Kantilal Ambalal Shah v. I.G.Patel, Gujarat High Court, Judgment, Law, casemine.com

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Case Number

807 of 1969

Advocates

J.S.Adhvaryu
Daulat C.Trivedi

Judges

Mr. Justice J.M. Sheth

Acts

rule 14 of the rules
Rule 5 of the rules

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Smart Summary

Factual and Procedural Background

This appeal was filed by the original accused nos. 1 and 2 challenging their conviction under section 7(1) read with section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (the Act). Each appellant was sentenced by the learned City Magistrate, Court No. 8, Ahmedabad, in Criminal Case No. 438 of 1968 to one day's rigorous imprisonment and to pay a fine of Rs. 1,500, with 12 months further rigorous imprisonment in default of payment of the fine.

The prosecution's case (briefly): On 13 August 1968 a food inspector, Ishvarbhai Patel (Ex. 2), visited a shop run as "Comet Food and Chemical Industries." The inspector purchased 450 grams of turmeric powder, took three sealed samples with a panch, sent one to the public analyst (result recorded as Ex. 7) and, following the court's dispatch after an application by the appellants, a third sample was sent to the Director of the Central Food Laboratory (certificate Ex. 10). The public analyst's report and the central laboratory's certificate indicated the sample was adulterated; sanction to file a complaint (Ex. 8) was obtained and a complaint was lodged.

The appellants denied committing an offence; they raised contentions including variations between the public analyst's report and the Central Food Laboratory certificate and, in relation to appellant no. 1, a claim that no sale of spices was being effected at his shop.

Legal Issues Presented

Whether the certificate issued by the Director of the Central Food Laboratory (Ex. 10) supersedes and excludes the public analyst's report (Ex. 7) under section 13 of the Act, and whether the Director's certificate is final and conclusive evidence of the facts stated therein.
Whether discrepancies between the public analyst's report and the Central Food Laboratory certificate required the prosecution to examine the experts (i.e., whether the variance vitiates conviction where experts' reports differ).
Whether non-performance of some prescribed tests (for example, moisture and total starch) in the Central Food Laboratory's analysis renders the certificate inadmissible or unreliable for proving adulteration.
Whether the amended rules (Prevention of Food Adulteration (Third Amendment) Rules, 1968) were validly placed before Parliament as required by statute (and whether the prosecution had the burden to prove that formality when challenged).
Whether procedural requirements for sample-taking and related rules (e.g., rules 14 and 15) were followed, and if any failure in those procedures should vitiate the prosecution's case.
Whether the sentence imposed by the learned magistrate was excessive and requires interference on appeal.

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. J. S. Adhvaryu)

The public analyst's report (Ex. 7) and the Central Food Laboratory certificate (Ex. 10) contain material discrepancies in analytical data (e.g., total ash, ash insoluble in HCl, presence/absence of certain dyes and salts, lead content, and microscopic/grit tests), and these differences undermine the reliability of the prosecution's evidence.
The Central Food Laboratory certificate did not report certain tests prescribed under the amended rules (notably moisture and total starch percentage), so the certificate's conclusion of adulteration is unreliable unless the analyst gives evidence at trial explaining the omissions.
Because the two experts' results differ, it was the prosecution's duty to examine those experts; conviction cannot properly be based solely on the documentary reports without calling the analysts.
The amended rules (which prescribe standards) were required by statute to be laid before each House of Parliament; the prosecution failed to prove that this constitutional/formal requirement was complied with, rendering the rules invalid and, consequently, undermining reliance on the prescribed standards derived from those rules.
There was a challenge to the valid appointment of the food inspector, but this contention was later abandoned by counsel after noting the inspector's appointment date and applicable proviso.
The sentence imposed was excessive and should be reduced.

Prosecution's Position (as reflected in the opinion)

