Supreme Court: Prevention of Food Adulteration Act- Mere Dispatch Of Public Analyst's Report To Accused Not A Sufficient Compliance Of Mandatory Requirement To Serve It On Him

Under Sub-section (2) of Section 13, it is mandatory for the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the food has been taken in such a manner as may be prescribed. Further mandate of Sub-section (2) of Section 13 is that a person to whom the report is forwarded should be informed that if it is so desired, he can make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample analysed by Central Food Laboratory. The report is required to be forwarded after institution of prosecution against the person from whom the sample of the Article of food was taken. Apart from the right of the Accused to contend that the report is not correct, he has right to exercise an option of sending the sample to Central Food Laboratory for analysis by making an application to the Court within ten days from the date of receipt of the report. If a copy of the report of the Public Analyst is not delivered to the Accused, his right Under Sub-section (2) of Section 13 of praying for sending the sample to the Central Food Laboratory will be defeated. Consequently, his right to challenge the report will be defeated. His right to defend himself will be adversely affected. This Court in the case of Vijendra (supra) held that mere dispatch of the report to the Accused is not a sufficient compliance with the requirement of Sub-section (2) of Section 13 and the report must be served on the Accused.

6. Perusal of the judgments of the learned Magistrate and Sessions Court show that the clerk who dispatched the report was examined by the prosecution. Though the prosecution has relied upon the remarks made by the Postman on the postal envelope, the Postman who has allegedly made the said remarks was admittedly not examined by the prosecution.

7. Rule 9B of the said Rules reads thus:

9B. Local (Health) authority to send report to person concerned--The Local (Health) Authority shall [within a period of ten days] after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him Under Sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the Article was taken by the food inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed Under Section 14A of the Act:

More than one mode was prescribed by Rule 9B for serving the report of Public Analyst on the Accused. In the present case, after the postal packet was returned, not even an attempt was made to personally serve the report on the Appellant.

8. On the basis of endorsements of the Postman appearing on the postal envelope containing the report, the High Court has recorded a finding of refusal on the part of the Appellant to accept the report. The said finding is obvious erroneous as the endorsements on the postal envelope were not proved by examining the Postman. Moreover, the High Court has glossed over the mandatory requirement Under Sub-section (2) of Section 13 of serving a copy of the report on the Accused. Evidence adduced by the prosecution was of mere dispatch of the report. Hence, the mandatory requirement of Sub-section (2) of Section 13 was not complied with. Therefore, the conviction and sentence of the Appellant cannot be sustained. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1312 of 2021 

Decided On: 29.10.2021

Narayana Prasad Sahu Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

Ajay Rastogi and Abhay Shreeniwas Oka, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: MANU/SC/1017/2021.

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Is the Central Drugs Laboratory report conclusive against a manufacturer if they did not have the opportunity to get the sample re-analyzed?

 From the foregoing analysis of law on the subject, it is clear that while a manufacturer has a valuable right of getting the sample re-tested/re-analyzed by the Central Drugs Laboratory so as to adduce evidence in controversion of the report of the Government Analyst but once the sample has been tested by the Central Drugs Laboratory, there is no occasion for sending the sample again for testing to the same laboratory. It has been further laid down by the Supreme Court in the aforequoted judgment, that the conclusiveness meant in Section 25(3) of the Act has reference to the person referred to in the said subsection, meaning thereby that the facts stated in the report of the Government Analyst would become conclusive only against the person who despite having been provided a copy of the report, has failed to notify his intention to adduce evidence regarding facts stated therein within a period of 28 days. This conclusiveness of the facts stated in the report would not come into play in a case where the manufacturer or any other person has either not been provided the copy of the report or where such manufacturer or person had no occasion to notify his intention to adduce evidence in controversion of the report. In view of the above, the question whether in a particular case, conclusiveness is to be attached to the report of the Central Drugs Laboratory and whether valuable right of a manufacturer to adduce evidence in controversion of the report would get violated in a particular case depends upon the facts and circumstances peculiar to that case. {Para 16}

17. In case, like the present one, the manufacturers/petitioners were not provided the copy of the report of the CDL, Kolkata, or if at all the same was provided, the petitioners/manufacturers could not ask for reanalysis of the sample as the same had already been tested by Central Drugs Laboratory. Therefore, the report would not be conclusive against the petitioners. The petitioners would be at liberty to adduce evidence in controversion of the said report before the trial court. In these circumstances no prejudice has been caused to the petitioners even if the complaint has been filed when the shelf life of the drug in question was due to expire or because in the circumstances explained hereinbefore, they could not seek reanalysis of the sample of the drug in question. The report of the CDL, Kolkata, as already stated, in the facts and circumstances of the case is not conclusive against the petitioners and they have a right to controvert the same by leading evidence before the trial court. 

 IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR

CRMC No. 169/2016

Decided On: 01.11.2022

Swiss Garnier Life Sciences and Ors.  Vs. Union of India

Hon'ble Judges/Coram:

Sanjay Dhar, J.

Citation: MANU/JK/1186/2022

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Whether the court can rely on report of public analyst if he is not examined?

Whatever that may be, we are concerned in this case not with the report of a Chemical Examiner but with that of a Public Analyst. In so far as the report of the Public Analyst is concerned we have the provisions of section 13 of the Act. Sub-section (5) of that Section provides as follows :

"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 sections 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 evidence of the facts stated therein."

12. This provision clearly makes the report admissible in evidence.

What value is to be attached to such report must necessarily be for the Court of fact which has to consider it.

Sub-section (2) of section 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity taken under section 11 of the Act to the Director of Central Food Laboratory for a certificate. The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under sub-section (5) but is given finality of the facts contained therein by the proviso to that sub-section.

It is true that the Certificate of the Public Analyst is not made conclusive but this only means that the court of facts is free to act on the certificate or not, as it thinks fit.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 113 of 1963

Decided On: 08.02.1965

Mangaldas Raghavji Ruparel and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

J.C. Shah, J.R. Mudholkar, K.N. Wanchoo, M. Hidayatullah and S.M. Sikri, JJ.

Author: J.R. Mudholkar, J.

Citation: MANU/SC/0070/1965 : AIR 1966 SC 128

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Can the court convict an accused for adulteration of paneer if paneer has moisture due to natural causes?

 An offence under Section 2(ia)(m) will be made out if the quality or purity of the article falls below the prescribed standard. However, the proviso indicates an exception. Section 2(ia)(m) reads as follows:

“2. Definition.—In this Act unless the context otherwise requires,—

(ia) “adulterated”—an article of food shall be deemed to be adulterated— …..

(m) if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this subclause. {Para 8}

9. There was no whisper in the complaint or in the evidence as to whether the case would fall under the proviso. For instance, the report of the Public Analyst says that the moisture content was 77.6% and that as per the prescribed standard, it shall not contain more than 70%. But there is no indication as to whether the moisture content was more due to natural causes. Even, the milk fat content of the dry matter may depend upon the quality of the milk and this question was also not gone into.

10. Therefore, we are of the view that a petty shop owner has been prosecuted by making much ado about nothing. Hence, the appeal is allowed and the impugned order of the High Court confirming the order of the Sessions Court and the order of the Magistrate are set aside.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION 

CRIMINAL APPEAL NO.1800 OF 2022 

 M/S BHATTACHARJEE MAHASYA & ANR. Vs. THE STATE OF WEST BENGAL & ANR.

Coram: S. ABDUL NAZEER; J., V. RAMASUBRAMANIAN; J.

Dated:  October 17, 2022 

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Whether court should acquit an accused of an offence under the Drugs and Cosmetics Act if the appointment of the Public analyst is not notified in the Government Gazette?

 It is settled law as relied upon in R.A. Chandawarkar (supra) that publishing it in Government Gazette is not just a mere formality. The object of publication in an Official Gazette is two fold: to give publicity to the notification and further to provide authenticity to the contents of that notification in case some dispute arises with regard to the contents. Ms. Malhotra fairly conceded that there is Gazette Notification only of Exhibit 96 and not of Exhibit 94. In my view, the facts of the present case squarely falls within the four corners of the facts in R.A. Chandawarkar (Supra).

{Para 11}

12. Therefore, the State Government not having published in the Official Gazette, the appointment of Dr. Prabhakar Pilankar, specifying the area wherein he can operate and also specifying therein the products with which Dr. Pilankar can test and analyze, it is difficult to ascertain, as to who exactly will be the Government Analyst and for which area and for which products. Therefore, the only conclusion could be that Dr. Prabhakar Pilankar was not appointed as Government Analyst validly and properly as per the provisions of Section 20 of the said Act.

