Full Judgment Text
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PETITIONER:
CHARANJI LAL
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT25/10/1983
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
MADON, D.P.
CITATION:
1984 AIR 80 1984 SCR (1) 513
1984 SCC (1) 329 1983 SCALE (2)642
ACT:
Prevention of Food Adulteration Act, 1954-Proviso to
sub-s. (2C) of s. 13 -Words-Lost or damaged-Appearing in
proviso-Interpretation of. Lost-Not confined to loss only
after actual despatch of sample but includes loss after
court order for despatch of sample. Damage-means damage due
to any reason including decomposition taking place either
before or after order of the court.
HEADNOTE:
Interpretation of statute-Rule of-Words used by
legislature do not always bear a plain meaning.
Words and phrases-Damage-Meaning of.
^
A Food Inspector took a sample of kutcha khoya from the
shop of the appellant and after dividing it into three equal
parts and sealing them, sent one part to the public analyst
and the other two parts to the Local (Health) Authority. On
analysis the public analyst found the sample to be
adulterated, but the fat content of the sample was reported
to be 25%. Prosecution was launched against the appellant
under the Prevention of Food Adulteration Act, 1954. On
appellant’s request under sub-s. (2) of s. 13 of the Act the
trial court sent one of the remaining two parts of the
sample to the Director, Central Food Laboratory, Calcutta
for purposes of analysis under sub-s. (2B). The Director
intimated that the sample received by him was decomposed and
therefore unfit for analysis and asked for the counter-part
of the sample. After a period of six months the trial court
forwarded the remaining part of the sample to the Director,
Central Food Laboratory, Ghaziabad who reported that the
sample was adulterated, but found that the fat content of
the sample was 33.12%. The trial court acquitted the
appellant. On appeal by the State the High Court convicted
the appellant. The questions which arose in this appeal
were: (i) whether the part of the sample sent by the trial
court to the Director, Central Food Laboratory Calcutta was
damaged within the meaning of proviso to sub-s. (2C) of s.
13 of the Act and (ii) whether the katcha khoya sold by the
appellant was adulterated within the meaning of s. 2 (ia)
(1) of the Act.
Partly allowing the appeal and partly remitting the
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matter to the High Court,
^
HELD : The problem of interpretation is a problem of
meaning of words and their effectiveness to communicate a
particular thought. In all ordinary cases primarily the
language employed is the determining factor, but words used
by the Legislature do not always bear a plain meaning.
[520H; 521A]
514
The word "damaged" in the collocation of the words
"lost or damaged" appearing in the proviso to sub-s. (2C) of
s. 13 in relation to the part of the sample sent by the
court to the Director of the Central Food Laboratory must,
in the context, mean "damaged due to any cause, including
decomposition". The word "damaged" must be construed in
furtherance of the object and purpose of inserting the
provisions. The whole purpose of depositing two parts of the
sample with the Local (Health) Authority is that if one of
the parts of the sample is lost or damaged for any reason
whatever the remaining part may still be available for
analysis. [522 E; G-H]
State v. Joginder Lal Kapoor, (1980) 1 FAC 86 approved.
Ram Prakash v. State of Himachal Pradesh (1979) Crl.
L.J. 750 and Darshan Lal v. State of Punjab (1982) 1 FAC 290
overruled.
It is not necessary that the loss contemplated by the
proviso to sub-s. (2C) of s. 13 should take place only after
the actual despatch of the part of the sample to the Central
Food Laboratory has commenced. Even if that part of the
sample is lost after the court has directed it to be sent
and before the actual transit has commenced, that part of
the sample would be "lost" within the meaning of the proviso
to sub s. (2C) of s. 13. So far as damage in the sense of
decomposition of that part of the sample sent to the Central
Food Laboratory is concerned, it may take place either
before or after the Court directs its despatch to the
Central Food Laboratory. If damage in the sense of
decomposition were to be interpreted to mean decomposition
taking place during the course of transit, it would
frustrate the very object of Parliament in enacting the
proviso to sub-s. (2C) of s. 13. [524 B-D]
State v. Joginder Lal Kapoor (1980) 1 FAC 86 overruled.
