisional Magistrate, Neyyattinkara. The complaint in this case was preferred against the accused by the Food Inspector, Amaravila (Neyyattinkara Circle) for the offence under Section 16(1)(a)(i) read with Section 7(i) of the Act alleging that the accused had sold from his 'Latha Bakery' as Vizhinjam 600 grams of sweets for the purpose of analysis and that on analysis it was found to be adulterated. The material portion of Ext. P -4, report of the Public Analyst, runs as follows : - "I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows : - The sample consists of Cream coloured sweets with green and red stripes. Coal -tar dyes. (1) Permitted coal -tar dyes : Praesent Tartrazine (2) Non -permitted coal -tar dyes : Rhodamine B. Present. Auramine Present. Non -permitted green coal -tar dye Present. and am of the opinion that the said sample contains non -permitted coal -tar dyes and is therefore adulterated." The learned Sub -Divisional Magistrate, Neyyattinkara, who framed charge against the accused under the said provisions of the Act and tried him, acquitted him purporting to follow the Division Bench ruling of this Court in 1969 Ker LT 645. Besides urging this common point relating to the report of the Public Analyst, the appellant has submitted that the prosecution is bad for the reason that it did not produce a copy of the memorandum along with which the sample was sent to the Analyst. In view of the fact that Cri. A. No. 58 of 1972 involving identical question was referred to a Full Bench, when this matter came up for hearing before one of us it was directed to be placed before the Chief Justice for reference to a Full Bench along with Cri. Appeal No. 58 of 1972. Cri. R. P. No. 149 of 1973 : This revision relates to the conviction and sentence of the two accused in C. C. No. 88 of 1972 on the file of the District Magistrate's Court, Alleppey, confirmed in appeal in Cri. Appeal No. 55 of 1972 on the file of the Sessions Judge, Alleppey, P.W. 1, Food Inspector, Haripad Circle, is the complainant. The averment in the complaint, inter alia, is that he purchased 600 grams of Dhall for analysis from the second accused who was the salesman in the shop of the first accused and that on analysis it was found to be adulterated. Ex. P -6, report of the Public Analyst, states : "I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows : The dhall is hemispherical in shape. 1. Microscopic examination : (1) The starch granules are found, irregular with prominent striations. The hilum is prominent and branched. 2. Microscopic examination : (2) The palisade cells of the testa are osteosclereids (boneshaped). 3. Tests for the presence of coal -tar dye : Positive 4. Coal -tar dye identified : Metanil yellow (Colour index 138) Further, the coal -tar dye found in the samples is a coal -tar dye which is not permitted in food under Rule 28 of the Prevention of Food Adulteration Rules, 1955." The learned District Magistrate found the accused guilty and sentenced them under Section 16(1)(a)(i) of the Act to undergo simple imprisonment for six months each, and to pay a fine of Rs. 1000/ - each and in default to undergo simple imprisonment for one month each, holding : - "Ext. P -6 report of the Public Analyst showed that the sample contained metanil yellow a coal -tar dye which was not permitted in food under the P. F. A. Rules. Thus the article of food was adulterated within the meaning of the P. F. A. Act." Though the matter was taken up in appeal before the learned Sessions Judge, Alleppey, the order of conviction and sentences passed by the trial Court was confirmed, the learned Sessions Judge taking the view : - ".................. 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." Moidu, J., before whom this revision came up for hearing earlier, referred the matter to a Division Bench by an order of reference which reads as follows : - "The point involved in this Criminal Revision Petition is whether it is necessary for the Court to insist that the report of the Public Analyst should contain the Technical process by which the presence of coal -tar dye was identified in a food stuff when the analyst has come to the conclusion that Metanil yellow a prohibited coal -tar dye was found used in that food stuff. In two decisions of this Court, both unreported, one in Cri. Appeal No. 370 of 1971 (Ker) and the other Cri. Appeal No. 213 of 1972 (Ker) it was held that Technical process by which the coal -tar dye was found to exist in the sample should be stated by the Public Analyst in his report. But In Re V.K. Abdul Azeez, AIR 1964 Ker 107 : (1964 (1) Cri LJ 403) this Court has taken a different view. In the light of the decisions made in the two Cri. Appeals it is necessary to decide this case by Division Bench. ........." When the matter subsequently came up before the Division Bench consisting of Gopalan Nambiyar and George Vadakkel, JJ., it was referred to a Full Bench in view of the fact that the "same question as arises in this case has been referred to a Full Bench in Criminal Appeal No. 58 of 1972"; and that is how the revision is before us. Before proceeding to consider the