13. In view thereof, the report or opinion of Dr. Prabhakar Pilankar cannot be relied upon or used by the Government to prosecute respondents.

In the High Court of Bombay

(Before K.R. Shriram, J.)

State of Maharashtra  Vs  Laxmichand Nagaji Jain 

Criminal Appeal No. 1036 of 2002

Decided on January 13, 2020

Citation: 2020 SCC OnLine Bom 64 : (2020) 1 AIR Bom R (Cri) 628

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Whether court should convict accused for an offence under prevention of food adulteration Act if report of public analyst is vague?

 It is imperative in my opinion that the Public Analyst must find out when a sample falls below the prescribed standard or its constituents are present in quantities not within prescribed limits of variability whether the said adulterated sample renders it injurious to human health or whether it does not render it injurious to public health. The present report of Public Analyst at Ex-38 is silent on this question and, in my opinion, such report which is vague and defective cannot form the basis for any conviction. I am supported in my view by the decision of the Madhya Pradesh High Court in the case of Gaffar Khan v. State of Madhya Pradesh, reported in 1984 (I) F.A.C. 79. {Para 16}

17. For all these reasons, therefore, I am of the opinion that the mandatory procedure has been neglected. Public Analyst's report is vague and even otherwise the opinion given does not lay down the quality of adulteration as required under Section 2—(ia)—(I) or (m) and last but not the least, the sanction for prosecution under Ex. 39 is also invalid. The conviction of the applicant on the basis of these materials cannot be sustained. Both the courts below have erred in taking the proper view and appreciation of the evidence.

In the High Court of Bombay at Nagpur

(Before Puranik, J.)

Nizamuddin Siddikbhai Tigala Vs The State of Maharashtra 

Criminal Revision Application No. 39 of 1985

Decided on July 25, 1985

Citation: 1985 SCC OnLine Bom 460 : (1985) 2 FAC 88

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When court will quash prosecution under prevention of food adulteration Act?

Taking note of the provisions of Section 13 of the Act, if we look into
the conduct of the respondent authorities what clearly reflects is that though the
authorities had received the report from the Public Analyst on 31.12.2004 the
prosecution case was lodged for the first time on 28.9.2005, that is, after a span
of more than nine months from the date of receipt of the Public Analyst. Further,
from the submissions made on either side what is reflected is that the alleged
two notices referred to by the respondent of having been issued to the petitioner
on 11.11.2005 and again on 18.6.2005 are not in fact notices issued as is
required under Section 13 of the Act but are notices which were issued to the
petitioner-establishment seeking for certain information in respect of the
Directors of the company. On the contrary, the prosecution case as per the stand
of the respondent was filed on 28.9.2005. It is also not in dispute rather has not
been disputed by the Counsel for the respondent that the life of the product
stood expired on 23.6.2005 and that the prosecution case has been lodged after
more than three months from the date the life of the product had expired.
8. In the given factual position apparently upon the respondent initiating
prosecution case against the petitioner they could not have availed the remedies
which was otherwise available to them under the provisions of Section 13 of the
Act. The denial of the said remedies would definitely be detrimental to the case
of the petitioner. It is relevant at this juncture to refer to the judgment of
Municipal Corporation of Delhi (supra) wherein in para 7 it has been held as
under :
"7. 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 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."
9. It would also be trite at this juncture to also refer to a judgment of the
coordinate Bench of this Court in Crimial Misc. Petition No. 181 of 2007 decided
on 27.8.2009 wherein also on some what similar factual background of the case,
this Court relying upon the case of the Municipal Corporation of Delhi (supra)
and other judgments in this regard, had allowed the petition of the petitioners
therein quashing the criminal prosecution initiated under the Act. Since in the
instant case also the admitted factual position clearly reflect that the prosecution
case itself was lodged much beyond the expiry of the life of the product the
petitioner could not have availed the remedies which were otherwise available to-
it under the provisions of Section 13 of the Act. Moreover, there appears to be a
genuine lapse on the part of the respondent-department in not taking prompt
action on the basis of the report of the Public Analyst. The dates which have
been referred in the preceding paragraphs clearly reflect that in spite of the fact
that the sample being collected on 23.11.2004 and the report of the Public
Analyst was received on 31.12.2004 the respondent did not take any prompt
action to initiate the prosecution case against the petitioner rather for reasons
best known to the respondent-department sat over the file with only issuance of
two letters to the petitioner-establishment seeking for information in respect of
the Directors of the said establishment. In fact, the respondent ought to have
immediately proceeded in accordance with the provisions of the Act so that the
petitioner if at all intended to assail the report of the public analyst could have
got an opportunity to avail the same and denial of the same would definitely
amount to violation of the provisions of law. For the aforesaid reasons, this Court
is of the opinion that the prosecution lodged against the petitioner is in
contravention to the provisions of the Act and is in direct conflict with the
provisions of Section 13 (2) of the Act.
HIGH COURT OF CHHATTISGARH, BILASPUR
 CRIMINAL MISC. PETITION NO. 714 OF 2015
Firm Ramdeo Food Products Pvt. Ltd.
Versus
State of Chhattisgarh,
Hon'ble Shri Justice P. Sam Koshy
Dated: 20/10/2016
Citation: 2017 CRLJ(NOC)70 CHH

