1. Petitioner, Food Inspector, Cochin Corporation, laid a complaint against respondents herein under Ss. 7(i) and 16(1A)(i) read with S. 2(ia) and (m) of the Prevention of Food Adulteration Act (for short ‘the Act’) and rule 44(a) and Appendix B.A 11.02.08 of the Prevention of Food Adulteration Rules (for short ‘the Rules’) on the allegation that on 26-10-1976 at about 3.45 p.m the Food Inspector inspected the restaurant belonging to the first respondent in which the second respondent was working as a salesman and purchased a sample of 900 gms. of ice cream from the quantity exposed there for sale after following the legal formalities prescribed under the Act and the Rules, in the presence of witnesses Pws 2 and 3 and one of the samples was sent to the public analyst for analysis who sent Ext. P9 report showing that the sample did not conform to the standards prescribed under the rules. In due course, Food Inspector laid the complaint and intimated the Local (Health) Authority who also performed the acts required of him under the Act and the Rules. The respondents pleaded not guilty before the trial Magistrate. Prosecution examined three witnesses and relied on Exts. P1 to P12. One of the samples sent to the Local (Health) Authority was produced in court and marked as Ext MO. 1. It was produced on the application submitted by the second respondent requesting that one of the samples may be sent for analysis to the Director of Central Food Laboratory the second respondent after examining MO. 1 sample bottle took the stand that the sample bottle was not genuine and was a substituted one and in that view, he caused his petition to be dismissed as not pressed. The trial court went into the evidence and circumstances of the case and came to the conclusion that the evidence did-not establish beyond reasonable doubt that the sample was taken in accordance with the provisions of the Act and the Rules and therefore the report of the Public Analyst would not be the foundation of conviction. Benefit of doubt was given to the respondents and they were acquitted. This appeal has been filed by special leave by the Food Inspector. The trial court has considered several aspects of the contentions raised before it. All those contentions have been pressed before me either by the appellant or by the respondents. However, I think it is sufficient to consider only two of those contentions to dispose of the appeal. The first contention, and that contention was found favour with the trial court, is that since M.O 1 sample bottle originally sent by the Food Inspector to the Local (Health) Authority and subsequently produced by the latter before the trial court in accordance with orders of court on application filed by the second respondent was found to be tampered with and there was doubt about its genuineness, the prosecution case should necessarily end in failure. Learned counsel for the respondents supported this view of the trial court and argued that when once the sample sent to the trial court by the Local (Health) Authority was found to be a suspicious one or if there was doubt about its genuineness, there was a denial of the right vesting in the respondents under S. 13(2) of the Act. The correctness of this contention requires to be examined in the light of the provisions of the Act.

2. Sub-s. (1) of S. 13 of the Act requires the Public Analyst to deliver in the prescribed form, a report to the Local (Health) Authority (L.H.A) of the result of the analysis of any article of food submitted to him for analysis. Sub-s. (2) states that on receipt of the report of analysis to the effect that the article of food is adulterated, the L.H.A shall, after the institution of the prosecution against the person or persons concerned, forward in the prescribed manner a copy of the report to such persons informing them that if so desired any one or all of them may make an application to the court within a period of 10 days from the date of receipt of a copy of the report to get the sample of the article of food kept by the L.H.A analyzed by the Central Food Laboratory. Sub-s. (2-A) states that when an application is made, the court shall require the L.H.A to forward the part or parts of the sample kept by the said Authority and on such requisition being made, the said authority may forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition. Sub-s. (2-B) states that on receipt of part or parts of the sample from the Local (Health) Authority, the Court shall first ascertain that the mark and seal or fastening as provided in S. 11(1)(b) are intact and the signature or thumb impression, as the case maybe, is not tampered with and dispatch the part or as the case may be, one of the parts 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 thereof specifying the result of analysis. Sub-sec. (2-C) states that where two parts of the sample have been sent to court and only one part has been sent to the Director, the court shall return the remaining part to the L.H.A who shall destroy the same after the certificate from the laboratory has been received. However, where the part of the sample sent by the court to the Director is lost or damaged, the court shall require the L.H.A to forward the part of the sample if any retained by it to the court and the court there-upon shall proceed in the manner provided in sub-sec. (2-B). Sub-sec. (3) lays down that the certificate issued by the Director under sub-sec. (2-B) shall supersede the report given by Public Analyst under sub-sec. (1).

