JUDGMENT S.N. Shankar, J.
(1) This appeal was referred to the Full Bench principally to determine the exact import and effect of the provisions of Section 13 of the Prevention of Food Adulteration Act, 1954 (Act 37 of 1954) as amended up to date (hereinafter called "the Act") in the context of the right of the accused to have the sample of the seized article of food examined by the Director of Central Food Laboratory, Calcutta, under the provisions of sub-section (2) of Section 13 and the effect of the time-lapse occurring during the process.
(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.
(4) At the trial both the respondents denied the allegations made against them. Bishan Sarup contended that he was not employed at the shop and that on the day when the sample was taken he had gone to the shop of a 'halwai' at Kalan Masjid and purchased two seers of milk from him and while he was returning from there he was held up by four or five prersons in 'khakhi' uniforns who took him to the shop wherefrom he had purchased the milk and took a sample of the milk and secured his signatures on a piece of paper. The other respondent Raghbir Parshad admitted that he was the owner of the shop referred to in the complaint but maintained that Bishan Sarup was not his employee. He also denied that the sample of milk was taken from his shop. During the pendency of the trial, after the lapse of about a year and ten months, on August 22, 1964, Bishan Sarup applied to the learned trial magistrate that the sample of the milk in possession of the Municipal Corporation be sent to the Director of Central Food Laboratory, Calcutta, for his analysis and report. This application was at first rejected by the learned Magistrate but the order was subsequently reviewed on March 4, 1965 and the sample with the Municipal Corporation was duly sent to the Director of Central Food Laboratory as desired by Bishan Sarup. On April 23, 1965, the Director sent his report which stated that the fat contents of the milk in the sample were 7 -2 per cent and the milk solids other than milk fat were 6 .4 per cent. On this basis he declared the milk to be adulterated. The learned trial Magistrate took the view that there was something intriguing about this report because it was surprising that the Director of Central Food Laboratory was able to analyze the sample after such great lapse of time to yield the results contained in the report and, therefore, giving benefit of doubt acquitted both the respondents.
(5) In appeal before the Division Bench the learned counsel for the respondents in support of the order of acquittal suggested that sample had been changed by the Food Inspector before it was sent to the Director for his anaysis but this suggestion was rightly rejected by the Bench on the ground that if there was any such genuine apprehension on the part of Bishan Sarup at the stage of trial it was open to him to send the sample that had been given to him, for analysis by the Director which he had not done and there was, therefore, no merit in the suggestion of the learned counsel.
(6) Shri Bishambar Dayal, learned counsel for the appellant- corporation then argued that according to proviso to sub-section (5) of Section 13 of the Act the certificate issued by the Director of Central Food Laboratory was to be taken as final and conclusive evidence of the facts stated therein and there was no warrant for the view taken by the learned trial magistrate that there was something intriguing about the report and that its contents were not final and conclusive evidence of the facts stated therein. He submitted that the factual data and the results stated in the report should have been held by the learned trial magistrate to be conclusive and final and no doubt should have been entertained in regard to its contents. Shri Butalia learned counsel for the respondents, however, maintained that the delay in sending the sample for the analysis of the Director by itself vitiated the prosecution case and the learned trial magistrate was justified in acquitting the respondents on this ground and there was no case for interference with the order of acquittal.
(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."
(8) If on account of delay or lapse on the part of the prosecution to institute a prosecution this valuable right of the accused is in any way impaired, the question becomes of paramount importance for the purpose of determining if the defense was prejudiced on this account. If the Director is unable to analyze the sample because of the delay or if the sample otherwise undergoes a change for this reason and the delay is attributable to the prosecution, the accused is entitled to the benefit of doubt. The Supreme Court in Ghisa Ram's case (supra) immediately after the observations extracted above, continued : "INa 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."
(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."