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Whether Magistrate can rely upon report of public analyst in prevention of food adulteration case even though he is not examined?

Section 13(5) of the Act, makes the report of the public analyst admissible in evidence and a Court of fact is free to act on it or not, as it thinks fit. The Court could therefore legally act solely on the basis of the report and the prosecution Could not fail on the ground that the public analyst was not called as a witness. If the appellant wanted the analyst to be examined, it was for the appellant to take appropriate steps.

Supreme Court of India

Mangaldas Raghavji Ruparel & Anr vs The State Of Maharashtra & Anr on

 8 February, 1965

Equivalent citations: 1966 AIR 128, 1965 SCR (2) 894

Bench: Wanchoo, K.N., Hidayatullah, 

M., Shah, J.C., Mudholkar, J.R., Sikri, S.M.

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When report of public analyst can be used against accused in prevention of food adulteration case?

The provision shows that the Local (Health) Authority needs to inform to the accused about the report of analysis and within a period of ten days of the receipt of the intimation, the accused is expected to exercise his right for sending the second sample to Central Food Laboratory. The provision shows that the accused needs to file application for exercising the right and he is expected to pay the charges for the same. The provision of section 13 (5) and remaining part ofsection 13 come in to play if accused does not exercise the right given to the accused under

section 13 (2). The provision of section 13 (5) runs as under :-

"(5) 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 Indian Penal Code (45 of 1860). "

So, if the accused does not exercise the right given under section 13 (2) of the Act, the report of the Public Analyst needs to be used as evidence against the accused.

Bombay High Court

Aravind Shankar Manegaonkar vs The State Of Mah on 5 November, 2014

Bench: T.V. Nalawade

Citation; 2015 CRLJ(NOC)482 BOM

Read full judgment here; click here

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How to challenge report of public analyst?

 In fact, this issue as to the correctness of the certificate issued by the Public Analyst has been considered by the judgment of the Division Bench of this Court in Bombay Municipality v. Haridas Vallabhdas, reported in 39 Bom.L.R. 629. This Court was dealing with the interpretation of sections 14 and 16 of the Bombay Prevention of Adulteration Act, 1925. Section 14 lays down a rule of evidence and allows a presumption to be drawn. The Certificate of a Public Analyst is to be accepted as correct without further proof until the contrary is proved. Thus section 14 relieves the prosecution of the obligation to examine the Public Analyst in cases in which the correctness of the certificate is not challenged, and to enable the Court to accept the certificate without further proof of facts stated therein. But the section expressly states that the certificate can only be accepted as sufficient evidence of the acts stated in it until the contrary is proved and it is open to the accused to prove the contrary in any one of the several ways. He can do it in the manner provided in section 14(2) by asking the Court to cause a sample of the article to be sent for analysis to the Chemical Analyser to Government. He can also challenge the correctness of the certificate by producing a certificate of analysis by a private analyst. Further it was observed that the easiest and probably the best method of challenging the correctness of the public analyst's certificate in many cases, be by cross-examining the public analyst and showing that the method of analysis adopted by him was wrong.

