- Bookmark
- Share
- CaseIQ
V. Jayavelu & Another -Accused v. Food Inspector, Corporation Of Madras -Complainant.
Factual and Procedural Background
The appellants were accused in a prosecution under the Prevention of Food Adulteration Act (the Act), tried before the IV Presidency Magistrate, George Town, Madras, in M.P. No. 979 of 1966. They were convicted under Sections 2, 7 and 16 of the Act read with Rule 5 of the Prevention of Food Adulteration Rules. The first appellant, a servant of the second appellant (a milk vendor), was released after admonition under S.3 of the Probation of Offenders Act; the second appellant was sentenced to imprisonment till the rising of the Court and fined Rs. 100.
The prosecution case: On 27-6-1966 P.W.1 (the Food Inspector) purchased 650 ml of milk from the first appellant, added formalin, divided the sample into three bottles, sealed and labelled them in the presence of witnesses, sent one bottle to the Public Analyst (P.W.3) and retained one in the office. The Public Analyst reported the milk was deficient in milk solids by 11% and thus adulterated (report Ex. P.4).
After the Public Analyst's report, a complaint was filed on 27-9-1966; summons issued 14-10-1966; trial began 16-6-1967. The Public Analyst was examined on 14-7-1967. On that same day the appellants applied to the learned Magistrate under S.13(2) of the Act to send the retained part of the sample to the Director of the Central Food Laboratory for a certificate, on payment of the prescribed fee. The Magistrate dismissed the petition stating that the bottle had already been destroyed by mistake of the clerk. The appellants' conviction was ultimately challenged in appeal.
Legal Issues Presented
- Whether the accused's statutory right under Section 13(2) of the Prevention of Food Adulteration Act—a right to have a part of the sample sent to the Director of the Central Food Laboratory for a certificate—was a valuable right that, if denied, would vitiate a conviction based on the Public Analyst's report.
- Whether the destruction of the sample (here stated to have been by a court clerk) and consequent inability to send a sample to the Director could be treated as a denial of that statutory right attributable to the prosecution/court.
- Whether any delay by the accused in applying under Section 13(2) could bar the exercise of that right (i.e., whether a time-limit or laches applied to the accused's invocation of S.13(2)).
Arguments of the Parties
Appellants' Arguments
- The right under S.13(2) of the Act is a valuable right: once the accused challenges the Public Analyst's report and requests that part of the sample be sent to the Director of the Central Food Laboratory, that request supersedes the Public Analyst's opinion because the Director's certificate supersedes the Public Analyst's report under S.13(3).
- Deprivation of that right—regardless of the reason—goes to the root of the matter and affects the validity of the Public Analyst's opinion and hence the conviction.
Corporation's (Prosecution's) Arguments
- There was no fault on the part of the prosecution: the sample was destroyed by the court (clerk's mistake), and therefore the prosecution should not be held responsible for the denial of the right.
- The appellants delayed in making the application under S.13(2); because of that long delay they could not afterwards complain that the sample was not available to be sent to the Director of the Central Food Laboratory.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 | That S.13(2) confers on the vendor/accused a valuable right to have a part of the sample analysed by the Director of the Central Food Laboratory; the Director's certificate supersedes the Public Analyst's report and is treated as conclusive evidence; deliberate denial of that right by prosecution seriously prejudices the accused and may make it improper to uphold a conviction based on the Public Analyst's report alone. | The court stated it was bound by the observations in this decision and applied them to hold that the appellants were deprived of the valuable right under S.13(2), which vitiated the conviction. The court relied on this precedent to conclude that denial of the right, whether by prosecution conduct or by the unavailability of the sample in custody of the court, required quashing the conviction. |
Court's Reasoning and Analysis
The court's analysis proceeded from the statutory text and the factual sequence in the trial:
- The court examined Section 13(2)–(3) of the Act, which allows the accused, after institution of prosecution and on payment of prescribed fee, to apply for sending the part of the sample to the Director of the Central Food Laboratory; the Director's certificate under sub-s. (2) shall supersede the Public Analyst's report under sub-s. (1).
- The court observed that this statutory scheme confers a valuable right on the vendor/accused: the right exists so the accused may, for his satisfaction and proper defence, have the sample analysed by a superior expert whose certificate is final on the facts stated therein.
- The evidence of record showed that of the three parts of the sample, one was retained by the Food Inspector and kept in the custody of the court. The appellants filed an application on the day the Public Analyst was examined seeking to have the sample sent to the Director of the Central Food Laboratory.
