# MUNICIPAL CORPORATION Of' DELID v. GIDSA RAM November 23, 1966

- **Citation:** [1967] 2 S.C.R. 116
- **Court:** Supreme Court of India
- **Decided:** 1966-11-23
- **Bench:** M. Hidayatullah, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/municipal-corporation-of-delid-v-gidsa-ram-november-23-1966-3964
- **Pages:** 6

## Headnote

Prevelllion of Food A.dult.;ratwn Act (37 of 1954), s. 13(2), (3) and
(5)-Delay in filing prosecu1ion--Sample given lo accu..rRd vendor decom.
101ed-Examination of sample by Dir.ctar of Central Foo<' Laborvtary
not pomhle-A.ccused, if prejudiced.
1be Food Inspector of the appellant-Munlcipality took a slmple of
A
B
eurd from the respondent's shop for the purpose of testing whether there c
was any adulteration. The sampb W8' divided into three equal part-•, put
in separate bottles and se:iled. One bottle was handed over to the respondent and one was sent to the Public Analyst who analysed it and scot his
report.
On the basis of that report a complaint was filtd, seven months
after receipt of the report, against the respondent, for an offence under
ss. 7 and 16 of the Prevention of Food Adulteration Act, 1954.
During
the trail, the respondent applied to have the sample ~iven to him analysed
by the Director of the Central
Food Laboratory
m
accordance with
D
s. 13(2) of the Act. The Director reported that the s:unple had become
highly decomposed and could not be analysed. The trial Court acquitted
the responden! accepting his contention that he could not be convicted
after having been denied his right of obtaining the Director"• ""rti11cate
by the delay in launching the prosecution.
On the question whether he should have been convicted on the basis ot
the P~blic Analyst's report.
E
HELD: A right is conferred ny s. 13(2) on the accused-vendo, to
have the sample, given to him by the Food Inspector, analysed by the
Director after the prose<:ution was launched against him.
It is a 'Hluable
right, because, he could for bis proper defence, have that sample anaJJ'C(I
by a more competent expert, whose certificate Sl!perscdes
the report of
the Public Analyst under s. 13(3), and is to be accepted by the Court
as conclusive evidence of its contents under the proviso to s.
13 ( 5).
F
However, if for any reason, no cenificat~ is issued by the Director, the
report of the Public Analyst does not cease to
be
evidence of the
facts contained in it.
But, in a case where there is denial of this right on
account of the deliberate conduct of the prosecution, the accused-vendor
would be seriously prejudiced in bis trial, and could not be convicted on
the report of the Public Analyst, even though that report may be evidence
in the cote, of the facts stated therein.
In the present case, the prosecu-
. 'on 'hould have anticipated that there would be some delay, in the
G
1I1aiy1il by the Public Analyst and in the sending of bis report, and eonsequootly, the elementary precaution of addios a preservative to the sample
given to the respondent should have been taken by the Food Inspector.
If such a precaution had been taken, the sample given to the respondent
would have been available for analysis by the Director, for • oeriod of
four mo11ths; and the orosecution could have been launched. after receiv·
ing the Public Analysrs report. well within time to enable the respandent
to e.ercise his right under s. 13 (2). The respondent was therefore denied
H
a valuable right in defending himself. due to the inordinate
delay
in
launching the prosecution, ad was prejudiced in bis defence. [119 H;
120 A-B. F-H; 121 A]
MUNICIPAL CORP. v. GHISA RAM (Bhargava. /.)
117
A
CRIMrNAL APPELLA1E JURISDICTION: Criminal Appeal No. 194
of 1966.
Appeal by special leave from the judgment and order dated
November 9, 1964 of the Punjab High Court in Circuit Bench at
Delhi in Criminal Appeal No. 30-D of 1964.
B
H. R. Gokhale, K. K. Raizada and A. G. Ratnaparkhi, for the
c
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F
G
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appellant.
Frank Anthony. Ghanshyam Dass, Jitendra Sharma
and
V. P. Chaudhuri, for the respondent.

## Text

MUNICIPAL CORPORATION Of' DELID
v.
GIDSA RAM
November 23, 1966.
(M. HIDAYATULLAH AND V. BHARGAVA, JJ.)
Prevelllion of Food A.dult.;ratwn Act (37 of 1954), s. 13(2), (3) and
(5)-Delay in filing prosecu1ion--Sample given lo accu..rRd vendor decom.
101ed-Examination of sample by Dir.ctar of Central Foo<' Laborvtary
not pomhle-A.ccused, if prejudiced.