In the instant case there are certain aspects which are
rather disturbing. It is not clear as to how the fat content
of the same article of food the sample of which, according
to the report of the Public Analyst was 25% went up to
33.12% as appears from the report of the Director, Central
Food Laboratory, Ghaziabad dated December 7,1978. Further,
it is also not clear that when the fat content of the sample
was 33.12% and the R.M. Value of the extracted fat was
20.37%, still the Director on analysis found the sample to
be adulterated Was it due to the presence of any substance
not found in milk like sesame oil (til oil) as found by the
Public Analyst, Chandigarh or was it that there was a higher
fat content prescribed for khoya for the State of Punjab as
appears from the appended note to the report ? These are
some of the aspects which require investigation. There is no
other alternative but to remit the matter to the High Court
for a decision a fresh.[526 D-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
462 of 1983.
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Appeal by Special leave from the Judgment and Order
dated the 5th March, 1980 of the Punjab and Haryana High
Court in Criminal Appeal No. 525 DBA of 1980.
515
P.P. Rao, R. Venkataramani and A. Mariaaputham, for the
Appellant.
S.K. Bagga for the Respondent.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave is directed
against the judgment and sentence of the Punjab & Haryana
High Court dated March 3, 1982 by which the High Court has
set aside the order of acquittal recorded by the Judicial
Magistrate, First Class, Moga dated March 14, 1980 and
convicted the appellant under s. 7 read with s. 16 (i) (a)
(i) of the Prevention of Food Adulteration Act, 1954 (‘Act’
for short) and sentenced him to undergo rigorous
imprisonment for a period of six months and fine of Rs.
1000/-, and in default, rigorous imprisonment for a further
period of three months.
The questions in this appeal are, firstly, a question
of law as to whether the word ‘damaged’ appearing in the
proviso to sub-s. (2C) of s. 13 of the Act is susceptible of
a wider construction as to include damage due to any cause
including decomposition; and secondly a mixed question of
fact and law, as to whether the kutcha khoya sold by the
appellant was ‘adulterated’ i.e. not of the nature,
substance or quality prescribed by law.
The relevant facts are these. The appellant runs a
sweetmeat shop at Sadar Bazar, Moga. On January 3, 1978 Dr.
Paramjit Singh, Medical Officer, R.D. Ramnagar, district
Faridkot, PW 2 along with Dr. Narinder Kumar, PW 3 visited
the shop of the appellant, disclosed his identity as a Food
Inspector and demanded 750 grammes of kutcha khoya for
analysis and purchased the same. The Food Inspector divided
the kutcha khoya so purchased into three equal parts, put
them into three polythene packs and added 18 drops of
formalin to each. The polythene packs were wrapped, labelled
and sealed as required under s. 11 (1) (b). One part of the
sample was sent by the Food Inspector to the Public Analyst,
Chandigarh and the remaining two parts to the Local (Health)
Authority, Faridkot as required by cl. (a) of sub-s. (1) of
s. 11 for purposes of sub-s. (2) thereof and sub-s. (2A) and
(2E) of s. 13. The Public Analyst, Chandigarh by his report
dated February 3, 1978 found the sample to be adulterated
with sesame oil (til oil) besides being insect
516
infested. The fat content of the sample was reported to be
25%. On the basis of the report of the Public Analyst, the
Food Inspector lodged a complaint against the appellant
before the Judicial Magistrate, First Class, Moga. The
appellant entered appearance and duly exercised his right
under sub-s. (2) of s. 13. The learned Magistrate sent one
of the two parts of the sample to the Director of the
Central Food Laboratory, Calcutta for purposes of analysis
under sub s. (2B) and the remaining part to the Local
(Health) Authority as required under sub-s. (2C) of s. 13 of
the Act. The Director by his letter dated May 2, 1978
intimated that the sample received by him was decomposed and
therefore unfit for analysis and added that the counter-part
of the sample may be sent to him immediately for analysis
and report. It appears that for a period of six months
apparently nothing was done. On November 10, 1978 the
learned Magistrate forwarded the remaining part of the
sample to the Director of Central Food Laboratory, Ghaziabad
for purposes of analysis. The report of the Director,
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Central Food Laboratory, Ghaziabad dated December 7, 1978
revealed that the sample was adulterated. The fat content
was however stated to be 33.12% with a note added that "the
extracted fat of 20.37% did not comply with the standards of
milk fat for the State of Punjab". At the conclusion of the
arguments, an application was made by the prosecution for
clarification to be sought from the Director, Central Food
Laboratory, Ghaziabad since the report was not clear, The
learned Magistrate however rejected the application and
proceeded to judgment. He held that the certificate of the
Director, Central Food Laboratory, Ghaziabad had the effect
of superseding the report of the Public Analyst, Chandigarh
under sub-s. (3) of s. 13 and therefore it could not be
looked into. He further relied upon a decision of the
Himachal Pradesh High Court in Ram Prakash v. State of
Himachal Pradesh(1) and held that the certificate of the
Director, Central Food Laboratory, Calcutta that the sample
had become unfit for analysis had become final and therefore
there was no occasion for sending the remaining part of the
sample to the Director, Central Food Laboratory, Ghaziabad
for analysis. He also held that even assuming that the
sample sent to the Director, Central Food Laboratory,
Calcutta had become ‘damaged’ within the meaning of proviso
to sub-s. (2C) of s. 13 and therefore he could proceed in
the manner provided by sub-s. (2B), the report of the
Director, Central Food Laboratory, Ghaziabad showed the fat
content to be 33.12% i.e. in
517
excess over the minimum standard of 20% for khoya prescribed
under the rules and therefore the khoya could not be treated
to be adulterated. In this view, the learned Magistrate
acquitted the appellant of the charge under s. 7 read with
s. 16 (i) (a) (i) of the Act.
