minal Appeal No 194 of 1966
Appeal by special leave from the judgment and order dated November 9 1964 of the Punjab High Court in Circuit Bench at Delhi in Criminal Appeal No 30 D of 1964
HR Gokhale K K Raizada and A G Ratnaparkhi for the appellant
Frank Anthony Ghanshyam Dass Jitendra Sharma and V P Chaudhari for the respondent
The Judgment of the Court was delivered by Bhargava J
The respondent Ghisa Ram is a Halwai dealing in milk and milk products including Dahi and holds a licence for running his shop in Defence Colony in New Delhi
On September 20 1961 the Food Inspector of the Municipal Corporation of Delhi visited the shop of the respondent and took a sample of curd of cow s milk for the purpose of testing whether there was any adulteration
The curd was churned and divided into three equal parts
Each part was put in a separate bottle and sealed by the Food Inspector
One of the bottles containing the sample of the curd taken was handed over to the respondent
Out of the two remaining samples with the Food Inspector one was sent to the Public Analyst who carried out the analysis on October 3 1961
He then gave a certificate on October 23 1961 in which he noted that the fat content in the curd was 116 and the non fatty solids were 73
The standard prescribed by the Rules framed under the No 37 of 1954 hereinafter referred to as the Act for curd of cow s milk was
that it must contain a minimum of 35 fat and 85 non fatty solids
Since the analysis showed that the content of non fatty solids was 12  below the prescribed standard the respondent was prosecuted for committing an offence under section 16 of the Act for contravening section 7 of the Act
The complaint was filed before the Magistrate on behalf of the appellant Municipal Corporation of Delhi on May 23 1962
On October 4 1963 the respondent applied that the sample which had been given to him by the Food Inspector be sent for examination by the Director of the Central Food Laboratory in accordance with the provisions of section 13 2 of the Act
When the sample was received by the Director he reported that the sample of curd sent to him had become highly decomposed and no analysis of it was possible
The case against the respondent had therefore to be tried in the absence of the report of the Director of the Central Food Laboratory
At the trial the respondent admitted the taking of the sample of curd from his shop by the Food Inspector but he pleaded that he had prepared the curd from pure cow s milk
The counsel for the 118 challenged the correctness of the analysis of the sample made by the Public Analyst and a further plea was taken that the having been denied his right of obtaining the report of the Director of the Central Food Laboratory because of the delay by the appellant in launching the prosecution the respondent could not be validly convicted
This defence was accepted by the Magistrate and the respondent was acquitted
The appellant filed an appeal against this order of acquittal before the Delhi Bench of the Punjab High Court but that Court upheld the order of the Magistrate
The appellant has now come up to this Court by special leave against that decision of the High Court
In this appeal the main contention on behalf of the appellant was that though under the Act a certificate of the Director of the Central Food Laboratory has the effect of superseding the report of the Public Analyst the absence of such a certificate for any reason whatsoever will not affect the value and efficacy of the certificate given by the Public Analyst
The proposition put forward on behalf of the appellant appears to be correct
Under section 133 of the Act the certificate issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst The proviso to sub section 5 of section 13 further lays down that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein
These provisions of the Act are however only attracted when in fact an analysis of the sample sent to the Director of the Central Food Laboratory is made by him on the basis of which he issues a certificate
If for any reason no certificate is issued the report given by the Public Analyst does not cease to be evidence of the facts contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory
Further there being no certificate issued by the Director of the Central Food Laboratory no question can arise of his certificate becoming final and conclusive evidence of the report contained in it
This aspect however does not conclude the matter so far as the question of the validity of the acquittal of the respondent is concerned
There can be no doubt that sub section
2 of section 13 of the Act confers a right on the accused vendor to have the sample given to him examined by the Director of the Central Food Laboratory and to obtain a certificate from him on the basis of the analysis of that sample
It is when the accused exercises this right that a certificate has to be given by the Director of the Central Food Laboratory and that certificate then supersedes the report given by the Public Analyst
If in any case the accused does not choose to exercise this right the case against him can be decided on the basis of the report of the Public Analyst
Difficulty however arises in 119 a case where the accused does exercise the right by making a request to the Court to send his sample for analysis to the Director of the Central Food Laboratory and the Director is unable to issue a certificate because of some reason including the reason that the sample of the food article has so deteriorated and become decomposed that no analysis is possible
In the present case we find that the decomposition of the sample which the respondent desired should be analysed by the Director of the Central Food Laboratory took place because of the long delay that had occurred in sending the sample to the Director  The sample was taken on September 20 1961 while it was sent to the Director after October 4 1963 when the respondent made his application in that behalf
The submission on behalf of the respondent was that the appellant instituted the prosecution of the respondent on May 23 1962 and consequently under section 132 of the Act the right accrued to the respondent to have the sample sent for analysis only thereafter
Section 132 specifically mentions that the accused vendor may make the application after the institution of a prosecution under the Act No right vested in the respondent to have the sample analysed in this case until the prosecution was launched on May 23 1962
The opinion of one of the experts Dr Sat Parkash given in this case shows that in the case of a food article like curd it starts undergoing changes after a week if kept at room temperature without a preservative but remains fit for analysis for another 10 days thereafter
On the other hand if the sample is kept in a refrigerator it will preserve its fat and non fatty solid contents for purposes of analysis for a total period of four weeks
If a preservative is added and the sample is kept at room temperature the percentage of fat and non fatty solids contents for purposes of analysis will be retained for about four months and in case it is kept in a refrigerator after adding the preservative the total period which may be available for making analysis without decomposition will be six months
