Full Judgment Text
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PETITIONER:
ANDHRA PRADESH GRAIN & SEED MERCHANTS’ ASSOCIATION ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ANR.
DATE OF JUDGMENT:
31/03/1970
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
HEGDE, K.S.
GROVER, A.N.
CITATION:
1971 AIR 2346 1971 SCR (1) 166
1970 SCC (2) 71
ACT:
Prevention of Food Adulteration Act (37 of 1954), ss. 7, 10
and 19--Constitutional validity of.
HEADNOTE:
The petitioners are traders in foodgrains, edible oils and
other articles of food. In a petition under Art.32 they
challenged the validity of ss. 7, 10 and 19 of the
Prevention of Food Adulteration Act, 1954. They contended
that: (1) ss. 7 and 10 of the Act are violative of Arts. 14
and 19(1)(g) because, (a) s. 16(1)(a) of the Act read with
s. 19(1) imposes an absolute liability on dealers; (b) the
standards of quality and limits of variability Of quality
prescribed by the Act are unreasonable and that small
dealers would not be in a position to ascertain whether the
goods purchased by them or in their possession are according
to those standards as required by s. 7 of the Act; (c) even
when an article is purchased not as an article of food, but
for other use, the vendor would be deemed guilty if the
article did not conform to the prescribed standards; (d) if
a retail seller opens a container of branded article of food
he loses even the limited protection provided by s. 19(2);
and (e) that the penalties which may be imposed under s.
16(1) (a) are unduly severe; and (2) the non-availability to
the vendor of the plea of his ignorance and the
conclusiveness of the certificate of the Director of Central
Food Laboratory under s. 13(5) of the Act, violate the
guarantee under Art. 20(3).
HELD : (a) The Act does not make mens rea an ingredient of
the offence. Ordinarily, for the protection of the liberty
of a citizen, in the definition of offences, blame-worthy
mental condition is made an ingredient: but in Acts enacted
to deal with a grave social evil or for ensuring public
welfare especially in offences against health, it is often
found necessary in the larger public interest to provide for
imposition of liability without proof of a guilty mind. If
from the scheme of an Act, it appears that compliance with
the regulatory provisions will be promoted by imposing such
absolute liability and that it cannot otherwise be
reasonably ensured, the court will be justified in holding
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that the restriction on the right of the trader is in the
interest of the general public. [172 H-173 C]
Adulteration and misbranding of food is a rampant evil in
our country. The channels of supply and the movement of
goods from trader to trader, and fertile sources of
adulteration and misbranding, make it extremely difficult in
a large majority of cases to establish affirmatively that
storage or sale of adulterated or misbranded food-stuffs was
with a guilty mind. Therefore, a statute calculated to
control that evil is in the interest of the general public
and merely because it makes a departure from the normal
structure of statutes enunciating offences and prescribing
punishments, the restrictions on traders will not be deemed
unreasonable. The defences set out in s. 19(2) are open to
the vendor and the act does not dispense with proof that the
article of food is adulterated, misbranded or that its sale
is prohibited : it only enacts that a vendor selling
adulterated and misbranded articles of food cannot merely
plead that he was ignorant of the nature and quality of the
goods. [171 G-H; 173 C-D]
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(b) The schedule to the Act uses technical expressions in
relation to standards of quality and an ordinary retail
dealer may not be familiar, with them. But the rules, made
under s. 23(1)(b) prescribe clearly the standards of
quality. The standards are arrived at after consultation.
with the Committee for Food Standards which. consists of
experts in the field of food technology and food analysis
and representatives of the Central and State Governments.