On appeal preferred by the State Government, the High
Court disagreed with the view taken by the Himachal Pradesh
High Court in Ram Prakash’s case, supra, and held that it
was not permissible to put a narrow construction on the word
‘damaged’ used in proviso to sub-s. (2C) of s. 13. According
to the High Court, a sample may be ‘lost or damaged’ within
the meaning of proviso to sub-s. (2C) of s. 13 while in
transit due to contamination or for various other reasons
and therefore if another part of the sample was available,
it could still be examined afresh. Further, it observed that
the remaining part of the sample was sent to the Director,
Central Food Laboratory, Ghaziabad for analysis without any
objection by the appellant nor had any prejudice been caused
to him. The High Court dealt with the evidence and relying
upon the testimony of Dr. Paramjit Singh, PW 2 and Dr.
Narinder Kumar, PW 3 held that the appellant had sold an
article of adulterated food and was therefore guilty of an
offence punishable under s. 7 read with s. 16 (i) (a) (i) of
the Act and sentenced him as above.
In this appeal, two questions are involved, namely :
(1) Whether the part of the sample sent by the learned
Magistrate to the Director, Central Food Laboratory,
Calcutta was ‘damaged’ within the meaning of proviso to sub-
s. (2C) of s. 13 of the Act to enable him to proceed in the
manner provided in sub-s. (2B) i.e. forward the remaining
part of the sample to the Director, Central Food Laboratory,
Ghaziabad; and (2) Whether the kutcha khoya sold by the
appellant was adulterated within the meaning of s. 2 (ia)
(1) of the Act.
To appreciate the contentions raised, it is necessary
to set out the relevant provisions. The expression
‘adulterated’ is defined in s. 2 (ia) (1) of the Act which
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reads :
"2. Definitions : In this Act unless the context
otherwise requires,-
(ia) "adulterated"-an article of food shall be
deemed to be adulterated-
518
(1) if the quality or purity of the article falls
below the prescribed standard or its
constituents are present in quantities not
within the prescribed limits of variability,
which renders it injurious to health."
Sub-ss. (2B) and (2C) of s. 13 of the Act provide as follows
:
"(2B) : On receipt of the part or parts of the
sample from the Local (Health) Authority under sub-
section (2A), the court shall first ascertain that the
mark and seal or fastening as provided in clause (b) of
sub-section (1) of Section 11 are intact and the
signature or thumb-impression, as the case may be, is
not tampered with, and despatch the part or, as the
case may be, one of the parts of the sample under its
own seal to the Director of the Central Food Laboratory
who shall thereupon send a certificate to the court in
the prescribed from within one month from the date of
receipt of the part of the sample specifying the result
of the analysis."
"(2C) : Where two parts of the sample have been
sent to the court and only one part of the sample has
been sent by the court to the Director of the Central
Food Laboratory under sub-section (2B), the court
shall, as soon as possible, return the remaining part
to the Local (Health) Authority and that Authority
shall destroy that part after the certificate from the
Director of the Central Food Laboratory has been
received by the court :
Provided that where the part of the sample sent by
the court to the Director of the Central Food
Laboratory is lost or damaged, the court shall require
the Local (Health) Authority to forward the part of the
sample, if any, retained by it to the court and on
receipt thereof, the court shall proceed in the manner
provided in subsection (2B)."
