Rajasthan High Court - Jaipur
Onkar Lal vs State Of Rajasthan on 30 May, 2003
Equivalent citations: RLW2004(2)RAJ934, 2003(4)WLC172
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT Mathur, J.
1. The learned Single Judge has referred following question for adjudication :-
"Whether the right of the accused to move an application under Section 13 Sub-section (2) of the Prevention of Food Adulteration Act, 1954 is extinguished if he docs not submit an application for sending one of the sample to Central Food Laboratory, for analysis, within the period of ten days from that of receiving a copy of the receipt of the Public Analyst ?"
2. The view that an application for sending one of the samples to the Central Food Laboratory filed under Section 13(2) of the Prevention of Food Adulteration Act (hereinafter referred to as "the Act") beyond the period of ten days from the date of the receipt of the copy to the public Analyst taken by the learned Single Judge of this court in Vijay Raj v. State of Rajasthan (1), relying on the decision of the Apex Court in Tulsi Ram v. State of M.P. (2), is in conflict with the view taken in Hanuman v. State of Rajasthan (3), relying on the earlier decision of this court in Joga Ram v. State (4), and N.K. Dixit v. C.J.M., Sitapur (5). The learned Single Judge in Hanuman v. State (supra), has distinguished the decision of the Apex Court in Tulsi Ram v. State of M.P. (supra). In Joga Ram v. State (supra). The court held that accused has a right to request the court to send one of the samples to the Central Food Laboratory for analysis and the application for sending the sample to the Central Food Laboratory may be filed after the institution of the case till the case is finally disposed of and the court is duty bound to send the sample to the Central Food Laboratory.
3. In Vijay Raj v. State of Rajasthan (supra), the accused petitioner Vijay Raj was facing trial in the court of learned Chief Judicial Magistrate, Jodhpur for the offence under Section 7/16 of the Act. According to prosecution, sample of chilies powder was taken on 29th July, 89 by the Food Inspector. After analysis by the Public Analyst, the sample was found not conforming to the prescribed standard of purity. The complainant was examined on 5.1.95. The charge was framed on 8th August, 95 and thereafter, further evidence of the prosecution was taken. The complainant closed his evidence and the accused petitioner was examined Under Section 313 Cr.P.C. He was then asked to produce his evidence. On 19th August, 1995, the accused petitioner moved an application under Section 13(2) of the Act to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, Calcutta in his defence under Section 247 read with Section 243(2) Cr.P.C. The application of the accused was rejected by the learned Chief Judicial Magistrate by his order dated 22nd August, 1995 on the ground that the application was not filed within a period of ten clays from the dale of receipt of a copy of the Public Analyst. A revision petition was filed by the accused against the order passed by the learned Chief Judicial Magistrate, Jodhpur. The revision petition was dismissed by the learned Additional Sessions Judge No. 1, Jodhpur by his order dated 17.11.1995 after hearing both the parties. Feeling aggrieved by the orders passed by the learned Chief Judicial Magistrate, Jodhpur and the Additional Sessions Judge No. 1, Jodhpur, the petitioner filed a petition under Section 482 Cr.P.C. before this Court. The learned counsel for the petitioner contended that the both the courts below erred in rejecting the application of the accused to get the sample analysed by the Central Food Laboratory, Calcutta in his defence as contemplated under Section 247 read with Section 243 Cr.P.C. The argument advanced by the learned counsel for the petitioner was that the accused petitioner was at liberty to lead a defence evidence by procuring a report from the Central Food Laboratory, Calcutta to rebut the prosecution case and the learned Chief Judicial Magistrate was bound to call for any document in defence and his denial tentamounts to negation of right to lead evidence in defence. It was further submitted by the learned counsel for the petitioner that it is a basic principle of Criminal Jurisprudence which has been incorporated under Section 247 read with Section 243 Cr.P.C. that an accused is entitled to every opportunity to meet the prosecution and prove his innocence. Therefore, in complaint filed under Section 7/16 of the Act, the accused would be at liberty to claim that sample kept with the Local (Health) Authority be sent to the Central Food Laboratory, Calcutta for analysis. On the above mentioned grounds, it was contended by the learned counsel for the petitioner that denial of chance to adduce evidence in defence for incorrect reasons amounts to flagrant violation of the mandatory provisions contemplated under Section 243 Cr.P.C. Reliance was placed by the learned counsel for the petitioner on the decision given by this Court in Joga Ram v. Stale (supra).
4. In view of the submissions made by the learned counsel for the petitioner, the learned Judge considered the following three questions :-
"(1) Whether Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A of the Rules framed thereunder had the effect of repealing, altering or modifying Section 247 read with Section 243, Cr.P.C. ?
