# 682 RAM DAYAL v. MUNICIPAL CORPORATION OF DELHI AND ANR

- **Citation:** [1970] 2 S.C.R. 682
- **Court:** Supreme Court of India
- **Decided:** 1969-10-07
- **Case number:** Criminal Appeal No. 80 of 1968
- **Bench:** S. M. Sikri, G. K. Mitter, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/682-ram-dayal-v-municipal-corporation-of-delhi-and-anr-4936
- **Pages:** 6

## Headnote

B
Prevention of Food Adulteration Act, 1954-Public Anolyst-Right
to cross examine though procedure prescribed by s.
13(2)
not gone
through.
The appellant was convicted for
selling food
with iinpermissible
colouring matter.
He contended that as his request for summoning the
Public Analyst for cross.examination had not been acceded to he had c
been prejudiced and as such the entire' proceeding against him were
vitiated.
The -High Court
rejected
the contention on the
ground
that s. 510 of the Code of Criminal Proceciure had no application in that
it only dealt with the experts mentioned therein. The Court also observed
that when the accused desired to challenge the
report of the Public
Analyst under the Act, he had to follow the procedure provided in s.
13(2) for sending the sample to the Director of Central Food Laboratory
whose report would bo final and conclusive.
D
Dismissing the appeal,
HELD: Where certificates are not made final ~nd conclusive evidence
of the facts stated therein, it will be open to the party against whom
Certificates are .civen either to rebut the facts stated therein by his own
or other evidence or to require the expert to be produced for cross examination which prayer the court is bound to consider on merits in grantE
ing or rejecting it. The court may reject the plrayer for good and sufficient reasons such as for instance where it is made for the -purpose of
vexation or delay or for defeating the ends of justice. [685 B-C; F-G]
The present case is not a fit case for interference. No attempt was
made to establish why the evidence was required and as to the
specific point which needed to be elucidated.
The accused knew what
colouring matter he added; he could have easily said that that colour was
F
one of the permitted colours; but he did not sav so in his examination
under s. 34 nor did he plroduce any evidence of those whom he employed
as to the colouring matter which was added.
The application was made
more to delay the disposal of the case. [ 687 BJ
Mangaldas Raghavji v. State, [1965] 2 S.C.R. 894 and Sukhmal Gupta
v. Th• Corporation of Calcutta, Cr. A. No. 161/66 dated 3-5-68, referred
~
G

## Text

-682
RAM DAYAL
A
v.
MUNICIPAL CORPORATION OF DELHI AND ANR.
October 7, 1969
[S. M. SIKRI, G. K. MITTER AND P. JAGANMOHAN REDDY, JJ.]
B
Prevention of Food Adulteration Act, 1954-Public Anolyst-Right
to cross examine though procedure prescribed by s.
13(2)
not gone
through.
The appellant was convicted for
selling food
with iinpermissible
colouring matter.
He contended that as his request for summoning the
Public Analyst for cross.examination had not been acceded to he had c
been prejudiced and as such the entire' proceeding against him were
vitiated.
The -High Court
rejected
the contention on the
ground
that s. 510 of the Code of Criminal Proceciure had no application in that
it only dealt with the experts mentioned therein. The Court also observed
that when the accused desired to challenge the
report of the Public
Analyst under the Act, he had to follow the procedure provided in s.
13(2) for sending the sample to the Director of Central Food Laboratory
whose report would bo final and conclusive.
D
Dismissing the appeal,
HELD: Where certificates are not made final ~nd conclusive evidence
of the facts stated therein, it will be open to the party against whom
Certificates are .civen either to rebut the facts stated therein by his own
or other evidence or to require the expert to be produced for cross examination which prayer the court is bound to consider on merits in grantE
ing or rejecting it. The court may reject the plrayer for good and sufficient reasons such as for instance where it is made for the -purpose of
vexation or delay or for defeating the ends of justice. [685 B-C; F-G]
The present case is not a fit case for interference. No attempt was
made to establish why the evidence was required and as to the
specific point which needed to be elucidated.
The accused knew what
colouring matter he added; he could have easily said that that colour was
F
one of the permitted colours; but he did not sav so in his examination
under s. 34 nor did he plroduce any evidence of those whom he employed
as to the colouring matter which was added.
The application was made
more to delay the disposal of the case. [ 687 BJ
Mangaldas Raghavji v. State, [1965] 2 S.C.R. 894 and Sukhmal Gupta
v. Th• Corporation of Calcutta, Cr. A. No. 161/66 dated 3-5-68, referred
~
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
80 of 1968.