The food inspector followed required sampling formalities: sample-taking before a panch, sealing, labeling, giving a sample receipt to the appellant, preparation of panchnama (Ex. 6), and prompt sending for analysis; one sample was sent to the public analyst and, after application, the third sample was sent by the court to the Director of the Central Food Laboratory (Ex. 10), which issued a certificate finding adulteration.
The necessary sanction to file a complaint from the Medical Health Officer was obtained (Ex. 8) and the municipal resolution authorizing such sanction was produced (Ex. 9).
The prosecution relied on the Director's certificate (Ex. 10) as final and conclusive evidence under section 13(5) of the Act and contended that this supersedes the public analyst's report (Ex. 7).
The prosecution pointed to compliance with rules 14 and 15 in the sampling process and relied on corroborative panch evidence (Ex. 13).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mohanlal v. Vipinchandra, A.I.R. 1962 Gujarat 44	Explains that the Director of Central Food Laboratory's certificate contains factual data; the certificate's facts are final and conclusive under the proviso to s.13(5), while the court determines as a question of law whether the article is adulterated.	Used to support that Ex. 10 (Director's certificate) is final and conclusive on factual data and that the court still determines adulteration as a legal question after considering those facts.
Andhra Pradesh Grain & Seed Merchants Association v. Union of India, 1970 (2) SCC 71	Holds that making the Director's report conclusive does not violate Art. 20(2); the provision secures formal evidence without requiring the Director's attendance; the Director is an expert and disinterested official.	Relied upon to justify treating Ex. 10 as final and conclusive and to reject the argument that conclusiveness infringes constitutional protections.
B. A. Samant v. State of Maharashtra, 70 Bom. L.R. 794	Considered discrepancies between public analyst and Director's reports where sampling procedure (use of clean and dry bottles per rule 14) was not established; variance raised grave doubt.	Distinguished: court noted that in the present case there was definite evidence that bottles were clean and dry and no challenge to that evidence; therefore Samant did not conflict with the court's conclusion.
Netal Chandra v. Corporation of Calcutta, A.I.R. 1967 Cal. 65	Holds that while an analyst's report is evidence under s.13(5), whether the analyst's opinion is acceptable without oral examination depends on facts of each case.	Referred to when discussing whether failure to conduct all prescribed tests or to examine analysts should preclude reliance on the certificate—court found that facts of the present case did not preclude reliance on Ex. 10.
Jogendra Khuntia v. State of Orissa, I.L.R. 1964 Cuttack 778	States that non-conformity with any test requirement can itself be sufficient to show the article is not of the standard purity required.	Applied to hold that non-conformity with prescribed standards (total ash; ash insoluble in dilute HCl) sufficed to deem the turmeric adulterated.
Sudalaimuthu Nadar v. State, 1968 Madras Law Journal 50 (referenced in commentary)	Holds central government had power to specify standards and that non-testing of every prescribed standard is not fatal; non-conformity with any standard is sufficient to show adulteration.	Used to support the conclusion that failure to test every prescribed parameter did not prevent finding of adulteration where prescribed limits for other parameters were exceeded.
Mangaldas v. Maharashtra State, A.I.R. 1966 S.C. 128	Observes that failure to examine the public analyst is not necessarily fatal; if report contains necessary data and is not challenged, conviction on its basis may be valid.	Relied upon to reject the submission that non-examination of analysts alone invalidates the prosecution case where the report contains requisite data (and here Ex. 10 was final).
Bhojendra Kumar v. Union of India, A.I.R. 1961 Cal. 217	Explains presumption that official acts (including publication and laying of rules/notifications before Parliament as required) are regularly performed; once rules are published in the Gazette they acquire statutory force unless Parliament annuls or modifies them.	Applied to uphold the validity of the amended rules and to reject the contention that lack of proof of laying before Parliament invalidated the rules.
Manilal B. Pandya v. Chimanlal Purshottamdas, A.I.R. 1968 Gujarat 80	Discussed consultation requirement with the committee and publication; held that want of publication of a certain nature does not automatically invalidate rules.	Relied on to support the proposition that mere challenge does not automatically impose on the prosecution an irrebuttable burden to prove every procedural step absent specific supporting material by the challenger.
State of U.P. v. Kartar Singh (referenced in Andhra Pradesh Grain decision)	Affirms that standards prescribed by the central government are to be evaluated on materials/scientific evidence and that burden lies on one impeaching the rule to plead and prove infirmity.	Used via Andhra Pradesh Grain precedent to reinforce that the burden of proof lies on a challenger of the rule's reasonableness or validity.

Court's Reasoning and Analysis

The court proceeded through a stepwise legal analysis grounded in statutory provisions and relevant precedents:

Statutory primacy of the Director's certificate: The court referred to section 13(3) of the Act, which provides that the certificate issued by the Director of the Central Food Laboratory under s.13(2) shall supersede the public analyst's report under s.13(1). Because the appellants had applied to send a part of the sample to the Director and the court was satisfied that seals/marks were intact, the third sample was sent and Ex. 10 (Director's certificate) resulted. The court therefore treated Ex. 10 as the operative analytical document.
Finality of facts in Director's certificate: Section 13(5) and its proviso were read to permit the certificate to be used as evidence of the facts stated therein and to render such certificate final and conclusive as to those facts. The court emphasized that while the Director's factual findings are final, the legal determination whether the article is adulterated remains for the court.
Treatment of discrepancies between analyses: The court noted differences between Ex. 7 (public analyst) and Ex. 10 but held that Ex. 10 superseded Ex. 7 by statute. The court distinguished B. A. Samant (Bombay) on the basis that in Samant the sampling procedure was not established (clean/dry bottles per rule 14) and that gave rise to grave doubt; in the present case evidence showed bottles were clean and dry and there was corroborative panch evidence, so Samant did not undermine the prosecution's case here.
Sufficiency of partial testing: The court addressed the appellants' contention about omitted tests (moisture and total starch). It reasoned that the decisive factors were whether the measured parameters exceeded prescribed limits. Ex. 10 showed total ash at 20.7% (limit 9.0%) and ash insoluble in dilute HCl at 14.6% (limit 1.5%). The court held that non-conduct of every possible test does not necessarily prevent a finding of adulteration where some prescribed standards are clearly exceeded; it cited authority supporting that non-conformity with any prescribed standard can be sufficient.
On whether analysts must be examined orally: The court relied on precedent (including Mangaldas and Netal Chandra) to hold that failure to examine an analyst is not in itself fatal; whether an analyst's oral evidence is necessary depends on the facts. Here, because the Director's certificate is final under the statute and contained relevant data showing non-conformity, oral examination was not required to sustain conviction.
Validity of rules and Parliamentary laying: The court rejected the contention that the prosecution bore an absolute burden to prove that the amended rules were laid before Parliament. It invoked the presumption in section 114 of the Evidence Act that official acts are regularly performed and supported that presumption with case law (Bhojendra Kumar, Manilal Pandya, Andhra Pradesh Grain). The court observed the amended rules were published in the Official Gazette and included a statement about consultation; thus the formal challenge did not invalidate the rules.
Procedural compliance: The court found that rules 14 and 15 (sampling formalities) were followed and that the food inspector's evidence was corroborated by the panch. The challenge to the food inspector's appointment was abandoned by appellants' counsel.
Sentencing: The court concluded the magistrate had considered circumstances and had not imposed an excessive sentence; therefore there was no justification for interference on appeal.