Hence the standards cannot be, challenged as arbitrary or
unreasonable. [175, C]
(c) What is penalised by s. 16(1) is the importation,
manufacture for sale or storage, sale or distribution of any
article of food. It is always open to a person selling an
article capable of being used as an article of food as well
as for other purpose, to inform the purchaser by clear
notice that the article sold or supplied was not intended to
be used as an article of food and in such cases s. 16 would,
not apply. [174 G]
(d) Under s. 19(2) if the vendor has obtained the article of
food from a licensed manufacturer, distributor or dealer or
from a manufacturer, distributor or dealer With a warranty,
he is protected, provided he. has properly stored the
article and sold it in the same state as he purchased it,
even if it turns out to be adulterated or misbranded. By
merely opening the container the article of food does not
cease to be in the same state in which the vendor purchased
it. Therefore, the vendor will not lose the protection of
the sub-section merely because he opens the container.. [173
G-H]
(e) The severity of the penalty is not so disproportionate
to the gravity of the offence that it may be deemed
unreasonable, because, the penalties are imposed as a
deterrent to prevent malpractices by traders in articles of
food and to ensure the purity of articles of food. [174 C]
The Act deals with the regulation of a class of traders and
in view of the widespread malpractices and the practical
difficulties of controlling the malpractices, stringent
provisions have been made in the Act. The classification is
founded on an intelligible differentia and has a rational
relation to the object sought to be achieved. [176 C]
(2) Article 20(3) provides that no person accused of any
offence shall be compelled to be a witness against himself.
By providing that a plea of ignorance of the vendor wilt not
be a defence and that the certificate of the Director of
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Central Food Laboratory, who is a disinterested and high
placed official as conclusive, Art. 20(3) is not violated.
[176 D-C]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petitions Nos. 468, 469 489, and
490 of 1969.
Petitions Under Art. 32 of the Constitution of India for
enforcement of fundamental rights.
S. V. Gupte, D. Sudhakara Rao and B. Parthasarathy, for the
petitioners (in W. P. No. 468 of 1969).
B.ParthasarathY, for the petitioners (in W. P. Nos. 469, 489
and 490 of 1969).
Niren De- Attorney-General, B. D. Sharma and S. P. Nayar,
for respondent NO. 1 (in all the appeals).
168
P. Ram Reddy and G. S. Rama Rao, for respondent No. 2 (in
all the petitions).
The Judgment of the Court was delivered by
Shah, J. The petitioners who are traders in foodgrains
edible oils, and other articles of food, challenge the
validity of S. 7 read with s. 2 (v) and 2 (ix), and S. 19,
S. 2 (i) and s. 1 0 read with S. 13 of the Prevention of
Food Adult Iteration Act 37 of 1954 and the rules framed
thereunder. They claim that by the Act and the rules the
fundamental rights guaranteed under Arts. 14, 19 (1) (g) and
20(3) of the Constitution are infringed.
The Parliament, with a view to control adulteration and mis-
branding of articles of food, enacted the Prevention of Food
Adulteration Act, 1954. The petitioners concede that they
do not claim a fundamental right to carry on business in
adulterated or misbranded foodstuffs : they claim that ,they
are honest traders, and do not resort to any malpractice,
still in carrying on their business in foodstuffs they are,
by the Act, subjected to restrictions which are not
reasonable. They contend that the Act presumes every trader
charged with an offence under S. 1 6 (1) (a) to be guilty
and imposes upon him the burden of proving that he is not
guilty of the offence charged, by establishing facts which
are not within his knowledge, or which without great expense
wholly incommensurate with his means and the facility
available to him, he cannot establish. They also claim that
by the Act they are denied the equal protection of the laws
and the guarantee of Art. 20(3) of the Constitution is
infringed.
The relevant provisions of the Act may first be noticed.
Section 7 of the Act provides
No person shall himself or by any person on
his behalf manufacture for sale,or store, sell
or distribute-
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of
which a
licence is prescribed, except in accordance
with the conditions of the licence;
(iv) any article of food for the sale of
which is for the time being prohibited by the
Food (Health) Authority in the interest of
public health; or
(V) any article of food in contravention of
any other’ provision of this Act or of any
rule made thereunder."
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169
By s.10 a food inspector appointed under s. 9 ( 1 ) of the
Act is authorised to take samples of any articles of food
from any person selling such article, or from any person who
is in the course of conveying, delivering or preparing to
deliver such article to a purchaser or consignee, or from a
consignee after delivery of any such article to him, and to
send such sample for analysis to, the public analyst, and
with the previous approval of the health officer having
jurisdiction in the local area concerned, or with the pre-
vious approval of the Food (Health) Authority to prohibit
the sale of any article of food in the interest of public
health. Sub-section (5) of s. 13 provides
"Any document purporting to be a report signed
by a public analyst, unless it has been
superseded under sub-section (3), or any
document purporting to be a certificate signed
by the Director of the Central Food Labo-
ratory, may be used as evidence of the facts
stated therein in any proceeding under
this Act
or under sections 272 to 276 of the Indian
Penal Code
Provided that any document purporting to be a
certificate signed by the Director of the
Central Food Laboratory shall be final and
conclusive evidence of the facts stated
therein."