- The learned Magistrate dismissed the appellants' petition stating the bottle had already been destroyed by mistake of the clerk. The court emphasised that whether the sample was destroyed by the prosecution or by the court's clerk, the practical result was that the accused's statutory right could not be exercised.
- The court relied on the Supreme Court authority (Municipal Corporation of Delhi v. Ghisa Ram) and stated it was bound by those observations: when the accused is denied the valuable right given by S.13(2), particularly when that denial arises from the unavailability of the sample kept in the court's custody, the accused is so seriously prejudiced that it would not be proper to uphold a conviction based solely on the Public Analyst's report.
- The court rejected the Corporation's contentions: (a) that destruction by the court meant there was no prosecution fault (the court held there was no point in that contention because the right was deprived regardless), and (b) that the appellants had delayed in making the application (the court noted S.13(2) contains no time-limit and the accused may exercise the right at any stage after institution of prosecution, provided it is before the close of the trial; in this case the application was filed the same day the Public Analyst was examined).
- The court explained the accused has the discretion to choose which part of the sample is to be sent (the part given to the vendor or the part retained by the Food Inspector and kept in court), and if the accused elects the latter, the court must comply. If the court for any reason cannot comply because the sample is not made available, it must be deemed that the valuable right was deprived by the prosecution/court.
- Because the appellants were deprived of the valuable right under S.13(2), and that deprivation vitiated the conviction, the court quashed the conviction and order and acquitted the appellants.
Holding and Implications
Holding: The appeal was allowed; the conviction and order were quashed and the appellants were acquitted. Any fine paid will be refunded to the appellant.
Implications:
- Direct effect on the parties: the appellants' convictions were set aside, they were acquitted, and any fine paid is to be refunded.
- The decision rests on the statutory right under S.13(2) and the application of the Supreme Court authority cited; the opinion does not elaborate on broader precedent-setting beyond applying the cited authority to the facts (i.e., it does not announce a new legal principle beyond the application described).
Appeal allowed.
1. The appellants are accused 1 and 2 in M.P No. 979 of 1966 on the file of the IV Presidency Magistrate, George Town, Madras. The appellants were convicted under Ss. 2, 7 and 16 of the Prevention of Food Adulteration Act (hereinafter called ‘the Act’) read with R. 5 of the Prevention of Food Adulteration Rules. The first appellant was released after due admonition under S. 3 of the Probation of Offenders Act and the second appellant was sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 100.
2. The prosecution case is briefly this: The first appellant is the servant of the second appellant. The second appellant was a milk vendor. At about 4.10 p.m on 27-6-1966, in front of premises No. 101 Perumal Mudali St. Sowcarpet, P.W 1 Jeremiah, Pood Inspector, saw the first appellant carrying milk in a can on a cycle. P.W 1 stopped him and told him that he intended to take a sample from the milk. P.W 1 purchased 650 milli-litres of cow's milk from the first appellant and paid him 80 paise and got a receipt Ex. P. 1, for the same. He added formalin to the milk, divided it into three equal parts, poured it into three empty clean dried bottles and sealed them. Then he prepared labels, pasted and sealed in the presence of P.W 2 Munu swami Naidu and Babulal. He wrapped the bottles with brown pipers and sealed them again, gave one bottle with a copy of the order under S. 11(1)(a) of the Act and got an acknowledgment for the same. The second bottle was sent to the Public Analyst with a memorandum, copy of which is Ex. P. 3. The third one was retained in the office by him. P.W 3, S. Sundaram, the Public Analyat, for the Corporation of Madras, received the sample sent by P.W 1 on 28-6-1966 and after analysis, he sent his report (Ex. P. 4) under dated 27-7-1966. He found that the sample was deficient in its content of milk solids to the extent of 11 per cent and that, therefore, it was adulterated.
3. After receiving the report from the Analyst, P.W 1 filed a complaint against the appellants before the Second Presidency Magistrate on 27-9-1966. The Second Presidency Magistrate took the complaint on file and issued summons to the appellants on 14-10-1966. After several adjournments, the trial started on 16-6-1967, about one year after the taking of the sample by P.W 1. P.W 1, the Food Inspector, and P.W 2 Munuswami Naidu, the witness who attested the mahazar for taking sample of milk from the first appel lant were examined on 16-6-1967. P.W 3 the Public Analyst was examined on 14-7-1967. On the same day, after the examination of the Public Analyst, the appellants filed an application before the learned Magistrate requesting him to send the sample of milk retained by the Food Inspector to the Director of the Central Food Laboratory for a certificate after receiving payment of the prescribed fee. The learned Magistrate passed the order on the application as follows—
“I find from the registers that the bottle has been already destroyed by mistake of the clerk, who wrongly informed about the order. Petition is hence dismissed.”
