M. B. SHARMA, J. - (1.) THE petitioner challenges the order of the learned Chief Judicial Magistrate, Sawai Madhopur dated 23-3-78 on the ground that the same was passed without jurisdiction. Previously also, an application under sec. 482 Cr. P. C. against that order was presented to this court, which was registered as S. B. Criminal Miscellaneous Petition No. 56 of 1978, but the same was dismissed being premature on September 15, 1978, and it was observed that if the report of the Director, Central Food Laboratory, Calcutta is adverse to the accused-petitioner, he shall be at liberty to move a fresh application under sec. 482 Cr. P. C.
(2.) AFTER the decision of this court, the report of the Director, Central Food Laboratory, Calcutta dated May 27, 1978 was received in the trial court, and the same being adverse to the accused-petitioner, he has moved afresh under sec. 482 Cr. P. C. To dispose of this application, brief facts may be stated, which are these : The Food Inspector, Gangapur City, took a sample of "ghee" from the shop of the accused-petitioner on December 25, 1975 and paid its price amounting to Rs. 9. 90 p. vide receipt Ex. P. 2. The same was divided in three parts, and each part was filled in a bottle, which was wrapped, corked and sealed. One sample was sent to the Public Analyst, Jaipur, who vide his report (Ex. P. 5) dated January 29, 1976, found that the richard value was 23. 2 percent, whereas under the prescribed standards it should have been minimum 26%. The other constituents were found as per the prescribed standards. A complaint was filed against the accused in the court of the learned Magistrate on March 19, 1976. The accused-petitioner put in appearance and submitted an application on October 6, 1977 under sec. 13 (2) of the prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), for sending his own sample to the Director, Central Food Laboratory, Calcutta. That prayer was allowed and on payment of the prescribed fee, the court put its own seal over the sample and the same was sent to the Director. Central Food Laboratory, Calcutta, who, after examining the same, submitted his report on November 21, 1977, and the moisture was found only as O. 21 per cent. So far as the richard value is concerned, it was found as 30. 8 per cent and on this account it was opined by the Director, Central Food Laboratory, Calcutta that the sample of "ghee" was not adulterated. All other constituents were also found as per the prescribed standards of purity. An application was submitted on behalf of the prosecutor on January 12, 1978 before the learned Magistrate that the third sample which was in the court should now be sent to the Director, Central Food Laboratory, because in his report dated November 21, 1977 the Director could not compare the seals on the container for want of specimen of impression of the seals. Inspite of objection on behalf of the accused, that application was allowed and when the third sample as examined by the Director, Central Food Laboratory, Calcutta, it was found that the percentage of moisture was O. 42 per cent, when as per the requirements it should have been to the maximum of O. 3 per cent. The Director, therefore, opined that the sample of "ghee" was adulterated under sec. 2 (la) (m) of the Act. He submitted his report dated May 27, 1978 to the trial court. 3. A perusal of the report dated May 27, 1978 of the Director, Central Food Laboratory, Calcutta will show that except the moisture content which was more than. 12 per cent, the other constituents were as per the prescribed standards of purity. The number of the sample was in fact 67. 75, but the Director, Central Food Laboratory, in his report dated May 27, 1978, has mentioned its number as 68/76. To this court, it appears to be a bonafide mistake. A perusal of the letter of the learned Chief Judicial Magistrate, under which the third sample was sent to the Director, Central Food Laboratory, will show that the sample No. SLS 67/75 was mentioned, but the case number of the court 68/76 was also mentioned, and, therefore, it can be said that the sample, which was sent to the Director, Central Food Laboratory, Calcutta related to this very case. I The argument of the learned Advocate for the accused-petitioner is that the learned C. J. M. had no jurisdiction to send the third sample to the Director, Central Food Laboratory, after the report of the Director had been received on the second sample, which was sent to him under sec. 13 (2) of the Act. That report superseded the report of the Public Analyst and under law no second report of the Director, Central Food Laboratory can supersede his first report. A perusal of sec. 13 (2) of the Act, as it stands after the amendment by Act No. 34 of 1976, which came into force with effect from April 1, 1976 as well as a reading of sec. 13 (2) as it stood prior to the amendment will make it clear that there is only a provision for sending the sample for analysis once to the Director, Central Food Laboratory. There is also a provision that the report of the Director, Central Food Laboratory, will supersede the report of the Public Analyst, but there is no provision that the second report of the Director, Central Food Laboratory will supersede his first report, if any. It may also be mentioned here that as and when an application is made under sec. 13 (2) of the Act, before the sample is sent to the Director, Central Food Laboratory, it is the duty of the court concerned to first ascertain that the mark and seal, or fastening as provided under the Act and Rules are in tact. The court has to put its own seal. Therefore, a presumption that all official acts have been regularly performed is there and it can be said that when the sample of "ghee" was sent by the court at the request of the accused, the learned Magistrate, only after being satisfied that the mark and seal or fastening was in tact should have sent it to the Director, Central Food Laboratory. Merely because the Prosecutor again applied that the third sample should be sent to the Director, the learned Magistrate was not authorised under the provisions of the Act or Rules made thereunder to accede to his request, as there is no provision under the Act or Rules that the second report of the Director, Central Food Laboratory shall supersede the first report of the Director. The learned Advocate has placed reliance on Salim & Co. vs. Municipal Corporation of Delhi (l), where it has been held that the words used in sec. 13 (5) have to be given ordinary, natural and grammatical meanings. They are not susceptible to any hypothetical construction. Only one certificate can be issued by by the Director after the analysis of the sample has been carried out. The Public Analyst's report once superseded by the Director's certificate cannot be revived on account of a party offering to send the second sample to the Director. Therefore, the position of law, which emerges from the above discussion, is that under sec. 13 (2) of the Act, as it stood prior to the amendment or as it stands after the amendment by Act No. 34 of 1976, only one sample can be sent to the Director, Central Food Laboratory, and the report received will supersede the report of the Public Analyst. But, normally the third sample cannot be sent to the Director, Central Food Laboratory, nor his report, if any will supersede the first report, nor will revive the report of the Public Analyst. The learned Chief Judicial Magistrate, therefore, acted without jurisdiction when he sent the third sample to the Director, Central Food Laboratory for analysis. Report, if any received, will not supersede the first report of the Director, Central Food Laboratory, which continues to be the evidence in this case and is conclusive under the provisions of the Act.
(3.) IT will be clear that the report of the Director, Central Food Laboratory, Calcutta dated November 21, 1977, which has superseded the report (Ex. P. 5) of the Public Analyst, clearly shows that the sample of "ghee" was not adulterated. In this view of the matter, it is a fit case in which the inherent powers of this court should be exercised. Therefore, the order of the learned Chief Judicial Magistrate dated March 23, 1978 is hereby quashed and consequently the second report of the Director, Central Food Laboratory, Calcutta cannot be read into evidence. .;