The question is whether the kutcha khoya sold by the
appellant was not of the nature, substance or quality which
it purported or represented to be. Sub-s. (1) of s. 23
confers powers on the Central Government, after consultation
with the Central Committee for Food
519
Standards constituted under s. 4, to make rules to carry out
the purposes of the Act. In particular and without prejudice
to the generality of the foregoing power, sub-s. (1A) enacts
that such rules may provide for all or any of the matters
enumerated therein. One of the subjects upon which rules can
be made is defining the standards of quality for, and fixing
the limits of variability permissible in respect of, any
article of food. In exercise of the powers conferred by s.
23 of the Act, the Central Government framed the Prevention
of Food Adulteration Rules, 1955 (‘Rules’ for short). R. 5
of the Rules provides that the standards of quality of the
various articles of food specified in Appendix to the Rules
shall be as defined therein. Standards of quality and limits
of variability fixed by the Central Government in Appendix B
are not subject to alteration or variation by the courts.
Definitions of milk of various descriptions for each of
which standards have been laid down are in A. 11.01. There
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is a separate provision made with regard to milk products.
A.11.02 defines milk products obtained from milk such as
cream malai, curd, skimmed milk curd, chhanna, skimmed milk
chhanna etc. and includes khoya. A.11.02.01 contains the
following prescription :
"Milk products specified in Appendix B shall not
contain any substance not found in milk unless
specified in the standards."
A.11.02.17 prescribes the standards of quality for khoya and
it reads:
"Khoya means the product obtained from cow or
buffalo or goat or sheep milk or a combination thereof
by rapid drying. The milk fat content shall not be less
than 20 per cent of the finished product."
It appears that the attention of the High Court was not
drawn to the finding reached by the learned Magistrate based
on the report of the Director, Central Food Laboratory,
Ghaziabad. It revealed the fat content of the sample to be
33.12% and R.M. value of extracted fat to be 2037% i.e. more
than the minimum prescribed standard of 20% under item A.
11.02.17 of Appendix B to the Rules. The High Court has not
touched upon the finding recorded by the learned Magistrate
that the article of food was not adulterated and that the
report of the Director, Central Food Laboratory, Ghaziabad
520
could not form the basis for conviction. True it is, under
proviso to sub-s. (5) of s. 13 of the Act, the certificate
of the Director, Central Food Laboratory, Ghaziabad is final
and conclusive evidence of the facts stated therein, and it
states that the sample was ‘adulterated’. At the same time,
the fat content in the report was shown to be in excess of
the minimum fat content prescribed under item A. 11.02.17
with a note appended that ‘the extracted fat content did not
comply with the standards of milk fat for the State of
Punjab’. There is no material on record to show that any
separate fat content for khoya has been prescribed under
item A. 11.02.17 for the State of Punjab. We gave time to
learned counsel for the State to enlighten us on the
subject, but he has not been able to place on record any
notification issued by the Central Government in that
behalf. The contention is that unless the khoya was found to
be adulterated within the meaning of s. 2 (ia) (1) of the
Act, the appellant could not obviously be convicted for
having committed an offence punishable under s. 7 read with
s. 16 (i) (a) (i) of the Act.
There are certain aspects of the case which are rather
disturbing. It is not clear as to how the fat content of the
same article of food the sample of which, according to the
report of the Public Analyst, Chandigarh dated February 3,
1978 was 25%, went up to 33.12% as appears from the report
of the Director, Central Food Laboratory, Ghaziabad dated
December 7, 1978. Further, it is also not clear that when
the fat content of the sample was 33.12% and the R.M. value
of the extracted fat was 20.37%, still the Director on
analysis found the sample to be adulterated. Was it due to
the presence of any substance not found in milk like sesame
oil (til oil) as found by the Public Analyst, Chandigarh or
was it that there was a higher fat content prescribed for
khoya for the State of Punjab as appears from the appended
note ? These are some of the aspects which require
investigation. There is no other alternative but to remit
the matter to the High Court for a decision afresh. The High
Court may call for a clarification from the Director,
Central Food Laboratory, Ghaziabad, or take such other steps
as it deems fit.
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Turning now to the main question as to the real meaning
of the word "damaged" which occurs in the proviso to sub-s.
(2C) of s. 13 of the Act, it must be construed in
furtherance of the intention of the Legislature. The problem
of interpretation is a problem of meaning of words and their
effectiveness to communicate a particular thought. In all
ordinary cases primarily the language employed is
521
the determining factor, but words used by the Legislature do
not always bear a plain meaning. The word "damaged" must
take its colour from the context in which it appears. It
will be seen that the word "damaged" in the collocation of
the words "lost or damaged" appears both in sub-s. (2) of s.
