Calcutta High Court
Jagmohan Singh And Partha Sarathi ... vs State Of West Bengal on 26 July, 1995
Equivalent citations: 1995CRILJ3735
ORDER Vidya Nand, J.
1. These two revision petitions involving the same question of Law against two different orders dated 23-5-93 of Shri B. C. Biswas, the learned Sr. Municipal Magistrate, Calcutta in Case No. 13-D/91 and 14-D/91 have been filed forquashing the proceeding of these two cases as the Ld. Municipal Magistrate, Calcutta refused to discharge the petitioners.
2. Shri S. K. Basu, Food Inspector inspected the premises of the accused Jogmohan Singh, Proprietor of J. M. R. B. and Co., Highwala 13, B Kashinath Mallic Lane, Calcutta-73 on 16th January, 1991 and took samples of compounded Asafoetida (Bandhani Hing) and Compounded Asafoetida (Shivashan Karnag Brand) and also sized and sealed about 141 Kgs. of the said Compounded Asafoetida (Shivashan Karnag Brand) in bags and 30 Kgs. of Compounded Asafoetida in tins in Case No. 14-D/1991 and in Case No. 13-D/1991. The said Asafoetida belonged to accused No. 1. Jagmohan Singh and accused No. 2. was looking after the day to day business of accused No. 1. as seller.
3. The sample of Compounded Asafoetida taken by the Food Inspector from the shop of the petitioner on 16th January, 1991, was found to be adulterated in each case on testing by the Public Analyst and as such the Ld. Sr. Municipal Magistrate, Calcutta took cognizance of offence of a adulteration under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 read with Section 7, of the said Act against the petitioners in both the cases. The petitioners on receipt of the summons appeared before the Ld. Sr. Municipal Magistrate, Calcutta and challenged the Public Analyst's reports by exercising their rights conferred under Section 13(2) of the Prevention of the Food Adulteration Act, 1954 and prayed for testing of another part of the sample by the Director, Central Food Laboratory and their prayer was allowed. When the certificates were received from the Director, Central Food Laboratory, they revealed that each sample taken in two different cases fully confirmed to the standard prescribed in the P.F.A. Rules and these were not adulterated. As the certificates of analysis of the Director Central Food Laboratory, superseded the Public Analyst's Reports and the Director Central Food Laboratory certified conformity of the samples to standard in each case the petitioners moved petitions for discharging them Under Section 245, Sub Clause (2) of the Cr. P. C. from the said case No. 13-D/1991 and 14-D/1991 as there was no evidence in the Court to sustain a prosecution. The prayers were refused by the Ld. Magistrate by the orders dated 21st May, 1993. Against the orders of refusal the accused petitioners have come in revision for quashing the proceedings in Case No. 14-D/1991 and 13-D/1991.
4. While disposing the petitions of discharge Under Section 245 Sub Clause (2) of the I.P.C. in Case No. 13-D/1991 the Ld. Magistrate discussed the matter as follows:--
"There is no doubt that the report the of C. F. L. is to supersede the report of the Public Analyst as per provisions of Sub-section (3) read with Sub-section (5) of Section 13, of the P.F.A. Act. But, the decided principle reported in 1985 F. A. J. (Feb. 85) page 49, is standing otherwise. The principle decided by His Lordship in this case is standing to the effect the report of the Public Analyst will be superseded only on the point of analysis carried out by the Director, C.F.L., but not in respect of the point of analysis those were not carried out by the Director. In this case the presence of Galbanum Resin was found in a positive test by the Public Analyst. This presence in the item in question is not permissible as per report of the Public Analyst. The report of the C.F.L. does not over the analysis on this point of presence of Galbanum Resin."
Therefore, the prayer made under Section 245(2) of the Cr. P.C. is standing rejected. "For similar reasons the Magistrate rejected the prayer of discharge in Case No. 14-D/1991.
5. The Director of Central Food Laboratory, Pune tested/analysed the sample of Case No. 13-D/ 1991 and gave the result/results of such tests/analysis as stated below :
"Total Ash%...5.2 Ash insoluble in dil HCL %...1.08 Alcoholic extract % with 90.0% alcoholic by U. S. P. 1936 method...20.9 Test for colour.... No extraneous colour detected. Microscopic examination.... Maize Starch + Rice Starch."
6. And he was of the opinion that the sample conformed to the standards of Compounded Asafoetida as per Prevention of Food Adulteration Rules 1955. The Director. Central Food Laboratory did not carry Test for Colophony Resin, Test for Galbanum Resin, Test for Ammoniacum Resin. Test for any other Foreign Resin, Test for Coltar dye, Test for Mineral Pigment. Whereas the Public Analyst in his report carried all the above tests beside other tests and he was of the opinion that sample of Compounded Asafoetida contained the Galbanum Resin, which is not permissible as per Prevention of Food Adulteration Rule. Hence, in his view it was adulterated. Similarly, in Case No. 14-D/1991 also the Director of Central Food Laboratory did not carry certain tests whereas Public Analyst carried all the tests prescribed under Law and came to the conclusion that the sample of Compounded Asafoetida did not confirm to the prescribed standard in respect of alcoholic extract and it contained Foreign Resin and Colophony Resin and as such according to him it was adulterated.
7. The Magistrate after receiving the reports and certificates of the Public Analyst and Director of Central Food Laboratory and after hearing the parties found that the Public Analyst carried out certain other tests according to Rules which were not carried out by the Director of Central Food Laboratory.
8. According to the Ld. Magistrate, the certificates of the Central Food Laboratory were not complete as they did not cover certain tests, although such tests were made by the Public Analysts and as such according to him the certificates of the Director of the Central Food Laboratory can hardly supersede the Reports of the Public Analyst in these cases. The Ld. Lawyer appearing on behalf of the petitioners has rightly submitted before me that Sub Section 3, of Section 13, of the Prevention of Food Adulteration Act lays down unconditionally that the certificate issued by the Director, Central Food Laboratory supersedes the report of the Public Analyst and once superseded it cannot be looked into or referred to for any purpose whatsoever. According to him it would be paradoxical to hold that for some purpose the Reports of the Public Analyst are superseded and for some other purpose they are not. He further submitted before me that the certificates issued by the Director, Central Food Laboratory showed that the sample confirmed to the standard of Compounded Asafoetida as per the Prevention of Food Adulteration Act, 1954 and as such the petitioners were entitled to discharge.
8A. The Law is very clear on the point that the certificate issued by the Director of the Central Food Laboratory (under Sub-section (2-B) of Section 13) of the Prevention of Food Adulteration Act, 1954 shall supersede the report given by the Public Analyst under Sub-section 1, Sub-section 3 of Section 13, of the said Act reads as follows :
"The certificate issued by the Director of the Central Food Laboratory (under Sub-sections (2-B), shall supersede the report given by the Public Analyst under Sub-section (1)."
9. The innocence of the accused is always presumed unless proved otherwise. Section 13(2) of the Prevention of Food Adulteration Act gives a most valuable right to him to get the sample tested. As there is presumption of innocence of the accused and as the law has empowered the accused to get the sample analysed by the Director of Central Food Laboratories which means properly analysed or tested and as such the Director of Central Food Laboratories must properly analyse the sample in the manner prescribed by law but where a conclusion or opinion is arrived at by the said Director without analysing or testing the article properly as prescribed by law that conclusion or opinion or report if against the accused it cannot be allowed to go against him but if it is in his favour it will go in his favour. In the instant cases the report of Director of Central Food Laboratories are in favour of the accused persons.
In view of the above the order dated 21 -5-93 is set aside and the proceedings in both the cases are quashed.