STATE OF GUJARAT AND ANR. v. SHAILESHBHAI MANSUKHLAL SHAH AND ANR

Citation: [2007] 7 S.C.R. 850

Court: Supreme Court of India

Bench: R.V. RAVEENDRAN, LOKESHWAR SINGH PANTA

Case summary

STATE OF GUJARAT AND ANR. v. SHAILESHBHAI MANSUKHLAL SHAH AND ANR.pdf

Judgment text

STATE OF GUJARATAND ANR. v. SHAILESHBHAI MANSUKHLAL SHAH AND ANR. MAY 30,2007 [R. V. RAVEENDRAN AND LOKESHWAR SINGH PANTA, JJ. ] I Prevention of Food Adulteration Act, 1954/Rules, 1955-ss. 13 (2)/r. 4(6)-liability to pay fee for analysis of second sample by Central Food c"' Laboratory-Held, is on the accused Interpretation of Statutes: Substitution of Statutory provision-Held: New Provision to b·e read and construed with reference to its wording and not with reference to wording of old provision. The question which has arisen for consideration in the present appeal is that if the accused is not satisfied with the correctness/accuracy of the report of public analyst and seeks analysis ofsecond part of the sample by the Central Food Laboratory by exercising his right under s, 13(2) of the Prevention of Food Adulteration Act, 1954, then whether he is bound to pay the fee prescribed under Ru. le 4(6) of Prevention of Food Adulteration Rules, 1955. Allowing the appeal, the Court HELD: 1. 1.

S. 13 of the prevention of Food Adulteration Act, 1954 does not require payment ofany fee to the Central Food Laboratory for the second analysis. Nor does it say that the complainant/State or local (Health) Authority should bear the cost ofsecond analysis. Nor does it say that when an accused makes an application for a second analysis by the Central Food Laboratory, such analysis shall be done free of cost. In facts. 13 does not deal with the fee part. Other provisions deal with the fee to be paid S. 4 requires the Centr:al Government to es~blish one or more Central Food Laboratories to carry out the functions entrusted to the Central Food Laboratory by the Act or the Rules made under the Act. Sub-section (2) ofs. 4 empowers the Central Government to make rules prescribing the procedure for submission of samples for STATEOFGUJARATv. SHAILESHBHAI MANSUKHLALSHAH 85 l . - .

analysis/tests to the Central Food Laboratory, the forms of the Laboratory's Reports and the fees payable in respect of such reports. Rule 496) of the Prevention of Food Adulteration Rules provides that a fee of Rs. 200 (now Rs. 1000) should be paid to the Central Food Laboratory for a certificate under s. 13(2) ofthe Act. Form-I of Appendix-A to the Rules makes it clear that when the Court sends a requisition to the Director, Central Food Laboratory for analysis of the sample under s. 13(2) the Court is required to enclose a demand . B draft for the amount of fee for analysis ! Para 711857-E, F, G; 858-AI \ George Kutty v. State ofKera/a, (1991) 1 PEFC 133, overruled. ... Rajendra Kumar v. State ofMP. , (1994) 2 PFAC 56; Mohd Saifv. Local Helath Authority, Melur Municipality, (1996) 1 PFAC 20, approved. 1. 2. S.

13(2) when rea ratory for a certificate; and on receipt of the application 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 may then despatch the part 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 form within one month from the date of receipt of the sample, specifying the result of his analysis. " (Emphasis supplied) The Kerala High Court was of the view that the specific provision for payment of prescribed fee by the person making the application for analysis, in the old section 13(2) having been omitted in the new Section 13(2), the legislative intent was that the person requiring the second analysis need not pay the fee for such analysis.

We extract below the reasoning of the Kerala High Court: "After 1976 amendment the Local (Health) Authority has the obligation, under section 13(2), to forward a copy of the report of the Public Analyst to the accused and to inform him that he may make an application to the court to get the other sample analysed by the Director of Central Food Laboratory. Before 1976 amendment, either the complainant or the accused could have applied for sending the other part of the sampl!! to the Central Food Laboratory. Neither the food inspector nor the local authority had any obligation, before 1976 amendment, to inform the accused that he could exercise his option under section 13(2) after 1973 amendment would thus show that it is the obligation of the State or IC)cal authority to subject the sample to analysis. Such analysis would be made by the Public Analyst first, and if the accused needs, such analysis must be arranged to be made at the Central food Laborator/.

