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 report of public analyst is binding on accused to whom notice under S 11 of prevention of food adulteration Act is not sent?

The law requires notice under s. 11 to be given only to
the person from whom the sample was taken and none else.  If
that formality had been complied with and the report of  the
analyst  is  placed  on record at the  trial,  it  would  be
admissible against all the accused persons.

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.

Read full judgment here; click here

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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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Whether accused can be acquitted in prevention of food adulteration case on the ground that report of analyst was not sent to accused within stipulated time?

Merely a production of a covering letter and the testimony of the Food Inspector will not be sufficient to prove that the report of the Analyst has been delivered to the accused. It is mandatory on the part of the authorities concerned, that the report of the Analyst should be delivered by registered post or through person within 10 days of the launching of prosecution. It is contended that the complaint was filed on 3-5-1982 and there is no evidence to establish that the report has been delivered to the respondent within 10 days from that day except the letter Exh. X-16. 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 not be sufficient to prove that the report is delivered. As rightly observed by the Court below, the evidence is lacking in this case that the prosecution has failed to establish that the mandatory provision of Rule 9(A) of the Prevention of Food Adulteration Rules has been complied with. In view of this I do not find any necessity to go into other question involved in this case.

Bombay High Court

Pimpri Chinchwad Nagarpalika vs Giriraj Chiranjilal Sharma And ... on 21 August, 1998

Equivalent citations: 1998 CriLJ 4354

Bench: T C Das

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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 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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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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