Section 16(1) prescribes the penalties : cls. (a) & (f)
which are relevant provide
"(1) If any person-
(a) whether by himself or by any other person
on his behalf imports into India or
manufactures for sale, or stores, sells or
distributes any article of food-
(i) which is adulterated or misbranded or the
sale of which is prohibited by the Food
(Health) authority in the interest of public
health;
(ii)other than an article of food referred
to in subclause (i), in contravention of any
of the provisions of this Act or of any rule
made thereunder; or
(f) whether by himself or by any other person
on his behalf gives to the vendor a false
warranty in writing in respect of any article
of food sold by him,
he shall in addition to the penalty to which
he may be liable under the provisions of
section 6, be punish-able with imprisonment
for a term which shall not be less than
L11Sup.Cl/70 12
170
six months but which may extend to six years,
and with fine which shall not be less than one
thousand rupees: Provided that-
.................................
Section 19 deals with the defences which may, and which may
not, be allowed in prosecutions under the Act. It provides
"(1) It shall be no defence in a prosecution
for an offence pertaining to the sale of any
adulterated or misbranded article of food to
allege merely that the vendor was ignorant of
the nature, substance or quality of the food
sold by him or that the purchaser having
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purchased any article for analysis was not
prejudiced by the sale.
(2) A vendor shall not be deemed to have
committed an offence pertaining to the sale of
any adulterated or misbranded article of food
if he proves ’-
(a) that he purchased the article of food-
(i) in a case where a licence is prescribed
for the sale thereof, from a duly licensed
manufacturer, distributor or dealer;
(ii) in any other case, from any manufacturer,
distributor or dealer
with a written warranty in the prescribed
form; and
(b) that the article of food while in his
possession was properly stored and that he
sold it in the same state as he purchased it.
(3)Any person by whom a warranty as is
referred to in section 14 is alleged to have
been given shall be entitled to appear at the
hearing and give evidence."
"Food" is defined in S. 2(v) as meaning "any article used as
food or drink for human consumption other than drugs and
water and includes-(a) any article which ordinarily enters
into, or is used in the composition or preparation of human
food, and (b) any flavouring matter or condiments".
Clauses (i) and (ix) of S. 2 define the expressions
"adulterated" and "misbranded".
According to counsel for the petitioners the Act imposes un-
reasonable restrictions, because it creates absolute
liability by S. 16(1) (a) and imposes severe penalties for
storage and sale or distribution of articles of food found
to be adulterated or misbranded, or prohibited by law; it
prescribes standards which are technical, and absolute, and
for the slightest departure therefrom the trader is liable
to be prosecuted and punished. Counsel submitted that it is
impossible for an ordinary trader without the
171
assistance of an expert technician to ascertain whether the
articles of food purchased by him comply with the prescribed
standards, and that in prescribing the standards of quality
the imperceptible changes which take place in foodstuffs by
passage of time, are not taken into account.
In our judgment, the restrictions imposed upon the conduct
of business by traders in foodstuffs cannot be deemed
unreasonable. By s. 16(1) provision is made for imposing
penalties, among other acts, for storage, sale or
distribution of articles of food which are adulterated or
misbranded, or sale of which is prohibited by the Food
(Health)authority in the interest of the public health, or
is in contravention of the Act or the rules. The Act, it is
true, does not make some blame-worthy mental condition
constituted by knowledge or intention relating to the nature
of the article stored, sold or distributed, an ingredient of
the offence. Unless the case falls within sub-s. (2) of s.