Holding and Implications

Holding: The appeal is dismissed and the order of conviction and sentence passed by the learned City Magistrate is confirmed.

Implications:

Direct effect on the parties: The appellants' conviction under the Prevention of Food Adulteration Act, 1954 and the sentence of one day rigorous imprisonment with a fine of Rs. 1,500 (and 12 months further rigorous imprisonment in default) are affirmed.
Evidentiary and statutory implications (as applied in this case): The Director of the Central Food Laboratory's certificate (Ex. 10), when obtained following statutory formalities, supersedes the public analyst's report and operates as final and conclusive evidence of the factual data contained therein for the purpose of proceedings under the Act; discrepancies between an earlier public analyst's report and the Director's certificate do not automatically vitiate prosecution where the Director's certificate is statutory and shows non-conformity with prescribed standards.
On challenges to rule-making formalities: In the absence of specific material to displace the presumption that official acts have been regularly performed, and where rules are published in the Official Gazette, courts may presume statutory formalities (such as laying before Parliament) have been complied with; a challenger bears the burden of adducing material to prove otherwise.
Broader precedent: The opinion applies existing precedents to the facts before it; it does not purport to announce a novel legal principle beyond applying statutory text and established case law. This summary notes only the direct effect on the parties; the opinion itself does not state that it creates a new precedent beyond its application to the case facts.

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Kantilal Ambalal Shah v. I.G.Patel

J.M.Sheth:-

(1) This is an appeal filed by original accused nos. 1 and 2 who have been convicted of an offence punishable under sec. 7 (1) read with sec. 16 (1) (a) (i) of the prevention of food adulteration act 1954 (which will be hereinafter referred to as the act) and each of them is sentenced to suffer one days rigorous imprisonment and to pay a fine of rs 1 500 and in default of payment of fine to undergo 12 months further rigorous imprisonment by the learned city magistrate 8 court ahmedabad in criminal case no. 438 of 1968.

(2) The prosecution story briefly stated is as under:

Accused no. 1 (appellant no. 1) is the younger brother of accused no. 2 (appellant no. 2). Accused no. 1 is the owner of the shop situated in kalupur ward opposite oriental building bearing census no. 309/6. The shop is run under the name and style of comet food and chemical industries. On 13th august 1968 ishvarbhai patel ex. 2 a food inspector of the ahmedabad municipal corporation visited the said shop at about 10 - 45 a. M. Alongwith bhagubhai joshi and his peon bashirkhan. Appellant no. 2 was present at the shop. Licence of the shop was in the name of appellant - no 1. Licence was taken under the said act to sell spices. Food inspector saw the grinded haldi (turmeric powder) mirachi (chillies). Etc. He saw comet brand on the tins containing such spices. He called panch vankani arvindbhai keshavlal ex. 13. Food inspector saw eight kilograms of turmeric powder in the till. He asked appellant no. 1 regarding the rate of it and the rate quoted was rs. 4. 00 per kilogram. He purchased 450 grams of turmeric powder from appellant no. 2 and paid rs. 1. 80 for the same to appellant no. 2. He gave notice in form no 6 in duplicate to accused no. 2 (appellant no. 2). Appellant no. 2 signed on the reverse of it it is ex. 3. Turmeric power purchased was divided in three parts and taken in three dried and clean bottles. All the three bottles were corked and slips were affixed. All the bottles were sealed and labeled. Necessary writting was made on each label and he and panch - witness signed on each label paper slip was signed by the panch. All the three bottles were separately wrapped in a new brown paper and writing as per the label was written on each wrapper. He and panchwitness signed on each wrapper. Bottles were again sealed on each wrapper. Four seals were put two on the bottle and one on the cork and one oh the bottom. One sample bottle was given to appellant no. 2 and its receipt was taken in that behalf. It is signed by the panch - witness. Cash memo was given by appellant no. 2. It is ex. 5. It was attested by the panch. Panchnama ex. 6 was drawn up. On the same day at 11 - 30 a. M. He gave one sample bottle together with the memo in duplicate to the public analyst for analysis. The public analyst compared the seal and specimen signature on the bottle with those given by him. Both tallied. He received the public analyst report ex. 7 dated 7 - 9 - 1968. It was found that the sample of turmeric powder was adulterated. He therefore drafted a complaint and sent that draft of the complaint with all the relevant papers to medical health officer dixit to obtain his permission to file a complaint. That permission was obtained. It is ex. 8. A true copy of the municipal resolution giving authority to medical health officer to give such permission has been produced at ex. 9. At the request of the appellants the third sample bottle was sent by the court to the central food laboratory for analysis the certificate received from the director of central food laboratory is ex. 10. A complaint was lodged after obtaining the necessary sanction as said earlier.