(2) Whether right of the accused-petitioner to claim to send the sample for analysis to the Central Food Laboratory, Calcutta under Section 247 read with Section 243 Cr.P.C. is an absolute right of the accused-petitioner and Magistrate cannot refused to send the sample to the Central Food Laboratory, Calcutta even if he is of the opinion, that such application has been moved to defeat the mandatory provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rules framed thereunder?
(3) Whether if legislature provides a particular thing to be done in a particular manner, does it amount that it has prohibited to do the same thing in any other manner"
5. The learned Single Judge held that since the case was instituted on the complaint filed by the Food Inspector, the provisions of Section 247 Cr.P.C. were attracted to the case and this section provides that after conclusion of complainant's evidence, the accused be called upon to end his defence and produce his evidence and provisions of Section 243 shall apply. The learned Judge took notice of the amendments made in Section 13(2) of the Act by Act No. 34 of 1976 and the amendment of Rule 9A of the Rules, which amendment came into force w.e.f. 04.01.1977. Regarding the first question, the learned Judge held :
"In my humble opinion, the provisions contemplated under Section 247 read with Section 243(3) Cr.P.C. will be deemed to be altered and amendment to the extent of their inconsistency with the mandatory provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A framed thereunder and an argument contrary to it is not acceptable."
6. Regarding the second question, the learned Single Judge held :
"In my considered opinion, the cumulative effect of the aforesaid discussions would be that in view of the specific provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A of the Prevention of Food Adulteration Rules, 1955, the accused-petitioner can be permitted to adduce all evidence in his defence under Section 247 read with Section 243 Cr.P.C. to rebut the prosecution case and to prove his innocence except making an application to the court after expiry of period of ten days from the making an application to the court after expiry of period of ten days from the date of receipt of the copy of the Analyst's report to get the same of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory."
It was further observed :-
"I am also of the opinion that right of the accused-petitioner to claim to send the sample for analysis to the Central Food Laboratory, Calcutta under Section 247 read with Section 243 Cr.P.C. is not an absolute right. A Court can refuse to send sample for analysis to the Central Food Laboratory, if it is of the opinion that the application is made at the stage of Section 247 Cr.P.C. to defeat the mandatory provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A of the Rules framed thereunder."
Regarding the third question, the learned Judge observed :-
"It is well to remember that when Parliament provides a specific procedure to make an application to the court within a period of ten days from the date of receipt of the copy of the Public Analyst report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, Calcutta then it must be presumed that Parliament has prohibited the accused-petitioner to move such an application before a Court after expiry of the aforesaid period at the stage of Section 247, Cr.P.C."
7. The decision given by another learned Single Judge of this Court in Joga Ram v. State (supra), held to be not applicable in view of the decision given by the Hon'ble Supreme Court in Tulsi Ram v. State of M.P. (supra). The learned Judge observed as under:-
"I am further of the opinion that the decision rendered by the learned Single Judge of this Court in the case of Joga Ram (supra) and decision rendered by the learned Single Judge of Allahabad High Court in the case of Bharam Swaroop (supra), do not hold water in view of the decision rendered by the Apex Court in the case of Tulsi Ram (supra)."
8. The provisions of Section 13(2) of me Act were considered by the learned Single Judge in Hanuman v. State of Rajasthan (supra). While deciding that case, the decision given in the case of Vijay Raj v. State (supra), was not brought to his notice. The decision of the Hon'ble Supreme Court in Tulsi Ram v. State of M.P. (supra), was considered. For the reasons given in the judgment, the conclusion was expressed in the following words :-
"For the reasons mentioned above, the view taken by the learned Chief Judicial Magistrate that the right conferred by Section 13(2) of the Prevention of Food Adulteration Act is not exercised by the accused within the period of ten days prescribed by Section 13(2), then such right shall stand extinguished as erroneous and the provisions of Code of Criminal Procedure as well as the words used in Section 13(2) of the Prevention of Food Adulteration Act. The order dated 22.3.96 passed by the learned Chief Judicial Magistrate deserves to be quashed and set aside and is quashed and set aside."
9. In Joga Ram v. State (supra) and Hanuman v. State (supra), it has been held that the accused can move an application for sending one of the samples to the Central Food Laboratory for analysis, at any time after the institution of the case to the conclusion of the trial and the application of the accused cannot be rejected on the ground that it was filed after the expiry of the period of ten days prescribed by Section 13(2) of the Act. On the hand, in Vijay Raj v. State (supra), a learned Single Judge of this Court has taken the view that if the application for sending one of the samples to the Central Food Laboratory for analysis is made after the expiry of the period of ten days from the date of receipt of a copy of the report of the Public Analyst, then such application would not be maintainable in spite of the provisions contained in Sections 2343 and 247 Cr.P.C. (1973).