3. Undoubtedly, the right conferred on the accused person under S. 13 of the Act is a valuable right. It is intended to protect the persons accused of offences under the Act from mala fide or irregular actions of the Food Inspector. The section is intended to provide the accused person an opportunity to get a part of the sample analyzed by possibly a better equipped and more competent laboratory. All these provisions are intended to safeguard the interests of the accused persons and public interest. Naturally, the court must be very much concerned with the manner in which the provisions of S. 13 of the Act are given effect to.

4. The accused person has a right to insist on one of the samples in the custody of the Local (Health) Authority to be brought to court, examined by court and sect to the Central Food Laboratory for a second and perhaps a better opinion. If by any reason or circumstance that right is negatived, the accused would be seriously prejudiced. Whether the L.H.A is to produce one of the parts or both the parts is dependent on the nature of the order to be passed by the court. It is open to the court to direct production of one part or both the parts. Whatever be the nature of the order, it is the duty of the L.H.A to conform to the order and cause production of the part or parts directed to be produced. The duty cast on the court to ascertain if the mark, seal or fastening provided in S. 11(1)(b) are intact and if the signature or thumb impression is not tampered with is a duty to be exercised to safeguard the interests of the accused. The broad interests of public justice require that the court must be satisfied about these matters before dispatching the part to the Central Food Laboratory for analysis, if one part is found to be tampered with, or if it is found that the mark, seal or fastening provided in S. 11(1)(b) are not intact or if it is found that the signature or thumb impression as the case may be is tampered with or absent, perhaps there may not be any purpose served by the court sending such a part of the sample to the Central Food Laboratory for analysis. That is because any report submitted by the Director is open to attack on the ground that the part sent to him was not an acceptable sample but a sample which was tampered with. In such case it would be open to the accused to request the court to examine the remaining part of the sample and send it to Central Food Laboratory. If the accused does not do so, it is not available to him to complain that there has been a violation of S. 13 of the Act and consequent prejudice to him. Different considerations may arise if both parts are found to be tampered with or to be not genuine or to be suspicious.

5. It is necessary to understand what exactly took place in this case. The second respondent filed a petition Crl. M.P 205 of 1977 before the trial court praying that one of the parts of the sample may be caused to be produced before court and sent to the Director of Central Food Laboratory for analysis. He did not ask for both the parts of sample to be so sent. I do not find any specific order of the court requiring the Food Inspector to produce one or both the parts. Oo 11-3-1977, the court has noted that one sample has been produced. Thereupon the defence counsel submitted that he may be allowed to examine the sample bottle. The case was adjourned to 15-3-1977. On that day the court noted that it was submitted by the defence counsel that the second respondent has to file objection regarding the genuineness of the part. The case was adjourned to 18-3-1977. On that day, second respondent filed objections, stating, inter alia that he had examined the part produced in court and that was really not one of the three sample bottles packed by the Food Inspector in his presence on the date of the occurrence. The petition gave the reasons for this statement. The case was adjourned to 1-4-1977 and on that day, criminal M.P 205 of 1977 was dismissed with the following order: “Not pressed. Dismissed.”

6. According to learned counsel for the respondents, when once the respondents sought production of one part and that part was found to be not genuine or tampered with, the respondents could not ask for another part to be brought to court, examined and dispatched to the Central Food Laboratory for analysis. The argument is extended a little further by saying that the respondent has no duty to take these steps with reference to the other part or the second sample still remaining with the L.H.A or produced before court if it had been already produced. There can be no doubt that there was a reasonable doubt in the mind of the trial court regarding the genuineness of the part produced by the L.H.A before the court. Therefore there could be no difficulty in concluding that part could not have been forwarded to the Central Food Laboratory by the trial court. But that was not the end of the matter. There was still one more part remaining with Local (Health) Authority. There was no direction by the court to cause production of that part. Most significantly, there was no prayer on the part of the respondents requiring the court to cause production of the third part or sample bottle also. It was open to the respondents to do so. The respondents did not choose that course. That was because, according to them, they had no right to do so and they had also no duty to do so.