19, if sale, storage or distribution is established,
intention to sell articles or knowledge that the articles
are adulterated, misbranded, or prohibited need no, be
proved by the prosecutor to bring home the charge. Sub-
section (1) of s. 19 provides that it is no defence in a
charge, for an offence pertaining to the sale of any
adulterated or misbranded article of food to allege merely
that the vendor was ignorant of the nature, substance or
quality of the food sold by him, or that the purchaser
having purchased any article for analysis was not prejudiced
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by the sale. By that clause a bare plea of ignorance by a
trader about the nature, substance or quality of the food
sold by him is not a defence in a prosecution for the
offence pertaining to the sale of any adulterated food nor
that the article was, purchased for analysis.
But in considering whether creation of absolute liability
amounts to imposing unreasonable restrictions, the Court has
to strike a balance between the individual right and public
weal. The Courts will not strike down an Act as imposing
unreasonable restrictions merely because it creates an
absolute liability for infringement of the law which
involves grave danger to public health. The Courts will
undoubtedly consider whether without imposing absolute
liability the object of the statute could be reasonably
secured. For that purpose the Court will consider the
object of ,the Act, apprehended danger to. the public
interest, arising out of the activity if not controlled and
the, possibility of achieving the intended results by less
stringent provisions. The nature of the trade in
foodstuffs, the channels of supply and the movement of goods
from trader to trader and fertile sources of adulteration
and misbranding make it extremely difficult in a large
majority of cases to establish affirmatively that storage or
sale of adulterated or misbranded foodstuff was with a
guilty mind. Provisions in the statute book creating
absolute liability for sale of adulterated food are
172
fairly common. Section 3(1) of the English "Foods & Drugs
Act", 1938, imposes absolute duty on a dealer in foodstuff
regardless of negligence : Lindley v. George W. Horner & Co.
Ltd.;(1) and Lamb v. Sunderland and District Creamery Ltd. 2
) The same provision is repeated in S. 2 of the "Food and
Drugs Act", 1955. In Halsbury’s Laws of England, Vol. 10
(3rd Edn.) at p.273, Art. 508, it is stated :-
"A statutory crime may or may not contain an
express definition of the necessary state of
mind. A statute may require a specific
intention, malice, knowledge, wilfulness, or
recklessness. On the other hand, it may be
silent as to any requirement of mens rea, and
in such a case in order to determine whether
or not mens rea is an essential element of the
offence, it is necessary to look at the
objects and terms of the statute. In some
cases, the courts have concluded that despite
the absence of express language the intention
of the legislature was that mens rea was a
necessary ingredient of the offence. In
others, the statute has been interpreted as
creating a strict liability irrespective of
mens rea. Instances of this strict liability
have arisen on the legislation concern
ing food
and drugs, liquor licensing, and many other
matters".
In Mousell Brothers v. London and North Western Rail Co.(3)
Atkin, J., observed :
"...... yet the legislature may prohibit an
act or enforce a duty in such words to make
the prohibitions or the duty absolute :.......
To ascertain whether a particular Act of
Parliament has that effect or not, regard must
be had to the object of the statute, the words
used, the nature of the duty laid down, the
person whom it is imposed, the person by whom
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it would in ordinary circumstances be
performed, and the person upon whom the
penalty is imposed."
In Quality Dairies (York) Ltd. v. Pedley 4 ) the Court of
Appeal held that Regulation-26(1) of the Mill and Dairies
Regulation, 1949, requiring a distributor to ensure that
every vessel used as a container for milk shall be in a
state of thorough cleanliness, imposed an absolute
liability.
It is true that for the protection of the liberty of the
citizen, in the definition of offences, blameworthy mental
condition is ordinarily an ingredient either by express
enactment or clear implica-
(1) [1950] 1 All. E.R. 234.
(3) [1917] 2 K.B. 845.
(2) [1951] All. E.R. 923.
(4) [1952] 1 All. E..R. 380.
173
tion : but in Acts enacted to deal with a grave social evil,
or for. ensuring public welfare, especially in offences
against public health, e.g., statutes regulating storage or
sale of articles of food and drink, sale of drugs, sale of
controlled or scare commodities, it is often found necessary
in the larger public interest to provide for imposition of
liability without proof of a guilty mind.