Appeal from the judgment and order dated November 6, 1967
of the Delhi High Court in Criminal Revision.No. 189 of 1967.
Hardev Singh, for the appellant.
]Jishan Narain and B. P. Maheshwari, for respondent No. I.
L. M. Singhvi and R. N. Sachthey, for respondent No. 2.
H
..
' I
A
RAM DAYAL v. MUNIC. CORP. DEL!Il (Reddy, J.)
683
The Judgment of the Court was delivered by
Jagamnohau Reddy, J.
This appeal by certificate granted by
the Delhi High Court under Art. 134(l)(c) of the Constitution is
against its judgment which confirmed the conviction of the accused
of an offence under s. 9 of the Prevention of Food Adulteration
Act, 1954 (hereinatter referred to as the Act) and against the en.·
hancement of the sentence of imprisonment from the one till the
rising of the court to six months R.1. which is the minimum prescribed under the Act together with a fine of Rs. 1,000/-, in default
to undergo six months R.I.
c
The appellant is a sweetmeat seller. It is alleged that on
September I, 1965, Shri B. S. Sethi, Food Inspector appointed by
the Central Government under s. 9 of the Act visited his shop and
found that the appellant was selling coloured laddus. The Food
Inspector purchased 1,500 grams of these laddus by way of a sample by paying him Rs. 9 / · as the price thereof. This sample was
subdivided into three parts and was put into three separate bottles
as required under s. 11 of the Act. One bottle was given to the
accused, another was sent to the Public Analyst and the third was
retained by the Food Inspector. The sample sent to the Public
Analyst was analysed and a report was received from him on September 10, 1965 to the effect that the laddus were adulterated
with unpermitted colour. Thereupon a complaint was filed against
the accused and he was convicted by the magistrate on October
17, 1966 and sentenced to imprisonment till the rising of the court
and to pay a fine of Rs. 1,000/-, in default to undergo six months'
R.I. It would appear that the Municipal Corporation filed before
the Sessions Judge a revision for the enhancement of the sentence
because the accuse<! having been found guilty under the provisions
of s. 1 read with s. 16 of the Act should have been awarded the
minimum sentence of six months and a fine of Rs. 1,000 but in·
stead he was sentenced to imprisonment till the rising of the court
and a fine of Rs. 1,000/· which was not in accordance with the
mandatory provisions of s. 16 of the Act.
The Sessions Judge,
after hearing the parties accepted the contention of the Munidpality
D
I
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G
H
and referred the case to the High Court recommending that the
accused having been foup.d guilty under the provisions of s. 16
of the Act should have been awarded a minimum sentence of six
months lll)d a fine of Rs. 1,000/-. Before the High Court several
contentions were raised on behalf of the accused one of which was
that as his request for summoning the Public Analyst for crossexaniination had not been acceded to, he had been prejudiced, as
such the entire proceedings against him were vitiated. The High
Court however Tejected this contention on the ground that s. 510
of the Code of Criminal Procedure had no ap~lication in that it
only dealt wi:h Chemical Examiner
or an Assistant Chemical
LJSup. Cl/70-ll
684
SUPREME COUR)" REPORl"S
[1970] 2 s.c.R.
· Examiner and other experts mentioned therein. It was also observed that where the a.ccused desired to challenge the report of
the Public Analyst under the Act, he had to follow the procedure
provided in s. 13(2) for sending the sample :o the Director ofj Central Food Laboratory for his examination, because any report
given by him will supersede the report of the Public Analyst and
would be final.and conclusive as to the facts stated therein. Before
us also a similar contention was urged by the learned Advocate
for the accused Shri Hardev Singh· who had produced before us
the application made on behalf of the accused under s. 510(2)
for calling the Public Analyst which was summarily rejected on
28th August 1966.
This contention urged before us has to be
dekrmined in the light of the relevant provisions of the Act.
It cannot be disputed that any person se!ling food with impermissible colouring matter contravenes the provisions of s.
7
which prohibits the selling of any. adulterated !'ood and would be
punishable under s. 16 of the Act. What is adulterated article of
food has been defined ins. 2 (i) and so far as it is related to colouring sub-cl. (j) of cl. (i) of s. 2 provides that an article of food shall
be deemed to be adulterated "if any colouring matter other than
that prescribe~ in respect thereof and in amounts not within the
prescribed in respect thereof and in amounts not within the
prescribed limits of variability is present in the article". Rules 23
and 27 of the Prevention of Food Adulteration Rules, 1955 prohibit the addition of any colouring matter except permitted by the
Rules, and of inorganic colouring matters and pigments to any
article of food.
