Judgment:
L. Rath, J.
1. Though the facts of the case are simple in nature yet important questions of interpretation arise within the ambit of its consideration. PW 1, the Health Officer-cum-Food Inspector, Baripada Municipality inspected the grocery shop of the petitioner on 11-3-1981 and purchased a sample of Rapeseed refined oil. He had duly issued notice in form No. VI to the petitioner and the petitioner also granted money receipt towards the purchase of the sample oil, PW 1 divided the sample oil into three parts and sent two parts to the Chief District Medical Officer who is the local (Health) Authority and one part to the Public Analyst. The petitioner disclosed to PW 1 the name of the firm M/s. Ramesvvarlal & Co. as having purchased the oil from it. M/s Rameswar- lal & Co; was arrayed as an accused in the case but has since been acquitted. The report of the Public Analyst was received showing the oil to be adulterated. The report has been marked in the case as Ext 9. Thereafter the Local (Health) Authority accorded consent for prosecution of the petitioner and prosecution report was submitted in the Court. The petitioner was made to stand trial Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. PW 2 was a Disiniector working in the office of PW 1, PW 3 is an inconsequential witness. The Public Analyst has been examined at the appellate stage, is PW 4. The petitioner also examined one witness in defence. The offence against the petitioner was found to have been established by the learned Magistrate who sentenced him to one year's Rl and fine of Rs. 2000/-,in default to undergo Rl for three months more. In appeal, the-conviction and the sentences were upheld.
2. Three submissions have been advanced by the learned counsel for the petitioner:
(i) The mandatory provisions of Section 13(2) of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act') and Rule 9-A of the Prevention of Food Adulteration Rules (hereinafter referred to as 'the Rules') were not complied with inasmuch as the report of the Public Analyst was not sent to the petitioner.
(ii) The Public Analyst was not qualified to hold the post.
(iii) The consent for prosecution of the petitioner was given in mechanical manner without considering any material.
3. So far as the first submission is concerned, attention is invited to the provisions of Section 13 of the Act and Rule 9-A of the Rules. Under the Section the report of the Public Analyst is to be made to the Local (Health) Authority and that Authority, after receipt of it, shall forward a copy of it to the person from whom the sample was taken and inform him that if it is so desired, he may 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 of the article of food kept by the Local (Health) Authority analysed by the Centra! Laboratory Rule 9-A provides that within ten days of the institution of the prosecution, the Local (Health) Authority is to forward the copy of the report of the result of analysis in Form IIl, either by registered post or bv hand, as may be appropriate to the person from whom the sample of article was taken by the Food Inspector. That the provisions of Section 13(2) o1 the Act and Rule 9-A of the Rules are mandatory is no longer res Integra having been successively decided by this Court. Reference may be made to 1990 (I) OLR 558 (Bidyadhar Jena v. State of Orissa) and 1989 (I) OLR 340 (Bijaya Kumar Ram v. State). Consequently if the report of the Public Analyst was not sent to the person concerned, the prosecution must ipso facto be vitiated as the prejudice is writ large on the face since without the report having been received, he is deprived of the opportunity to challenge its contents and to get the sample tested at the Central Laboratory. In this context it is necessary to examine the evidence as regards the despatch of the report to the petitioner. PWs 1 and 2 are the only two witnesses on the issue. The learned Additional Standing Counsel fairly concedes that there is no evidence of the report of the Public Analyst having been sent to the Local (Health) Authority. it was the evidence of PW 1 that he received the chemical analysis report No. 259/81 dated 16-4-1981 from the Public Analyst. He did not say that the report had been received by the Local (Health) Authority and had been forwarded to him. As regards the despatch of the report to the petitioner, it was his statement that the petitioner was informed by the Chief District Medical Officer vide his office letter No. 6472 dated 5-5-1981 that the Public Analyst had opined that the sample of the refined oil (Rapeseed) collected from his shop by the Health Officer on 11-3-1981 was adulterated and that he could make an application to the SD.J.M. Baripada within ten days from the date of receipt of the copy of the analysis report, to get the sample of refined oil (Rapeseed) examined by the Director, Central Food Laboratory. He stated that the letter of the Chief District Medical Officer was informed to the petitioner in the Peon Book of his office on 5-5- 1981 and that the petitioner also put his signature in the Peon Book in token of having received the letter PW 2 stated that after receipt of the report of the Public Analyst he served intimation about the report on the petitioner on the direction of PW 1. The petitioner received the same from him and gave his signature in the Peon Book as mark of receipt of intimation given to him in writing. The signature of the petitioner was marked as Ext. 12. In his cross-examination, PW 1 admitted that the Peon Book did not indicate what were the enclosures sent with the letter Ext. 12. The recording was obviously a mistake since Ext. 12 was not the Setter but the petitioner's signature in the Peon Book. PW 1 further admitted that he had no knowledge as to when and how the letter was sent that the Peon Book did not show any entry with respect to Ext. 12. In the