In this case when the Food Inspector handed over the sample to the respondent the respondent was not expected to keep it in a refrigerator
Consequently without any preservative the sample kept with him could have been analysed successfully during the next 17 days whereas if a preservative had been added it could have been analysed successfully during the next four months
It appears to us that when a valuable right is conferred by section 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 120 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 defence 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 In a case where there is denial of this right on account of the deliberate conduct of the prosecution we think that the vendor in his trial is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst even though that report continues to be evidence in the case of the facts contained therein
We are 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
In the present case the sample was taken on the 20th September 1961
Ordinarily it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample
It however appears that delay took place even in obtaining the report of the Public Analyst because the Public Analyst actually analysed the sample on 3rd October 1961 and sent his report on 23rd October 1961
It may be presumed that some delay in the analysis by the Public Analyst and in his sending his report to the prose cution is bound to occur
Such delay could always be envisaged by the prosecution and consequently the elementary precaution of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector
If such a precaution had been taken the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which would have expired about the 20th of January 1962
The report of the Public Analyst having been sent on 23rd October 1961 to the prosecution the prosecution could have been launched well in time to enable the respondent to exercise his right under section 132 of the Act without being handicapped by the deterioration of his sample
The prosecution on the other hand committed inordinate delay in launching the prosecution when they filed the complaint on 23rd May 1962 and no explanation is forthcoming why the complaint in Court was filed about seven months after  the report of the Public Analyst had been issued by him 121 This is therefore clearly a case where the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution
In such a case we think that the respondent is entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act as a result of the conduct of the prosecution
Learned counsel for the appellant drew our attention to a decision reported in Suckling vs Parker1
That case was concerned with similar law in England but there the provision relating to the testing of the sample kept with the vendor was quite different
In England there was no restriction that the vendor could not have his sample tested until after the prosecution was launched nor did the subsequent report have the effect of completely superseding the earlier report of the Analyst
In Municipal Corporation Gwalior vs Kishan Swaroop2 it was held that where there was delay in launching the prosecution it deprived the accused of the valuable right to challenge the report of the Analyst in the manner prescribed by section 132 of the Act and when this right was denied to the accused for no fault of Ms but wholly due to the inordinate laches of the prosecution no weight could be given to the report of the Public Analyst
That decision proceeded on the basis of the value of the report of the Public Analyst being affected by the fact that the accused had been deprived of his right to challenge that report by obtaining a certificate from the Director of the Central Food Laboratory
The report of the Public Analyst as we have said earlier does not cease to be good evidence merely because a certificate from the Director of the Central Food Laboratory cannot be obtained
The reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution
In these circumstances the acquittal of the respondent was justified and the appeal is dismissed
VPS Appeal dismissed 1 19061 KB527
2 AJR 1965 MP 180


Summary:
The Food Inspectorof the appellant Municipality took a sample of curd from the respondent s shop for the purpose of testing whether there was any adulteration
The sample was divided into three equal parts put in separate bottles and sealed
One bottle was handed over to the respondent and one was sent to the Public Analyst who analysed it and sent his report
On the basis of that report a complaint was filed seven months after receipt of the report against the respondent for an offence under sections 7 and 16 of the 
During the trail the respondent applied to have the sample given to him analysed by the Director of the Central Food Laboratory in accordance with section 132 of the Act
The Director reported that the sample had become highly decomposed and could not be analysed
The trial Court acquitted the respondent accepting his contention that he could not be convicted after having been denied his right of obtaining the Director s certificate by the delay in launching the prosecution
On the question whether he should have been convicted on the basis of the Public Analyst s report
HELD  A right is conferred by section 13 2 on the accused vendor to have the sample given to him by the Food Inspector analysed by the Director after the prosecution was launched against him
It is a valuable right because he could for his proper defence have that sample analysed by a more competent expert whose certificate supersedes the report of the Public Analyst under section 133 and is to be accepted by the Court as conclusive evidence of its contents under the proviso to section 135
However if for any reason no certificate is issued by the Director the report of the Public Analyst does not cease to be evidence of the facts contained in it
But in a case where there is denial of this right on account of the deliberate conduct of the prosecution the accused vendor would be seriously prejudiced in his trial and could not be convicted on the report of the Public Analyst even though that report may be evidence in the case of the facts stated therein
In the present case the prosecution should have anticipated that there would be some delay in the analysis by the Public Analyst and in the sending of his report and consequently the elementary precaution of adding a preservative to the sample given to the respondent should have been taken by the Food Inspector
If such a precaution had been taken the sample given to the respondent would have been available for analysis by the Director for a period of four months and the prosecution could have been launched after receiving the Public Analyst s report well within time to enable the respondent to exercise his right under section 132
The respondent was therefore denied a valuable right in defending himself due to the inordinate delay in launching the prosecution ad was prejudiced in his defence
119 H 120 A B F H 121 A 117