(3) The appellants version was that they had not committed any offence. Several contentions were raised. Some of them were on the basis of some variation found in the analysis made by the public analyst and the analysis made at the central food laboratory. Appellant no. 1s version was that no sale of spices was being effected at his shop.

(4) The learned city magistrate on consideration of the evidence found that some variation was bound to be noticed as such turmeric powder will not be a homogeneous mixture. He found that even taking both the documents into consideration percentage of total ash exceeded the permissible limit. It was therefore evident that it did not conform to the standard prescribed and was consequently adulterated. He found he was not prepared to hold that one part of the sample analysed by one expert is not representative of the other part of the sample analysed by the other expert. All the necessary formalities had been gone through. The complainants evidence was substantially corroborated by the evidence of panch - witness. He found that if the food inspector was without necessary qualification even then he can file a complaint as an ordinary purchaser under sec. 12 of the act if the conditions as laid down in that section are fulfilled and in this case those conditions are fulfilled by the complainant. He therefore convicted the appellants of the offence in question.

(5) Mr. J. S. Adhvaryu appearing for the appellants urged before me hat the report of the public analyst ex. 7 dated 7 - 9 - 1968 and the certificate of the director of the central food laboratory ex. 10 dated 11 varied in respect of several data found on analysis of the samples. According to the public analyst total ash percentage was 26 per cent while according to ex. 10 certificate of the director of central food laboratory was 20. 7 per cent. According to the public analyst ash insoluble in hydrochloric acid (h. Cl.) was 9. 5 per cent while according to ex. 10 it was 14. 6 per cent. In both the reports boric acid test was positive. According to the public analyst lead chromate was nil. Lead part per million was nil. According to ex. 10 lead was 0. 8 parts per million. According to public analyst sodium chloride was 0. 5 per cent. According to ex. 10 sodium chloride was 0. 1 per cent. According to public analyst artificial colouring matter was metalyne yellow. According to ex. 10 coaltar dyes was absent. According to public analysts report microscopic examination was not done by the public analyst. It was done by the central food laboratory. That microscopic examination reveals turmeric with plenty of minerals detected. Further more the director of central food laboratory has made a grit test which shows the positive result. It does not appear that any such test has been prescribed under the act or under the prevention of food adulteration rules 1955 (which will be hereinafter referred to as the rules). Rules are framed by the central government in exercise of the powers conferred upon it by sub - sec. (2) of sec. 4 and sub - sec. (1) of sec. 23 of the act after consultation with the central committee for food standards. 6 it has been further contended in this behalf by mr. Adhvaryu that the samples have been taken by the food inspector on 13 - 8 - 1968. Rules called the prevention of food adulteration (third amendment) rules 1968 had come into force from 8th july 1968 except clauses 3 10 and 28 (xviii) with which we are not concerned. Under these amended rules the standards prescribed were different than the standards prescribed under the unamended rules. The standards prescribed under these amended rules with which we are concerned are at a 5. 2 it reads as under:

Turmeric (haldi) whole means the dried rhizome or bulbous roots of the plant of curcuma longa l. It shall be free from artificial colouring matter. The powder shall conform to the following standards: moisture. Not more than 13. 0 per cent. By weight. Total ash. Not more than 9. 0 per cent. By weight. Ash insoluble. In dilute hcl. Not more than 1. 5 per cent. By weight. Test for lead chromate. Negative. Total starch per cent. By weight. Not more then 60. 0 per cent.

(6) In view of these amended standards mr. Adhvaryu has urged before me that the certificate ex. 10 reveals that no effort has been made to find out the moisture and to find out the total starch percentage by weight. It would therefore mean submitted mr. Adhvaryu that the two tests prescribed have not been made. It was therefore contended that his opinion that the sample revealed that it was adulterated turmeric powder could not be accepted in absence of his evidence recorded at the trial on behalf of the prosecution.

(7) Another submission made by mr. Adhvaryu was that as the two experts differ in regard to the result on analysis it was the duty of the prosecution to examine the experts. The experts having not been examined on the basis of such documents conviction cannot be based

(8) Another submission made by him was that sec. (2) of the act requires that every rule made by the central government under this act has to be laid as soon as may be after it is made before each house of parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions and if before the expiry of the session when it is laid or the session immediately following both houses agree in making any modification in the rule or both houses agree that the rule should not be made the rule has to have effect only in such modified form or be of no effect as the case may be. A challenge was made on behalf of the appellants that this formality has not been undergone. An application was therefore given to refer this question to the high court to the learned city magistrate in view of the provisions of sec. 432 of the criminal procedure code. In spite of it no such reference was made. It was urged by him that when such a challenge was made by him it was the duty of the prosecution to prove that this formality was complied with. In the absence of any such evidence led by the prosecution these rules should be held to be invalid and hence this order of conviction cannot be sustained in law.