73. Taking into account all the facts and circumstances and especially the detailed evidence of Dr. A.D. Nadkarni, and in view of the categorical statement of the said witness admitting that the Laboratory did not have any facility for sterility test and that no standard preparation was available so as to compare the accuracy of test to be conducted, refusal to produce the working standards and also the records of the actual tests conducted, it is clear that the prosecution has failed to establish that the tests were conducted in a reasonable and proper manner so as to uphold the report of the Government Analyst.

74. As pointed out in the aforesaid judgment of the Bombay Municipality v. Haridas Vallabhdas, 39 Bom.L.R. 629 the best method to check the correctness of the analysts report is to cross-examine the Public Analyst. In the instant case, there is ample evidence that the public analyst has not conducted the test properly and fairly to arrive at the correct figures, hence, the said Analyst's report could not be accepted and cannot be acted upon.

The State Of Maharashtra vs Shri R.A. Chandawarkar & Other on 18 February, 1998

Equivalent citations: 1999 (5) BomCR 519, 1999 BomCR Cri, (1999) 3 BOMLR 394, 1999 CriLJ 4449, 1999 (2) MhLj 650

Bench: S Radhakrishnan

Read full judgment here;click here

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When oral evidence of public analyst will prevail over his written analysis report?

There is no doubt that the Report ex facie could be admitted in evidence as to its contents also, but, the issue is that if the Government Analyst were to be examined as a witness, then, his oral evidence prevails over his report. The Analyst is subjected to cross-examination and as such, the evidence of the Analyst cannot be conclusive only on the basis of the report. Once the prosecution decides to examine the Government Analyst his oral evidence would prevail over the statement contained in his written analysis report.

Bombay High Court

The State Of Maharashtra vs Shri R.A. Chandawarkar & Other on 18 February, 1998

Equivalent citations: 1999 (5) BomCR 519, 1999 BomCR Cri, (1999) 3 BOMLR 394, 1999 CriLJ 4449, 1999 (2) MhLj 650

Bench: S Radhakrishnan

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Whether accused under Drugs Act can be acquitted on the ground that govt analyst failed to provide protocols of tests to Inspector?

 Mr. Manohar, the learned Counsel appearing on behalf of the respondent urged that this was not a case for enhancement or even conviction, but was a case for acquittal, by reason of breach of certain mandatory rules framed under the Drugs and Cosmetics Act, 1940 (referred to hereafter as "the Act"). He also challenged the maintainability of the appeal.

4. Elaborating his first contention, Mr. Manohar invited our attention to R. 37 which prescribed the procedure for despatch of sample to the Government Analyst and to Rule 46 which lays down the procedure to be followed on receipt of the sample. Sub-rule (1) of Rule 57 provides that the portion of sample or the container sent by an Inspector to the Government Analyst for test or analysis under Sub-section (4) of Sec 23 of the Act shall be Sent by registered post or by hand in a sealed packet, enclosed together with a memorandum in Form 18 in an outer cover addressed to the Government Analyst.Sub-rule (2) of Rule 57 provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Government Analyst saparately by registered post or by hand.

Rule 46 provides, in so far as is material for this judgment, that on receipt of a package from an Inspector containing a sample for test or analysis, the Government Analyst shall forthwith supply to the Inspector a report of the result of the test o-r analysis, together with full protocols of the tests or analysis applied. It was the grievance of Mr. Manohar that the provisions of Rules 57 and 46 have been breached in this case, with the result that the order of conviction and sentence passed by the learned Magistrate should be set aside and the respondent should be acquitted.

 There is considerable force in this contention of Mr. Manohar. Coming to R. 57 (1) and (2), on 21st April 1971, the sample was collected and on 26th April 1971, was forwarded to the Government Analyst. How it was done, is not known. It is not disputed that in this case, if at all the requirements of Rule 57 (1) and (2) were carried out, they do not appear on record. Hence there is nothing to show that these requirements were in fact carried out in the manner laid down in Rule 57 (1) and (2).

7. Coming to the requirements of R. 46, on 26th May 1971, the Government Analyst gave his certificate, stating that the sample was not of standard quality as defined in the Act, that the sample was not "Santonine", and that the sample gave I.P. Qualitative tests for the presence of Magnesium and sulphate. The report of the Government Analyst reads as under:

Details of the results of Test or Analysis with Protocols of Tests applied.