What is permitted and to what extent has been
stated in rr. 24 to 26 and 28 to 31, but in so far as this case is concerned we may merely refer to rr. 26 and 28 the former of which
gives a list of natural colouring matters that can be used and the
lattecwith coal tar dyes. We are told that the laddus which were
being sold by the accused had yellow colour. If so, item 2 of r. 28
prescribes that the only permitted colours are Tartrazine with
colour index 640 be!Onging to Chemical class of Xanthene and
Sunset Yellow FCF belonging to the chemical class Azo, and these
alane can be used. It will therefore be incumbent on the Public
Analysts to say whether the colour used is that which is permissible
under any of the rules and if as in the report he has stated that the
sample of the laddus purchased by the Food Inspector was coloured
with unpermitted colour, it would mean that the accused has not
used any of the colours permitted under the rules. The report of
the Public Analyst is as follows :-
"Butyro Refractometer reading at 40 C of the fact
extracted from sweets-50-0 Baudouin test of the exA
B
c
D
E
F
G
tracted fact-Positive Reichert value of the extracted
fact-7.59 c:J>lour-unpermitted.
H
1 1 1 the same is adulterated due to 7 .0 excess in
Botyro Refractometer ·reading at 40 0 C of the fact ex-
'
·-
A
B
c
D
E
G
R
AAM DAYAL v. MUNIC. CORP. DELHI (Reddy, J.)
685
tracted from sweets, 20.41 deficiency in Reichert value
of the extracted fact, Baudouin test of extracted fact
being positive, and also cvloured with
unpermitted
colour."
The learned Advocate for the accused submits that the refusal
of the court to grant the application of the accused to call the Public Analyst Shri Sudhama Rao for cross-examination has greatly
prejudiced him, .as such the conviction ought to be quashed. It
is contended that the accused has a valuable right of cross-examination to rest the contents of the report given by the Public Analyst
and the court has, to summon him if so desired. On the other hand
it is contended both by Shri Bishan Narain for the Delhi Municipality as well as Dr. Singhvi for the Union of India that no such
right has been conferred under the Act when the provisions of s.
13(5). have not only made the document signed by the Public
Analyst to. be used in evidence of the facts stated therein in any
proceedings under t!J.e Act or under s. 272 to 276 of the Indian.
Penal Code but has given a right tq the accused to have the sam_ple sent to the Director of the Central Food Laboratories under s.
13(~) whos\l report supei-sedes that of the Public Analyst and is
final and conclusive. In view of these provisions it is said that the
legislature inferentially took away the right of the accused to summon the Public Analyst either for examination 9r cross examination, as such the analogy of s. 510 ( 2) of the Criminal Procedure
Code which specifically gives a right to summon and examine the
chemical examiner and other experts therein stated, as to the •ubject matter of their respective reports bas no relevance. Dr. Singhvi
further C(!ntends that there are a class of cases which permit of
trials by certificates where the general rule of evidence that every
document in order to be admissible has to be proved by the person
signing it has no application as the statute permits it to be proved
without calling the author of it. While it cannot be disputed that
there are certain classes of cases where certificates have been treated
as conclusive evidence, there were. yet .others though admissible
without calling the functionaries that gave them were none th~
less oniy prlma facie evidence. In cases where the certificates aro
not to be treljted as conclusive .evidence and they are only prima
facie evidence, the party against whom they are produced has a
right to challenge the subject matter of the certificate. The statutes have also in some cases recogniied this right, such as for instance
in sub-s. (2) of s. 510 Criminal·PrOcedure Code in respect of re-'
ports given under the hand. of _several experts named in sub-s. (1)
notwithstanding the fact that they may be used in evidence in enquiry, trial or other proceedings under the Code. Sub-s. (2) provides : ''Th<; court m[ly if it thinks fit, and shall, on the application
of the prosecution or the accused, summon . and examine any such
person as to the subject matter of the report".
Similarly sub-s.
686
SUPREME COURT REPORTS
(1970] 2 $.C.R.
