MOHANLAL CHHAGANLAL MITHAIWALA Vs. VIPINCHANDRA R GANDHI

JUDGEMENT

(1.) The principal ground urged by Mr. Shah on behalf of the petitioner was that the proviso to section 13(5) of the Act was ultra vires inasmuch as that proviso violated the fundamental rights guaranteed under Articles 14 19 and 21 of the Constitution that the Act did not lay down or indicate any standard for the guidance of the Public Analyst and conferred absolute naked and arbitrary powers upon these officers that the presumption arising out of the certificate issued by the Director was not a conclusive presumption but a rebuttable one and therefore the petitioner was entitled to challenge the facts stated therein by means of cross-examination or by leading evidence of some other expert.

(2.) Section 13 of the Act provides first for the report of Public Analyst in respect of the result of the analysis of an article of food submitted to him by a Food Inspector for analysis. Sub-section (2) provides that after the institution of a prosecution the accused-vendor or the complainant may make an application to the Court for sending a part of the sample mentioned in section 11 to the Director of the Central Food Laboratory for a certificate and on receipt of the application the Court shall first ascertain if the mark and seal or fastening as provided in clause (b) of sub-section (1) of sec. 11 are intact and may then dispatch the part of the sample under its own seal to the Director of the 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. Under sub-section (3) of sec. 13 the certificate issued by the Director supersedes the report given by the Public Analyst under sub-section (1). Sub-section (5) then lays down that any document purporting to be a report signed by a Public Analyst unless it has been superseded under sub-section (3) or any document purporting to be a certificate signed by the Director of the Central Food Laboratory may be used as evidence of the facts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 proceeding under this Act or under section 272 to 276 of the Penal Code. The proviso then states that any document purporting to be a certificate signed by the Director shall be final and conclusive evidence of the facts stated therein.

(3.) It may be observed that under this section a right to apply for analysis by the Laboratory and for a certificate by the Director is given to both the parties the vendor and the complainant and the provisions of sub-section (5) and the proviso thereto would therefore apply to the certificate obtained in the manner provided for in the section by either of the parties. Any disadvantage if at all there could be one that may accrue or arise from the proviso which mikes the facts stated in this certificate final and conclusive would apply equally to either side and not merely to the vendor-accused. Under section 13 the certificate has to be in the prescribed form. There is no dispute in this case that the certificate issued by the Director is in the form prescribed under the Act. Under the powers conferred by sub-sec. (2) of sec. 4 and sub-sec. (1) of sec. 23 of the Act the Central Government after consultation with the Central Committee for Food Standards has also made certain rules. Appendix B contains certain rules which lay down the definitions and standards of quality. Amongst these rules is rule A.H.14 which deals with ghee and provides that ghee means pure clarified fat solely from milk or from curds or from cream to which no colouring matter or preservative has been added. The rule then lays down certain specifications to which having reference to certain areas of the country ghee in question has to conform. Rule 4 of Appendix A inter alia provides for the requisite fees and also provides that a certificate issued under these rules by the Laboratory should be signed by the Director. Rule 5 then provided that the standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that Appendix. In the present case however no question of any standards of quality arises as the certificate of the Director is to the effect that no ghee in fact was found at all in the sample sent to him by the learned Magistrate for analysis or tests. It is clear from the provisions of section 13 and these rules that what the Public Analyst or the Director of Central Food Laboratory has to do is to ; state whether the article which he has analysed contains certain ingredients and whether it conforms to the standards of quality laid down in these rules. The report of the certificate would therefore contain factual data in respect of the article sent for analysis or lest. Under the proviso to section 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 form prescribed by the Act clearly contemplates that 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 ghee are liable to get evaporated from the ghee 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 any ghee used in the preparation being mixed with the other fats; 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 inspite of the facts stated in the certificate of the Director having been made final and conclusive under the proviso.