intimation sent by the Chief District Medical Officer there was no mention as to when the case had been started. The specific suggestion of the petitioner to PW 1 was that Ext. 12 had in fact not been sent and that the petitioner did not receive it which suggestion was denied. So far as PW 2 is concerned, the suggestion to him in the cross- examination was that the petitioner was not served with Ext. 12 and that he did not sign therein. He admitted of having no knowledge regarding the contents of Ext. 12 which he was simply carrying to the accused persons. It is obvious that while speaking about Ext. 12 what was meant by PW 2 was the letter which was purported to have been served on the petitioner. This being the total evidence in the matter, it is seen that there is no evidence that the report was actually sent to the petitioner. it was rather a matter of lackadaisical conduct of the prosecution that the office copy of the letter of the Chief District Medical Officer dated 5-5-1981 was not exhibited to show as to w!iat were the contents of the letter and whether there was any enclosure to it. Apart from the fact that there was no evidence that the report had been submitted to the Local (Health) Authority, there was also no evidence that the Local (Health) Authority had sent the report to the petitioner. It was only PW 1, an officer of the Municipality, who stated of the despatch of the letter of the Chief District Medical Officer. How the letter of the Chief District Medical Officer was sent in the Peon Book of the Health Officer is not known, Nobody from the office of the Local (Health) Authority was examined to testify the letter to have been sent by his office and if the report was sent along with it PW 1 only stated that the letter informed the petitioner regarding the report of the Public Analyst. He did not say that the report was enclosed to the letter. The letter itself having not been produced, its contents were spoken to by PW 1. That was not the best evidence of the letter. PW 2 obviously had no knowledge about the contents of the letter. It was incumbent upon PW 1 to have got the office copy of the letter exhibited particularly because the petitioner during the cross-examination disputed the receipt of the letter as also his signature in the Peon Book. Important consequences ensue on service of the report. As a matter of fact. Section 13 (2) of the Act contemplates two actions to be taken by the Local (Health) Authority, first baing to forward the copy of the report to the person from whom sample had been taken, and the second, to inform him that if it is so desired, he may make a request to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by him analysed by the Central Laboratory. The section itself provides 10 days' time-limit for the application to be made by the accused. Rule 9-A of the Rules also fixes the time of t days during which the report has to be forwarded. The specific times having been fixed, it is a mandatory duty of the prosecution to establish by evidence that in fact the law which is rigid in its character had been complied with. Rigidity has been so inserted in the provisions so as to confer a very valuable right on the accused. It must be held that there is a duty cast upon the prosecution not only to forward the report and inform but also to see that in fact there has been service of the report, The question was dealt with in 1990 (I) OLR 558 (supra) where relying upon an earlier decision of this Court, 1989 (I) OLR 340 (supra), both the questions were answered in favour of the accused. I am hence to hold, agreeing with the learned counsel for the petitioner, of there being no evidence of the report of the Public Analyst to have been sent to the petitioner and consequently serious prejudice to have been caused to him depriving him of countering the report and that the defect being fundamental to the prosecution, it completely vitiates his trial and the conviction made in it.
4. For the next submission, reliance is placed on Rule 6(a) and (b) of the Rules which speaKs inter alia that a person shall not be quali- fied for appointment as o'Public Analyst unless he holds degree in Science with Chemistry or Bio-chemistry,etc. or holds a Master's Degree in Chemistry or Bio-chemistry, etc. and has been declared qualified for appointment as a Public Analyst by a Board appointed and notified by the Central Government. The Public Analyst was examined as PW 4 and his evidence reveals that he became Public Analyst on 30-1-1981 but was declared qualified to hold the post of Government Analyst in January 1984 He admitted that by 6-4-1981 he had not been declared by the Board as qualified for appointment as Public Analyst.Though he was thus unqualified in accordance with Rule 6, yet as regards the admissi- bility of his report in evidence, reliance has been placed by the learned Additional Standing Counsel on (1992) 5 OCR 47 (Nityananda Sahu v. Puri Municipality), a Division Bench decision of this Court, wherein the facts were almost identical. It was pointed out that no presumption is attached to the certificate of a Public Analyst that the contents of it are true or correct, but the certificate is itself evidence without formal proof. Although a special rule of evidence has been laid down in Section 13 of the Act, it cannot abrogate the general rule of evidence regarding proof of facts, which can be proved by oral evidence and by evidence of expert, and considered in that background a report submitted by an unqualified Public Analyst can be used in evidence, does not lose its evidentiary value and can be proved by application of general rule of evidence. It was also observed that though Section 13(6) [mistake for Section 13(5) ?] clearly makes the report of the Public Analyst admissible in evidence, it is the Court of fact which has to consider as to what value it can have.
