Case ID: 2166

Judgment:
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. H.R. 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 11.6% and the non fatty solids were 7.3%. 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 3.5% fat and 8.5% non fatty solids. Since the analysis showed that the content of non fatty solids was 1.2 % 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 13(3) 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 13(2) of the Act	 the right accrued to the respondent to have the sample sent for analysis only thereafter. Section 13(2) 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 13(2) 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 Parker(1). 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 Swaroop	(2) 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 13(2) 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. V.P.S. Appeal dismissed (1) [1906]1 K.B.527. (2) AJ.R. 1965 M.P. 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 13(2) 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 13(3)	 and is to be accepted by the Court as conclusive evidence of its contents under the proviso to section 13(5). 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 13(2). 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