Dilip Singh Vs. State of Rajasthan and anr. - Court Judgment

Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....orderm.a.a. khan, j.1. on nov. 22, 1980 at pushkar, distt. ajmer, pw 2 gauri shankar. food inspector had purchased 660 ml. of milk from the petitioner dalip singh. on chemical examination the sample milk was found adulterated due to its non-conforming with the prescribed standard, presence of 20% of added water and extraction of about 20% of fat therefrom. on trial, the trial magistrate found the petitioner guilty of the offence under section 7(1) of the prevention of food adulteration act, 1954(the act), convicted him as such and sentenced him under section 16(1) of the act for six months simple imprisonment and a fine of rs. 1,000/-, his appeal before the learned sessions judge, ajmer having failed, the petitioner has approached this court by way of this application under section 397,.....

Judgment:
ORDER

M.A.A. Khan, J.

1. On Nov. 22, 1980 at Pushkar, Distt. Ajmer, PW 2 Gauri Shankar. Food Inspector had purchased 660 ml. of milk from the petitioner Dalip Singh. On chemical examination the sample milk was found adulterated due to its non-conforming with the prescribed standard, presence of 20% of added water and extraction of about 20% of fat therefrom. On trial, the trial Magistrate found the petitioner guilty of the offence Under Section 7(1) of the Prevention of Food Adulteration Act, 1954(the Act), convicted him as such and sentenced him Under Section 16(1) of the Act for six months simple imprisonment and a fine of Rs. 1,000/-, His appeal before the learned Sessions Judge, Ajmer having failed, the petitioner has approached this Court by way of this application Under Section 397, Cr.P.C.

2. In exercise of its revisory jurisdiction this Court does not interfere with the concurrent findings of the inferior Court unless such findings are perverse and found recorded in total disregard of the relevant provisions of law and lead to miscarriage of justice. The present case is found to be one of such cases.

3. Of the several arguments, advanced before me by the learned counsel for the petitioner, the one which has found favour with me is that the evidence on the point of adulteration of the sample milk is not satisfactory and worth reliance.

4. In the cases involving adulteration in food and foodstuffs the sample and the report of the Public Analyst, who examines such sample and reports adulteration therein, make the very foundation of the proceedings for substantive offence and the basis for conviction of the offender. The report of a Public Analyst is, in fact, an opinion or belief of a third person on a point relevant to an issue in a case. AS a general rule the opinions or beliefs of third persons are irrelevant and inadmissible as witnesses are to state facts only and not to draw inferences from the facts which is, indeed, the function of the judge. But in many cases wherein the question involved is beyond the range of common knowledge or common experience and the correct answer to such question requires a special study of a particular subject or special training or special experience, the Court may stand in need of the help of persons who have acquired special skill or experience of such subject. Under such circumstances the opinions and beliefs of third persons which would have otherwise not been admissible Under Section 60 becomes relevant and admissible Under Section 45 of the Evidence Act as those of the experts. Since the evidence of an expert is not confined to what actually took place but he can give his opinion on facts and can speak of the experiments made by him behind the back of the person likely to be adversely affected by his opinion and may also; refer to and cite other cases and ;text books of accredited authorities in support of his opinion it needs to be stressed that great care and caution is to be observed in receiving and accepting the opinion of an expert unless such opinion has statutorily been placed on a better footing.

5. The verdict on the guilt or innocence of an accused in a criminal case has to be recorded by the judge. Therefore, the evidence of an expert witness, however eminent he may be, has to be tested like that of any other witness. After all his evidence is a matter of mere opinion and human judgment being fallible and human knowledge being limited and imperfect even expert witness is also liable to make mistakes, The real value of his evidence lies in the logical inferences which he draws from what he himself has observed and not from what he merely surmises or assumes. Therefore, before accepting his evidence it is always advisable to get at the grounds on which he has based his opinion. The opinion of an expert would loose its value unless the grounds on which such opinion is based are known. Unless the reasons on which the opinion of the expert is based are known to the Judge he cannot be in a position to appreciate such opinion in right perspective and give due credence to it. Sec. 51 of the Evidence Act, therefore, makes the grounds of the opinion of an expert also relevant. For 'opinion is no evidence without assigning the reasons for such opinion.

