Decided on January 08,1968

MOHANAN Appellant


- (1.) The second accused in C. C. 353/65 on the file of the District Magistrate, Ernakulam is the revision petitioner. He along with the first accused, was prosecuted by the Food Inspector of Ernakulam Municipality under the Prevention of Food Adulteration Act (shortly stated the Act) for offering for sale adulterated cumin seed (zeera PocIw). The first accused was stated to be the proprietor of the shop and the second accused his servant, who was in charge of the shop. 300 grams of the cumin seed in question was purchased by the Food Inspector on 3rd June 1965 from the 2nd accused and on analysis it was found to contain 14.8 percent of extraneous seeds and as such adulterated. The plea of the accused was one of denial. The first accused stated that shop No. 2922 from where the article was purchased by the Food Inspector did not belong to him and that he is an I.T.I., student who has nothing to do with the sale of cumin seed. The 2nd accused also denied having sold any cumin seed to PW 1. The 2nd accused is a servant of one Rao, the uncle of the first accused. He had gone there carrying tiffin for Rao. Exts. P2, P3 and P4 have been signed by him, and this fact was not denied. The learned District Magistrate convicted both the accused and sentenced them to pay a fine of Rs. 100 and to undergo S.I. for two weeks each. The learned Magistrate was obliged to take a lenient view in the matter of punishment since both the accused were found to be first offenders. On appeal before the Sessions Judge of Ernakulam the first accused was acquitted since the evidence was not conclusive to fix him with the ownership of the shop. The conviction and sentence passed on the 2nd accused was confirmed.
(2.) Learned counsel appearing for the petitioner directed his attack firstly, on the report of the analyst. He stated that the report is bad and unacceptable for the reason that he has not stated reasons for his conclusions, and the certificate is lacking in details as to the particular test applied by the analyst in reaching his conclusion. The analyst has not stated the genesis of the extraneous seeds found on analysis. Relying on a Single Bench decision of this Court in Ali v. Food Inspector, Tellicherry 1967 KLT 1095 the learned counsel stated that 'all the material facts should be stated in the certificate. The opinion expressed by the Public Analyst or Director of Central Food Laboratory has no conclusiveness about it. If the particular variety of non permitted coaltar dye had been stated in the certificate, that would have been conclusive but the court cannot act upon the opinion of an individual, however highly placed, unless the basis of the opinion is also stated.' In other words, the criticism was concentrated on the absence of the basis of the opinion of the analyst, in the certificate. Learned counsel also cited a few other decisions, of which the most important are State v. Bhausa Hanmantsa Pawar AIR 1962 Bom. 229 and Titli v. Alfred Robert Jones AIR 1934 All. 273. The gist of the decision in State v. Bhausa Hanmantsa Pawar AIR 1962 Bombay 229 is as follows: "The evidence of the Chemical Examiner, however treating the certificate as evidence is no more than opinion evidence. The probative value to be attached to the certificate must depend upon a variety of circumstances such as the data available to the examiner, the method of analysis adopted by him the fullness of his conclusions and speaking generally, the vulnerability to which his premises is subject. In order that a certificate may inspire confidence in the mind of the court, it is not sufficient that the Chemical Examiner merely records his negative opinion. To permit the prosecution to rely, upon a mere negative opinion without making available to the accused the grounds on which that opinion is based is a procedure which runs counter to the well established restrictions subject to which alone opinion evidence can be accepted." To the same effect is the ruling in Titli v. Alfred Robert Jones, AIR 1934 All. 273. About the expert's opinion the learned Judges observed in that case: "The opinion of an expert by itself may be relevant but would carry little weight with a court unless it is supported by a clear statement of what he noticed and on what he based his opinion. The expert should, if he expects his opinion to be accepted, put before the court all the materials which induced him to come to his conclusion so that the court although not expert, may form its own judgment on those materials." But none of these observations is relevant for the present case. They all apply to homogenous compounds where a scientific and more detailed analysis is necessary to know what exactly is the extraneous matter that has been mixed up with the food article in question. In the present case, we are dealing with a mixture and not a compound a mixture of cumin seed with other extraneous or foreign seeds. Foreign seeds are visible by the naked eye and are easily distinguishable from the cumin seed. As given in item A. 05.02 under Appendix B, cumin seed shall not contain more than 5 per cent of foreign seed. When once it is found that foreign seeds are in excess of the 5 per cent allowed, the Rule must be taken to have been contravened and in such cases it is unnecessary that the origin or the particular variety of the foreign seed should be stated in the analyst's certificate. "Where the analysis shows that such a prohibited dye is used, the foodstuff must be considered adulterated under the Act irrespective of the quantity of the adulterant. Where the extraneous matter of a type like prohibited varieties of coaltar dye is used the Analyst's report certifying to its presence in the food without specifying the exact quantity of the adulterant is sufficient to support a conviction." Vide In re Abdul Azeez, 1963 KLT 698 .
(3.) To the same effect is the Single Bench ruling in Abdul Hameed Khan v. Muhammed Haneefa 1962 KLT 415 where it was held that: "Tea containing gram husk or coffee husk falls below the quality or purity prescribed for it and has therefore to be deemed adulterated apart from any consideration as to whether such extraneous matter is injurious to health.";

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