7. These submissions do not appear to be correct. I have already referred to the provisions of S. 13 and in particular the provision in Sub-sec. (2-A). What it enables or entitles the respondents is to apply to court to get the part kept by the L.H.A analyzed by the Central Food Laboratory. It is for the court to require the L.H.A to forward the part or parts of the sample if one part of the sample is found tampered or not genuine, there is still one more part available to be sent to the Central Food Laboratory. Respondents did not make any request regarding that part. Assuming that it is open to accused to require both parts to be so analyzed, respondents did not come forward with any such request. Therefore, it is not open to them to contend that there has been contravention of law or prejudice. This is a case where they wanted one part to be sent. Even if the part produced in court was found to be of suspicious nature, there was still one more part available with the Local (Health) Authority to be produced in court and dealt with as contemplated in the provisions of S. 13. The respondents could have availed of the opportunity. If they wanted to take advantage of the provisions, they ought to have taken necessary steps. Where they could have availed of it and did not choose to avail of it, I do not think it is open to them to complain of prejudice or claim that the circumstance of one of the parts being found suspicious should straight away lead to acquittal. This is not a case where the court having examined the parts passed an order stating that the part could not be sent to the Central Food Laboratory for analysis. The court also did not dismiss the petition on merits. It was dismissed as not pressed. Having withdrawn the petition and not having requested the court to deal with the third part of the sample as contemplated in S. 13 of the Act. I do not think it is open to the respondents to complain of violation of the provisions of S. 13 or complain of prejudice, on having been caused to them. The acquittal on that ground cannot be sustained.

8. The trial court went into the oral evidence of Pw. 1, the Food Inspector, Pw. 2, the alleged independent witness to the sampling and Pw. 3, another attestor to the mahazar Ext. P5 who happened to be a subordinate of the Food Inspector and came to the conclusion that the evidence in regard to sampling cannot be accepted and that the evidence would indicate that the sampling was not done in accordance with the provisions of the Act and the Rules. Consequently, the court took the view that on the basis of the report of the Public Analyst it was not safe to convict the respondents. I have been taken through the evidence of these witnesses. I do not want to deal with the evidence and circumstances elaborately since they have been dealt with in extenso in the judgment of the trial court. Pw. 2 admitted his signature in the mahazar but practically denied everything else. The respondents have a grievance in regard to the manner in which, after the prosecution evidence was closed and the case was posted for hearing, on a motion by the Food Inspector Pw. 2 was recalled to be examined in chief further and immediately allowed to be cross-examined by the prosecutor treating him as hostile. The procedure adopted by the trial court appears to be a startling one. In cross-examination Pw. 2 gave certain answers which were fairly fatal to the sustainability of the prosecution. That being so, it was within the right of the prosecutor to request permission of the court to put leading questions in the nature of cross-examination to that witness. The prosecutor did not choose to do so. He rested his case on whatever answers PW. 2 gave on that day, examined one more witness and submitted to the court that he had closed the evidence Long thereafter be realised that something should have been done with reference to PW. 2. I do not think the trial court should have countenanced such a procedure. But the fact remains that in cross-examination and to some extent even in chief examination he gave certain answers which were totally unfavorable to the prosecution. The evidence of PW. 3, the departmental witness, who happened to witness the sampling and attest the mahazar could not be said to have improved matters further. A reading of the evidence of those witnesses will show that there could be considerable doubt on the question whether the sampling was actually done in the premises of the respondents or if such sampling had been done as spoken to by PW. 1 or whether it was done in accordance with the provisions of the Act and the rules and whether the sample bottles spoken to by PW. 2 and MO. 1 could have been the sample bottles spoken to by Pw. 1. The trial court has considered and appreciated the oral evidence and circumstances. It cannot be said that there was anything unreasonable or perverse or contrary to common sense in the approach made by the trial court in the matter of appreciation of oral evidence and circumstances. It was on the basis of such approach that the trial court held that the evidence adduced by the prosecution did not inspire confidence as to enable it to accept the result of analysis as seen in Ext. P9 and to rest the conviction thereof. I do not find any ground to interfere with the acquittal resting on such appreciation of the evidence and circumstances. In the result, the criminal appeal is dismissed.

9. Dismissed.