1be Food Inspector of the appellant-Munlcipality took a slmple of
A
B
eurd from the respondent's shop for the purpose of testing whether there c
was any adulteration. The sampb W8' divided into three equal part-•, put
in separate bottles and se:iled. One bottle was handed over to the respondent and one was sent to the Public Analyst who analysed it and scot his
report.
On the basis of that report a complaint was filtd, seven months
after receipt of the report, against the respondent, for an offence under
ss. 7 and 16 of the Prevention of Food Adulteration Act, 1954.
During
the trail, the respondent applied to have the sample ~iven to him analysed
by the Director of the Central
Food Laboratory
m
accordance with
D
s. 13(2) of the Act. The Director reported that the s:unple had become
highly decomposed and could not be analysed. The trial Court acquitted
the responden! accepting his contention that he could not be convicted
after having been denied his right of obtaining the Director"• ""rti11cate
by the delay in launching the prosecution.
On the question whether he should have been convicted on the basis ot
the P~blic Analyst's report.
E
HELD: A right is conferred ny s. 13(2) on the accused-vendo, to
have the sample, given to him by the Food Inspector, analysed by the
Director after the prose<:ution was launched against him.
It is a 'Hluable
right, because, he could for bis proper defence, have that sample anaJJ'C(I
by a more competent expert, whose certificate Sl!perscdes
the report of
the Public Analyst under s. 13(3), and is to be accepted by the Court
as conclusive evidence of its contents under the proviso to s.
13 ( 5).
F
However, if for any reason, no cenificat~ is issued by the Director, the
report of the Public Analyst does not cease to
be
evidence of the
facts contained in it.
But, in a case where there is denial of this right on
account of the deliberate conduct of the prosecution, the accused-vendor
would be seriously prejudiced in bis trial, and could not be convicted on
the report of the Public Analyst, even though that report may be evidence
in the cote, of the facts stated therein.
In the present case, the prosecu-
. 'on 'hould have anticipated that there would be some delay, in the
G
1I1aiy1il by the Public Analyst and in the sending of bis report, and eonsequootly, the elementary precaution of addios a preservative to the sample
given to the respondent should have been taken by the Food Inspector.
If such a precaution had been taken, the sample given to the respondent
would have been available for analysis by the Director, for • oeriod of
four mo11ths; and the orosecution could have been launched. after receiv·
ing the Public Analysrs report. well within time to enable the respandent
to e.ercise his right under s. 13 (2). The respondent was therefore denied
H
a valuable right in defending himself. due to the inordinate
delay
in
launching the prosecution, ad was prejudiced in bis defence. [119 H;
120 A-B. F-H; 121 A]
MUNICIPAL CORP. v. GHISA RAM (Bhargava. /.)
117
A
CRIMrNAL APPELLA1E JURISDICTION: Criminal Appeal No. 194
of 1966.
Appeal by special leave from the judgment and order dated
November 9, 1964 of the Punjab High Court in Circuit Bench at
Delhi in Criminal Appeal No. 30-D of 1964.
B
H. R. Gokhale, K. K. Raizada and A. G. Ratnaparkhi, for the
c
D
E
F
G
H
appellant.
Frank Anthony. Ghanshyam Dass, Jitendra Sharma
and
V. P. Chaudhuri, for the respondent.
The Judgment of the Court was delivered by
Bhargava, J. The
respondent, Ghisa Ram.
is a Halwai
dealing in milk and milk products, including Dahi, and holds a
licence for running his shop in Defence Colony in New Delhi. On
September 20, 1961, the Food Inspector of the Municipal Corporation of Delhi visited the shop of the respondent and took a sample
of curd of cow's milk for the purpose of testing whc<her there wa.>
any adulteration. The curd was churned and divided into three
equal parts. Each part was put in a separate bottle and sealed by
the Food Inspector. One of the bottles containing the sample of
the curd taken was handed over to the respondent. Out of the two
remaining samples with the Food Inspector, one was sent to the
Public Analyst who carried out the analysis on October 3, 1961.
He then gave a certificate on October 23, 1961, in which he noted
that the fat contcllt in the curd was 11 · 6% and the non-fatty solids
were 7 · 3 %. The standard prescribed by the Rules framed under
the Prevention of Food Adulteration Act, 1954 (No. 37 of 1954)
(hereinafter referred to as "the Act") for curd of cow's milk was
that it must coPtain a minimum of 3 · 5 % fat and 8 · 5 % non-fatty
solids. Since the analysis showed that the content of non-fatty
sqlids was l · 2 % below the prescribed standard, the respondent
was prosecuted for committing an offence under s. 16 of the Act
for contravening section 7 of the Act. The complaint was filed
before the Magistrate on behalf of the appellant, Municipal Corporation of Delhi, on May 23, 1962. On October 4, 1963, the respondent applied that the sample, which had been given to him by the
Food Inspector, be sent for examination by the Director of the
Central Food Laboratory in accordance with the provisions of
s. 13 (2) of the Act. When the sample was received by the Director,
he reported that the <;ample of curd sent to him had btume highly
decomposed and no analysis of it wac possible. 'The .-.ase against
the respondent had, therefore, to be t,.it'I in the absence cf the report
of the Director of the Central"Food. t..~ratory.
