B.C. PATEL, J.

(1) ONE of us, on 22-9-1998, considering the importance of question raised, referred the matter to a Division Bench and the Honble the Chief Justice has directed the office to place the matter before us for answering the question raised in the aforesaid appeal.

(2) THE question raised is as under : "can a report of the Public Analyst delivered under Sec. 13 (1) of the prevention of Food Adulteration Act, 1954 declaring on analysis of a sample of food to be "adulterated" or "misbranded", be ignored without examining the Public Analyst as a witness either by the Court or the accused raising a doubt about the correctness of the report only on the ground that the report is signed by the Public Analyst later on and not on the date on which sample was analysed"

(3) FROM the record it appears that on 25-1-1990 at about 4. 45 p. m. , Shri n. M. Patel, Food Inspector, in presence of panchas collected samples of Jowar and Split Pulse (Moong Dal). As per the prosecution case the samples were collected in accordance with the rules and on analysis the sample of Moong dal was found having tartrazine yellow coaltar colour in breach of Rule 23 and thus was held to be adulterated. After obtaining consent, the prosecution came to be filed. The trial Court, on appreciation of evidence, held that the accused is not guilty.

(4) LEARNED single Judge of this Court (Coram : H. R. Shelat, J.), in Criminal appeal No. 374 of 1987 (State of Gujarat v. Ramniklal Jesang Vora) decided on 30-5-1996, relying on three decisions two of this Court and one of Bombay high Court which are referred to in paragraph 7 of the judgment of the learned single Judge held that, "if the report is not prepared and signed by the Analyst on the same day when the sample sent to him is analysed, the report prepared will cease to have any evidentiary value. " On the basis of this finding, it was submitted that the report will have no evidentiary value, and will have to be ignored if the same is not signed on the same date, i. e. on the date on which the sample is analysed. Similar view is taken in the following matters :

(i) Criminal Appeal No. 200 of 1987 State of Gujarat v. Chunilal decided by N. N. Mathur, J. on 24-2-1994.

(ii) Criminal Revision Application No. 2936 of 1985 Babubhai Ranchhodbhai chauhan v. State of Gujarat, decided by S. D. Dave, J. on 19-3-1996.

(iii) Criminal Revision Application No. 2936 of 1995 B. R. Chauhan v, state, decided by S. D. Dave, J. on 19-3-1996.

(iv) Criminal Appeal No. 1058 of 1990 State of Gujarat v. Sasuddin valibhai, decided by K. R. Vyas, J. on 23-10-1996.

(v) Criminal Revision Application No. 381 of 1997 decided by A. K. Trivedi, j. on 16-3-1998 in the case of State of Gujarat v. Vijaybhai Pratapbhai dhruv.

(vi) Criminal Appeal No. 485 of 1989 - State of Gujarat v. Patel Damjibhai jethabhai, decided on 31-8-1998 by A. L. Dave, J.

(5) IT would be relevant to refer to clauses 1 and 2 of Sec. 13 of the prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act")which are reproduced below : 13. Report of Public Analyst : (1) The Public Analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. (2) On receipt of the report of the result of the analysis under sub-sec. (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Sec. 14-A, forward in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons, that if it is so desired, either or both of them 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 article of food kept by the local (Health) Authority analysed by the Central Food Laboratory. (2-A) to (5) xxx xxx xxx

5. 1. Rule 7 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as "the Rules"), refers to the duty of the Public Analyst, which reads as under : 7. Duties of Public Analyst : (1) On receipt of a package containing a sample for analysis from a Food inspector or any other person the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon : provided that in case sample container received by the Public Analyst is found to be in broken condition or unfit for analysis, he shall within a period of seven days from the date of receipt of such sample inform the Local (Health)Authority about the same and send requisition to him for sending second part of the sample. (2) The Public Analyst shall cause to be analysed such sample of articles of foods as may be sent to him by Food Inspector or by any other person under the Act. (3) The Public Analyst shall, within a period of forty days from the date of receipt of any sample for analysis, send by registered post or by hand to the Local (Health) Authority a report of the result of such analysis in Form iii : provided that where any such sample does not conform to the provisions of the Act or these Rules, the Public Analyst shall send by registered post or by hand four copies of such report to the said Authority : provided further that the Public Analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis under Sec. 12 of the Act. Note :- In case of sample received under the proviso of Rule 7 (1) of Rule 9-A, the period of forty days shall be counted from the date of receipt of the second part of the sample.

