iminal Appeal No 80 of 1968
Appeal from the judgment and order dated November 6 1967 of the Delhi High Court in Criminal Revision No 189 of 1967
Hardev Singh for the appellant
Bishan Narain and B P Maheshwari for respondent No 1
L M Singhvi and R N Sachthey for respondent No 2
683 The Judgement of the Court was delivered by Jaganmohan Reddy J
This appeal by certificate granted by the Delhi High Court under article 1341c of the Constitution is against its judgment which confirmed the conviction of the accused of an offence under section 9 of the hereinafter referred to as the Act and against the enhancement of the sentence of imprisonment from the one till the rising of the court to six months RI which is the minimum prescribed under the Act together with a fine of Rs 1000  in default to undergo six months RI
The appellant is a sweetmeat seller
It is alleged that on September 1 1965 Shri B section Sethi Food Inspector appointed by the Central Government under section 9 of the Act visited his shop and found that the appellant was selling coloured laddus
The Food Inspector purchased 1500 grams of these laddus by way of a sample by paying him Rs 9 as the price thereof
This sample was subdivided into three parts and was put into three separate bottles as required under section II of the Act
One bottle was given to the accused another was sent to the Public Analyst and the third was retained by the Food Inspector
The sample sent to the Public Analyst was analysed and a report was received from him on September 10 1965 to the effect that the laddus were adulterated with unpermitted colour
Thereupon a complaint was filed against the accused and he was convicted by the magistrate on October 171966 and sentenced to imprisonment till the rising of the court and to pay a fine of Rs 1000  in default to undergo six months  RI
It would appear that the Municipal Corporation filed before the Sessions Judge a revision for the enhancement of the sentence because the accused having been found guilty under the provisions of section 7 read with section 16 of the Act should have been awarded the minimum sentence of six months and a fine of Rs 1000 but instead he was sentenced to imprisonment till the rising of the court and a fine of Rs 1000 which was not in accordance with the mandatory provisions of section 16 of the Act
The Sessions Judge after hearing the parties accepted the contention of the Municipality and 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 a minimum sentence of six months and a fine of Rs 1000  Before the High Court several contentions were raised on behalf of the accused one of which was that as his request for summoning the Public Analyst for crossexamination had not been acceded to he had been prejudiced as such the entire proceedings against him were vitiated
The High Court however rejected this contention on the ground that section 510 of the Code of Criminal Procedure had no application in that it only dealt with Chemical Examiner or an Assistant Chemical L3Sup CI70 13 684 Examiner and other experts mentioned therein
It was also 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 132 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 us also a similar contention was urged by the learned Advocate for the accused Shri Hardev Singh who had produced before us the application made on behalf of the accused under section 5102 for calling the Public Analyst which was summarily rejected on 28th August 1966
This contention urged before us has to be determined in the light of the relevant provisions of the Act
It cannot be disputed that any person selling food with im permissible colouring matter contravenes the provisions of section 7 which prohibits the selling of any adulterated food and would be punishable under section 16 of the Act
What is adulterated article of food has been defined in section 2 i and so far as it is related to colouring sub cl
i of cl
i of section 2 provides that an article of food shall be deemed to be adulterated if any colouring matter other than that prescribed in respect thereof and in amounts not within the prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article
Rules 23 and 27 of the Prevention of Food Adulteration Rules 1955 prohibit the addition of any colouring matter except permitted by the Rules and of inorganic colouring matters and pigments to any article of food
What is permitted and to what extent has been stated in rr
24 to 26 and 28 to 3 1 but in so far as this case is concerned we may merely refer to rr
26 and 28 the former of which gives a list of natural colouring matters that can be used and the latter with coal tar dyes
We are told that the laddus which were being sold by the accused had yellow colour
If so item 2 of r 28 prescribes that the only permitted colours are Tartrazine with colour index 640 belonging to Chemical class of Xanthene and Sunset Yellow FCF belonging to the chemical class Azo and these alone can be used
It will therefore be incumbent on the Public Analysts to say whether the colour used is that which is permissible under any of the rules and if as in the report he has stated that the sample of the laddus purchased by the Food Inspector was coloured with unpermitted colour it would mean that the accused has not used any of the colours permitted under the rules
The report of the Public Analyst is as follows Butyro Refractometer reading at 40 C of the fact extracted from sweets 50 0 Baudouin test of the extracted fact Positive Reichert value of the extracted fact 759 Colour unpermitted
1 1 1 the same is adulterated due to 70 excess in Butyro Refractometer reading at 40 0 C of the fact ex 685 tracted from sweets 2041 deficiency in Reichert value of the extracted fact Baudouin test of extracted fact being positive and also coloured with unpermitted colour 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 ought 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 by 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 135 have not only made the document signed by the Public Analyst to be used in evidence of the facts stated therein in any proceedings under the Act or under section 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 132 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 5102 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 trials 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