5. Rule 6 stipulates two conditions for a person to be qualified for appointment as a Public Analyst. The rule is in mandatory form prohibiting appointment of a person unless the conditions are satisfied. Hence when Section 13(5) speaks that report of Public Analyst, unless it has been superseded Under Section 13(3), can be used as evidence of the facts stated therein, it presupposes that the report is of a Public Analyst validly appointed. . The special rule of evidence adopted by Section 13(5) is inapplicable to the report of a purported Public Analyst who has not been validly appointed. It was lor such reason pointed out by the Nityananda's case (supra) that devoid of benefit of Section 13(5), such a report can still be adduced into evidence by means of the general rules of evidence. Under the first part of Rule 6 the educational qualification for Public Analyst is prescribed and the second part deals with the declaration by the Central Government of his being qualified for appointment. Hence all persons holding the educational qualification under the first part are not qualified for appointment until they have been so notified by the Central Government. As such, if the person concerned is not a notified person, his report of analysis, where it is shown that he otherwise possesses the qualification prescribed under the first part of 'appointment, can only be admissible in evidence if he is accepted as an expert Under Section 45 of the Evidence Act. But even if he is also so accepted, his report is not ipso facto evidence of the facts stated therein as it is not admissible Under Section 13(5) and hence has to be admitted into evidence by the procedure under general rule of evidence. The report hence cannot be evidence unless its author is examined and satisfies the Court of his being acceptable as an expert being specially skilled for the purpose. So, bereft of the benefit of Section 13(5) of the Act, the report of an unqualified Pubic Analyst is not admissible in- evidence as the report of a Public Analyst but admissible only as the report of an expert, if at all, under the ordinary provisions of the Evidence Act. Once the report is brought into evidence, the Court has to decide on the basis of the evidence led as to whether it can be regarded as a report of an expert and how much evidentiary value it has. The decisions shall vary from case to case depending upon the facts adduced. In the present case the trial Court did not address itself to the question, but the appellate Court regarded PW 4 as an expert taking in view his qualification and the fact that he had experience of 25 years under a Public Analyst prior to 6-4-1981. But the fact remains that even if the report of PW 4 is taken as that of an expert, yet there is no evidence that the report had been sent to the petitioner Under Section 13(2) of the Act.
6. The third submission is regarding the consent. Cosent of the Local (Health) Authority was given in Ext. 10 which shows the Chief District Medical Officer to have stated ;
'I, Dr. B. K. Misra, the Chief District Medical Officer, Mayur- bhanj have gone through the prosecution report and relevant documents, submitted by the Food Inspector and Health Officer, Baripada Municipality against Sri Prabhudayal Agarwalla xx xx I applied my mind and found there is prima facie evidence against'the accused. xx'
The consent order itself did not show as to what were the relevant documents perused by the Chief District Medical Officer besides the prosecution report. Since the report itself did not show what were the materials considered by the Chief District Medical Officer except the prosecution report, it was for the prosecution to have established by evidence as to what were the other documents and materials placed before the Chief District Medical Officer which he considered before the consent. was accorded. The only evidence in that regard is of PW 1 who stated that after receipt of the report of the Public Analyst he submitted the prosecution report against the accused along with consent order of the Chief District Medical Officer. ln the cross-examination he stated that the Chief District Medical Officer put his signature in the prosecution report and that the documents did not show if those were placed before the Chief District Medical Officer. The prosecution report filed in the case does not show that the report of the Public Analyst was a part of it. There is hence no evidence that the Chief District Medical Officer perused any other materials except the prosecution report. This assumes importance in view of the fact that there is no evidence that the repot of the Public Analyst was ever received by the Chief District Medical Officer. Hence even though the consent letter stated that the Chief District Medical Officer perused all the relevant documents along with the prosecution report, yet no evidence has been let in to show as to what other materials were considered. It has been frequently held that sanction for a criminal prosecution is not a routine formality and is not to be accorded mechanically. Considering the case under the Prevention of Food Adulteration Act, it was held in 1989 (I) OLR 545 (Gourahari Panda v. Sri Paramananda Agarwalla and Anr.), on almost identical facts, that the authority giving consent should apply its mind before doing so, that a defective written consent may invalidate a prosecution, that in a case of this nature where it was not clear from the evidence as to whether there had been proper application of mind, the prosecution should have done well in examining the concerned authority, and that the Magistrate was not unjustified in coming to the conclusion that the written consent of the concerned authority had not been obtained as required Under Section 20 of the Act.
7. In that view of the matter, two of the three submissions raised by Mr. Lai are wall sustained and the revision is allowed, The conviction and sentence of the petitioner are set aside.