(6) A Division Bench of the Bombay High Court in fact considered the delay in analysis of samples of milk and "dahi" in three different appeals, viz. Criminal Appeals No. 1008 of 1967, 1009 of 1967 and 1011 of 1967 on 25th April 1969. The State, in these three appeals, challenged the order of acquittal on the ground that the requirements of Rules 17, 18 and 20 of the prevention of Food Adulteration Rules are directory. From the judgment it transpires that there was inordinate delay in analysis of the samples. The Court was of the opinion that "the analysis by the Public Analyst should be made within reasonable time the earlier the better, and that certainly the delay in analysis of two and a half months to five months must deprive the analysis report of all value. "

(7) WE are of the view that one has to consider Rule 7 (3) which requires that "the Public Analyst shall, within a period of forty days from the date of receipt of any sample for analysis, send by registered post or by hand to the local (Health) Authority a report of the result of such analysis in Form III". We are of the view that so far as delay is concerned, Rule 7 (3) holds the field which requires the Public Analyst forward the report of analysis within a period of forty days from the date of receipt of the sample. In view of Apex courts judgments, requirement of forwarding within forty days now cannot be said to be mandatory but only directory. Apex Court earlier in the case of shambhu Dayal v. State of U. P. , reported in AIR 1979 SC 310 [LQ/SC/1978/346] pointed out that with addition of formalin in sample of milk if the statement made by the public Analyst that no change has taken place in the constituents of the milk which would interfere with the analysis of the milk, not being challenged even 44 days after report is received, must be accepted. In case of T. U. Usman v. Food Inspector, reported in 1994 (1) GLH 420, Apex Court considered the aspect of delay and expression "shall" used in Rule 7 (3) and held that, "it must be shown that the delay has led to the denial of right conferred under sec. 13 (2) and that depends on the facts of each case and violation of the time-limit given in sub-rule (3) of Rule 7 by itself cannot be ground for prosecution case being thrown out. " Thus, prime consideration is prejudice on account of delay. Mere delay does not mean prejudice. Either Public Analysts opinion about the sample in a condition unfit for analysis or the opinion similarly given by Central Food Laboratory can indicate prejudice.

(8) THE cases before the Division Bench of the Bombay High Court were of milk and curd and considering the experts opinion contained in Dairy bacteriology, 4th edition, by Hammer and Patel, and after considering the effect of addition of preservative and delay, the Court recorded its findings as stated earlier. It is at that juncture contentions were raised by the State that the date on the Public Analysts report is only the date on which the Public Analyst signed it and it does not necessarily imply, that the Public Analyst made his analysis on the date which the analysis report bears. Thus, it was suggested without any material on record that the sample might have been analysed much earlier so as to bring the analysis within the time mentioned in the rule or to say that as the sample was analysed much earlier in time, the report should be accepted. These submissions were made without any supporting evidence and were based on conjectures. However, the Bombay High Court opined that, "if it was the prosecution case that the Public Analyst has made his analysis soon after the receipt of the samples, but had kept a record of the analysis with him and merely gave the certificate from that record, then this report will lose the evidentiary value which is imparted to it by the Act. It will really be those entries which will be endowed with the evidentiary value which the Act imparts to the Public Analysts report. "

(9) IT is clear that the learned Judges expressed their opinion as submissions were made. That opinion was not necessary for the decision of the case. Reading the order, it transpires that the Court confirmed the orders of acquittal on the ground that statute lays down the most -stringent punishment for an offence and before interference with the order of acquittal. Court must be satisfied that error of law is committed by the Court below and as there was inordinate delay in analysis of samples which must deprive the analysis report of all value. No question was raised about the admissibility of report of Public Analyst in evidence, Court has not considered the provisions contained in Sec. 13 (5) of the Act and likewise provision made in Sec. 293 of the Criminal Procedure code for admissibility of a public document on mere production. The Court was not called upon to decide the accepability or admissibility of Public Analysts report, and therefore, it can be said that the observations quoted in the preceding paragraph were mere passing observations while answering the questions raised by the learned Counsel for the State. The view expressed by the Bombay High court could not be termed as ratio decidendi and the opinion expressed by the Court is in the nature of obitur.

(10) IN the case of K. T. Rajkotwala v. State of Maharashtra, reported in 1976 U. C. R. (Bom.) 474, which has been relied upon by the learned Advocate for the respondent, the Court has referred to the aforesaid judgment of the division Bench of the Bombay High Court, which we have discussed hereinabove.

