STATE OF GUJARAT Vs. SHANTABEN
HIGH COURT OF GUJARAT
STATE OF GUJARAT
SHANTABEN W/O BHOI DHULABHAI DEVABHAI
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(1.) This is an appeal by the State against the acquittal of the respondent who was prosecuted under sections 7 and 16 of the Prevention of Food Adulteration Act. Upon the evidence and on the admission of the accused the learned Magistrate found that the accused had sold milk but the learned Magistrate did not attach any value to the report Ex. 6 of the public analyst on the ground that the prosecution did not examine the public analyst. The learned Magistrate relied on Suleman Usman v. The State of Gujarat 2 G.L.R. 402 and observed that in view of this ruling a report of the Chemical Analyser could have no probative value and no weight could be attached to the report unless the report is full and complete and discloses the test or experiments performed by the Chemical Analyser the factual data revealed by such test or experiments and the reason which led the Chemical Analyser to form such factual data. In that case my learned brother with respect rightly rejected the contention that no weight should be attached to the report of the Chemical Analyser. My learned brother observed that the case of Emperor v. Happu I.L.R. 56 Allahabad 228 was not applicable after the amendment of section 510 Cri. Pro Code in 1955 by Act XXVI of 1955. My learned brother however accepted the contention that the report of the Chemical Analyser and the opinion of the Chemical Analyser had little or no value unless supported by reasons or factual data. In support of that contention a judgment of the Bombay High Court in Emperor v. Behram Irani 46 Bombay Law Reporter 481 was relied on. But that decision of the Bombay High Court relied on the judgment of the Allahabad High Court in Emperor v. happu I. L. R. 56 All. 228 on which my learned brother was not prep red to rely having regard to the amendment of section 510 Cri. Pro. Code. The Bombay High Court in Emperor v. Beharam Irani (supra) observed as follows:-- It is obvious however that the weight to be attached to such a report must depend to a considerable extent on the reasons which the Chemical Analyser gives for the conclusion which he has arrived at and in some cases as in the one before us where the matter to be reported one is the presence of certain substances in the article submitted for examination much would turn on the quantity of the incriminating substance found in the article. If the Chemical Analysers report alone is to be considered sufficient it should contain all the information which that officer himself would have been able to furnish if he had been examined as a witness. In the present case the report merely says that wheat products had been used in the manufacture of the cakes. The danger of accepting a mere report of the Chemical Analyser in criminal cases has been very forcibly pointed out by Young J. in Emperor v. Happu (supra). It is true that the learned Magistrate offered though at a late stage to call the Chemical Analyser as a witness if the accused wanted him to do so and the accuseds counsel declined at that stage to avail himself of this order. But it was for the prosecution to prove that wheat products had been used in the manufacture of these cakes.......... As already observed reliance is placed on the judgment of the Allahabad High Court in Emperor v. Happu (supra) which has no value after the amendment of sec. 510 Cri. Pro. Code and my learned brother himself refused to follow the Allahabad case on that ground.
(2.) The Bombay case was also a peculiar one. Prom the report of the Chemical Analyser it appears that he merely gave an opinion that wheat products were used in the manufacture of cakes. As observed by the learned Judges of the Bombay High Court where the report mentioned the presence of certain substances in the article submitted for examination much would turn on the quantity of the substances found in the article submitted for examination. Merely to state that products were found in the cakes without mentioning what the wheat products were and what were the wheat products found in the articles would not be of much help. It was in those peculiar circumstances that the learned Judges of the Bombay High Court made the observations above referred to. Butin the case before me the public analyst has reported that he found 12.2% of solids in the milk submitted to him for examination that he found 6% of fat in the milk submitted to him for examination and 6.2% of solids other than fat in the milk submitted to him for examination. These are facts observed by the public analyst and they do not contain any opinion. It is true that those facts cannot be seen by a layman but those facts can be seen by scientists and a scientist who is appointed as public analyst is supposed to know the science that he is expected to apply. Section 13 of the Prevention of Food Adulteration Act provides that any document purporting to be a report signed by a public analyst may be used as evidence. It is not open for Judges with great respect to eviscerate this provision in sec. 13 of the Prevention of Food Adulteration Act and hold that before the report can be relied on it must contain more details than those prescribed in section 13 of the Act.
(3.) In this case it is difficult to see what other helpful evidence the public analyst would have given in cross-examination. He could at the most have explained the scientific principles involved in the analysis made by him. As already observed the public analyst is supposed to know bow to make the analysis of the milk submitted to him for examination and it is not necessary for him to explain the scientific principles involved in the procedure of the analysis. He would have only stated that the test consists of taking 2 c. c. of milk and adding a chemical substance. These details would not help the Court but if in addition to the factual data observed by him in the test performed by him the Public Analyst proceeds further to give opinion evidence that evidence stands on a different footing. But to state that in the milk submitted to him for analysis he found 6% fat is not the statement of an opinion but the statement of a fact. However the statement that the sample submitted to him for examination was adulterated 31.1% was the result of mere arithmetic. If the sample contained 62% of solids other than fat instead of containing 9% as required by the standard the deficiency is 2.8 in 9 that is 31 in 100. Thus figure 31.1% given by the public analyst is therefore a matter of mere arithmetic. But instead of stating that the deficiency is 31.1% he has stated that water added was 31.1%. Whether the deficiency is due to additional water or otherwise is a matter of opinion. The word swater added 31.1%would therefore be a matter of opinion.The public analyst should have observed that the deficiency of solids other than fats is 31.1%. In such a case if he had done so he would not have expressed an opinion but he would have done some arithmetic upon the factual data and the standard required under the rules. But it is for the Court to determine whether the sample supplied for test conformed to the standard prescribed by the rules or not and it is not for the public analyst to say so. But so far as the report mentions that the milk submitted for analysis contained 6.02 fat6.2% of solids other than fat in my opinion with great respect there is nothing to hold that that report has no value because the public analyst has not been examined in the Court. In the English case of Bayley v. Cook (1905) 92 L. T. 170; 69 J. P. 139; 53 W. R. 410; 21 T. L. R.235; 3 L. G. L. 304; 20 Cox C. C. 779 D. C. it was held that the certificate was sufficient for convicting the accused.;
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