At the trial, the respondent ndmittecl -me taking of the sample
of curd from his shop by the Food Inspector, but he pleaded that he
had prepared the curd from pure cow's milk. The counsel for the
118
SUPlll!YB OOU.T l.IPOlln
(1967) 2 S.C.ll.
respondent challenged the correctness of the analysis of the sample
A
made by the Public Analyst, and a further plea was taken that the
re5pondent having been denied his right of obt:iinina the report of
the Director of the Central Food Laboratory because of the delay
by the appellant in launching the prosecution, the respondent <:ould
not be validly convicted. This defence was acrepted by the Magistrate, and the respondent was acquit:ed. The appellant filed an
B
.appeal against this order of acquittal before the Delhi Bench of the
Punjab High Court, but that Court upheld the c-rder of the Magistrate. The appellant has now come up to this Court, by special
leave, against that decision of the High Court.
In this appeal, the main contention on behalf of the appellant
was that, though, under the Act, a certificate of the Director o; the
Central .food Laboratory has the effect of superseding
the
report of the Public Analyst, the absence of such a certificate
for any reason whatsoever will not affect the value and efficacy
of the certificate given by the Public Analyst. The proposition put
forward on behalf of the appellant appears to be correct.
Under
s. 13(3) of the Act, the certificate issued by the Director of the Central
Food Laboratory supersedes the report given by the Public Analyst.
The proviso to sub-section (5) of s. 13 further lays down that any
document purporting to be a certificate signed by the Director of
the Central Foo<! Laboratory shall be final and conclusive evidence
<>fthefacts stated th~rein. These provisions of the Act are, however,
only attracted when, in fact, an analysis of the samplr. sent to the
Director of the Central Food Laboratory is made by him on the
basis of which he issues a certificate.
If, for any reason, no certincate is issued, the report given by the Public Analyst docs not
<:ease to be evidence of the facts contained in it and does not become
ineffective merely because it could have been superseded by the
<:ertificate issued by the Director of the Central Food Laboratory.
Further, there being no certificate issued by the Director of the
Central Food Laboratory, no question can arise of his certificate
becoming final and conclusive evidence of the report contained in it.
This aspect, however, does not conclude the matler 5o far as
the question of the validity of the acquittal of the respondent is
concerned. There can be no doubt that sub-s. (2) of s. 13 of the Act
<:eufers a right on the accused vendor to have the sample given to
him examined by the Director of the Centra! Food Laboratory and
to obtain a certificate from him on the basis of the analysis of that
sample. It is when the accused Cll:erciscs this riaht that a certificate has to be given by the Director of the Central Food Laboratory and th.at certificate then supersedes the repm1 given by the
Public Analyst. If, in any case, the accused does not choose ta
exercise this right, the case against him can be decided on the basis
of the report of the Public Analyst. Difficulty, however, arises in
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...
A
B
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II
MUNICIPAL CORP. v. GIDSA RAM. (Bhargava, I.)
119:
a case where the accused does exercise the right by making a ·quest
to the Court to send his sample for analysis to the Director of the
Central Food Laboratory and the Director is unable to issue a
certificate because of some reason, including the reason that the
sample of the food article has so deteriorated and become decomposed that no analysis is possible.
In the present case, we find that the decomposition of
the sample, which the respondent desired should be analysed
by the Director of the Central Food Laboratory, took place
because of the long delay that had occurred in
s~nding
the sample to the Director. The sample was taken on
September
20,
1961,
while
it was
sent to
the
Director
after
October 4,
1963,
when
the
respondent
made his
application in that behalf.
The submission on behalf of
the respondent was that the appellant instituted the prosecution of the respondent on May 23, 1962,
and consequently, under s.
13(2) of the Act, the right
accrued to
the respondent to have the sample sent for
analysis
only
thereafter.
Section
13(2)
specifically
mentions
that
the
accused
vendor may
make
the
application
"after
the
institution of a prosecution under tl-te Act." No right vested in the respondent to have 1.he sample analysed in this
case until the prosecution was launched on May 23, 1962.