11 and in the proviso to sub-s. (2C) of s. 13 and it is
therefore necessary to ascertain the purpose and object of
inserting these provisions, and the mischief sought to be
avoided by the Legislature. It is necessary to keep in view
the fact that Act 34 of 1976 has changed the whole procedure
of taking samples for purposes of analysis. These changes
have been brought about by Parliament with a view to prevent
certain malpractices. It is clearly plain from the report of
the Joint Select Committee on the Bill to amend the Act that
these provisions are intended and meant to check the Food
Inspectors from indulging in corrupt practices. The
procedure prescribed under the Act prior to the amendment
was that a Food Inspector was under an obligation to give
one of the parts of the sample to the person from whom the
sample was taken, send another part to the Public Analyst,
and retain the third part for production in case any legal
proceedings were taken, or for analysis by the Director of
the Central Food Laboratory, as the case may be. Experience
in the past showed that after a Food Inspector had sent one
part of the sample for analysis, the remaining part i.e. one
given to the vendor, and the other kept with the Food
Inspector, were usually tampered with, with the result that
prosecutions under s. 7 read with s. 16 (i) (a) (i) of the
Act invariably failed because of the breach of the
provisions of sub-s. (2) of s. 13 of the Act which entitles
the accused to have the remaining part of the sample sent to
the Director of the Central Food Laboratory for analysis.
It is pertinent to observe that along with the changes
brought about in s. 11 dealing with the procedure to be
followed by a Food Inspector, a new s. 13 has been inserted
by Act 34 of 1976. After the amendment when a sample of
article of food is taken, there is a duty cast upon a Food
Inspector under s. 11 (1) (c) (i) to send one of the three
parts of the sample for analysis to the Public Analyst under
intimation to the Local (Health) Authority. Under s. 11 (3)
he must do so by the immediately succeeding working day. He
is further required under s. 11 (1) (c) (ii) to send the
remaining two parts to the Local (Health) Authority for the
purpose of being utilized under sub-s. (2) of s. 11, or sub-
ss. (2A) and (2E) of s. 13, also not later than by the
succeeding working day under r. 17 (b).
522
Under sub-s. (2) of s. 11, if the sample sent to the Public
Analyst it lost or damaged, the Local (Health) Authority is
empowered, on a requisition made by the Public Analyst or
the Food Inspector, to despatch one of the parts of the
sample sent to it under s. 11 (1) (c) (ii) for analysis.
Under the scheme of the Act, the remaining two parts of
the sample are kept with the Local (Health) Authority in
order that in case the part of the sample sent to the Public
Analyst under s. 11 (1) (c) (i) is lost or damaged, or one
of the remaining two parts of the sample sent by the Court
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to the Director of the Central Food Laboratory under sub-s.
(2B) of s. 13 is lost or damaged, the remaining part or
parts are preserved for further analysis by the Public
Analyst, or the Director of the Central Food Laboratory, as
the case may be. It would be seen that the phrase ‘lost or
damaged’ appears both in sub-s. (2) of s. 11 and in the
proviso to sub-s. (2C) of s. 13, and these provisions have
been inserted by Parliament with a definite object.
The word "damaged" in the collocation of the words
"lost or damaged" appearing in the proviso to sub-s. (2C) of
s. 13 in relation to the part of the sample sent by the
court to the Director of the Central Food Laboratory must,
in the context, mean "damaged due to any cause, including
decomposition". The part of the sample sent by the Court to
the Director of the Central Food Laboratory under the
proviso to sub-s. (2C) of s. 13 may be either damaged due to
the container not being properly sealed or fastened, or due
to various other causes including breakage of the container,
or because decomposition has occurred, or it may be lost in
transit. The word "damaged" in the collocation of the words
"lost or damaged" occurring in sub-s. (2) of s. 11 and in
the proviso to sub-s. (2C) of s. 13 must be construed in
furtherance of the object and purpose of inserting these
provisions. The whole purpose of depositing two parts of the
sample with the Local (Health) Authority is that if one of
the parts of the sample is lost or damaged for any reason
whatever, the remaining part may still be available for
analysis.
