D. S. Mathur, J - (1.) THIS is an application under Section 4173 Cr. P. C. by the Nagar Mahapalika of Kanpur for the grant of special leave to appeal against the order dated 10-9-1962 of the Magistrate of kanpur whereby Ram Niwas, respondent, was acquitted of the offence punish- able under section 16 of the Prevention of Food Adulteration Act for contravention of Section 7 thereof.
(2.) THE learned Magistrate acquitted the respondent because Dalmoth contained cashew nuts, if not water melon seeds also, as alleged in defence, and the certificate of the Director of Central food Laboratory, Calcutta, did not indicate that the nuts had been separated and the data contained therein pertained to only that part of the Dalmoth which was not or could not be affected by cashew nuts. Dalmoth consists of seo made of maidafine wheat flour or besangram flour and fried masur. Dalmoth in question also contained fried cashew nuts and, according to the respondent, fried water melon seeds as well. The Vademecum published by schering Corporation, Bloomsfield, N. J. , gives the fatEther Extractives content of the above constituents of the Dalmoth, before being fried, as below: Refined wheat 0-90% flour gram 0-54 to 1. 38% lentilmasur 0. 74% cashew nuts 46. 93% water melon 0. 15% fat content of all the food-stuff from which Dalmoth is made, except of cashew nuts, is low and can be neglected. However, cashew nuts could affect the observations if not separated from the sample. In his certificate the Director first of all noted the observations or readings of the various tests applied and then expressed his opinion as below:-" the fat extracted from the sample of dalmoth prepared in ghee does not conform to the standard prescribed for genuine ghee. " the words "fat extracted from the sample" make it clear that the fat was extracted from the whole of the sample and not after the removal of cashew nuts. Consequently, the fat extracted from the sample included ghee in which the constituents of Dalmoth were fried, and also the fat content of cashew nuts and of other foodstuff used. Standard has been prescribed for ghee but not for the fat of cashew nuts etc. It is also not known, at least it has not come on the record, how the observations or readings of the tests prescribed for ghee shall be affected by the fat of cashew nuts etc. In the circumstances, the data contained in the certificate could not establish that the dalmoth was prepared in adulterated ghee. In case cashew nuts had been separated before extracting fat from the sample we may have formed a different opinion. That is not a point in issue in the present proceeding and no final opinion need be expressed on that question.
(3.) UNDER the proviso to Sub-section5 of Section 13 of the Prevention of Food Adulteration Act the certificate of the Director of the Central Food Laboratory is final and conclusive evidence of the facts stated therein, but not of any opinion expressed therein. Courts of law can record a finding of their own after taking into consideration the facts stated in the certificate of the director and other evidence on record. In other words, the Courts are not bound to accept the opinion of the Director and in suitable circumstances can reject it.;