The opinion of one of the experts, Dr. Sat Parkash, given in
this case shows that in the case of a food article, like curd, it starts
undergoing changes after a week, if kept at room temperatu:e, without a preservative, but remains fit for analysis for another 10 days
thereafter. On the other hand, if the sample is kept in a refrigerator, it will preserve its fat and non-fatty solid contents for purposes of analysis for a total p11riod of four weeks. If a preservative
is added and the sample is kept at room temperature, the percentage
of fat and non-fatty solids contents for purposes of analysis will be.
retained for about four months, and in case it is kept in a refri·
gerator after adding the preservative, the total period which may be
available for making analysis, without decomposition, will be six
months. In this case, when the Food Inspector handed over the
sample to the respondent, the respondent was not expected to keep
it in a refrigerafor. Consequently, without any preservative, the
sample kept with him could have been analysed successfully during
the next 17 days, whereas, if a preservative had been added, it
could have been analysed successfully during the next four months.
It appe:irs to us that wh:m 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 Foo.d Laboratory, it is to be expected
that the prosecution will proceed in such a manner that that right
will not \le denied to him. The right is a valuable one, because tht
120
SUPREME COUJ.T r.EPOl.TS
[1967) 2 S.C.R
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 conclusi·;e 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 focts contained therein.
We are not to be understood as laying down that, in every
case where the right of the vendor to hav~ his sample tested by the
Director of the Central Food Laboratory is frustrated, the vendor
cannot be convicted on the basis of the report of the Public Analyst.
We con~ider that the principle must, however, be applied to cases
where the conduct of the prosecution has result~d in the denial to
the vendor of any opportunity to exercise this right. Different
considerations may arise if the right gets frustrated for reasons for
which the prosecution is not responsible.
In the present case, the sample was taken on the 20th SeptembeT, 1961. Ordinar!ly, it should have been possible for the prosecution to obtain the report of the Public Analyst and institute the
prosecution within 17 days of the taking of the sa.nple.
It. however, appears that delay took place even .'.n obtaining the report
of the Public Analyst, because the Public Analyst actually a;Jalyscd
the sample on 3rd October, 1961 and sent his report on 23rd October, 1961. It may be presumed that some delay in the analysis
by the Public Analyst and in his sending his report to the prosecution is bound to occur. Such delay could always be envisaged
by the prosecution, and consequently, the elementary precaution
of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector.
If such a precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the
Central Food Laboratory for a period of four months wh;ch would
have expired ab0ut the 20th of January, 1962. The report of the
Public Analyst having been sent on 23rd October, 1961 to the prosecution, the prosecution could have been launched well in time to
enable the respondent to excrci.~e his right under s. 13(2) of the Act
without being handicapped by the deterioration of his sample. The
prosecution, on the other hand, committed inordinate delay in
launching the prosecution when they tiled the complaint on 23rd
May, 1962, and no explanation is
forthcoming
why
the
complaint in
Court was
filed
about seven
month~ after
the report of the Public Analyst had been issued by
him.
A
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F
MUNICIPAL CORP. v. GHISA RAM (Bhargava, I.)
121
This, is, therefore, clearly a case
where the
respondent
was deprived of the. opportunity of exercising his right to
have his sample examined by the Director of the Central Food
Laboratory by the conduct of the prosecution. In such a case, we
think that the respondent is entitled to claim that his conviction is
vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecution.
Learned coul!sel for the appellant drew our attention to a
decision reported in Suckling v. Park.er( 1). That case was concerned
with similar law in England, but, there, the provision relating to
the testing of the sample kept with the vendor was quite different.
In England, there was no restriction that the vendor could not
have his sample tested until after the prosecution was launched, nor
did the subsequent report have the effect of completely superseding
the earlier report of the Analyst.
In Municipal Corporation, Gwalior, v. Kis.'ian Swaroop,(2) it
was held that, where there was delay in launching the prosccul.lon,
it deprived the accused of the valuable right to challenge the report
of the Analyst in the manner prescdbed by s. 13(2) of the Act, and
when this right was denied to the accused for no fault of his, but
wholly due to the inordinate !aches of the prosecution, no weight
could be given to the report of the Public Analyst. That decision
proceeded on the basis of the value of the report of the Public
Analyst being affected by the fact that the accused had been deprived
of his right to challenge that report by obtaining a certificate from
the Director of the Central Food Laboratory. The report of the
Public Analyst, as we have said earlier, does not cease to be good
evidence merely because a certificate from the Director of the Central Food Laboratory cannot be obtained. The reason why the
conviction cannot be..sustained is that the accused is prejudiced in
his defence and is denied a valuable right ·of defending himself
solely due to the deliberate arts of the prosecution.
In these circumstances, the acquittal of the respondent was
justified, and the appeal is dismissed.
V.P.S.
Appeal dismissed
0) (1906] I K.B.527.
(2) A.I.R. 1965 M.P. 180.
Ml 9Sup. Cl/66-9