                                                 Batch No.  
            Proper Name                 :      Santonine.
            Observation on labelling    : ...  ... ... ... ...
            Outer Label                 :      Santonine India
                                               (Hand written).
            Container label             :      Santonine, India.
            Description                 :      White Crystalline
                                                Powder. 
            Identification              :      The sample does not
                                               comply with I. P.
                                               Identificational tests 
                                               for Santonine.
 

The sample gives qualitative tests for Magnesium and Sulphate.
 

Now, it is not in dispute that it is not known what the "protocols of tests applied" were. The report is silent on this point, and so is the record. In view of the provisions of Rule 46 which are mandatory, the Government Analyst was bound to furnish to the Inspector the full protocols of the tests applied. Admittedly, this has not been done This lacuna, in our opinion was a fatal hurdle in the path of the prosecution.

8. The Analyst has not given evidence, nor is there anything on record to indicate what test was applied to reveal the alleged presence of Magnesium and Sulphate, If the prosecution had led the evidence of the Analyst, he could have been cross-examined and the prosecution case could have been tested on this point also. This was a lacuna which must militate against the prosecution.

Rules 57 (1) and (2) and 46, with which we are concerned, are mandatory. It is, therefore, imperative that they must be strictly observed. It must also be manifest from the record that they have been so observed to the letter and not only in substance or spirit These rules are framed as a measure of security and safeguard not only to an accused but also to the officers of the department. Their observance must not, in the interest of justice, be left to conjecture or inference. A strict observance of these rules can also enable the prosecution to prove its case, which in this case, on the aspect of the drug not being ot standard quality, it has failed to do beyond reasonable doubt, the benefit whereof must go to the respondent.

Bombay High Court

State Of Maharashtra vs Jawaharlal Shamlal Ujawane on 15 June, 1978

Equivalent citations: 1979 CriLJ 530

Bench: Lentin, Joshi

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Whether accused can be acquitted in food adulteration case on the ground that report of public analyst is not served upon him?

The entire appeal could be disposed of only on this count. The record shows that even office copy of the notice under Section 13(2) is said to have been served upon the accused is not produced by the prosecution. Had the copy of such notice was brought on record, it would have been an indicative of the fact whether it did accompany with the report of Public Analyst as envisaged under the Act. In absence of said office copy of notice and in absence of any such positive evidence that the Public Analyst report was in fact served upon the accused in compliance with mandatory provisions of Section 13(2) of the Act, it would not be proper for this court to presume that the report must have been supplied only on the strength of production of two postal acknowledgment dues at exhibit 28 and 29. The exhibit 28 and 29 merely indicate receipt of notice but that in itself can not be said to be proving sending of the copy of Public Analyst report also with the notice. The testimony of the Food Inspector is also conspicuously silent about sending of report of the Public Analyst along with notice as envisaged under Section 13(2) to the accused. The mere statement that Godhra Local Health Authority sent notice to the accused under Section 13(2) in itself would not be sufficient to prove the service of report of the Public Analyst to the accused as it is required under Section 13(2) of the Act.

Gujarat High Court

State Of Gujarat vs Mehbub Abdulgani Kathki (Vendor) ... on 29 September, 2005

Equivalent citations: 2006 CriLJ 459, 2006 FAJ 116, (2006) 1 GLR 255,2006 ALLMR(cri) Journal 85

Bench: S Brahmbhatt

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What will be effect if notice sent by public analyst is not served upon accused in prevention of food adulteration case?

The evidence on record goes to show that the
 reports of the Public Analyst were sent on the address
 of the factory premises. The envelopes, however, were
 returned with an endorsement that the factory was
 closed. The respondents categorically stated in their
 statements under section 313 of the Criminal Procedure
 Code, while answering the question No. 20, that
 neither of them received the information about the
 sending of the report on 05-08-1994 by the registered
 post (A.D.). It is admitted by PW3 Prabhakar,
 Assistant Commissioner, that the postal remark on the
 postal envelopes indicated that the company was
 closed. No effort was made to locate residential
 address of the respondents in order to serve the

 reports of the Public Analyst on them.