10. In Vijay Raj v. State (supra), the learned Judge has held that in view of the observations made by the Hon'ble Supreme Court in Tulsi Ram v. State of M.P. (supra), the decision of this Court in Joga Ram v. State (supra), is no longer a good law. In view of this observation, it is necessary to consider whether the observations made by the Hon'ble Supreme Court in Tulsi Ram v. State of M.P. (supra), declare the law relating to the rights of the accused under Section 13(2) of the Act and Section 243/247 Cr.P.C. ? In order to answer the above question, it would be proper to refer to the provisions of Section 13(2) of the Act and the relevant changes made in Section 13(2) as well as Rule 9 of the Prevention of Food Adulteration Rules, 1955 as follows :-
"(A) Sub-section (2) of Section 3 of the Prevention of Food Adulteration Act.
(1) Before the amendment made by the PFA (Amendment) Act No. 34 of 1976.
"Section 13(2)-After the institution of a prosecution under this Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in Sub-clause (i) or Sub-Clause (iii) of Clause (c) of Section 11, to the Director of the Central Food Laboratory for a certificate, and on receipt of the application the court shall first ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory, who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis,"
(2) After the amendment made by PFA (Amendment) Act, No. 34 of 1976, "Section 13(2)-On receipt of the report of the result of the analysis under Sub-section (1) of the effect that the article of food is adulterated, the Local (Health) Authority shall after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory."
11. A bare perusal of Sub-section (2) of Section 13 of the Act as it was before the amendment made in 1976 and as it is after the amendment made in 1976, shows, thus-
"(1) Period within which a copy of the report of the Public Analyst is to be sent to the accused person/persons, was neither prescribed in this sub-section before the amendment made in 1976, nor the amended sub-section prescribes any period within which the copy of the report of the Public Analyst is to be sent to the accused. It is left to the Rule making authority to prescribe the manner as well as the period within which the copy of the report of the Public Analyst is to be sent to the accused person/persons.
(2) Period within which the accused was permitted to move an application under Sub-section (2) of Section 13 of the Act, for sending one part of the sample to the Central Food Laboratory for analysis, was not prescribed in Sub-section (2) of Section 13, before the amendment made in 1976.
After the amendment made in 1976, Sub-section (2) of Section 13 of the Act provides that the accused person/persons, may move an application for sending one part of the sample to the Central Food Laboratory "within ten days of the receipt of the copy of the report of the Public Analyst."
(3) The Legislature has not indicated expressly or by implication what would be the consequence if the Food Inspector/Local (Health) Authority does not send the report of the Public Analyst in accordance with the Rules, nor it is indicated whether the right to the accused to move the Court for sending one part of the sample to Central Food Laboratory for analysis shall be extinguished if the application is not filed within ten days prescribed by Sub-section (2) of Section 13 of the Act as it stands after the amendment made in 1976.
(B) Rule 9(j) and Rule 9-A of the P.F.A. Rules 1955, indicated the manner as well as the period within which the copy of the report of the Public Analyst is to be sent to the accused person/persons.
(1) In the beginning, Sub-rule (j) of Rule 9 of the PFA Rules of 1955 prescribing the manner of sending a copy of the report to the accused. It read :-
"R, 9(j) To send by hand or registered post a copy of the report received in Form III from the Public Analyst to the person from whom sample was taken in case it is found to be not conforming to the Act or Rules made thereunder, as soon as the case is filed in the Court."
(2) Sub-rule (j) of Rule 9 was latter on amended and the amended rule read:-
"Rule 9(j) To wend by registered post as copy of the report in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case the sample conforms to the provisions of the Act or Rules made thereunder then the person may be informed of the same and report need not be sent."
(3) Rule 9(j) was deleted and Rule 9-A was inserted by GSR 4(E) dated 4.1.1977. Rule 9-A read :-
"R. 9-A Local (Health) Authority to send report to person concerned-The Local (Health) Authority shall immediately after the institution of prosecution forward copy of the report of the result of analysis in Form III delivered to him under Sub-rule (3) of Rule 7, by registered post or by hand as may be appropriate, to the person from the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Section 14A of the Act. ......."
(4) Rule 9-A of the Rules of 1955 was amended by GSR 500(E) dated 9.7.1984. The amended Rule 9-A reads :-
"Rule 9-A- Local (Health) Authority to send report to person concerned-The Local (Health) Authority shall within a period of ten days after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under Sub-rule (3), of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector and simultaneously also to the person whose name, address and other particulars have been disclosed under Section 14A of the Act."