(10) The consideration of the time-lapse between the date of the taking of the sample, the launching of the prosecution and the date when the sample is sent to the Director of Central Food Laboratory is relevant only for this purpose. Once the Director of Central Food Laboratory has examined the sample and has delivered his certificate, under proviso to sub-section (5) of Section 13 of the Act, the certificate is the final and conclusive evidence of the facts stated therein. The presumtion attaching to the certificate again is only in regard to what is stated in it as to the contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on the record the sample sent for analysis to the Director could not be taken to be a representative sample of the article of food from which it was taken and if this contention is found to be correct conviction based on the certificate will not be sustainable. Reference on this aspect of the question may be made to the observations of the Division Bench of the Punjab High Court in Municipal Corporation of Delhi v. Niranjan Kumar and others (1965 Plr 941) : "WEwould like to clarify that finality and conclusiveness has been attached only to the facts stated in the report of the Central Food Laboratory. It is not, however, conclusive as to any other matter and it may still have to be ascertained whether adulteration as disclosed in the report of the Central Food Laboratory was due "to certain factors for which an accused could not be held responsible. In short the finality and conclusiveness is only to the extent that the sample as sent to the Central Food Laboratory contained what the report disclosed".
(11) The same view was taken by the Division Bench of Gujarat High Court in Mohanlal Chhaganlal Mithaiwala v. Vipanchandra R. Gandhi and another where Shelat J. (as he then was) speaking for the court observed as under : "THEcertificate of the Director of Central Food Laboratory under S. 13 contains factual data in respect of the article sent for analysis or test. Under the proviso to Section 13(5) of the Act, the finality or conclusiveness is thus attributed to these facts stated in the certificate of the Director. It would be then for the Court to determine, no doubt after considering the facts stated in the certificate, whether the article of food in question is adulterated food or not. In other words, this would be a question of law which is left to be decided by the Court. What is thus final and conclusive in the certificate is the finding on an analysis or test of the constituents in the sample sent, their proportions etc. The analyst has merely to give his opinion as to whether the article which he analysed has an excess or deficiency in constituents. The vendor would still be entitled to lead evidence or otherwise show that the article of food in question is not adulterated food. For instance, if the vendor wants to establish that some of the ingredients of the article (in this case ghee) are liable to get evaporated from having been boiled at high temperature while manufacturing the sweetmeat in question or that some change takes place, Chemical or otherwise by the ingredients of the ghee used in the preparation being mixed with the other fats, or that a change takes place in the article in question owing to lapse of time or delay in making its analysis the vendor can do so inspite of the facts stated in the certificate of the Director though made final and conclusive under the proviso."
(12) The learned counsel for the respondents placed reliance on a decision of the Division Bench of this Court in Municipal Corporation of Delhi v. Jharia (Criminal Appeal No. 64-D of 1964) decided on June 3, 1969, in support of the proposition that delay in sending the sample to the Director vitiated the proceedings. The accused had been acquitted in that case. The Bench found as a fact, in the circumstances of that case, that the right of the accused had been frustrated because of the inordinate delay of about two years by the prosecution and for this reason there was no case for interference. This is what their Lordships said in the last paragraph of the judgment in the following words : "INthis case, the accused wanted to exercise his right to have the sample analysed by the Director of Central Food Laboratory, Calcutta and obviously this right was frustrated because of the inordinate delay by the prosecution in initiating and prosecuting the complaint. We have, therefore, no hesitation in dismissing this appeal and affirming the order of acquittal. We do not propose to express any opinion on other points arising in the case which were discussed in the judgment of the learned Magistrate."
(13) Our attention was then drawn by the learned counsel to another Bench decision of this Court in Shri Ram Mehar v. Delhi Administration (Criminal Revision Nos. 618-D and 619-D of 1965) decided on July 28, 1969 in support of the same proposition. The decision, however, does not support the respondents. The article of food involved in this case also was cow's milk but the Court found that when the sample was taken on 4th August, 1961, there was no evidence that it was kept in a refrigerator. After taking the sample on this date, the prosecution was launched after over nine months on May 30, 1962. On October 4, 1963, the accused applied that the sample given to him may be sent for examination by the Director of Central Food Laboratory, Calcutta. The Director reported that the sample had become highly decomposed and its analysis was not possible. Following the well established rule of law laid down by the Supreme Court in Ghisa Ram's case and other authorities, the Court held that by reason of the conduct of the prosecution in delaying in launching of the prosecution to such an extent that the accused's right under section 13 of the Act stood frustrated, no case beyond reasonable doubt was made out for the conviction of the accused. In the present case, the sample had not been rendered unfit for analysis. The facts here are, therefore, different requiring a different approach.