( ~ )_ of s. 110 of the En!llish Food and Drugs Act, 1955 while prov1dmg that the product10n by one of the parties of the certificate
of a Public Analyst in the fonn prescr~d in s. 92(5) or of a document supplied to him by the other party as being a copy of such
certificate shall be sufficient evidence of the facts stated therein
unless in the first mentioned case the other party requires that the
analyst shall be called as a witness. Sub-section (2) of s. 11 O also
gives a like opportunity in the case of a certificate of an officer who
took a sample of the milk. It appears to us that where certificates
are not made final and conclusive evidence of the facts stated therein, it will be open to the party against whom certificates which are
declared to be sufficient evidence either to rebut the facts stated
therein by his own or other evidence or to require the expert to be
produced for cross-examination which prayer the court is bound
to consider on merits in granting or rejecting it. There is no presumption that the contents are true or correct though such a certificate is evidence without fonnal proof. In any case where there is
evidence to the contra the court is bound to consider that evidenc.e
along with such a certificate with or without the evidence of the
expert who gave it being called and come to its own conclusion.
It is true that sub-s. (2) _of s. 13 of the Act has given a right both
to the accused as well as the complainant on payment , of the
prescribed fee to apply to the court after the prosecution has been
.ArtStituted to send part of the sample preserved as required
under sub-cl. (1) or sub-cl. (iii) of cl. (c) of sub-s. (I) of s. 11 to
the Director of the Central Laboratory for a certificate, and the
court is bound to send Ii under its seal to the said Director who
has to submit a report within one month from the date of the receipt. This certificate under sub-s. (3) supersedes the Public Analyst's certificate and is conclusive and final qnder sub-sec. (5). But
nothing contained in these sub-sections relating to certificate of the
Director of the Central Food Laboratory in any way limits the
right of the accused under s. 257 of the Code of Criminal Procedure to require the Public Analyst to be produced. The court may,
as we said earlier, reject Jheprayer for good and sufficient reasons
such as for instance where it is made for the purpose of vexation
or delay or for defeating the ends of justice.
In Mangaldas Raghavji v. State(') this Court held that where
the accused had not do'1.e anything to call the Public Analyst the
court could legally act on the report of the Public Analyst. Mudholkar, J. speaking for the Court observed at p. 900 :
"It is true that the certificate of the Public Analyst is
not made conclusive but this only means that the court
of fact is free to act on the certificate or not as it thinks
fit."
(!) (1965]
2 S.C.R.
894.
A
B
c
D
E
F
G
H
A
B
c
D
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F
G
RAM DAYAL v. MUN!C. CORP. DELHI (Reddy,/.)
687
Again at p. 902 it was said, "As regards the failure to examine
the Public Analyst as a witness in the case no blame can be laid
on the prosecution.
The report of the Public Analyst was there
and if either the court or the appellant wanted him to be examined
as a witness appropriate steps wo.uld have been taken. The prosecution cannot fail solely on the ground that the Public Analyst had
not been called in the ca~e."
In Su
0
khmal Gupta v. The Corporation of Calcutta (unreported,
Criminal Appeal No. 1 GI of 1966 decided on 3rd May 1968) the
Assistant Public Analyst who had analysed the sample was examined and was cross-examined by the defence. It W<\S contended
that the Public Analyst was not called. There does not appear to
have been any attempt to have him called, nor was any prejudice
shown. On the other hand, the accused could have availed of the
valuable right given to him under s. 13(2) but he did not do so,
nor did he put any question in cross-examination that the tea was
liable to deterioration and could not be analysed by the Director
of Central Food Laboratory. In these circumstances the evidence
of the Assistant Public Analyst and the report of the Public Analyst
was accepted in maintaining the conviction.
In this case we would have remanded it to give the accused
an opportunity to examine the Public Analyst, but it appears to
us that even before us no attempt was made as to why the evidence
was required and what is the specific point which needs to be elucidated. The accused knows what colour he added, he could have
easily said that that colour was· one of the permitted colours, but
he did not say so in his examination under s. 342, nor did he produce any evidence of those whom he employed as to the colour
which was added. In our view, the application was made more to
delay the disposal of the case; otherwise he could have easily made
an application under s. 13(a) as soon as a complaint was lodged
against him on 19th Jan. 1966 which was within 3t months from
the purchase of the sample and the receipt of the report. There is
nothing to show that either the Laddus or the colour would have
deteriorated even if he had made .his application under s. 13(2)
when he made the application under s. 510 (2) on 29th August
1966.
In these circum~tances, we do not consider this to be a fit case
for interference. The appeal is accordingly dismissed.
R.K.P.S.
Appeal dismissed.