S.B.MAJMUDAR - (1.) In this group of revision applications a short question has been referred for our consideration. The said question reads as follows. Whether after the report of the Public Analyst gets superseded by the certificate of the Director Central Food Laboratory who examines the part of the sample of food article collected under the relevant provisions of the Prevention of Food Adulteration Act 1954 (hereinafter referred to as the Act) it is open to the accused to plead that if there is any variance between the aforesaid two reports the prosecution must explain the said variance or otherwise fail. 7 before embarking upon the consideration of the question posed for our decision it will be advantageous to have a birds eye view of the relevant provisions of the statute governing the field. The Act has been enacted by the Parliament with a view to making provisions for prevention of adulteration of food. Sec 2(v) defines food to mean any article used as food or drink for human consumption other than drugs and water and includes: (a) any article which ordinarily enters into or is used in the composition or preparation of human food (b) any flavouring matter or condiments; and (c) any other article which the Central Government may having regard to its use nature substance or quality; declare by notification in the Official Gazette as food for the purposes of this Act.
(2.) Sec. 11 lays down the procedure to be followed by food inspector functioning under the Act for taking samples of food for analysis. As per sec. 11(11)(a) the food inspector has to give notice in writing then and there of his intention to have it so analyzed to the person from whom The has taken the sample and to the person if any whose name address and other particulars have been disclosed under sec. 14A. Sub-sec. (1)(b) of sec. 11 provides that when the food inspector takes a sample of food for analysis he shall except in special cases provided by rules under the Act divide the sample then and there into three parts mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed. As per sec. 11(1)(c) the food inspector has to send one of the parts for analysis to the public analyst under intimation to the local health Authority and to send the remaining two parts to the local health Authority for the purposes of sub-sec. (2) of this section and sub-secs. (2A) and (2B) of sec. 13. When we turn to sec. 11(2) we find that it provides that where the part of the sample sent to the Public Analyst under sub-clause (i) of clause (c) of sub-sec. (1) is lost or damaged the local health Authority shall on a requisition made toit by the Public Analyst or the Food Inspector dispatch one of the parts of the sample sent to it under sub-clause. (ii) of the said clause (c) to the Public Analyst for analysis. Sec. 13 of the Act deals with report of Public Analyst. As the resolution of the question posed for our consideration revolves round the relevant provisions contained in the said section it would be profitable to reproduce the said section in extenso as under: "13 (1) The Public Analyst shall deliver in such form as may be prescribed a report to the local health authority of the result of the analysis of any article of food submitted to him for analysis. (2) On receipt of the report of the result of the analysis under sub-sec. (1) to the effect that the article of food is adulterated the local health authority shall after the institution of prosecution against the person from whom the sample of the article of food was taken and the person if any whose name address and other particulars have been disclosed under sec. 14A forward in such manner as may be prescribed a copy of the report of the result of the analysis to such person or persons as the case may be informing such person or persons that if it is so desired either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to 8et the sample of the article of food kept by the local health authority analysed by the Central Food Laboratory. (2A) When an application is made to the court under sub-sec. (2) the court shall require the local health authority to forward the part or parts of the sample kept by the said authority and upon such requisition being made the said authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition. (2B) On receipt of the part or parts of the sample from the local health authority under sub-sec. (2A) the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-sec. (1) of sec. 11 are intact and the signature or thumb impression as the case may be is not tampered with and despatch the part or as the case may be one of the parts 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 part of the sample specifying the result of the analysis. (2C) Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-sec. (2B) the court shall as soon as practicable return the remaining part to the local health authority and that authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court; Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged the court shall require the local health authority to forward the part of the sample if any retained by it to the court and on receipt thereof the court shall proceed in the manner provided in sub-sec. (2B). (2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory the court shall not continue with the proceedings pending before it in relation to the prosecution. (2E) If after considering the report if any of the food inspector or otherwise the local health authority is of the opinion that the report delivered by the public analyst under sub-sec. (1) is erroneous the said authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated the provisions of sub-sec. (2) (2D) shall so far as may be apply (3) The certificate issued by the Director of the Central Food Laboratory under sub-sec. (2B) shall supersede the report given by the public analyst under sub-sec. (1). (4) Where a certificate obtained from the Director of the Central Food Laboratory under sub-sec. (2B) is produced in any proceeding under this ACt. or under secs. 272 to 276 of the Indian Penal Code it shall not be necessary in such proceedings 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-sec. (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 secs. 272 to 276 of the Indian Penal Code. Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-sec. (1A) of sec. 16 shall be final and conclusive evidence of the facts stated therein. Explanation-In this section and in clause (f) of sub-sec. (1) of sec. 16 Director of the Central Food laboratory shall include the officer for the time being in charge of any food laboratory (by whatever designation he is known) recognised by the Central Government for the purpose of this section. "
(3.) In all these cases initially a part of the sample was analysed by the Public Analyst but on the request of the concerned accused in each of these cases as per the provisions of sec. 13(2) parts of the sample were sent to the Central Food Laboratory for analysis and pending trials reports of the Director of the said Laboratory were received. As provided by sub-sec. (3) of sec. 13 the certificates issued by the said Director superseded the reports given by the Public Analyst under sec 13 in each of these cases. Still the controversy between the parties ranges within a very narrow compass thought all the same it is a very serious controversy. The accused contend that as the reports of the Public Analyst on the one hand and the certificates of the Director of the Central Food Laboratory in each of the cases on the other hand showed marked variance regarding material particulars about the contents of the samples analysed in the absence of any explanation offered by the prosecution regarding this variance the prosecution must fail. The concerned accused leaned heavily in support of their aforesaid contention on a decision of the Division Bench of this court consisting of A. N. Surti and D. H. Shukla JJ. to which we have already made a reference in the earlier part of this judgment. Before we switch over to the consideration of the said judgment it would be necessary to keep in view the statutory settings of sec. 13. A mere look at sec. 13(3) shows that once the certificate is issued by the Director of the Central Food Laboratory after analysing part of the sample sent to it far analysis at the request of the concerned accused as laid down by sec. 13(2) read with sec. 13(2A) the earlier report of the Public Analyst analysing part of the very same sample gets superseded. The nature and extent of the supersession is highlighted by the provisions of sub-sec. (5) of sec. 13 read with the proviso to the said sub-sec. (5). A bare look at sub-sec. (5) of sec. 13 shows that document purporting to be a report signed by the Public Analyst can be used as evidence of the facts stated therein even though no formal proof as required by the Indian Evidence Act is adduced provided it is not superseded under sub-sec. (3) of sec. 13. Thus prior to its supersession it may hold the field and mere tendering of such report would be enough to bring it on record as evidence of its contents. But the moment it gets superseded under sec. 13(3) by a superior report so to say of the Director of the Central Food Laboratory on the basis of examination of any part of the same sample as sent to him through court at the request of the accused as provided by sec. 13(2) read with sec. 13(2A) it ceases to exist of its own and there would remain no occasion for referring to it as evidence of the facts stated therein. In other words it gets totally exhausted in that eventuality and it is only the certificate of the Director of the Central Food Laboratory which would hold the field. Proviso to sec. 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food laboratory. Once this type of conclusive evidence emerges on record whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the Public Analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so there would be no question of considering any Variance Between the results of the tests carried out by the Public Analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would pre-suppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by sec. 13(3) read with sec. 13(5) there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier reports of the Public Analyst which has ceased to exist on record. Once this conclusion is found to clearly follow from the aforesaid statutory scheme of sec. 13 it must logically follow that there can be no question of any variance between the non-existent report of the Public Analyst and existing certificate of the Director of Central Food Laboratory in connection with analysis of the part of the same sample as initially taken by the Food Inspector. If such a question is ruled out further question as to whether the prosecution should explain the variance at the pain of otherwise falling through would become totally irrelevant and besides the point.;