(14) Reliance was also placed by the learned counsel on Municipal Corporation of Delhi v. Shankar Lal (Criminal Appeal 44-D of 1969) decided by a Bench of this Court on July 28, 1969. This case, has no bearing whetever to the point in issue. In that case a sample of ghee was taken from the stocks of the accused which he was selling as pure 'desi ghee'. On examination by the Public Analyst it proved to be adulterated due to 0 .44 per cent excess of moisture. At the request of the accused the duly sealed bottle of the second sample given to him was sent to the Director, Central Food Laboratory, Calcutta who reported that it was adulterated, but the moisture was only 0 .14 per cent which was up to the standard. He still declared the sample to be adulterated on the ground that there was "added coloring matter faintly positive". The trial Magistrate acquitted the accused. In appeal from the order of acquittal this Court found that the report of the Director had been received in the trial Court even before the accused was examined under section 342 Criminal Procedure Code but no reference was made during this examination of the accused to the coloring matter having been detected by the Director, Central Food Laboratory, Calcutta. The questions put by the trial Court and the answers of the accused showed that the charge against him were understood as having reference to the excess moisture contents alone noticed by the Public Analyst, while conviction was sought to be obtained for "added coloring matter faintly positive". In these circumstances, the Bench came to the conclusion that the accused in that case did not have the opportunity to meet the new case on the basis of which his conviction was sought and, therefore no case for interference with the order of acquittal was made out. In the present case the charge was with reference to the non-fatty solid contents being deficient. The conviction which is now prayed for is sought to be maintained on the same basis. The certificate of the Director, Central Food Laboratory does not indicate any change in that basis for holding the sample as adulterated. It only shows some variation in the percentage of deficiency in the non-fatty solid contents. It cannot, therefore, be said in this case that the conviction is sought on a basis different from that which was adopted at the time the charge was framed. Shankar Lal's case, therefore, has no relevance for resolving the controversy in the present case.
(15) The last case cited by the learned counsel for the respondents was the Municipal Corporation of Delhi v. Om Parkash (Criminal Appeal No. 7-D of 1966), decided on July 28, 1969, again by a Division Bench of this Court. This was also an appeal against acquittal and the article of food involved was the cow's milk. The sample in this case was taken on April 15, 1964. It was sent to the Public Analyst for examination and was examined by him on April 16, 1964. He reported that the milk was adulterated but for reasons unaccounted the complaint was not filed until September 23, 1964. The accused was served in the case on October 12, 1964. The second sample left with him was sent for examination by the Director of Central Food Laboratory on February 17, 1965 and was actually examined by him on March 16, 1965. According to the Director's report the solid fat contents in the sample were 3 .2 per cent as against the minimum requirement of 3 .5 per cent. Evidence had been led in this case to show that the difference in the two reports was mainly due to lapse of time. Having regard to the very slight and marginal difference between the prescribed standard and the percentage of the constituents of the solid fat contents found by the Director and the delay involved in the proved circumstances of the case, the benefit of doubt was given to the accused.
(16) The learned counsel for the respondents then urged that having regard to the negligible difference that was detected in the present case and that this was an appeal from acquittal this Court should not interfere with the order of the trial Magistrate. In support of his contention he placed reliance on the Malva Co-operative Milk Union Ltd. v. Bihari Lal and another (Cirminal Appeal Nos. 235 and 236 of 1964) decided by the Supreme Court on August 14, 1967. The facts of that case were wholly different. In that case, the Food Inspector had filed two complaints against the Malva Co-operative Milk Union Ltd., its General Manager and a servant of the Union for alleged offence under the Act. While the prosecution was pending, an application was made by the Public Prosecutor asking for permission to withdraw both the cases on the ground that it was not in public interest to continue the prosecutions specially when no one of the accused had personally benefitted. These applications were allowed by the Additional City Magistrate trying the cases and he recorded an order of acquittal under section 248 of the Code of Criminal Procedure. One Bihari Lal, filed revision before the Sessions Judge for reporting these cases to the High Court. The Sessions Judge dismissed his application. On revision to the High Court, however, a learned single Judge of that Court set aside the order of acquittal and ordered re-trial of the accused persons. In these circumstances, the matter came up to the Superme Court and the question for consideration was simply whether the learned single Judge had exercised his discretion on sound judicial lines in ordering a re-trial. The Supreme Court after noticing that difference from the prescribed standard was only 0 'I per cent and 0 '4 per cent and after observing that a slight error in calculation might have been made by the Public Analyst said as under : "BUTwithout speculating upon the aspect of the case, it is quite clear to us that this was hardly the kind of case in which the High Court should have exercised its powers to set aside in revision an acquittal which preceded not after trial and determination of these and several other facts in issue ".
