Indian Kanoon - Search engine for Indian Law

(2) In order to appreciate the point involved it will be appropriate to set out briefly the relevant facts of the case which have been noticed in detail in the referring order.

(3) The two respondents to this appeal. Bishan Sarup and Raghbir Parshad were acquitted by Magistrate 1st Class, Delhi of the charges framed against them under section 7 read with section 16 of the Act. Aggrieved from this order, the Municipal Corporation of Delhi came up in appeal to this Court. These respondents were prosecuted on a complaint filed against them through the Municipal Prosecutor on October 3, 1962 with the allegations that on March 27, 1962 at 7.45 A.M, Food Inspector, Balraj Kocher, had gone to shop -No. 1386 situated in Kalan Mahal, Delhi where a board stating that cow's milk was sold at the shop was hanging. After disclosing his identity the Food Inspector purchased 660 mls of cow's milk from Bishan Sarup for 56 paise, against receipt Exhibit Pa which was thumb-marked and signed by Bishan Sarup. The milk was divided by the Food Inspector into three equal parts and each part was put in separate clean and dried phials. 16 drops of formalin were added in each phial and they were then sealed. One of the phials was handed over to the accused, the other was retained by the Food Inspector and the third was delivered in the office of the Public Analyst by the Food Inspector. By his report exhibit Pe dated March 31, 1962, the Public Analyst found that the contents of fat in the sample were 6.7% while the non-fatty solids were only 8.03 per cent as against the prescribed standard of 8.5%. Due to deficiency of non-fatty solids the Public Analyast declared the milk to be adulterated. This led to the filing of the complaint against both the respondents under Section 7 read with section 16 of the Act.

(7) The Act, in terms, makes special provisions in regard to reports of the Public Analyst and that of the Director Central Food Laboratory in accordance with which the accused charged with an offence under the Act is to be tried. Section 10 of the Act confers authority on a Food Inspector appointed by the Central Government or the State Government under section 9 to take samples of any article of food. Section 11 prescribes the procedure to be followed by him after taking the sample. In terms of this section he is bound to give a notice in writing to the person from whom the sample has been taken of his intention to have it analysed and except in special cases specifically provided in the Rules framed under this Act, he is enjoined to separate the sample on the spot in three parts and mark and seal and fasten up each part in such a manner as the nature of the sample may permit and then deliver one of the parts to the person from whom the sample is taken, send the other part for analysis to the Public Analyst and retain the third part for production in case any prosecution is launched. Sub-section (2) of Section 13 of the Act then confers a right on the accused person, after a prosecution has been initiated, to have the sample given to him or the sample retained by the Food Inspector to be sent to the Director of Central Food Laboratory for analysis and for his certificate as to its contents. According to the scheme of the Act, the Director of Central Food Laboratory is consituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of the Public Analyst under sub-section (3) of Section 13. The right conferred by sub-section (2) of the said Section has, under the circumstances, been held by the courts to be a valuable right of the accused person for his defense. This is clear from the observations made in the case of Municipal Corporation of Delhi v. Ghisa Ram . On page 972, Mr. Justice Bhargava speaking for the Court said : "ITappears to us that when a valuable right is conferred by S. 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defense, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence."

(9) In Ghisa Ram's case, the sample of the article of food which was curd of cow's milk was taken by the Food Inspector on September 20, 1961. The prosecution was instituted on May 23, 1962. On October 4, 1963, the accused person applied that the sample given to him by the Food Inspector may be sent for examination of Director of Central Food Laboratory. The Director reported on receipt of the sample that it had become highly decomposed and no analysis was possible. On the basis of evidence produced in the case, the Court found that the sample of curd could not survive for successful analysis beyond four months from the date when it was taken. Having regard to the fact that the accused could not have applied for the sending of this sample till after the prosecution was filed in Court it was clear that the sample in this case according to the evidence had got deteriorated even before the date when the prosecution was launched. In these circumstances the court found that the accused had been seriously prejudiced in the trial by a deliberate conduct of the prosecution namely the delay in the launching of the prosecution and, therefore, it was not proper to sustain his conviction. Their Lordships, however, in unambiguous terms pointed out in paragraph 8 of the same page : "WEare not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible."

(20) The receipt Exhibit Pa bore the thumb mark and signatures of Bishan Sarup. There is no reason to doubt the statement of P.W. 1, Balraj Kochar, Food Inspector, that on March 27, 1962, he went to the shop in question and purchased the milk from Bishan Sarup. After the purchase he disclosed to him and told him that he wanted to take sample of the milk which was being sold and prepared three samples of the milk and delivered one phial duly sealed with his seal, after adding 16 drops of formalin, to Bishan Sarup. Exhibit Pc is the relevant memo which again bears the signatures and thumb-impression of Bishan Sarup. It is also signed by two witnesses, Shree Ram and G. P. Baweja, who have appeared in the witness-box and have supported the statement of the Food Inspector. Notice Exhibit Pb was also delivered by Shri Kochar to Bishan Sarup on the spot. All this evidence clearly shows that Bishan Sarup was actually selling the milk on the shop. On demand by the Food Inspector, he produced a receipt regarding the payment of license fee which was in the name of Raghbir Parshad, respondent No. 2 in this case. Raghbir Parshad, when examined on March 23, 1964, admitted that the license of the shop was in his name and that the shop was his. It was thus proved on record beyond any doubt that Bishan Sarup, respondent No. 1, had been selling milk at the shop of respondent No. 2 on that particular day.