10. 1. In the case of K. T. Rajkotwala (supra), it appears that the sample was collected on 22nd April 1968; the Public Analyst, it appears, entered the witness box and deposed before the Court that though the report is dated 16th may 1968, the sample was analysed on the same day on which it was received. From the facts, it is very clear that the sample was examined somewhere in the last week of April 1968 while the report was signed by the Public Analyst on 16th May 1968. Learned singled Judge of the Bombay High Court considered the view of the Division Bench that "the report of the Public Analyst not made at the same time, when the sample is analysed but made later on [on] the basis of the notes of analysis made at the time of analysis, will cease to have evidentiary value which the Act imparts to the report of the Public Analyst", [quoted in k. T. Rajkotwalas case at page 475 of 1976 U. C. R. (Bom.)]. Thus, the bone of contention was that the report of Public Analyst which prepared on the basis of the record prepared by the Chemist under the supervision of the Public Analyst was not admissible, probably considering that the same was not in original but was a copy i. e. , secondary piece of evidence. Before the learned single Judge of the Bombay High Court, the Public Analyst was examined in the trial Court. The Court held that as the report was signed later on, it is to be ignored. From the aforesaid decision, it appears that the sample was analysed immediately after receiving the same. However, the result was recorded in the notes maintained by the office of the Public Analyst and on a later date, on the basis of such record, the report was signed. Thus, on facts Court recorded a finding.

(11) THE attention of the Court is drawn to the decision of the Bombay high Court in the case of State of Maharashtra v. Shamji Premji Shah, reported in 1978 Bom. CR 50, wherein it was not clear when exactly process of analysis commenced in the laboratory of the Public Analyst, but certificate was dated llth May 1973. Public Analyst was examined, who admitted that he did not carry out the analysis himself but that was done by his assistant under the supervision. In paragraph 6 of the judgment, the Court observed as under :

"it is significant to note that when the defence had requested for the examination of the Public Analyst and though the same was granted, still the person who was examined as a witness was not really the person who carried the analysis or in other words. Mr. Chalim who was examined has frankly admitted that he did not himself carry out analysis but the same was done by his assistant. It was, therefore, contended and rightly accepted by the trial court that in view of a decision of this Court, the report loses all its value especially when the notes of analysis were not produced. "

11. 1. The Court pointed out that there were two infirmities. Firstly, the person who analysed the sample, viz. the assistant to Mr. Chalim has not been examined, and secondly, though the certificate bear the date as 13th May under the signature of Mr. Chalim, the analysis on the admission of the witness himself was carried out on 9th May 1973. It is also observed by the Court that the person who analysed the sample did not enter the box despite the application granted by the Court.

11. 2. The process of analysis is a continuous process. Its time depends on the nature of food and its standards which are to be tested as mentioned in Appendix "b". Ordinarily, the process is to be noted in the register. Whether conclusion are arrived at by Chemist or Public Analyst is not on record. In the absence of evidence on record of each case, it would not be proper to draw inference. On conjectures, it is dangerous to say that after completion of analysis, for all the standard, Public Analyst would make entry in register, and thereafter in the report. However, Parliament despite the hearsay rule, has made the report admissible. The Act provides a liberty to either party or the court to examine Public Analyst as a witness. In paragraph 8 of the judgment in the case of State of Maharashtra v. Shamji Premji Shah (supra), the learned single Judge further observed that :

"had the report of the Public Analyst been brought on record, without examination the witness himself, then perhaps the situation would have been a little different inasmuch as the question of getting the notes produced on record and the evidence value of the report would not have come into question, more so when under the Code of Criminal Procedure, the report by itself has been made admissible. However, having once examined the Public Analyst through whom it has been established, that the analysis was carried earlier, then the signing of the report, then undoubtedly different situation arises and in that event the notes become admissible. Added to this as observed earlier, there is another infirmity that the person who has carried the analysis has not been examined, and the record that the Public Analyst who claims to have supervised throughout when the tests were taken. "

11. 3 Thus, from this decision, it is clear that the learned Judge considered two different situations, one wherein the Public Analyst or his assistant is examined as a witness and the other, wherein none has bothered to call the public Analyst as a witness. If the Public Analyst is not called as a witness, then as observed by the learned single Judge, the Report would be admissible. We are of the opinion that for arriving at a conclusion that the report is prepared on the basis of some record there must be evidence. In the absence of evidence on record to that effect, the report signed by the Public Analyst is to be accepted as the evidence. We would go further and observe that even if Public Analyst is examined and it is found that report is merely a copy of an entry in register, the report is still to be considered, despite hearsay rule with all the weight thrown behind it by the Parliament as the clear legislative intent enshrines in sec. 13 (5) of the Act, and therefore, the report has to be read in evidence without formal proof. As said earlier, the Public Analyst even if not examined, the report is to be read in evidence.