(17) The question was thus considered by the Supreme Court not on the merits of the order of acquittal but with reference to the broader issue, namely, the power of the High Court in revision to set aside acquittals in marginal cases like the one before the Court. It is, therefore, not possible to accept this submission by the learned counsel.
(18) It is thus patent that according to the proviso to sub-section (5) of Section 13 of the Act, the certificate of the Director of Central Food Laboratory is final and conclusive evidence of the facts stated therein. In other words, this certificate has to be taken as final and conclusive as to the state of the sample on the date on which the analysis was made. Under sub-section (3), this certificate supersedes the report of the public Analyst given under sub-section (1) of Section 13 of the Act. If prejudice is caused to the accused on account of the delay in the institution of the prosecution, as when the sample is rendered unfit for analysis in the meanwhile, or deterioration of the sample is proved to have occurred in the meanwhile, then the accused is entitled to the benefit of doubt, as the prosecution itself, in such a case, prevents the accused from getting the final verdict to which he is entitled under Section 13 of the Act. In such a case, as held by the Supreme Court in Ghisa Ram's case (supra) the conviction cannot be upheld on the basis of the reports of the Public Analyst. But in case no prejudice is caused to the accused he cannot be allowed to escape the consequences under the law for such an anti-social act which the Legislature has ordained to be dealt with severely.
(19) Reverting now to the facts of this case, we find that preservative was added to the sample in question immediately after it was taken into possession. The sample was examined by the Public Analyst immediately thereafter and according to his report non-fatty solids were 8.03 per cent as against the required 8 .5% a difference of 0 .47 %. When Director, Central Food Laboratory analysed the sample, he found it fit for analysis. The milk solids other than milk fats were found by him to be 6.4%, i.e a difference of 2.1%. There was no effort to show that the sample sent to the Director, Central Food Laboratory was not representative of the milk from which it was taken or that it had even otherwise undergone any Chemical changes. Proviso to sub-section (5) of Section 13 of the Act was, therefore, attracted with full force. No prejudice of any kind was proved to have been caused to the accused. The certificate of the Director was final and conclusive evidence of the contents of the sample and there was no occasion for the learned trial magistrate to feel surprised or intrigued over it. There was in these circumstances no escape from the conclusion that 660 mls cow's milk purchased by the Food Inspector from Bishan Sarup as per receipt Exhibit Pa was adulterated.
(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.
(21) We have carefully gone through the evidence led on behalf of the defense that Bishan Sarup was not an employee of Raghbir Parshad and that he had not sold the milk to the Food Inspector. But it does not inspire confidence. The explanation given by Bishan Sarup that he had in fact purchased the milk from the shop of a 'halwai' in Kalan Mahal and on his way back while he was going with this milk, a sample was taken from him and then he was taken to the shop of Raghbir Parshad and his signatures were secured is also not substantiated by any evidence that even the learned counsel for the respondent could point to at the time of arguments. We have, therefore, no hesitation in holding that offence under section 7 read with section 16 of the Act was clearly proved in this case against Bishan Sarup and Raghbir Parshad. The view taken by the learned trial magistrate was clearly unreasonable in so far as the order of acquittal is concerned. Raghbir Parshad was further alleged to have been convicted of this offence previously .also on December 29, 1961 from the court of Shri Mathura Dass, Magistrate 1st Class, Delhi. At the time of arguments, however, no evidence was brought to our notice in support of this allegation.
(22) The offence found to be proved against the respondents relates to the year 1962, prior to the amendment of section 16 of the Act. The prosecution has been pending for a sufficiently long time. Having regard to all the facts and circumstances of the case we think that ends of justice shall be met if respondents Raghbir Parshad and Bishan Sarup are convicted and sentenced to pay a fine of Rs. 1,000.00 each and in default of payment of this fine to undergo rigorous imprisonment for four months. We order accordingly.