(9) One other submission made by mr. Adhvaryu was regarding the valid appointment of food inspector mr. Patel. When his attention was drawn that this patel was appointed on 5 - 6 - 1967 and his case would be covered by the proviso to rule 8 of the amended rules he has given up this contention. I therefore need not dilate on that contention.

(10) I will first deal with the contention regarding the difference found on chemical analysis by the public analyst and the director of central of food laboratory. In my opinion in view of sub - sec. (3) of sec. 13 of the act public analysts report ex. 7 could not be taken into consideration at all. That sub - section in terms states:

(3) the certificate issued by the director of the central food laboratory under sub - sec. (2) shall supersede the report given by the public analyst under sub - sec. (i). It is significant to note that right is given to the accused as well as the complainant to make an application to the court for sending a part of the sample mentioned in sub - clause (i) or sub - clause (iii) of clause (c) of sub - sec. (1) of sec. 11 to the director of the central food laboratory for certificate under sec. 13 (2) of the act and on receipt of such application the court has first to ascertain that the mark and seal or fastening as provided in clause (b) of sub - sec. (1) of sec. 11 are intact and after that satisfaction the court has to dispatch the part of the sample under its own seal to the director of the central food laboratory who has there - upon to send a certificate to the court in the prescribed form within one month from the date of the receipt of the sample specifying the result of the analysis. In the instant case such a request was made on behalf of the appellants and the court being satisfied as required under subsec. (2) of sec. 13 of the act. Sent the third sample to the director of the central food laboratory after following the formalities required and such a certificate has been received from that authority and it has been brought on the record at ex. 10

(11) Sub - sec. (5) of sec. 13 of the act in terms states:

Any document purporting to be a report signed by a public analyst unless it has been superseded under sub - sec. (3) or any document purporting to be a certificate signed by the director of the central food laboratory may be used as evidence of facts stated therein in any proceeding under this act or under secs. 272 to 276 of the indian penal code. This sub - sec. In terms empowers to use such a document viz. The certificate the director of the central food laboratory as evidence of the facts therein in any proceeding under this act. It is not necessary for prosecution to examine the director of the central food laboratory prove the contents of this document. Proviso to it reads as under: provided 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. This proviso clearly indicates that such a certificate is to be treated as final and conclusive evidence of the facts stated therein. It means that the data referred do in that certificate on analysis has to be taken as final and conclusive evidence in regard to that date. No doubt it would de within the power of the court to determine whether a particular food article is adulterated or not. That will be a question of law.

(12) A division bench of this court in mohanlal v. Vipinchandra a. I. R 1962 gujarat 44 has observed:

The certificate of the director of central food laboratory under sec. 13 contains factual data in respect of the article sent for analysis or test. Under the proviso to sec. 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 turmeric) 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 in spite of the facts stated in the certificate of the director though made final and conclusive under the proviso.

(13) In andhra pradesh grain and seed merchants association v. Union of india 1970 (2) supreme court cases 71 in para 15 at page 80 the supreme court has observed:

Nor can it be said that by making the report of the director of central food laboratory conclusive evidence of the facts stated therein any such infringement (under art. 20 (2) of the constitution) is intended. The provision has been made with a view to secure formal evidence of facts without requiring the director to remain present and in the interest of effective administration of the act the certificate signed by the director of the central food laboratory is made final and conclusive evidence of the facts stated therein. The director is a highly placed official an expert in determining the nature substance and quality of food and is wholly disinterested in the result of any case coming before the courts. It is difficult to appreciate how conclusiveness attributed to the certificate of the director compels the vendor charged with an offence under the act to be a witness against himself. In view of the provisions of sec. 13 of the act referred to by me earlier it is evident that the certificate ex. 10 issued by the director of the central food laboratory under sub - sec. (2) will supersede the report ex. 7 given by the public analyst given under sub - sec. (1) of sec. 13 of the act. In view of the proviso to sub - sec. (5) of sec. 13 of the act this certificate shall be final and conclusive evidence of the facts stated therein i am therefore of the opinion that the court has to take into consideration the facts stated in this report ex. 10. It cannot take into consideration the public analysts report which is superseded by this certificate ex. 10.