12. A bare perusal of Sub-rule (j) of Rule 9, before and after amendment made in it and of Rule 9-A, before and after the amendment made in 1984, shows, thus-
"(1) That Rule 9(j) and after the deletion of Rule 9(j), Rule 9-A, indicates when the report of the Public Analyst is to be sent to the accused person/persons.
(2) Under Rule 9(j) (before its amendment) and under Rule 9-A before and after the amendment made in 1974, a copy of report of the Public Analyst is to be sent to the accused after the filing of the case/institution of the prosecution in the Court. But under Rule 9(j) (after it was amended the copy of the report of the Public Analyst was to be supplied to the accused "within ten days of the receipt of the said report" irrespective of the date on which the case was filed/prosecution was initiated in the Court.
(3) Under Rule 9(j), (before its amendment) the copy of the report was to be sent to the accused, "as soon as the case is filed in the court." After the amendment made in Rule 9(j), the copy of the report of the Public Analyst was to be sent to the accused "within ten days of the receipt of the report. After the deletion of Rule 9(j), Rule 9-A came into force in 1977 and under Rule 9-A came into force in 1977 and under Rule 9-A (before the amendment made in it in 1984), the copy of the report of the Public Analyst was to be sent to the accused, "immediately after the institution of prosecution". After the amendment made in Rule 9-A in 1984, the copy of the report of the Public Analyst is required to be sent to the accused, within a period of ten days after the institution of prosecution."
13. Since Rule 9(j) and after its deletion Rule 9-A of the PFA Rules, 1955, when the report of the Public Analyst was to be sent to the accused, as soon as there was delay in sending a report of the Public Analyst to the accused, it was pleaded by the accused that a mandatory provision was violated and the accused was entitled to be acquitted. Consequently the question whether the provisions of Rule 9(j) and Rule 9-A of the PFA Rules, 1955 are mandatory was considered by the High Courts and the Hon'ble Supreme Court in several cases, held to be directory. It would be useful to refer to following decisions of the Hon'ble Supreme Court.
14. In Dalchand v. Municipal Corporation, Bhopal (6), the Hon'ble Supreme Court considered whether the provision of Rule 9(j) (as it was after the amendment) which provided that a copy of report of the Public Analyst was to be sent to the person from whom sample was taken "within ten days of the receipt of such report" was mandatory. The Hon'ble Supreme Court held that Rule 9(j) was directory. The decision given in Dalchand's case was considered by the Hon'ble Supreme Court in Tulsiram's case (supra), wherein the Hon'ble Supreme Court observed :-
"The mention of ten days as the period within which the Food Inspector was to send the report of the Public Analyst to the person from whom the sample was taken led to considerable controversy whether Rule 9(j) was mandatory or directory. Some High Courts took the view that Rule 9(j) was mandatory and that failure to strictly comply with the rule was fatal to the prosecution. The matter was finally set at rest by this Court in Dalchand v. Municipal Corporation, Bhopal (1), where it was held that Rule 9(j) was directory. It was held that Rule 9(j) was directory. It was observed: (SCC para 1, pp 486-87: SCC (Cri) pp 11-12) There are no ready tests or invariable formula to determine whether a provision is mandatory or broad purpose of the statute is important. The object of the particular provision must be considered. The weighing of the consequences of holding a provision to be mandatory or directory is vital and; move often than not, determinitible of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period. Rule 9(j) of the Prevention of Food Adulteration Act, as it then stood merely instructed the Food Inspector to send by registered post copy of the Public Analyst's report to the person from whom the sample was taken within 10 days of the receipt of the report. Quite obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and within the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the report of the Public Analyst, for example by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused, there could be no cause for complaint. I am clearly of the view that Rule 9(j) of the Prevention of Food Adulteration Rules was directory not mandatory."
15. After the deletion of Rule 9(j) of the PFA Rules 1955 in 1977, Rule 9-A came into force. Before the amendment made in 1984, Rule 9-A required that the copy of the report of the Public Analyst be sent to the accused, "immediately after the institution of prosecution." In Tulsi Ram's case (supra), the Hon'ble Supreme Court considered whether the provision of Rule 9- A was mandatory or was directory and it was held that the provisions of Rule 9-A was directory not mandatory. In Tulsi Ram's case, their Lordships of the Hon'ble Supreme Court reiterated the principles laid down in Dalchand's case (supra), and considered the question in detail.
Regarding the object of Sub-section (2) of Section 13(2) of the PFA Act, the Hon'ble Supreme Court observed at page 490-491 of (1984) SCC :-
"It is obvious that Section 13(2) was intended to secure to the accused vendor the right to have the report of the Public Analyst tested if he so wanted, by obtaining the final and conclusive report of the Director of the Central Food Laboratory. In order to enable the accused vendor to exercise this right it was necessary to first make available to him the report of the Public Analyst. So, Rule 9(j) provided that a copy of the report of the Public analyst should be sent to the person from whom the sample was taken within ten days of the receipt of the report of the Food Inspector."