If from the scheme of the Act it appears that compliance
with the regulatory provisions will be promoted by imposing
an absolute liability, and that it cannot otherwise be
reasonably ensured, the Court will be justified in holding
that the restriction on the right of the trader is in the
interest of the general public. Adulteration and
misbranding of foodstuffs is a rampant evil and a statute
calculated to control that evil is indisputably in the
interest of the general public : The statute imposing
restrictions upon traders will not be deemed unreasonable
merely because it makes a departure from the normal
structure of statutes enunciating offences and prescribing
punishments. By sub-s. (2) of S. 19, even in respect of the
absolute offence, the Parliament has enacted that on proof
of certain facts, criminal liability will be excluded.
Thereby a vendor is not deemed to have committed an offence
pertaining to the sale of any adulterated or misbranded
article of food if he proves that the purchased the article
of food from a duly licensed manufacturer, distributor or
dealer in a case where a licence is prescribed for the sale
thereof, and in any other case from any manufacturer,
distributor of dealer with a written warranty in the
prescribed form, provided the article of food while in his
possession was properly stored and that he sold it in the
same state as the purchased it. The argument of counsel for
the petitioners that the provision that a retail seller who
opens a container of a branded article of food loses even
the limited protection under s. 19(2) is without substance.
Clause (b) of sub-s. (2) of s. 19 does not provide, nor does
it imply, that if the container of a branded article is
opened, the article of food ceases to be in them same state
in which the vendor purchased it. If the article of food’
is sold in the same condition in which it was purchased from
a licensed manufacturer or dealer, or was purchased with a
warranty, the vendor will not lose the protection of sub-s.
(2) of S. 19 merely because he opened the container. If the
vendor has obtained the article from a licensed
manufacturer, distributor or dealer or from a manufacturer,
distributor or dealer with a warranty, he is protected,
provided he has property stored the article and sells it in
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the same state as he purchased the article, even if it turns
out that the article was adulterated or misbranded. The Act
does not dispense with proof that the article of food is
adulterated, misbranded or that its sale is prohibited: it
enacts that a vendor selling articles of food adulterated or
misbranded cannot plead merely that he was ignorant of the
nature, substance or quality
174
of the goods. A statute enacted by the Parliament in the
interest of public health (which is generally made in
similar statutes elsewhere) imposing liability for an
offence without proof of a guilty mind does not per se
impose restrictions on the, freedom to carry on trade which
are unreasonable.
It is true that stringent penalties are provided under S. 16
(1)(a). A vendor of adulterated, misbranded or prohibited
articles of food is punishable with imprisonment for a term
which shall not, in the absence of adequate and special
reasons, be less than six months, and which may extend to
six years, and with fine which shall not be less than one
thousand rupees. But for the protection of the public by
ensuring the purity of articles of. food supplied to the
people and preventing malpractices by the traders in
articles of food, severity of the penalties is not so
disproportionate to the gravity of the offence that it may
be deemed unreasonable.
We are again unable to accept the argument that under the
Act even when an article is purchased not as an article of
food, but for use otherwise, the vendor will be deemed
guilty if the article does not conform to the ’prescribed
standards, or is as an article of food adulterate or
misbranded. Counsel said that coconut oil is used in the
State of Kerala as a cooking medium, and sale of adulterated
coconut oil may in Kerala be an offence under S. 16, but in
other parts of the country where coconut oil is not used as
a cooking medium and is used as a component of hair oil or
for other purposes, it amounts to imposing an unreasonable
restriction to penalise the vendor who sells coconut oil
knowing that the, purchaser is not buying it as a cooking
medium. But there are no articles which are used as food
only in one part, and are not at all used as food in another
part of the country. Even coconut oil is used as a cooking
medium by certain sections of the people in parts of India
other than Kerala. In any event it is always open to a
person selling an article capable of being used as an
article of food as well as for other purpose, to inform the
purchaser by clear notice that the, article sold or supplied
is not intended to be used as an article of food. What is
penalised by s. 16(1) is importation manufacture for sale,
or storage, sale, or distribution Of any article of food.
If what is imported manufactured or stored, sold or
distributed is not an article of food, evidently S.16 can
have no application.