There is a conflict of opinion between the High Courts
and also within the same High Court as to the construction
of the word
523
"damaged" used in the proviso to sub-s. (2C) of s. 13 of the
Act, some of which we have been able to trace out. The
Punjab & Haryana High Court has itself taken two contrary
views, one in the instant case, and the other in Darshan Lal
v. State of Punjab(1). The view of the Himachal Pradesh High
Court in Ram Prakash’s case, supra, and that of the Punjab &
Haryana High Court in Darshan Lal’s case, supra, is that the
meaning of the word "damaged" occurring in the proviso to
sub-s. (2C) of s. 13 must be controlled by the context and
it means "damaged due to the container not being properly
sealed or fastened". The view to the contrary has been
expressed by the Delhi High Court in State v. Joginder Lal
Kapoor(2) and by the Punjab & Haryana High Court in the
present case that the word "damaged" used in the proviso
must be given a wider meaning as to include "damaged due to
any cause, including decomposition". In Joginder Lal
Kapoor’s case, supra the Delhi High Court observed that the
loss or damage contemplated in the proviso to sub-s. (2C) of
s. 13 of the Act must occur after the sample is despatched
for analysis to the Central Food Laboratory, and added:
"A sample can get damaged for a number of reasons
including breakage, Leakage and decomposition. The
possibility of a sample getting decomposed because of
delay in transit cannot to ruled out. In my view the
word "damage" used in sub-s. (2C) has to be given a
wider meaning and it would include damage of any nature
including decomposition but the damage must occur after
the sample is despatched."
In Stroud’s Judicial Dictionary of Words & Phrases, 3rd
edn., p. 710, para 9, it is stated: "You ‘damage’ a thing if
you render it imperfect or inoperative". Decomposition would
render a sample useless and of no value for analysis. While
the Delhi High Court is right in holding in Joginder Lal
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Kapoor’s case, supra, that the word "damaged" used in sub-s.
(2C) has to be given a wider meaning, it is not possible for
us to subscribe to the view that the loss or damage
524
must occur after the sample is despatched for analysis to
the Central Food Laboratory. We are inclined to think that
the word "damaged" is wide enough to mean "damaged due to
any cause whatever, including decomposition". To restrict
the meaning of the phrase ‘lost or damaged’ would be to
defeat the object for which the new s. 13 was inserted by
Parliament by Act 34 of 1976. It is not necessary that loss
should take place only after the actual despatch of the part
of the sample to the Central Food Laboratory has commenced.
From the nature of things, the loss contemplated by the
proviso to sub-s. (2C) of s. 13 must take place after the
court has directed one part of the sample to be despatched
to the Central Food Laboratory, but the course of such
despatch is not required to be confined to the period of
actual transit. Even if that part of the sample is lost
after the court has directed it to be sent to the Director
of the Central Food Laboratory and before the actual transit
has commenced, that part of the sample would be "lost"
within the meaning of the proviso to sub-s. (2C) of s. 13.
So far as the damage to that part of the sample is
concerned, if damage in the sense of decomposition were to
be interpreted to mean decomposition taking place during the
course of transit, it would frustrate the very object of
Parliament in enacting the proviso to sub-s. (2C) of s. 13.
Decomposition is not something which always takes place
suddenly or immediately. It is a process which in some cases
may be slow and in some cases quick. Decomposition cannot be
noticed or ascertained by the Court when it inspects the
part of the sample under sub-s. (2B) of s. 13 to ascertain
whether the mark and seal or fastening are intact and the
signature or thumb-impression, as the case may be, not
tempered with, before despatching that part to the Central
Food Laboratory. Even with the mark and seal intact, and the
signature or thumb-impression, as the case may be, not
tampered with, the sample might have already decomposed or
decomposing might have already commenced. Whether a sample
has decomposed or not can only be ascertained when the
sealed container is opened in the Central Food Laboratory
for the purpose of analysis. Thus, while from the nature of
things loss or external damage to the sample must take place
after the Court directs under sub-s. (2B) of s. 13 despatch
of the part of the sample, damage in the sense of
decomposition of that part of the sample sent to the Central
Food Laboratory may take place either before or after the
Courts directs its despatch to the Central Food Laboratory.
In either event, that part of the sample would be "damaged"
within the meaning of that expression in the proviso to sub-
s. (2C) of s. 13 of the Act.
525
With these observations, the appeal partly succeeds and
is allowed. The judgment and sentence passed by the High
Court are set aside and the appeal is remanded to the High
Court for a decision afresh with advertence to the
observations made above.
H.S.K. Appeal partly allowed.
526