6. In order to appreciate the reasons or grounds given by an expert in support of his opinion it is all the more necessary that he should be asked questions inter alia, regarding his claim of having the character of an expert. Therefore, when a witness is examined as an expert in a given case three questions should necessarily arise for consideration of the court, namely :-

(i) is the subject concerning which the expert is to opine such as to which his evidence can be received.

(ii) what are the qualifications necessary to entitle a witness to testify as an expert, and

(iii) has the witness those qualifications?

Whereas the two questions are matters of law, the third is a matter of fact and subject to the law of presumptions enshrined in Sec. 114 of the Evidence Act, the depth of his knowledge, based on his qualification and experience, should be measured by the scale of hypothetical questions.

7. Sections 291; 292 and 293 of the Code of Criminal Procedure, 1973 make the depositions of certain specified persons whether contained in their statements taken and attested by Magistrate or by commissioner of reports prepared by them admissible in evidence without calling such deponants as witnesses. A Public Analyst under the Act does not fall within the categories of such specified persons. The general rule is that a report made by a municipal analyst cannot be used as evidence unless the analyst is called as a witness in order to prove that the contents of the report are true. The provisions contained in sub-Section (5) of Section 13 of the Act, however, carve out an exception to this general rule. An accused, therefore, has a right, as held by the Supreme Court in Ram Dayal v. Municipal Corporation Delhi AIR 1970 SC 366 : (1970 Cri LJ 515) to call Public Analyst to be examined and cross-examined, though the Court can always reject such a prayer if it is of the opinion that such a prayer has been made for the purpose of vexation or delay or to defeat the ends of justice. Once the court accepts the prayer of the accused to call and examine the Public Analyst, who is to depose on a fact in issue as an expert witness, his examination should proceed in accordance with the rules contained in the Evidence Act and in the light of the observations made herein above. Not only the qualification and experience of the expert witness should be ascertained with a view to appreciate the worth and value of his testimony in court but also hypothetical questions to know the depth and extent of his learning and knowledge may be put to him. For, as stated earlier, after all the evidence given by such witness is a matter of mere opinion and is to be tested like that of any other witness.

8. Now coming to the merits of the present case, the sample milk was obtained by the Food Inspector on 22-11-80 and forwarded to the Public Health Laboratory. Ajmer whereat the same was received on 24-11-80. The Public Analyst examined the sample on 25-11-80, prepared the report (Ex.P.8) on 5-12-80 and sent the same to the Public Health Authority on 6-12-80. In his report the Public Analyst, PW 4 Sh. P.P. Gupta, had mentioned the following result of the analysis conducted by him :

Fat contents - 3.2%

Solids non-fat - 7.2%

Can sugar and stench - Nil

9. He had, on the basis of the above mentioned scientific data opined that 'this sample of milk is adulterated by reason of its containing about 20% of added water and abstraction of about 20% of original fat.

10. The Food Inspector filed the complainant in the Court on 31-1-81 citing one more witness, PW 1 Sh. M.S. Johri, besides himself as total witnesses in the case. Though on that very date the learned Magistrate recorded in writing that looking to the gravity and nature of the offence the procedure of warrant case shall be adopted in the trial of the, petitioner and he accepted such prayer of the petitioner on 10-8-81 also yet for no specific reasons he adopted the procedure of 'summary trial' on 10-8-82 and recorded the plea of the petitioner. Since the petitioner had pleaded not guilty the learned Magistrate examined the two witnesses of the prosecution by 12-4-83 when the prosecution evidence was closed. On the next date of hearing, fixed for defence evidence, the prosecutor in the case moved ah application for permission to examine one more witness PW.3 Nawab Ali, L.D.C.C.M. & H.O. Beawar and to prove three documents more. On that very date the petitioner also moved an application for summoning the Public Analyst as a witness in the case. Before passing any order on these applications the learned C.J.M. transferred the case on 8-6-83 to the Addl. Chief Judicial Magistrate No. 2, Ajmer. By his order dated 30-7-83 the transferee Magistrate allowed prosecutor's application and examined the third witness Nawab Ali, on 15-9-83 but passed no orders on petitioners application of the even date. After closure of prosecution evidence the petitioner was examined Under Section 313 Cr.P.C. on 23-9-83 and on 9-2-84 the defence witness, Bhairoo Lal, was examined and the case was adjourned for hearing final arguments. However, on 10-5-84 the learned Magistrate allowed petitioner's application for calling the Public Analyst and examining him as a witness in the case. On 6-9-84 Sh. P.P. Gupta, Public Analyst was examined and after hearing the arguments on 20-9-84 the judgment was pronounced on 14-12-84.