(14) Mr. Adhvaryu has invited my attention to the decision of a single judge of the bombay high court in b. A. Samant v. The state of maharashtra 70 bombay law reporter 794 in support of his argument that both these documents can be considered for finding out such variance it is true that in that decision such variance has been taken into consideration. The position referred to by me above has not been taken into consideration. In that case there was no evidence that the food inspector had used clean and dried bottles as required by rule 14 of the rules there was therefore possibility of having some water in containers and that may be the reason why percentage of water found in one bottle analysed by the public analyst and another analysed by the director c the central food laboratory vary. The question was regarding adulterate milk. In that behalf the relevant observations are made at pages 8c and 801 by vaidays j. They are:

In the present case however witness gopinath has been examined by the defence and he has stated emphatically that he did not see the empty bottles at all. The argument of mr. Rege that no such case was put to the food inspector by the accused is of no avail because the accused in this case was unrepresented and the food inspector himself did not state in his evidence that he had used clean and dry) bottles as required by rule 14; and. Therefore it was not necessary to ask him in his cross - examination anything about it further a grave doubt arises with regard to the contents of the two sampled which were analysed in this case because of the striking discrepancy between the analysis by the public analyst and the one by the director of central food laboratory with regard to the water contents of the two bottles. So far as milk fat is concerned the difference is only of 0. 1 per cent. In the report of the public analyst and the on given by the director of central food laboratory. With regard to the milk solid other than milk fat the difference is 0. 3 per cent. These differences can be considered to be negligible. But it is difficult to understand how there could be one bottle with 21 per cent. Of water and the other with 17 per cent. The main question in this case is whether the accused can be convicted merely relying on the evidence of the food inspector and report of the director of central food laboratory for holding that the accused - sold adulterated milk. In view of the fact that the food inspector did not lead any evidence with regard to the following of the procedure under rule 14 and did not try to explain how this difference in the two reports was caused it will be difficult to convict the accused relying on the evidence of the food inspector alone. Further a doubt is created in accepting his evidence because of the statement of the defence witness gopinath who stated that he did not see the empty bottles. In the present case a grave doubt arises with regard to the way in which the samples were taken by the food inspector and if it is not established that the sample that was taken was in a clean and dry bottle. It would be reasonable to doubt whether the sample that was sent to the director of central food laboratory was the article of food which the accused sold or the article which was mixed with some water which was already there in the container used. In the instant case there is definite evidence that the bottles used for samples were clean and dry. There is no challenge on that part of the evidence. This bombay decision may be justified in the circumstances of the case. In my opinion this decision does not lay down any principle of law which runs counter to my conclusion.

(15) In the instant case we are concerned whether the article of food is adulterated in view of clause (1) of sec. 2 (1) of the act. That clause (1) reads: -

Adulterated an article of food shall be deemed to be adulterated - (1) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. Rule 5 of the rules reads: standards of quality of the various articles of food specified in appendix b to these rules are as defined in that appendix. I have already referred to these standards prescribed. According to the analysis made by the director of central food laboratory percentage of total ash is 20. 7 per cent. Percentage of ash insoluble in dilute h. Cl. Was found to be 14. 6 per cent. As per the revised standards prescribed total ash should not exceed 9 per cent. By weight. It is therefore evident that it does not conform to that particular standard. Furthermore another standard prescribed is that the ash insoluble in dilute h. Cl. Should not exceed 1. 5 per cent by weight. In the instant case it was found to be 14. 6 per cent. It is therefore evident that it does not conform to that standard also.

(16) I have already referred to clause (1) of sec. 2 (1) of the act. It is significant to note that an article of food is deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. The words used are prescribed standard and not prescribed standards. Prima facie it would therefore appear that if the article of food does not conform to any of the prescribed standards it will come within its mischief. In my opinion even if all the tests prescribed are not followed it would not necessarily mean that the court could not conclude that a particular article of food is adulterated if it does not conform to one or more of the standards prescribed.

(17) Mr. Adhvaryu has laid considerable emphasis on the decision of a single judge of the calcutta high court in nandalal pal v. The state 1970 criminal law journal 792. The relevant observations are made in paras 7 and 8 at page 793. I will refer to those observations in extenso as mr. Adhvaryu has laid considerable emphasis on those observations. They are:

Rule 5 of the rules framed under the prevention of food adulteration act refers to standards of quality of various articles of food and says that the standards are to be as defined in the appendix to the rules. In appendix b a 17. 06 prescribes the standard of quality so far as mustard oil is concerned. The standards prescribed are five in number and the tests of acceptable purity within prescribed limits of variability are given. In the present case the chemical analyst undertook three of the five tests for the purpose of ascertaining whether the sample conforms to the prescribed standard and with reference to the result of those three tests came to the conclusion that the sample was adulterated. The question arises whether the opinion as to adulteration unless all the prescribed tests are undertaken should be acceptable to the court unless the analyst examines himself in the case for the purpose of explaining the position that the failure to undertake two of the prescribed tests gives rise to. This question was considered in the case of netal chandra v. Corporation of calcutta a. I. R. 1967 cal. 65 where it was held under similar circumstances that although the report of the chemical analyst would be evidence under sec. 13 (5) of the prevention of food adulteration act the question as to whether the opinion of the analyst would be acceptable without his examination at the trial would depend on the facts of each individual case. In that case the report of the analyst was not found acceptable at its face value. When the legislature has prescribed five standards and has recommended testing of the sample with reference to all those standards and when some of the prescribed tests are not done and the chemical analyst also is not examined the court is faced with the question as to the reason for insisting on testing all the prescribed standards and the result of the failure to act up to the requirements of the law in that regard. There must be a reason behind the insistence on testing all the prescribed standards. The act does not say that if the sample is found not to conform to say or more of the prescribed standards it should be treated as adulterated. What the act says is that the sample shall conform to all the prescribed standards within of course the limits of variability. It may as well be that the correctness of the result of one test is capable of verification with reference to the result of the others or it may be that the results of the different tests will act as checks and counter - checks for the purpose of verifying the ultimate result of the analysis. Whatever that be if the statute requires that all the tests have to be done and it is found that all the tests have not been done it is the duty of the prosecution to examine the analyst for the purpose of explaining to the court the position and the situation that arises and in the absence of the evidence of the analyst the court may very well refuse to rely upon the result of the tests as appearing in the report that is submitted it is in this view of the matter that i find that it would be extremely risky to act only upon the result of the report of analysis in this case when all the prescribed tests have not been done and when the analyst also has not been examined in court. It has been stated in this decision that the act does not say that if the sample is found not to conform to say one or more of the prescribed standards it should be treated as adulterated. What the act says is that act says is that the sample shall conform to all the prescribed standard within of course the limits of variability. In my opinion if we look to the language of this clause (1) of sec. 2 (1) of the act these observations with the greatest respect 1 may say are not justified. I need not dilate further on this decision as there is a decision of another high court which lends support to my conclusion.

