Bombay High Court
State Of Maharashtra vs Shamji Premji Shah on 11 August, 1978
JUDGMENT V.S. Kotwal, J.
1. The State has preferred this appeal against an order of acquittal by the learned Metropolitan Magistrate, 10th Court, Andheri, Bombay dated 30th March, 1976 in case No. 111/s of 1973 where in the respondent accused was prosecuted for an offence under section. 7(i) read with section 16 of the Prevention of Food Adulteration Act.
2. The complainant Food Inspector Shri Manohar Zambre raided the ship style as M/s. Shamji Premji, situate at J.P. Road, Andheri, where the respondent accused was alleged as a Proprietor, of the said shop, and having suspected that the ground nut oil stored in the premises was adulterated, the complainant purchased about 375 gms. of the said oil on payment of the price. The sample was then divided into three parts and parts having been properly sealed and one part having been given to the respondent accused, the further formalities such as obtaining receipt as also obtaining necessary information about the business were followed and one sample was sent by the complainant to the Public Analyst. The said was effected on 13th March, 1973 and the sample was also sent to the Public Analyst and was actually received at the other end on the very day. In due course, the Public Analyst sent his report, which is at Ex. D on record, certifying that the article analysed was adulterated under section 2(i)(l) of the prevention of Food Adulteration Act read with rule 5-A.17.03 of the Rules thereunder.
3. The complainant thereafter obtained the necessary sanction and lodged his complaint. The prosecution examined the complainant Food Inspector before charge and when the respondent pleaded not guilty, further evidence as that of other Food Inspector Shri Mulla was recorded. At the request of the defence, Public Analyst Shri Chatim was examined as P.W. 3.
4. The respondent accused had denied all the adverse allegation and contended that though his shop was raided by the Food Inspector and though some sample of the oil was taken, further more all other formalities were never followed by the complainant.
5. In the trial Court, several contentions were raised on behalf of the defence. Thus, for example, it was contended that these was a breach of the provisions contained in Rules 17 and 18. It was also submitted that the lapse on the part of the prosecution in not examining the Panch witnesses was fatal. It appears that these contentions were not accepted by the trial Court, but the trial Court upheld another contentions raised on behalf of the defence to the effect that the Public Analysts report was not of any assistance that the article in question was adulterated.
6. To appreciate this, a few facts are necessary. The article was attached by the complainant, Food Inspector on 13th March, 1973 and was lodged in the office of the Public Analyst on the same day. It is not clear from the record as to when the exact analysis process started in the laboratory of the Public Analyst, but the certificate bears the date " 11th May, 1973" below the signature of Shri Chatim the Public Analyst. It is significant to note that when the defence had requested for the examination of the Public Analyst and though the same was granted, still the person who was examined as a witness was not really the person who carried the analysis or in other words. Mr. Chatim who was examined has frankly admitted that he did not himself carry out analysis but the same was done by his assistant. It was, therefore, contended and rightly accepted by the trial Court that in view of a decision of this Court the report loses all its value especially when the notes of analysis were not produced. In the instant case, the prosecution suffers from two fold infirmities. Firstly, the person who has analysed the sample viz. the assistant to Mr. Chatim has not been examined, and secondly though the certificate bear the date as 13th May under the signature of Mr. Chatim, still the analysis, on the admission of the witness himself, was carried on 9th May, 1973. It is also in evidence that when the analysis is carried by an assistant the tests taken and the results achieved are always mentioned first in some rough book or paper and thereafter carried further in another fair book and thereafter on that basis the certificate is ultimately issued. It is also significant to note that though Mr. Chatim at come stage said analysis was carried in his presence by his assistant, still he has demitted in further cross-examination to the effect as :
"I cannot any whether I was physically present when iodine value that of B.T. were taken in case of the present sample."
7. He has further admitted that in all 14 tests were carried out of which in two tests iodine value, one Ballier Turbidity temperature did not conform with the standard.
8. Reliance is placed on two judgments of this Court, one recorded by the Division Bench in a group of (Criminal Appeals Nos. 1008 to 1011 of 1967, decided on 25th April, 1969), which has been Chandurkar, J., in (Criminal Appeal No. 818 of 1969, decided on December, 1970), the ratio of the two decisions is to the effect that if the analysis is carried prior to the signing of the report. Really speaking the notes of the said analysis which are prepared at the time of the Analysis itself, become the main evidence and not the certificate which comes into existence subsequently. In fact, it has been observed that the said certificate has no value at all and consequently the result of the analysis mentioned in the said certificates is also of no consequence. Had report of the Public Analyst been brought on record, without examining the witness himself, then perhaps the situation would have been a little different in as much as the question of getting the notes produced on record and the evidentiary value of the report would not have come into question more so when the Code of Criminal Procedure, the report by itself has been made admissible. However, having once examined the Public Analyst through whom it has been established, that the analysis was carried earlier than the signing of the report, then undoubtedly different situation arises and in that event the notes become the primary evidence and only the notes become admissible. Added to this as observed earlier, there is another infirmity that the person who has carried the analyst has not been examined, and the record that the Public Analyst who claims to have supervised the analysis does not appear to be present through out when the test were taken.
9. As this point is fully covered by the said two decisions of the Court and when the order of acquittal is recorded by the trial Magistrate on that Court alone. I do not find any reason to interfere with the said order of acquittal and it is not necessary to go through other points raised by the accused as the appeal can be disposed of on this short point alone.
10. In the result, the appeal fails and the dismissed. The order of acquittal recorded by the learned Magistrate in favour of the respondent accused is hereby confirmed the bail bonds of the respondent accused stand cancelled.