16. After considering Section 13(2) and other Sub-sections of Section (after the amendment made in 1976), the Hon'ble Supreme Court at page 495 observed :-
"The amended Section 13 requires the Public Analyst to deliver to the Local (Health) Authority a report of his analysis. Section 13(2) requires the Local (Health) Authority to forward to the person from whom the sample was taken a copy of the report of the Public Analyst's, if the report is to the effect that article of food is adulterated. The report is to be forwarded in such manner as may be prescribed, after the institution of the prosecution. Thereafter, the person from whom the sample was taken in given the right to apply to the Court within ten days of the receipt by him of the copy of the Public Analyst's report to get the sample kept by the Local (Health) Authority analysed by the Central Food Laboratory. It is no longer open to the accused- vendor to wait till the very last minute to apply to the court to have the sample analysed by the Central Food Laboratory. If he wants to exercise the statutory right of having sample analysed by the Central Food Laboratory he has to exercise that right by applying to the court within ten days of receipt by him of the Public Analyst's report. It is also to be noticed that amended Section 13(2) does not prescribe any point of time before which the report of the Public Analyst is to be forwarded to the accused vendor. But the very basis of a prosecution for adulteration of food is the report of the Public Analyst that the article of food is adulterated. The accused is given the right to dispute the Public Analyst's report by applying to the court for an analysis by the Central Food Laboratory."
17. Regarding the meaning of the expression "immediately" used in Rule 9-A of the PFA Rules (as it was before the amendment made in 1984), the Hon'ble Supreme Court observed :-
"What meaning is to be adopted depends on the context. Rule 9-A is made in the context of amended Section 13(2) which provides for the forwarding of the Public Analyst's report to the person from whom the sample was taken after the institution of prosecution and enables that person to apply to the court to have analysed by the Central Food Laboratory, the sample kept with the Local (Health) Authority. In the context the expression "immediately" is only meant to convey 'reasonable despatch and promptitude' and no more. The idea is to avoid dialatoriness on the part of the occicialdom and prevention of unnecessary harassment to the accused. But the idean is not to penalise the prosecution and to provide a technical defence. First to consture 'immediately' as meaning 'at once' or 'forthwith' and next to hold delay to be fatal to the prosecution would perhaps be to make Rule 9-A ultravires Section 13(2), if after receiving the Public Analyst's report, he never sought to apply to the court to have the sample sent to the Central Food Laboratory as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice. ........ What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under Section 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance of Rule 9-A is not fatal. It is a question of prejudice."
18. In the same case (Tulsi Ram's case (supra), their Lordships of the Hon'ble Supreme Court pointed out the object behind the amendment in Section 13(2) in the following words :-
"The working of the Act also revealed that often enough the accused vendor would adopt dilatory tactics by waiting till the last minute to exercise his rightly to apply to the court to send the Director of Central Food Laboratory. This statutory right could not be denied to the accused vendor even when made at the very last stages of the case. The result was not merely undue and unnecessary delay in the disposal of the case but fairly frequently, it would be discovered that the sample had disintegrated due to lapse of time, thus disabling the Director, Central Food Laboratory from analysing the sample. With a view to overcome the difficulties entered in the working of the Act. Section 11 and 13 were recast by the amending Act of 1976 and new Rules were made in 1977, new Rule 9-A replacing old Rule 9(j)."
19. Two things are clear by the above observations;(1) that under Section 13(2) of the Act, the accused vendor had the statutory right to apply to the court for sending one of the samples to the Central Food Laboratory for analysis and this right could be exercised upto the last stage of the case; and (2) that often the sample, was disintegrated by the time it reached the Director, Central Food Laboratory, and the Director could not analysis it and this gave opportunity to the accused to raise the plea that he was prejudiced in his defence. It may be mentioned here, that under Section 243 and 247 of the Criminal Procedure Code, the right to produce evidence in defence is made available to the accused after the prosecution has produced its evidence and the statement of the accused has been recorded. Want of opportunity to exercise the right to produce defence, before the prosecution evidence was produced, forced the accused to wait till the prosecution evidence was fully produced, to apply to the court under Section 13(2) of the Act to 2nd one sample to the Director, Central Food Laboratory. There was thus necessity of giving to the accused 'additional opportunity' before the prosecution produced its evidence, to move an application under Section 13(2) of the Act, for sending one sample to the Director, Central Food Laboratory. The amendment was therefore made in Section 13(2) with a view to enable the accused vendor to move an application under Section 13(2) for sending one sample to the Central Food Laboratory, even before he was called upon to produce his evidence in defence under Section 243/247 of the Criminal Procedure Code.