 The
 learned Judicial Magistrate seems to have properly
 appreciated the defence of the respondents. The
 non-service of the reports of the Public Analyst also
 gives serious jolt to the prosecution. The
 respondents have been deprived of their valuable right
 available under section 13 (2) of the PFA Act. A
 Single Bench of Andhra Pradesh High Court in
 "Devakakonda Ramesh v. The State of A.P., through
Food Inspector, Adilabad" 2003 (1) FAC 245, held that
 where a report was not served as required, mere
 sending of the report by registered post, which was
 returned unserved, would not amount to sufficient
 service. As stated before, no efforts were taken to
 send the reports to the respondents for personal
 service. The learned Single Judge of the Andhra
 Pradesh High Court held that prejudice was caused to

 the accused and hence, the prosecution would stand
 vitiated under the circumstances. Similar is the view
 taken in "Sibanath Singh v. State of Assam" 2002 (1)
FAC 166. I am in agreement with the view taken in
 both these cases.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 358 OF 1997
 The State ofMaharashtra,
VERSUS
  Shamsundar Ganeshlal Navandar,
[CORAM: V.R. KINGAONKAR, J.]
DATE OF JUDGEMENT PRONOUNCED : 4th April, 2009
Citation; 2009 ALLMR(cri) 1654

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How to appreciate evidence of public analyst in food adulteration case?

PREVENTION OF FOOD ADULTERATION ACT, 1954 - SECTION 16(1) (a) (i)-CHARGED FOR OFFENCES UNDER SECTION 16(1) (a) (i)-Public Analyst's Report-Public Analyst, not explaining to the Court the method and procedure adopted by him in conducting the test to find out the required standard-Reliance on such Public Analyst's Report-HELD-When the Public Analyst has not explianed to the Court the method and procedure adopted by him in conducting the test to find out the required standard in an item, which itself is a defect in the prosecution case. When the method of test conducted is not explained to the Court, the report of the Public Analyst cannot be relied and acted upon.

The Public Analyst report Ex.P7 is as follows;

  1. B.R. Reading at 40° C    58.0
2. Saponification value     190.77
3. Iodine Value             112.15
4. Free falty acid as       0.10%
   oleic acid
5. Belliers test            22.0C

 

That on a comparison of the table given at A. 17.12 and the Public Analyst Report Ex.P7 there is a slight variation in the meter reading of item No. 1 to the extent of 2-3 points. Similarly in respect of item No. 5, Belliers Test there is variation of about 3°C, whereas the other 3 items are found according to the table given in the Rules. In this regard in my opinion, it is not out of context, if it is said that the Court has to consider the potentiality and fertility of the land where nigerseeds are grown. If the lands are fertile, the percentage of fat materials will be more. Similarly, if the fertility of the land is poor, the crop of nigerseed cannot be expected to be with the same variety with contents are given in the table. That is also one of the factor which the Court has to take note off, as the other contents in the nigerseed are found according to the table.

Karnataka High Court

H.L. Nellashekara vs The Food Inspector Primary Health ... on 16 December, 2005

Equivalent citations: 2006 CriLJ 1561, 2006 FAJ 213, ILR 2006 KAR 933, 2006(2)KCCR792

Bench: N Veerabhadraiah

Read full judgment here;click here

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Bom HC: Right to receive copy of Public Analyst's report is a valuable right vested with accused

 Learned counsel for the respondent, on the other hand, contended that right to receive copy of Public Analyst's report is a valuable right vested with the accused. He submits that it is mandatory for the Public Health Authority to send a copy of report of the result of analysis to accused informing him that if it is so desired, either or both of them may 5

make an application to the court within a period of ten days from the date of receipt of copy of the report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. In support of his submission, learned counsel relied upon judgment of this Court in Pimpri Chinchwad Nagarpalika v. Giriraj & anr reported in 1998 Cri. L.J. 4354. In para 5 of the said ruling, this Court observed thus : "...... On a reading of Rule 9 (A) it can be seen that Analyst's report should be delivered to the accused. It is not enough to prove that the report is sent by post. Rule is mandatory that the authority should see that it is delivered to the accused. Mere production of copy of covering letter will be be sufficient to prove that the report is delivered."

6. On hearing learned counsel for the parties on the above point and on reading the evidence led on record, I am of the opinion that the evidence is lacking in this case that the prosecution has failed to establish that the mandatory provision of rule 9A of the Prevention of Food Adulteration Rules has been complied with. Finding rendered in this behalf by the learned trial Court, therefore, needs no interference.

Bombay High Court

Nagpur Bench : Nagpur vs Administration, Ms, Wardha on 1 August, 2012

Bench: A.P. Bhangale

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