(12) LOOKING to the aforesaid object underlying the provisions of Sec. 13 (5)providing for admissibility of the certificate, this Sec. is required to be appreciated. Section 13 (5) read as under :

"any document purporting to be a report signed by a Public Analyst unless it has been superseded under sub-sec. (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory may be used as evidence of the facts stated therein in any proceedings under this Act or under Secs. 272 to 276 of the Indian Penal Code (XLV of 1860) : provided that any document purporting to be a certificate signed by the director of the Central Food Laboratory not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-sec. (1-A) of Sec. 16 shall be final and conclusive evidence of the facts stated therein. "

12. 1. Considering the provisions contained in Criminal Procedure Code and the Act, it is ensured that the expert covered by this provision is not be summoned for oral evidence as a matter of routine at the instance of a party. The Court will have a discretion in the matter and may summon the witness only if it is satisfied that it is expedient to do so for the ends of justice. When oral evidence is to be with reference to the report of an expert an officer subordinate to the expert, who analysed the sample may be deputed unless the Court expressly requires the presence of the Public Analyst himself. Thus, it is not necessary to examine the Public Analyst in every case and it is for the party to the proceedings to move the Court with an application disclosing the reasons for examining the Public Analyst. The Court, considering the application, has to pass the appropriate orders. It appears that considering the number of experts being small in number, their duties in the laboratory, number of samples to be examined, time taken for analysis, Parliament has made a special rule of evidence of Public Analysts report and the report of Central Food Laboratory in the Act. Parliament also considered their qualifications, experience while making the provision. Court has to consider all these aspects along with the fact that they are not interested witnesses. Keeping all these aspects, Special rules of evidence are therefore framed for them. Similar provision is under Sec. 293 of the Criminal Procedure code, where the report of a Chemical Examiner is made admissible without the Chemical Examiner being at all called to give evidence in Court, again the safeguard being that he can at the discretion of the Court be called and examined.

12. 2. As stated above, the special provision is not applicable to every expert. The provisions takes in only those experts who because of their smaller number and situation require special treatment. From Sec. 293 of the Criminal Procedure code, report purported to be a report under the hand of government scientific expert covered by sec. can be used as evidence. Such experts are : (1) any chemical Examiner or Assistant Chemical Examiner to Government, (2) the chief Inspector of Explosive, (3) the Director of the Finger Print Bureau, (4)the Director, Haffkeine Institute, Bombay, (5) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic science Laboratory, and, (f) the Serologist to the Government. The Report of any of these experts on any matter duly submitted to him for examination or analysis is good evidence. Separate provisions are made for officer of Mint and officers of Security Press on similar line. However, they are not to be summoned to produce any record on which the report is based.

12. 3. Thus, it is clear that (law) makers were aware that reports are based on other record. Yet, such reports are made admissible and if that be so, we are of the view that report of Public Analyst is to be read in evidence. However, public Analyst may be summoned in an appropriate case to remain present with record, and if the Court trying the accused finds the report to be incorrect, then relying on the record, Court has to give a finding.

(13) IT is necessary at this stage to consider the law laid down by the Apex Court. In the case of Mangaldas v. State of Maharashtra, reported in AIR 1966 SC 128 [LQ/SC/1965/28] , one of the contention raised was that the Police Analyst was not called as a witness in the case. It was argued before the Apex Court in support of the contention that conviction could not be based solely on the report of the Public Analyst and the reliance was placed on the decision in the case of State v. Bhausa Hanmantsa, reported in AIR 1962 Bom. 229 [LQ/BomHC/1961/151] and City Corporation, Trivandrum v. Anthony, reported in ILR (1962) 1 [LQ/PunjHC/1961/248 ;] ">ILR (1962) 1 [LQ/PunjHC/1961/248 ;] [LQ/PunjHC/1961/248 ;] Ker. 430. In Bhausa Hanmantsas case, large quantity of prohibited liquor was recovered from the house of the accused persons. Samples taken from the barrels and boxes were sent for analysis to the Chemical Analyst and the principal of Poddar Medical College, Bombay. In that case, before the Bombay High Court, it was contended by the State that, once it is established that what was seized from the possession of the accused contains alcohol, the burden of proving that what was seized falls under Sec. 24 (a) of the Bombay Prohibition Act was on the accused person. The High Court, however, held that the burden of establishing that a particular article does not fall under Sec. 24 (a) of the Prohibition Act rests on the prosecution. With regard to the certificate of the Chemical Analyser, the High Court observed as follows :