arguments advanced by the counsel for the appellants and the revision petitioners, it would be advantageous to notice certain provisions in the Act and the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) which have bearing on the main question involved in these cases. Section 13 of the Act runs as follows : "13. Report of Public Analyst. - (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 article of food submitted to him for analysis. (2) After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed, fee, make an application to the court for sending the part of the sample mentioned in sub -clause (i) or sub -clause (iii) or clause (e) of Sub -Section (1) of Section 11 to the Director of the Central Food Laboratory for certificate; and on receipt of the application the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of Sub -Section (1) of Section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of the analysis. (3) The certificate issued by the Director of the Central Food Laboratory under Sub -Section (2) shall supersede the report given by the Public Analyst under Sub -Section (1). (4) Where a certificate obtained from the Director of the Central Food Laboratory under Sub -Section (2) is produced in any proceeding under this Act, or under Sections 272 to 276 of the Indian Penal Code (Act XLV of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis. (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 (Act XLV of 1860) : Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein." (Underlining ours). Rule 7 of the Rules lays down : "7. Duties of Public Analyst : - (1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. (2) The public analyst shall cause to be analysed such samples of articles of food as may be sent to him by food inspector or by any other person under the Act. (3) After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in From III within a period of sixty days of the receipt of the sample". (Underlining ours). The material portion of Form III prescribed under Rule 7 reads as follows : - "I hereby certify that I, ...........Public Analyst for ...... duly appointed under provision of the Prevention of Food Adulteration Act, 1954, received on the ............ day of .... .. 19........... from .......... a sample of ................ for analysis, properly sealed and fastened that I found that seal intact and unbroken. The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the food inspector and the sample was in a condition fit for analysis. I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows : ..... ...... ..... ....... ....... ....... and am of the opinion that .................." (Underlining ours) . By virtue of the provisions contained in Sub -Section (5) of Section 13 of the Act, a report submitted by a Public Analyst in form III prescribed under Rule 7 of the Rules, becomes admissible in evidence. The duty cast on the Public Analyst in terms of Sub -Section (1) of Section 13 and sub -rule (3) of Rule 7 and Form III prescribed under Rule 7 is to deliver a report of the result of his analysis to the Food Inspector or any other person who sent the sample for analysis to him. Neither Section 13, nor Rule 7, nor Form III, in terms, requires the Public Analyst to state the method adopted or the technical processes involved in carrying out the analysis. If the legislature had in mind that the report of the analyst could be accepted or acted upon only if further particulars necessary for enabling the court to check up the correctness of the result declared in the report also were furnished, it would have been specifically stated so in the Act or in the Rules. It is not open to the Court to decline to act on the strength of the result declared by the analyst on the reason that the report is bereft of other particulars.
(3.) THE report in Form III consists of two parts, that of the "result declared" by the analyst on the one hand, and the "opinion expressed" by him on the other. Though Sub -Section (1) of Section 13, in terms, contemplates only the declaration of the result of analysis by the Public Analyst, provision for him to state his opinion also has been incorporated in the form prescribed under Rule 7 obviously with the object of assisting the court with the unbiased opinion of an expert. The court may infer its own conclusion from the data available in the result declared, and to the extent it is found to be in conflict with the "opinion" of the analyst the former would prevail over the latter. The court, however, has to accept the data furnished in the report to be correct until the contrary is proved or established. The "opinion" expressed cannot be equated to "result declared". There may, however, be cases where they substantially coincide, for instance in all the three cases on hand, while declaring the result, the name of the particular non -permitted coaltar dye found present was stated; in expressing his opinion the analyst stated "am of the opinion that the said sample contained non -permitted coal -tar dyes, and is therefore adulterated" or expressions to that effect.;


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