M.C.D. Vs. LALA RAM AND ANOTHER

JUDGEMENT

(1.) On July 29, 1976, Food Inspector Shri Karan Singh purchased a sample of Zeera measuring 600 gms. on payment of Rs. 6.60 vide receipt Ex. P.A from Lala Ram, salesman-cum-proprietor of M/s. Lala Ram Rawal Chand, respondent No. 2. Notice was given to Lala Ram by the Food Inspector of his intention of having the Zeera analysed. An inventory was also prepared at the spot which was duly signed and thumb marked by Lala Ram. The sample on analysis by the Public Analyst was found to be adulterated due to the presence of rodent excreta, namely 12 pieces per kilogram (filthy matter). The Public Analyst, however, did not find any edible seeds other than cumin seeds in the sample. In his report against the column "Edible seeds other than cumin seeds" the remark given by the Public Analyst is "Nil". Similarly, against the column "Insect infestation per 100 gms.", the remark given by the P.A. is "Nil". The Municipal Corporation of Delhi on the basis of the report of the Public Analyst filed a complaint against the respondent under section 7 read with Sec. 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act). During the course of the trial, at the instance of the respondent, the counter-part of the sample was sent to the Director, Central Food Laboratory, Calcutta, eliciting his opinion. The Director, as per his certificate dated Dec. 3, 1976, held that sample contained excessive amount of foreign seeds and a few dead and living insects. Accordingly, in his opinion, the sample was adulterated for excessive amount of foreign seeds. The trial court, Shri B.N. Chaturvedi, by his judgment dated Feb. 21, 1978, sentenced respondent Lala Ram to undergo rigorous imprisonment for 1 year and to pay a fine of Rs. 2,000.00, in default of payment whereof he was further to suffer Rigorous Imprisonment for 6 months. The respondent No. 2 firm M/s. Lala Ram Rewal Chand was sentenced to pay a fine of Rs. 5,000.00. The respondents feeling aggrieved by their conviction and sentences, appealed to the Sessions Court. The appeal came to be heard by Shri J.D. Jain, Addl. Sessions Judge, Delhi; (as he then was). The learned Judge by his impugned judgment dated July 24, 1978, accepting the appeals of the respondents, acquitted them of the charge under section 7 read with Sec. 16 of the Act, and consequently, set their conviction and sentences aside. The Municipal Corporation of Delhi has filed the present appeal, challenging the correctness of the view taken by the learned Addl. Sessions Judge both on facts and law.

(2.) We need not go into the various questions of Law on the basis of which the Learned Additional Sessions Judge recorded acquittal of the respondents as the same has been answered by a bench of this Court in M.C.D. Vs. Lahsa Restaurant & others, 1980 (II) FAC 90 (Cr. A.5 of 1980) decided on April 1, 1980. However, having heard the learned counsel for the parties, we are of the opinion that the appeal must fail for the reasons recorded below.

(3.) It is true that the certificate of the Director supersedes the report of the Public Analyst and that the report of the Public Analyst cannot be made the basis for recording conviction or acquittal of an accused person, but in the instant case what has shocked us is that the two samples, one sent to the Public Analyst seeking his opinion and the other counter-part sent to the Director seeking his opinion, appear to be absolutely divergent and different from each other. The Learned counsel for the appellant was unable to explain the circumstances under which the divergent results were given by the two competent authorities in examining the sample. It is for this reason that we have looked into the report of the Public Analyst more so when the consequences involved are penal and the minimum sentence of imprisonment to be awarded to a delinquent person found guilty of having committed an offence under the Act, is 6 months, Rigorous Imprisonment. As per his certificate dated Dec. 3, 1976, the Director found not only "a few dead and living insects" but also "excessive amount of foreign seeds" in the counter-part of the sample. Not only this, the Director did not find any rodent excreta as was found by the Public Analyst. As earlier noted in this judgment, the Public Analyst did not find edible seeds other than cumin seeds in the sample and the remark given in his report against the column "Edible seeds other than cumin seeds" was "Nil". Similar remark was given by the Public Analyst in his report against the column "Insect infestation per 100 gms." It is really strange as to how, if the sample was the same, the Director was able to find a few dead and living insects besides noticing excessive amount of foreign seeds, more especially when the Director had certified that the seals of the sample sent to him were intact. We are conscious of the fact that in law the certificate of the Director supersedes the report of the Public Analyst and that it is the certificate of the Director alone which has to be taken into consideration for recording acquittal or conviction against an accused person, but in the circumstances noted above, we are compelled to look into the report of the Public Analyst as well. We may warn that this judgment not be taken as a precedent for comparing the certificate of the Director with the report of the Public Analyst, as in the peculiar circumstances of this case, we were, as noted earlier, compelled to look into the report of the Public Analyst, because it was pointed out by the learned Counsel for the respondents that the counter-part of the sample sent to the Director appeared to be sample of another person rather than of the respondent.