(18) In jogendra khuntia v. State of orissa i. L. R. 1964 cuttack 778 narasimham c. J. Has observed:

Non - conformity with the requirements in respect of any of the tests laid down in a. 17. 06 is itself sufficient to show that the oil is not of the standard purity required by the statute. Therefore there is no illegality in the certificate given by the public analyst.

(19) In the commentary on the prevention of food adulteration act 1954 by moti ram and sukhdev 5 edition at page 129 a decision of the madras high court in sudalaimuthu nadar v. State 1968 madras law journal 50 has been referred to and the statement made therein reads:

Where on a butyro - refracto meter test the gingerly oil sold by the petitioners was found to be adulterated the petitioners contended that the edible oils should conform to the standards as to refractive index under butyro - refracto meter was ultra vires the rule making power of the central government and that the non - testing of the sample for every one of the standards specified in the rules was wrong and hence the sample could not be said to be adulterated. Held that the central government had the power to make rules specifying the standards of quality for 2ny article of food. Hence the specification that the edible oil should conform to the particular standards as to refractive index under butyro - refracto meter was not beyond the rule making powers of the central government. Further though it was desirable that the sample should be tested for every one of the standards mentioned in the rules the non - conformity with requirements in respect of any standards mentioned in the rules was itself sufficient to show that the oil was adulterated therefore the petitioners were rightly convicted.

(20) In mangaldas v. Maharashtra state a. I. R. 1966 supreme court 128 in para 11 the relevant observations made are:

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. Mr. Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves and quite apart from the fact that it was not challenged by any of the appellants as inadequate when it was put into evidence we are satisfied that it contains the necessary data in support of the conclusion that the sample of turmeric power examined by him showed adulteration. The report sets out the result of the analysis and the tests performed in the public health laboratory. Two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder. The microscopic examination showed the presence of pollen stalks. This could well be regarded as adequate to satisfy the mind of a judge or magistrate dealing with the facts. In view of these decisions submission made by mr. Adhvaryu that as all the tests have not been followed this court is not entitled to come to the conclusion that this article of food is adulterated is not well - founded. It is significant to note that non - examination for finding out the percentage of moisture or non - examination of the constituents starch will not affect the result in any manner. What is to be found out is the percentage of total ash as well as ash insoluble in dilute h. Cl. If the quantity found exceeds the permissible limit the result would be that the standards prescribed in this behalf are not conformed to. If that is the position it will mean that an article of food will be deemed to be adulterated.

(21) As said earlier ex. 10 supersedes the public analysts report ex. 7. For the relevant data we have therefore to look to ex. 10 and the facts stated therein regarding this relevant data are to be taken to be final and conclusive - the court could not therefore refer to report ex. 7 which is superseded by ex. 10. Apart from that really speaking if we refer to the standards regarding the total ash and ash insoluble in dilute h. Cl. As referred to in ex. 10 and those found in ex. 7 they could be easily explained. In 13x. 7 ash insoluble in h. Cl. Meaning thereby concentrated h. Cl. Had to be determined. It is evident that ash which will be soluble in concentrated h. Cl. Will not be equally soluble in dilute i. Cl. And that is why ash insoluble in dilute k. Cl. Will naturally exceed than the ash insoluble in concentrated h. Cl. I am therefore of the opinion that these two submissions made by mr. Adhvaryu are not well - founded.

(22) I will now come to his next submission viz. That the prosecution has not proved that the rules framed under sec. 23 by the central government were placed before the parliament in sessions as required under subsec. (2) of sec. 23 of the act. It was his submission that the burden lay on the prosecution to prove it. In the absence of any such proof it should be taken that this formality was not complied with and consequently the rules would become invalid. In my opinion this submission is not a valid submission.

(23) Sec. 114 of the evidence act illustration (e) can be pressed into service. That section reads: 114 the court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events human conduct and the public and private business in their relation to the facts of the particular case. Illustrations the court may presume xxx xxx (e) that judicial and official acts have been regularly performed. It could therefore be legitimate to raise such a regularly presumption that the official and judicial acts must have been regularly performed. It would be presumed that these rules which are required to be placed before the session of the parliament as contemplated by sub - sec. (2) of sec. 23 of the act must have been placed accordingly. It is for the party makings such a challenge to bring on the record material data in support of such challenge.