"it is beyond controversy that normally in order that a certificate could be received in evidence, the person who has issued the certificate must be called and examined as a witness before the Court. A certificate is nothing more than a mere opinion of the person who purports to have issued the certificate, and opinion is not evidence until the person who has given the particular opinion is brought before the Court and is subjected to the test of cross-examination. "

13. 1. After pointing out the scheme of Sec. 510 of the Cr. P. C. 1898, corresponding to Sec. 293 of Cr. P. C. 1973, the Apex Court observed as under : (p. 132) : "it would, therefore, not be correct to say that where the provisions of sub-sec. (2) of Sec. 510 have not been availed of, the report of a Chemical examiner is rendered inadmissible or is even to be treated as having no weight. " so far as report of Public Analyst is concerned, the Apex Court held as under (p. 132 last portion of para 9) : "this provision clearly makes the report admissible in evidence. What value is to be attached to such report must necessarily be for the Court of fact which has to consider it. Sub-sec. (2) of Sec. 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the Court for sending a sample of the allegedly adulterated commodity taken under Sec. 11 of the Act to the Director of Central Food laboratory for a certificate. The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under sub-sec. (5) but is given finally of the facts contained therein by the proviso to that sub-sec. It is true that the certificate of the Public Analyst is not made conclusive but this only means that the Court of fact is free to act on the certificate or not, as it thinks fit. "

13. 2. The Apex Court further held as under in paragragh 12 : "this is with a view to prevent a plea from being raised that the sample sent to the Analyst was of a commodity different from the one from which the Food Inspector has taken a sample. What bearing this provision has on the admissibility of the evidence of the Public Analyst is difficult to appreciate. Once the report of the Analyst is placed on record at the trial, it is admissible against all the accused person. "

(14) IN the case before us, it is very clear that neither the prosecution nor the accused nor the Court thought it fit to call the Public Analyst as a witness. In the absence of that, the report submitted by the Public Analyst has to be accepted by the Court.

(15) IF the accused was of the view that the report which is submitted is not of the sample of food collected from his shop, it was open for him either to examine the Public Analyst as a witness or it was open for him to send the sample to the Central Food Laboratory under the provisions contained in Sec. 13 of the Act. In the instant case, notice was given to the vendor from whom the sample was collected. Thus, he was apprised about the fact that the sample is taken with an intention to send the same for analysis with a view to know whether the article of food is adulterated or not. Under the law, he had a right to send the sample to the Central Food Laboratory. This is only with a view to prevent the plea from being raised that the sample sent to the Analyst was of a commodity different from the one from which the Food inspector has taken a sample. The Apex Court pointed out that once the report of Analyst is placed on the record at the trial, it is admissible against all the accused persons.

(16) IF the report of the Public Anaylst is in Form III, the Court has to accept the same as admissible in evidence. It is always open to the party against whom the report is tendered by the expert either to rebut the facts stated therein by his own or others evidence or by calling expert to be produced before the Court for cross-examination under Sec. 257 (sic.) of the Cr. P. C. which prayer the Court is required to consider. The evidence led by the party is to be considered and Court has to give its own conclusion. If the party is not satisfied with the report or has any doubt, the either party is entitled to approach the Court for getting the sample analysed by the Central Food Laboratory. The report submitted by the Central Laboratory will supersede the report of the Public Analyst.

(17) HAVING discussed the issue in defail, our reply to the question raised is as under :

"a report of the Public Analyst delivered under Sec. 13 (1) of the Prevention of Food Adulteration Act, 1954 declaring on analysis of a sample of food to be "adulterated" or "misbranded", cannot be ignored without examining the Public Analyst as a witness either by the Court or the accused raising a doubt about the correctness of the report only on the ground that the report is signed by the Public Analyst later on and not on the date on which sample was analysed. "

(18) REGISTRY is directed to list Criminal Appeal No. 255 of 1991 before the Regular Bench taking up such matters at the earliest.