- (1.) One Food Inspector filed a complaint, with the consent endorsed thereon by the Local (Health) Authority and Chief Municipal Health Officer, against the present petitioner who are a firm and its partner in respect of offence punishable under Section 16(1)(a)(i) and (ii) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (PFA Act, for short). The complaint was filed in the Court below sometime in July, 1990 on the basis of a report of the Public Analyst in respect of the sample of tea duly purchased by the Food Inspector from the shop of the petitioners and forwarded to the Public Analyst for examination. The Public Analyst was of the opinion that the sample of tea did not conform to the prescribed standard in respect of total ash, ash insoluble in HC1 and water soluble extract and hence the sample was adulterated. His findings on these matters are thus : The Director, Central Food Laboratory has recorded his opinion that the sample did not conform to the standard of tea as per PFA, Rules, 1955.
(2.) It is urged by the learned Advocate for the petitioners that the report of the Director, Central Food Laboratory shows that the findings on all items of the test are within the specified standard, but only under the heading 'Microscopic examination' the finding has been recorded as 'tea structure and Cashew husk structure' which does not offend against the prescribed standard and secondly, no reliance can be placed in this matter on mere microscopic examination. The other point urged on behalf of the petitioners is that in Total ash determined on tea drired to a constant weight at 1000C. ... 8.21% Ash insoluble in HCI ... 1.98% Water soluble ... 29.8% Under Rule 5 of the Prevention of Food Adulteration Rules, 1955 the standard defined in Appendix B to the said Rules in Item A.14 for 'tea' is thus : a) Total ash determined on tea dried to a constant weigt at 1000C. ... 4.0 to 8.0 per cent. b) Total ash soluble in boiling distilled water. ... Not less than 40 per cent of total ash. c) Ash insoluble in HC1. ... Not more than 1.0 per cent. By weight on dry basis. d) Extract obtained by boiling dry tea (dried to constant weight at 1000C) with 100 parts of distilled water for one hour reflux. ... Not less than 32 per cent. e) Alkalinity of soluble ash. ... Not less than 1.0 per cent. and not more than 2.2 per cent. expressed as K20 on dry basis. f) Crude fibre (determined on tea dried constant weight at 1000C. ... Not more than 17 per cent. In due course another sample of tea was sent to the Director, Central Food Laboratory for examination and his report is as follows : Total ash % by wt. in dry basis. : 5.7 Total ash soluble in boiling distilled water % : 65.4 Ash insoluble % in dil. HC1 on dry basis. : 0.35 Water extract % : 37.6 Alkalinity of soluble ash % on dry basis. : 1.74 Crude Fibre % (by wt. In dry basis). : 10.2 Microscopic examination. : Tea structure and Cashew husk structure. Coal tar dye. : Not decteted. Iron Fillings. : Nil. view of Section 13(3) of the PFA Act, the certificate issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst and as such the consent given by the appropriate authority for prosecuting the petitioners on the basis of the report of the Public Analyst will be of no avail for continuing the prosecution against the appellants on the basis of the report of the Director, Central Food Laboratory. Now let us examine this aspect of the matter first, namely, what will be the fate of the prosecution started on the basis of a report of the Public Analyst if during the continuance of the proceeding it is found that the unfavourable findings recorded against the accused in the report of the Public Analyst all stand superseded in favour of the accused, by the report of the Director of the Central Food Laboratory as has happened in the present case. After a Food Inspector collects necessary sample of food on purchase by following the prescribed procedure, one part of the sample is sent to the Public Analyst for analysis. Under Section 13 the Public Analyst sends his report of analysis of the sample to the Local (Health) authority. If the report of the Public Analyst shows that the article of food is adulterated then a prosecution may be instituted against the concerned person and in that case after such institution of prosecution the Local (Health) Authority is required under Sub-Section (2) of Section 13 to send to the concerned person a copy of the report of the Public Analyst informing him that he may apply to the Court within 10 days from the date of receipt of the copy of the report to get the sample of the article of food analysed by the Central Food Laboratory. The accused may then, through Court, get a sample sent to and analysed by the Director, after analysis, is required to send a certificate to the Court within one month from the date of receipt of the sample specifying the result of the analysis. Sub-Section (2-D) of Section 13 provides that 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. As I have already mentioned Sub-Section (3) of Section 13 provides that the certificate issued by the Director of Central Food Laboratory shall supersede the report of the Public Analyst. The proviso to Sub-Section (5) of Section 13 provides that the report of the Director of the Central Food Laboratory except in a case where the proviso to Sub-Section (1A) of Section 16 is attracted, shall be final and conclusive evidence of the facts stated therein.
(3.) Section 20 of the PFA Act, carrying the caption 'cognizance and trial of offence' inter alia provides that no prosecution for an offence under the Act, not being an offence under Section 14 or Section 14A shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf by general or special orders, by the Central Government or the State Government. The State Government has authorised the Chief Municipal Health Officer to act under Section 20 of the PFA Act. In view of such authorisation a petition of complaint may be filed by the Chief Municipal Health Officer himself as complainant or by somebody else with his consent. As we have seen in the present case the complaint was filed by the Food Inspector with the consent of the Chief Municipal Health Officer. The question that now falls for consideration is, if during the pendency of the proceeding in the Court, the report of the Public Analyst on the basis of which the consent to file the complaint was given and the complaint was filed, stands superseded by the certificate of the Director of the Central Food Laboratory and if it appears from such certificate that the report of the Public Analyst was wrong and the article of food was actually conforming to the prescribed standard in respect of the items found by the Public Analyst as non-conforming to the same, in that event whether the prosecution can yet proceed on the basis of any new item of non-conformity with the prescribed standard as may be mentioned in the certificate of the Director of Central Food Laboratory and whether the continuance of prosecution on the basis of such certificate of the Central Food Laboratory in respect of such new item of non-conformity is tenable in the absence of fresh consent of the appropriate authority.;