20. After carefully going through the decisions of the Hon'ble Supreme Court in Dalchand v. Municipal Corporation, Bhopal (supra), and in Tulsi Ram v. State of M.P. (supra), it is not possible to subscribe the view that the Hon'ble Supreme Court intended to lay down the law, that the provisions of Section 13(2) of the Act, which prescribes the period of ten days for moving an application for sending one of the samples to Director, Central Food Laboratory, is mandatory nor it is possible to hold that the Hon'ble Supreme Court has declared the law that the object behind prescribing the period of ten days for making application to Court for sending one part of sample to Central Food Laboratory, was to penalise the accused, by extinghising his right under Section 13(2) of the Act, if he failed to move the application to the Court within the period of ten days from the date of receipt of the report of the Public Analyst. In other words, there is no such declaration of law in Tulsi Ram's case as may render the decision given by this Court in Joga Ram's case (supra) not a good law.
21. The decision given in Hanuman v. State of Rajasthan (supra) for taking the view that the right under Section 13(2) of the Act was not extinguished even if the application for sending one part of the sample to the Central Food Laboratory was not moved within the period of ten days referred in Section 13(2), is supported by the decision given in Joga Ram's case.
22. Every criminal trial including the trial for the offence punishable under Section 7/16 of the Prevention of Food Adulteration Act, is governed by two important rules of procedure. The first is that the burden to prove the guilt is always on the prosecution and this burden never shifts to the accused. This rule is founded on the law relating to burden of proof contained in the Evidence Act. Since the burden of proof is always on the prosecution, there is the maxim that an accused is presumed to be innocent till he is found guilty of the offence with which he is charged.
23. The second important rule governing criminal trials is that the accused person must be given opportunity to defend himself against the charge made against him. This rule is founded on the fundamental right under Article 22(2) of the Constitution. The law as to burden of proof, and the law conferring right on the accused to defend himself against the charge, together constitute the 'procedure established by law' for the purpose of Article 21 of the Constitution which confers one of the most important fundamental rights namely the right against deprivation of life or personal liberty except according to procedure established by law.
24. In addition to the provisions of Evidence Act, which place burden of proof of guilt on the prosecution, Article 21 of the Constitution also places the burden of proving that the Act resulting in deprivation of life or personal, liberty is according to procedure established by law, one the State functionary who wants to deprive any person of his life or personal liberty. Thus, there are two laws (a) the law contained in the Evidence Act and (b) the fundamental right under Article 21 of the Constitution, which place the burden of proving guilt, on the prosecution.
25. The law relating to burden of proof, simultaneously does two things; (i) it imposes a positive duty on the party on which the burden to prove the fact in question is place and (ii) it creates a corresponding right in the other party, which right is to the effect that unless the positive duty to prove the fact in question is discharged, no finding shall be given against it. From this right emerges the right to be acquittal if the quilt is not proved by the prosecution. This right, which arises from the law relating to burden of proof, is very important, in view of the 'right to silence' available to the accused during the trial. Right to silence enables the accused to decide for himself, whether he should appeal in his defence and to further decide, when and at what stage of the trial he should speak. The accused cannot be forced to speak if he decides not to speak nor the accused can be forced to speak at a point or during a certain stage, when he does not to speak in his defence. Thus the following principles appear to be applicable to the criminal trials :-
"(1) the burden to prove the guilt is always on the prosecution and this burden never shifts to the accused. The accused is therefore entitled to be acquitted, if the prosecution fails to prove the guilt. He need not say anything in his defence nor he need produce any evidence in his defence. Therefore, so on the prosecution has not produced evidence to prove the charge against an accused, the accused cannot be asked to give his statement nor he can be asked to produce his evidence in defence.
(2) in every criminal trial, the accused has unfettered right to silence. He may choose to remain silence either during the whole of the trial or during any part of the trial and no one can force the accused to say anything against his will.
(3) in every criminal trial, the accused has the right to be defended against the charge and this right has its origin in the Criminal Procedure Code from which the right has been lifted to Article 22(2) of the Constitution of India and given the status of a fundamental right. This right to be defended against the charge accrues to the accused right from the moment he is arrested or process is issued against him and lasts till the trial is finally concluded. The duration for which this right is available to the accused is the period from the instituting of the prosecution to the final conclusion of the trial. Anything which extinghishes the right to be defended, before the trial is finally concluded, would be ultravires Article 22920 of the Constitution."
