K.S Hegde, J. - (1.) Two contentions advanced in this appeal by special leave are (1) that the appeal filed by the Municipal Board, Saharanpur before the High Court of Allahabad under section 417 (3) of the Criminal Procedure Code was not maintainable in law, and (2) the accused could not have been convicted on the strength of the certificate of the Public Analyst annexed to the complaint. The High Court rejected both these contentions.
(2.) The material facts relating to this appeal are these:The accused in this case is the proprietor of Khalsa Tea Stall situated in Court Road, Saharanpur. Among other things, he was selling coloured sweets. On suspicion that the sweets sold by him were adulterated, the Food Inspector, Municipal Board, Saharanpur purchased from the accused for examination some colored sweets under a Yaddasht on May 31, 1963 and sent a portion of the same to the Public Analyst of the Government of U. P. for examination. The Public Analyst submitted his report on June 24, 1963. It reads: "See Rule 7 (3) Report By The Public Analyst Report No. 11652 I hereby certify that I, Dr. R. S. Srivastava, Public Analyst for Uttar Pradesh, duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954, received on the 4th day of June, 1963, from the Food Inspector C/o Medical Officer of Health, Municipal Board, Saharanpur, a sample of coloured sweet (Patisa) prepared in Vanaspati No. 264 for analysis, properly sealed and fastened and that I found the seal intact and unbroken. I, further certify that I have caused to be analyzed the aforementioned sample, and declare the result of the analysis to be as follows:- Test for the presence of coal-tar dye:- Positive. Coal-tar dye, identified - Metanil yellow. (Colour Index No. 138). Analytical data In Respect of Fat Or Oil used In The Prepa- ration of the sample 1. Butyro - refractometer reading at 40oC:- 50.5. 2. Melting Point:- 33.8oC. 3. Baudouin's test for the presence of Til oil:- Positive. 4. Tintometer reading on Lovibond scale 4.0 Red units plus 0.1 yellow unit coloured with a coal-tar dye namely, Metanil Yellow (Colour Index No. 138) which is not one of the coal-tar dyes permitted for use in food-stuffs under rule No. 28 of the Prevention of Food Adulteration Rules, 1955. No change had taken place in the constituents of the sample which would have interfered with analysis. Signed this 24th day of June, 1963. The sample belongs to:- S. Dhian Singh s/o Jiwan Singh. R. S. Srivastava, M. Sc., LLB. Ph. D (Lond.), P. R. L. C., Public Analyst to Govt. of U. P. Public Analyst, Uttar Pradesh, Lucknow. Sender's address: The Food Inspector C/o Medical Officer of Health, Municipal Board, Saharanpur."
(3.) On the basis of that certificate, a complaint was filed in the Court of City Magistrate, Saharanpur under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954. It is purported to have been filed by the Municipal Board, Saharanpur but it was signed by its Food Inspector. The accused pleaded not guilty. Various contentions were taken by the accused in support of his defence. The trial court acquitted him taking the view that as the report of the analyst did not contain any data, no conviction could be founded on its basis and as the Yaddasht relating to the sale had not been attested as required by law, the seizure in question must be held to be invalid. As against that decision, the Municipal Board, Saharanpur went up in appeal to the High Court under Section 417 (3), Cr. P. C. The High Court allowed the appeal disagreeing with the trial court on both the questions of law referred to earlier. It came to the conclusion that the analyst had given the necessary data and hence his report afforded sufficient basis for conviction. It further opined that the fact that the Yaddasht had not been attested by the witnesses of the locality, did not vitiate the seizure made. As the hearing of the appeal, no objection about the maintainability of the appeal was taken. The judgment of the High Court was rendered on April 18, 1966. The High Court convicted the appellant and sentenced him to undergo rigorous imprisonment for two months and to pay a fine of Rs. 100/-, in default to undergo further imprisonment for a period of one month. On April 28, 1966, the accused filed an application for certificate under Article 134 of the Constitution. On May 4, 1966, when the application filed under Article 134 of the Constitution for certificate was still pending the accused moved the High Court under Section 561 (A), Cr. P. C. for reviewing its judgment of date April 18, 1966 principally on the ground that the appeal filed by the Municipal Board was not maintainable under Section 417 (3), Criminal Procedure Code as the complaint had been instituted by the Food Inspector and not by the Municipal Board. The application under Section 561 (A) was dismissed by the High Court as per its order of March 16, 1967 reported in 1967 All WR (HC) 223 repelling the contention of the accused that the complaint had not been instituted by Municipal Board. It further came to the conclusion that it had no power to review its own judgment. The certificate prayed for under Art. 134 of the Constitution was also refused by a separate order of the same date. Thereafter this appeal was brought after obtaining special leave.;