(24) In bhojendra kumar v. Union of india a. I. R. 1961 calcutta 217 before the division bench of calcutta high court consisting of p. B mukherjee and h. K. Bose jj. Such a question was raised in view of a similar proviso to sec. 38 of the central excise and salt act 1944 the relevant observations made therein are very pertinent for our purposes they are the first part of sec. 38 of the act by use of the word thereupon makes it clear that the notification or the rule issued under the act immediately on its publication in the official gazette has the effect of being enacted in the act. That means that it acquires statutory force immediately on the publication in the official gazette. It has not to wait for its statutory force to be laid before parliament. All that the proviso to sec. 38 means is that as soon as may be such rule shall be laid before parliament and parliament is given the right to modify or annul such rule within the time and session specified in the proviso. It is really a proviso in defeasance in the sense that these rules or notifications although they become part of the statute immediately on their publication will go out of the statute book if the parliament modifies or annuls them within time and during the session mentioned therein. Otherwise if parliament does not do any of these things they continue to have the force of a statute from the date of their publication in the official gazette. Where there is nothing on the record to show that the rules or notifications were riot placed before the parliament the court is entitled to presume that official acts have been performed in their regular course. Once the rules and notifications are published in the official gazette there must be regarded as being incorporated in the act itself. They become then part of the very statute. No further question arises of the rules being ultra vires the act thereafter. In the instant case also these rules were published. The amended rules were also published in the official gazette. It is also mentioned therein that these amendments were made after consulting the central food committee and most of the rules except clauses 3 10 and 28 (xviii) were to come into effect from 8 - 7 - 1968.

(25) Mr. Adhvaryu in support of his argument that the burden lay on the prosecution to prove this fact when a challenge is made on behalf of the defence relied upon the decision of a division bench of this court in manilal b. Pandya v. Chimanlal purshottamdas a. I. R. 1968 gujarat 80. The relevant question has been discussed in para 22 at pages 87 and 88. Emphasis is laid on the observations made at the end of this para in following terms:

It is true that the requirement of law being that the rules are to be made after consultation with the committee if it is challenged that no such consultation has been made it would be open to the government to establish such a fact. We are however not concerned with that aspect. Suffice it to say that want of publication of the nature referred to by the learned magistrate does not invalidate the rules. It is significant to note that in that case in the notification issued by the central government while amending the rules no statement was made at the time of publication of those amendments in the government notification that the amendments have been made in consultation with the central committee. On that basis validity of the rules was challenged. In my opinion this decision does not lay down any ratio which runs counter to the ratio of the aforesaid calcutta decision.

(26) In andhra pradesh grain and seed merchants association v. Union of india (supra) in para 13 at page 79 the supreme court has made the following observations after referring to its earlier decision in state of uttar pradesh v. Kartar singh 6 supreme court report 679 as under:

This court in state of uttar pradesh v. Kartar singh in which in dealing with an argument of invalidity of the rule setting out standards under the prevention of food adulteration act observed: the standards themselves it would be noticed have been prescribed by the central government on the advice of a committee which included in its composition persons considered experts in field of food technology and food analysis. In the circumstances if the rule has to be struck down as imposing unreasonable or discriminatory standards it could not be done merely on any apriority reasoning but only as a result of materials placed before the court by way of scientific analysis. That where a party seeks to impeach the validity of a rule made by a competent authority. The burden is on him to plea and prove the infirmity is too well - established to need elaboration. I therefore hold that this submission made by mr. Adhvaryu is not well founded.

(27) All the submissions raised fall

(28) In the present case all the relevant rules viz. Rules 14 and 15 have been followed. There is no challenge in that behalf made before me. Food inspectors evidence is substantially corroborated by the evidence of panch - witness arvind keshavlal vankani ex. 13. Ex. 10 clearly reveals that the standards prescribed regarding the total ash and ash insoluble in dilute h. Cl. Were not conformed to. When any of such standards prescribed is not conformed to in view of clause (i) of sec. 2 (i) of the act the inescapable conclusion would be that this article of food is adulterated. It is not challenged that this turmeric powder is not an article of food. The learned city magistrate was therefore in my opinion justified iv recording the order of conviction against the appellants.

(29) Mr. Adhvaryu finally submitted that the sentence awarded was excessive and it should be reduced. In my opinion it could not be said that the sentence awarded is excessive. On the contrary the learned city magistrate has taken certain circumstances into consideration and has not awarded the minimum punishment provided under the act. I see no justification in interfering with the order of sentence.

(30) I feel that it is my duty to make a note of the fact that mr. Adhvaryu has rendered considerable assistance in this branch of law in this case.

(31) The result is that the appeal fails. The appeal is dismissed confirming the order of conviction and sentence passed against the appellants.

Kantilal Ambalal Shah v. I.G.Patel

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. J. S. Adhvaryu)

Prosecution's Position (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Kantilal Ambalal Shah v. I.G.Patel

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