11. Apart from the unsatisfactory conduct of the proceedings in the present case by different Magistrates with material and incurable irregularities, the pertinent question presently for my consideration is the worth and value of the scientific evidence tendered by Sh. P.P. Gupta, the Public Analyst. The statement of this witness, as recorded by the learned Magistrate, shows that no examination in chief was conducted on him. In fact, the recorded statement does not show as to whether the witness was examined as a prosecution witness or as a defence witness or even as a court witness. It is also not gathered as to who had put the questions to the witness the court or the defence counsel. Any way, no question to know the qualification and experience of the witness and his scientific knowledge of the subject appears to have been put to him. Be that as it may, Mr. Gupta stated that in order to know the fat contents he had applied Dr. N. Gabrel method and the Gravity Metric method to know the percentage of solids non-fat. On being asked to explain those methods the Public Analyst stated that he did not remember the procedure or process which is adopted in those methods. When questioned about the Freezing Point test to be adopted to ascertain the presence of extraneous or added water in milk the witness stated that he did not know of any such method. On being further asked as to what was the total percentage of water in the milk, the witness stated that he made no effort to know that fact.

12. Mr. Seth and Capoor, the two learned co-commentators on the Prevention of Food Adulteration Act, 1954 in para 82 at page 415 of the third Edition published in 1993, have made the following pertinent comments on the subject :

Method of determining the added water in the milk - Daving Person in his book. The Chemical Analysis of Food, 5th Ed., 1962, describes thhe freezing point test at page 336. It is stated that it is inadvisable to certify a milk as containing extraneous (or added) water merely on the basis of a low N.F.S. Figure alone but confirmation should be sought from the freezing point. It has been definitely established - that the circumstances, which affect the N.F.S. markedly, do not alter the cosmetic pressure of the milk and hence the freezing point is approximately a constant. The freezing point of genuine milk usually falls within the range 0.510 to 0.5600 C. Depression below 0.530 have been reported under exceptional circumstances. In spite of such possibilities, according to the learned authorities a minimum depression of 0.530 is usually assumed for legal purposes. As the depression increases as the milk gets sour, the determination should be made when the milk is as fresh as possible. The presence of preservative also affects the freezing point and connection in the case of samples, where preservative are added, is also given.

C.R.A. Martin in his book Practical Food Inspection, 5th Ed., 1959 mentions at page 438 that the freezing point test is gradually being accepted in Courts as a reliable test. According to him, the freezing point of pure milk varies from O. 51 to O. 560oC with a mean of 0.53oC. The milk conforming to the legal standard exactly as it comes from the cow, always freezes between these points, any excess or addition of water causing the milk to freeze at higher temparature and nearer to the freezing point of water, i.e. zero. The author also mentions that one important precaution necessary with the freezing test is that the milk should be quite fresh. Dealing with the presumption that if the milk does not contain 3 percent fat or 8.5 percent non-fatty solid cream is extracted or water is added the author states that none of the methods of chemical analysis is capable of differntiating between genuine pure milk and adulterated milk. In the Analyst, Vol. 80 of the year 1955 at page 625, it is mentioned that a depression of 0.53oC may still generally be regarded as the minimum for such milk. Harvery and Harvery Milk in their book Milk Production and Control, 2nd Ed, 1946, p. 404, mention that the freezing point test is the generally accepted laboratory method or proving the addition of water to milk. The authors also state that it is impossible to differentiate between watered milk and milk which is naturally poor in fatty or non-fatty solids. After mentioning that the approximate percentage of water may be found by multiplying solids other than fat below 8.5 by 12 and by assuming that the milk containing solids other than fat was below 8.5 as containing added water, the authors state that though the method is for this reason the freezing point method of testing added water is now employed in analytical laboratories. The freezing point of milk is generally accepted to be 0.55oC and the addition of water brings the freezing point closer to zero. The authors at page 407 state that for the test to be entirely suceessful, the milk must be fresh.