26. For reasons mentioned above, it is difficult to hold that the intention behind enacting Section 13(2) of the Act, was to compel the accused person to exercise his right to be defended even before the prosecution proved the charge made by it and to extinguish this right if the application was not filed within the period of ten days referred in Section 13(2) of the Act. In our considered opinion, unless the law as to burden of proof is changed and burden to prove the innocence is placed on the accused, the accused cannot be compelled to speak in his defence nor he can be compelled to produce evidence in his defence, before the prosecution has proved the charge by producing its evidence. In view of the right to silence available to the accused, no accused person can be compelled to speak if he decided not to speak at all either during the whole trial or at any stage of the trial and in view of the right to be defended against the charge, which right has the status and sanctity of a fundamental right under the Constitution, the right to be defended cannot be terminated before the final conclusion of the trial.
27. The view that Section 13(2) of the Act and Rule 9-A of the Rules, alters the provisions of Section 243 and 247 of the Criminal Procedure Code, so far as the right to defend by sending one of the samples to the Central Food Laboratory is concerned, it is sufficient to refer to the decision of the Hon'ble Supreme Court in Ram Dayal v. Municipal Corporation Delhi (7).
28. In that case the samples sent to the Public Analyst was analysed and the report was received from him on 10th September, 1965 to the effect that Laddus were adulterated with unpermitted colour. Thereafter, a complaint was filed against the accused and he was convicted by the Magistrate on October 17, 1966 and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/- in default to undergo six months R.1. The Municipal Corporation filed a revision before the learned Sessions Judge for the enhancement of the sentence. The Sessions Judge after hearing the parties accepted the contention of the Municipal Corporation that minimum sentence of imprisonment for six months and a fine of Rs. 1,000/- should have been imposed by the trial Court. The learned Sessions Judge, therefore, referred the case to the High Court recommending that the accused having been found guilty under the provisions of Section 16 of the Act should have been awarded awarded a minimum sentence of six months and a fine of Rs. 1,000/-. Before the High Court, several contentions were raised on behalf of the accused. One of the contentions was that the request of the accused for summoning the Public Analyst for cross-examination had not been acceded to, and therefore, the accused had been prejudiced, as such the entire proceeding against him were vitiated. The High Court rejected this contention on the ground that Section 510 of the Code of Criminal Procedure 1898 had no application in that it. It was dealt with Chemical Examiner or any Assistant Chemical Examiner and other experts mentioned therein. The High Court further observed that where the accused desired to challenge the report of the Public Analyst under the Act, he had to follow the procedure provided in Section 13(2) for sending the sample to the Director of Central Food Laboratory for his examination, because any report given by him will supersede the report of the Public Analyst and would be final and conclusive as to the facts stated therein. Before the Hon'ble Supreme Court, it was contended by the learned counsel for the accused that the application made on behalf of the accused Under Section 510(2) for calling the Public Analyst, which was summarily rejected on 28th August, 1966, and therefore, the accused had been prejudiced and the proceedings as such were vitiated. The Hon'ble Supreme Court considered the contentions of the learned counsel for the accused. At page 37 of the report, the Hon'ble Supreme Court observed :-
"The learned Advocate for the accused submits that the refusal of the Court to grant the application of the accused to call the Public Analyst Shri Sudhama Rao for cross-examination has greatly prejudiced him, as such the conviction sought to be quashed. It is contended that the accused has a valuable right of cross-examination to test the contents of the report given by the Public Analyst and the Court has to summon him if so desired. On the other hand it is contended both the Shri Bishan Narain for the Delhi Municipality as well as Dr. Singhvi for the Union of India that no such right has been conferred under the Act when the provisions of Section 13(2) have not only made the document signed by the Public Analyst to be used in evidence of the facts stated therein any proceedings under the Act, or under Sections 272 to 276 of the Indian Penal Code but has given a right to the accused to have the sample sent to the Director of the Central Food Laboratories under Section 13(2) whose report supersedes that of the Public Analyst and is final and conclusive. In view of these provisions it is said that the Legislature inferentially took away the right of the accused to summon the Public Analyst either for examination or cross-examination, as such the analogy of Section 510(2) of the Criminal Procedure Code which specifically gives a right to summon and examine the Chemical Examiner and other experts therein stated, as to the subject- matter of their respective reports has no relevance. Dr. Singhvi further contends that there are a class of cases which permit of trails by certificates where the general rule of evidence that every document in order to be admissible has to be proved by the person signing it has no application as the statute permits it to be proved without calling the author of it."
29. Their Lordships of the Hon'ble Supreme Court considered three questions:-
"(1) Whether the certificate of the expert could be challenged by the accused in cases where such certificate was made admissible in evidence without its formal proof?