The various items in the Schedule seting out standards of
quality use technical expressions with which an ordinary
retail dealer may not be familiar, and also set out
percentages of components which the dealer with the means at
his command
175
cannot verify. But by S. 3, the Central Government has to
set up the Central Committee for Food ’Standards to advise
the Central and the State Governments on matters arising out
of the administration of the Act. The Committee consists of
experts and representatives of the Central Government and of
the State Governments and the Director General of Health
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Services is its Chairman. Under S. 23 (1) (b) the Central
Government makes rules prescribing the standards of quality
and the limits of variability permissible in any article of
food. The rules are made after consultation with the
Committee for Food Standards. The standards set out in the
Appendix to the Rules are prescribed after consultation with
the Committee for Food Standards. It has not been even
urged that the standards have been fixed arbitrarily.’ Apart
from a general argument that small retail dealers may not,
be in a position to ascertain whether goods purchased by
them or in their possession are according to the standards,
no specific argument was advanced that the standards, are
not normal, or that the variations in quality during the
course of storage are unreasonably restricted.
This Court in State of Uttar Pradesh v. Kartar Singh(1) in
which in dealing with an argument of invalidity of the rule
setting out standards under the Prevention of Food
Adulteration Act observed :
"The standards themselves, it would be
noticed, have been prescribed by the Central
Government on the advice of a Committee which
included in its composition persons considered
experts in the field of food technology and
food analysis. In the circumstances, if the
rule has to be struck down as imposing
unreasonable or discriminatory standards, it
could not be done merely on any a priori
reasoning but only as a result of
materials
placed before the Court by way of scientific
analysis. . . . That where a party seeks to
impeach the validity of a rule made by a
competent authority . . . . . . the burden is
on him to plead and prove the infirmity is too
well established to need elaboration. If,
therefore, the respondent desired to challenge
the validity of the rule on the ground either
of its unreasonableness or-its discriminatory
nature, he had to lay a foundation for it by
setting out the facts necessary to sustain
such a plea and adduce cogent and convincing
evidence to make out his case, for there is a
presumption that every factor which is
relevant or material has been taken into
account in formulating the classification of
the zones and the, prescription of the minimum
(1) [1964] 6 S.C.R. 679.
176
standards to each zone, and where we have a
rule framed with the assistance of a Committee
containing ex. perts such as the one
constituted under s. 3 of the Act, that
presumption is strong, if not overwhelming."
In the petitions a plea was raised that by the Act and the
Rules, the guarantee of Art. 14 was infringed, but no
argument was presented before us independently of the
argument relating to infringement of the guarantee under
Art. 19(1)(g), in support of the contention that the Act
infringed the guarantee of equality before the law or equal
protection of the laws. The Act deals with the regulation
of a class of traders, and in view of the widespread
malpractices, and the practical difficulties of controlling
those malpractices, stringent provisions have been made by
the Act. The classification is founded on an intelligible
differentia and the differentia has a rational relation to
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the object sought to be achieved. The provisions of the Act
again do not invest arbitrary authority upon those who are
to administer the Act. nor can it be said that the standards
prescribed are arbitrary.
The Act does not infringe the guarantee of Art.20(3) of the,
Constitution. By that clause no person accused of any
offence shall be compelled to be a witness against himself.
But by enacting that a plea by the vendor in a prosecution
for an offence pertaining to sale of adulterated or
misbranded article of food, that he was ignorant of the
nature, substance or quality will not be a defence, the
guarantee under Art. 20(3) is not infringed. The vendor
when charged with an offence is not thereby compelled to be
a witness against himself. Nor can it be said that by
making the report of the Director of Central Food Laboratory
conclusive evidence of the facts stated therein, any such
infringement is intended. The provision has been made with
a view to secure formal evidence of facts without requiring
the Director to remain present, and in’ the interest of
effective administration of the Act, the certificate signed
by the Director of the Central Food Laboratory is made final
and conclusive evidence of the facts stated therein. The
Director is a highly placed official, an expert in
determining the nature, substance and quality of food, and
is wholly disinterested in the result of any case coming
before the Courts. It is difficult to appreciate how con-
clusiveness attributed to the certificate of the Director
compels the vendor charged with an offence under the Act to
be a witness
The petitions fail and are dismissed with costs. One
hearing fee
Y.P. Petition dismissed.
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