From the text-books above mentioned it can be taken that the freezing point test is accepted by Courts as the fair and safe method of determining the added water in milk and that the freezing point of milk varies from 0.510 to 0.560oC with a mean of 0.530. It has also to be noted that it is difficult to distinguish a sample of milk with added water and a sample of pure quality milk by determining the specific gravity of the percentage of solids alone. The test also should be conducted, when the milk is fresh and before it gets sour. The addition of preservative as formalin also affects the freezing point.

13. In view of the above comments made by the learned commentators the importance of conducting the freezing point test to ascertain the quantity and extent of added water in milk can hardly be minimised. Free/ing point test is being increasingly recognised and accepted as a reliable method for proving the addition of water to milk. Circumstances which may affects the non fat solids in milk do not alter the cosmetic pressure of milk and no presumption from the fact that if the milk does not contain the prescribed standard of fat and non-fatly solid contents it is necessarily indicative of addition of extra water to it or abstraction of fat contents therefrom, can be raised. Looking to the fact that pure and fresh milk freezers between 0.51 to 0.56 oC with a mean of 0.53 oC any excess or addition of water may cause it to freeze at higher temperature and nearer to the freezing point of water i.e. zero the Legislature, by Amendment Act of 1976, stressed upon the necessity of sending the samples of food and food stuffs for chemical examination 'immediately' after their taking from the vendors. By pleading ignorance of such a generally accepted test to ascertain the presence of excess or added water in the sample milk Mr. P.P. Gupta, Public Analyst seems to have simply exposed his superficial knowledge of the subject. It may be observed that he has declared the sample milk as adulterated by 'reason of its containing 20% of added water and abstraction of about 20% of original fat' and not for the reason of the same was not conforming with the 'prescribed standard'. The ground mentioned by him Under Section 51 of the Evidence Act in support of his opinion as an export, to be admissible Under Section 45 of the said Act falls short of Courts satisfaction for the reasons mentioned herein above. It cannot therefore be accepted that he had conducted the tests stated to have been conducted by him. In the course of his examination he did not produce the notes of the tests, stated to have been conducted by himself on 5-12-80, which allegedly helped him to cause the report prepared on 6-12-80. The report Ex. P. 8 is not written in his handwriting but simply signed by him and the cumulative effect of all these facts probalises the defence suggestion that Mr. Gupta did not himself conduct the analysis of the sample milk and also represents derelictions from the discharge of his statutory duties besides exposing his superficial knowledge of the subject as an expert. The testimony of this expert witness is found of no value in this case and since the very basis or foundation of the guilt of the petitioner falls to the ground, he deserves benefit of doubt which reasonably arises in this case to his advantage.

14. Before parting with the record of this case I would like to observe that the Chief Judicial Magistrates, who look cognizance of the case at different stages of the proceedings were expected to have realised the importance of their roles in the conduct of proceedings of the cases involving anti-social element in the offence. Being experienced officers they were expected to deal with such cases with the urgency, dedication and attention, the Legislature and their own institution, the Judiciary expected of them. Registration of the case as a warrant case was alright but subsequent change of opinion to try the case as a summary trial case, was bad. You can go to a warrant trial from a summary trial as it is beneficial for the accused to do so but the vice versa is not legally right as it may cause him a reasonable prejudice in the trial. But then what type of 'summary' procedure was it which took them about four years to decide the case? What effect would the decision have on the offender and the victims of his offence after a lapse of four years? Above all the evidence led by the most important witness in the case viz. Sh. P.P. Gupta, the Public Analyst, was never put to the petitioner. The testimony of the witness, as recorded at the trial, made the substantive evidence against the petitioner but he was never asked to explain it. Once the procedure laid down Uder Sections 260 to 265 of Chapter XXI of the Code of Criminal Procedure, 1973 is or has to be adopted in the trial of an offence there is no escape from bringing the case to a decision at an earliest date otherwise the very purpose of Sections 260 to 265, Cr.P.C. and Section 16A of the Act would get frustrated and the legislative will express through amendments made by Amendment Acts of 1976 and 1986 to meet the challenge posed by the ever-increasing menace of adulteration would become martyr at the altar of an indifferent, insensitive and unmindful judiciary. The higher Magistracy, entrusted with the responsibility of conducting speedy trial in such offences must rise to the occasion to prove its worth in the matter of speedy disposal of such cases.

15. In the result, the judgment and orders of the two Courts below are set aside, the petitioner acquitted of the offence Uder Section 7/16 of the Act and the petition allowed.