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 none the less 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
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
686 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 925 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 gives a like opportunity in the case of a certificate of an officer who took a sample of the milk
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 contra 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
It 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 cl
1 or sub cl
iii of cl
c of sub section
 1 of section 11 to the Director of the Central 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 re ceipt
This certificate under sub section
3 supersedes the Public Analyst s certificate and is conclusive and final under sub sec
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
The court may as we said earlier reject the prayer for good and sufficient reasons such as for instance where it is made for the purpose of vexation or delay or for defeating the ends of justice
In Mangaldas Raghavji vs State1 this Court held that where the accused had not done anything to call the Public Analyst the court could legally act on the report of the Public Analyst
Mudholkar J speaking for the Court observed at p 900  It is true that the certificate of the Public Analyst is not made conclusive but this only means that the court of fact is free to act on the certificate or not as it thinks fit
1  687 Again at p 902 it was said As regards the failure to examine the Public Analyst as a witness in the case no blame can be laid on the prosecution
The report of the Public Analyst was there and if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken
The prosecution cannot fail solely on the ground that the Public Analyst had not been called in the case
 In Sukhmal Gupta vs The Corporation of Calcutta unreported Criminal Appeal No 161 of 1966 decided on 3rd May 1968 the Assistant Public Analyst who had analysed the sample was examined and was cross examined by the defence
It was contended that the Public Analyst was not called
There does not appear to have been any attempt to have him called nor was any prejudice shown
On the other hand the accused could have availed of the valuable right given to him under section 132 but he did not do so nor did lie put any question in cross examination that the tea was liable to deterioration and could not be analysed by the Director of Central Food Laboratory
In these circumstances the evidence of the Assistant Public Analyst and the report of the Public Analyst was accepted in maintaining the conviction
In this case we would have remanded it to give the accused an opportunity to examine the Public Analyst but it appears to us that even before us no attempt was made as to why the evidence was required and what is the specific point which needs to be elucidated
The accused knows what colour he added he could have easily said that that colour was one of the permitted colours but he did not say so in his examination under section 342 nor did he produce any evidence of those whom he employed as to the colour which was added
In our view the application was made more to delay the disposal of the case otherwise he could have easily made an application under section 13a as soon as a complaint was lodged against him on 19th Jan 1966 which was within 3 12 months from the purchase of the sample and the receipt of the report
There is nothing to show that either the Laddus or the colour would have deteriorated even if he had made his application under section 132 when he made the application under section 5102 on 29th August 1966
In these circumstances we do not consider this to be a fit case for interference
The appeal is accordingly dismissed
RKPS Appeal dismissed


Summary:
The appellant was convicted for selling food with impermissible colouring matter
He contended that as his request for summoning the Public Analyst for cross examination had not been acceded to he had been prejudiced and as such the entire proceeding against him were vitiated The High Court rejected the contention on the ground that section 510 of the Code of Criminal Procedure bad no application in that it only dealt with the experts mentioned therein
The Court also observed that when the accused desired to challenge the report of the Public Analyst under the Act he had to follow the procedure provided in section 132 for sending the sample to the Director of Central Food Laboratory whose report would be final and conclusive
Dismissing the appeal HELD Where certificates are not made final and conclusive evidence of the facts stated therein It will be open to the party against whom certificates are given 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
The court may reject the prayer for good and sufficient reasons such as for instance where it is made for the purpose of vexation or delay or for defeating the ends of justice
685 B C F G The present case is not a fit case for interference
No attempt was made to establish why the evidence was required and as to the specific point which needed to be elucidated
The accused knew what colouring matter he added he could have easily said that that colour was one of the permitted colours but he did not say so in his examination under section 34 nor did he produce any evidence of those whom he employed as to the colouring matter which was added
The application was made more to delay the disposal of the case
687 E Mangaldas Raghavji vs State  and Sukhmal Gupta vs The Corporation of Cakutta Cr A No 16166 dated 3 5 68 referred to