4. It is now contended by the learned counsel for the appellants that the right given to the accused under S. 13(2) of the Act is a valuable right and that once the accused challenges the report of the Public Analyst and requires the sample to be sent to the Director of Central Food Laboratory, it will supersede the opinion of the Public Analyst and, therefore, it was further contended that the deprivation of such a valuable right, for whatever reasons it might be, goes to the root of the matter affecting the very opinion of the Public Analyst. There is force in this contention. The relevant clauses under Section 13 of the Act read thus—
“13. Report of Public Analyst:—(1)………(2) After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in sub-cl. (i) or sub-cl. (iii) of cl. (c) of sub-S. (1) of S. 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the court shall first ascertain that the mark and seal or fastening as provided in cl. (b) of sub-s. (1) of S. 11 are intact and may then despatch the part of the sample under its own seal to the Director of Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis.
(3) The certificate issued by the Director of the Central Food (laboratory under sub-a. (2) shall supersede the report given by the Public Analyst under sub-s. (1).
(4) …………………….
(5) ……any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any pro seeding under this Act or under Ss. 272 to 276 of the Indian Penal Code:
Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive of the facts stated therein.”
5. It is, therefore, clear from these provisions that a valuable right was conferred on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory and that right could not be denied to him under any circumstances. It is unfortunate that in this case, the sample sent to the court was destroyed even before the close of the trial. In Municipal Corporation Of Delhi v. Ghisa Ram AIR 1967 SC 970, it has been observed as follows at page 972:—
“It appears 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 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 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”.
6. I am bound by the above observations. The learned counsel for the Corporation contended that there was no fault on the part of the prosecution and as the sample was destroyed by the court, it cannot be said that right was denied by the prosecution and further contended that there was a long delay on the part of the appellants in filing the application for sending the sample to the Director of the Central Food Laboratory and it was not open to the appellants to contend after a long time that the sample was not made available to be sent to the Director of the Central Food Laboratory. There is no point in these contentions.
7. Of the three parts of the sample, one was retained by the Food Inspector which is kept in the custody of the court. Either that part of the sample given to the vendor or the part retained by the Food Inspector and kept in the custody: of the court can be sent to the Director of the Central Food Laboratory at the instance of the accused. The discretion is left to the accused. He may request the court to send the sample entrusted to him or he may even ask the court to send the sample retained by the Food Inspector and kept in the custody of the court to avoid any comment about tampering of the sample left with him. When the accused chooses to send for the sample retained by the Food Inspector, it cannot be refused. It is the duty of the court to comply with the request of the accused. The order has to he made by the court. If for some reason, the sample retained by the Food Inspector is not made available and hence the court cannot comply with the request of the accused, it must be deemed that the valuable right conferred on the accused was deprived of, by the prosecution.
8. As regards the second contention, no limitation is placed in S. 13(2) of the Act as to when the accused can exercise the right conferred on him. Section 13(2) merely states that after the institution of a prosecution under the Act, the accused can exercise such right. Before the close of the trial, at any stage, depending upon the circumstances of each case, the accused can exercise his right. It is not always necessary that immediately after the prosecution is instituted, the accused should take steps for sending the sample to the Director of the Central Food Laboratory. It is left to the accused to wait till the examination of the Public Analyst in court and if the evidence of the Public Analyst is not unfavourable to him, he may even decide not to exercise the right conferred on him. No time limit can be prescribed for the accused to exercise his right save that he should exercise such a right before the close of the trial.
9. In this case, there was no delay on the part of the appellants: On the very day of the examination of the Public Analyst, they filed their application to send the sample to the Director of the Central Food Laboratory. I am, therefore, of the view that the appellants were denied the valuable right given to them which resulted in vitiating the conviction. Accordingly, the conviction and order are quashed and the appellants are acquitted. Fine, if paid, will be refunded to the appellant.
10. The appeal is allowed.
11. Appeal allowed.
Alert