(2) Whether the accused was entitled Under Section 510 of the Code of Criminal Procedure, 1898 to move an application to the Court to summon the Expert, so as to examine him regarding the subject matter of the report; and (3) Whether the provisions of Section 13(2) of the Prevention of Food Adulteration Act by implication took away the right conferred on the accused by Section 510 Cr.P.C. to move an application for calling an expert, who issued the Certificate ?
Regarding the first question, their Lordships laid down the law in the following words :-
"While it cannot be disputed that there are certain classes of cases where certificates have been treated as conclusive evidence, there were yet others though admissible without calling the functionaries that gave them were nonetheless only prima facie evidence. In cases where the certificates are not to be treated as conclusive evidence and they are only prima facie evidence, the party against whom they are produced has a right to challenge the subject-matter of the certificate ..............It appears to us that where certificates are not made final and conclusive evidence of the facts stated therein, it will be open to the party against whom certificates which, are declared to be sufficient evidence either to rebut the facts stated therein by his own or other evidence or to require the expert to be produced for cross-examination which prayer the Court is bound to consider on merits in granting or rejecting it. There is no presumption that the contents are true or correct though such a certificate is evidence without formal proof. In any case where there is evidence to the contrary the Court is bound to consider that evidence along with such a certificate with or without the evidence of the expert who gave it being called and come to its own conclusion."
Regarding the second question, their Lordships observed :-
"The statutes have also in some cases recognised this right, such as for instance in Sub-section (2) of Section 510, Criminal Procedure Code in respect of reports given under the hand of several experts named in Sub-section (1) notwithstanding the fact that they may be used in evidence in enquiry, trial or other proceedings under the Code. Sub-section (2) provides: "The Court ; may if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the subject matter of the report". Similarly, Sub-section (1) of Section 110 of the English Food and Drugs Act, 1955, while providing that the production by one of the parties of the certificate of a Public Analyst in the form prescribed in Section 92(5) or of a document supplied to him by the other party as being a copy of such certificate shall be sufficient evidence of the facts stated therein unless in the first mentioned case the other party requires that the analyst shall be called as a witness. Sub-section (2) of Section 110 also give a like opportunity in the case of a certificate of an officer who took a sample of the milk."
Regarding the third question, viz. whether the provisions of Section 13(2) of the Act took away the right of the accused to move an application Under Section 510(2) Cr.P.C. to summon the Expert was taken away, their Lordships declared the law in the following words :-
is true that Sub-section (2) of Section 13 of the Act has given a right both to the accused as well as the complainant on payment of the prescribed fee to apply to the Court after the prosecution has been instituted to send part of the sample preserved as required under Sub-section (i) or Sub-clause (ii) of Clause (c) of Sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate, and the Court is bound to send it under its seal to the said Director who has to submit a report within one month from the date of the receipt. This certificate under Sub-section (3) supersedes the Public Analyst's certificate and is conclusive and final order under Sub-section (5). But nothing contained in these sub-sections relating to certificate of the Director of the Central Food Laboratory in any way limits the right of the accused under Section 257 of the Code of Criminal Procedure to require the Public Analyst to be produced."
30. Section 257 of the Code of Criminal Procedure, 1898, is similar to the provisions contained in Sections 243/247 of the Code of Criminal Procedure, 1973. In our opinion, the law laid down in Ram Dayal's case (supra), nothing contained in subsections of Section 13 of the Act regarding the certificate of the Director of the Central Food Laboratory in any way limits the right of the accused under Section 257 Cr.P.C., is applicable to the provisions of the Code of Criminal Procedure, 1973, and therefore, it is difficult for us to subscribe to the view that Section 13(2) of the Act and Rule 9-A of the Rules of 1955 in any way takes away the right of the accused to produce the evidence in his defence under Section 247 Cr.P.C. In our opinion, the provisions contained in Section 13(2) of the Act are solely for the benefit of the accused to that he may exercise his right to defend himself against the charge under Section 7/16 of the Act by requesting the Court to send one part of the sample to the Director, Central Food Laboratory for analysis so that the report of the Public Analyst, on the basis of which the prosecution is instituted, may be tested and the period of ten days prescribed in Section 13(2) of the Act is merely to emphasise the necessity of sending one part of the sample to the Central Food Laboratory at the earliest opportunity so that the food article of which sample has been taken, may not be deteriorate, rendering it impossible for the Director, Central Food Laboratory to analyse it and to enable the accused to move an application under Section 13(2) of the Act, even before the production of evidence by the prosecution to prove the charge against him.
31. In view of the aforesaid, we are of the view that provisions of Section 13(2) of the Act to submit the application for sending one of the sample to Central Food Laboratory for analysis within a period often days is directory in nature. The reference stands answered accordingly.
32. Let the matter be placed before the learned Single Judge for the decision of the Misc. Petition one merits.