SATINDER KUMAR Vs. M.C.D.

JUDGEMENT

(1.) On 31st July 1973, Food Inspector Kewal Krishan visited the business premises Rajdhani Flour Mill, Qutab Road. The Food Inspector after disclosing his identity purchased Dal Chana for the purpose of analysis. The Food Inspector divided the sample into three parts; one part was sent to the Public Analyst, the second part was given to the accused and the third part was retained by the Food Inspector. The sample was analysed by the Public Analyst and he found the sample to be adulterated due to the presence of 5.75 per cent of Kesari dal. On receipt of the report of the Public Analyst the Public Prosecutor filed a complaint under section 7 read with section 16 of the Prevention of Food Adulteration Act against Rakesh Kumar accused. During the trial the accused made an application for sending the counter part of the sample in his possession for analysis to the Director, Central Food Laboratory, Calcutta. On 6th Jan. 1977, the accused produced the counter part of the sample in his possession before the Magistrate but the top seals of the sample bottle were found broken and the stopper was in loose form. The above circumstances indicated that the sample bottle had probably been tampered with and consequently the Magistrate rejected the application. The Food Inspector produced the third part of the sample and at the request of the accused it was sent to the Director, Central Food Laboratory, Calcutta for analysis. The Director, Central Food Laboratory Calcutta vide his report dated 10th Feb. 1977, found the sample of gram dal not adulterated. The Director found the sample "unusually well cleaned, free from insect infestation, dust and dirt." The seals on the sample bottle were found to be intact. On 26th Feb. 1977, the Magistrate made an order for examination of the Director General of Health Services of India as a court witness to find out as to what would be the deterioration in a sample within a period of 4 years, if kept in a sealed air tight bottle. It may be stated that the sample was analysed by the Public Analyst in 1973 and the counter part of the sample in the possession of the Food Inspector was examined by the Director, Central Food Laboratory, Calcutta in 1977.

(2.) It is against the above order that the present revision petition is directed. The contention of the learned counsel for the petitioner is that under section 13 of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory, Calcutta supersedes the report of the Public Analyst and the report of the Director is final in regard to the facts stated therein and that the effort on the part of the Magistrate to examine the Director General, Health Services of India, to show that the report of the Director, Central Food Laboratory is not correct or that the sample bottle had been tampered with is outside the scope of the provisions of the Prevention of Food Adulteration Act and cannot be legally supported. The counsel in support of his contention relied upon Salim & Co. and others Vs. Municipal Corporation of Delhi and State, 1977 (I) F.A.C. page 141 and Gyasi Ram Vs. The State, 1976 (11) F.A.C. page 213. In Salim & Co. and others Mr. Justice Gill held as under:-

(3.) In the case in hand the Public Analyst had found the sample to be adulterated due to the presence of 5.75% of kesari dal. The counter part of the sample retained by the Food Inspector was found to be free from any adulteration by the Director, Central Food Laboratory, Calcutta. The Director in his report found the sample to be unusually well cleaned and free from insect infestation, dust and dirt. The above, it appears, created a doubt in the mind of the Magistrate that the sample has been tampered with and, therefore, he has made an order for examining the Director General of Health Services of India as a Court witness. Under Sec. 13(5) of the Prevention of Food Adulteration Act the report of the Director, Central Food Laboratory is conclusive and binding and the Courts are bound to decide the case on the basis of that report only. There appears to be no escape from the above conclusion. The examination of the Director General of Health Services cannot improve upon the matter in any way. Consequently, I allow the petition and set aside-the order of the Magistrate dated 26th Feb. 1977. The Magistrate shall now proceed further in accordance with the law.