The only difference is that in the analysis to be made by the Public Analyst the accused has no part to play, whereas the Director of Central Food Laboratory cannot be asked to analyse the sample if the accused does not want it. In other words, ifthe accused expresses his desire to have the sample analysed by a superior expert, law provides that it must be got done. This right or option is not conditional on the accused remitting the expenses neededfor analysing the sample. The result ofsuch analysis by the Director of Central Food Laboratory is binding on the prosecution in the same way as it is binding on the accused because the certificate ofthe Director ofCentral Food Laboratory will supersede the report of the Public Analyst. Such certificate is not an item of defence evidence, as it takes the place of the report of the Public Analyst.

In the absence ofany clear statutory insistence an accused cannot be asked to bear the expenses to bring in· a document having greater probative value and a substitution for the earlier document of STATEOFGUJARATv. SHAILESHBHAIMANSUKllL\LSHAHlRAVUNDRAN. J. J 861 the prosecution. Hence, the deletion ofthe words "on payment ofthe prescribed fee• from section /J(lJ coupled with the other changes. . , . · conveys the message that it is no longer obligatory for the accused to bear the,expemes for such analysis. • . , , (emphasis ~~pplied). The Kerala High Court got over Rule'4(6) by' siating. that the said rule was made when the original Section 13(2)was in force arid after Section 13(2) was substituted in 1976, the s~id sub-rule became obs~iete. ·· · 10. On a careful reading of section 13(2)as_ it exists now, and the old section 13(2), we are of the view that the old provision is of no assistance to inteipret the new provision.

Ifsection 13(2) as it originally stood had been retained, by merely omitting the words "on payment of prescribed fee•, with a consequential change in Rule 4 by deleting clause (6) thereof, it might have been possible to take the view that no fee was payable by the applicant for second analysis. But that is not the position. Section 13(2) has undergone a complete change, by substitution in entirety, by se~tion I3(2)(2A) to 2(E). · · Further, Rule 4(6) has continued in the statute book. Not only Rule 4(6) has continued, but it has been consciously amended r. · 1995 and again in 1998 increasing the fee. There is a clear provision in tHe Act for payment of fee, . when section 4(2)(b) is read with Rule 4(6). Rule 4(6) cannot be ignored as obsolete, as has been done by the Kerala High Court, in the absence ofclear '\ . irreconciliability with section 13(2) or any other provision of the Act. \. . 11.

When a statutory provision is substituted, the new provision has '\' to be read and construed wit_h reference to its wording and not with reference he ":ording of the old provision. Old section. 13(2) and new section 13(2) p· {2F) are different. Old section 13(2) enabled th. e accused as also the mplair'1r. t to make an application to the court for sending a second part of sample to the Central Food Laboratory: Under the new section 13(2), a ' . . . . . . complainant does not have such right, but on the other hand, the right is given~ to the person from whom the sample was taken as. also his vendor,. if any. Seqmdly', under the new section an_ obligation is cast on the Local G . (Health) Auihority to inform the person from whom the sample has been taken (and his vendor, if any) that they can make an application to the court, within I0 days of receipt of the Public Analyst's·report, ·for getting a second part· ofthe sample analysed by the Central Food Laboratory.

Old section 13(2) did not contain such a provision. Lastly, the provision that "the accused or the complainant may on payment of the prescribed fee, make an application" in· 862 SUPREME. , COURT REPORTS l2007J 7 S. C. R. old section 13(2) meant that payment of the prescribed fee was a condition precedent for making an application to the court for second analysis. The omission of the words 'on payment of the prescribed fee' in the new section 13(2), in context, only means that payment is no longer a condition precedent for making an application for second analysis. Under the new section 13(2), the applicant can make the payment, after the application is allowed by the court. The sample however will be sent by the court to the Central Food Laboratory only on deposit of the prescribed fee. The omission to refer to the fee in section 13(2) is obviously because it was provided in Rule 4(6) made in exercise of power conferred under section 4(2)(b).

If the legislative intent J was to exempt the applicant for second analysis from any payment, the section would have stated that such analysis was free. The decision of the Kerala High Court is clearly erroneous. The view of the High Courts of Madhya Pradesh and Madras that the applicant has to pay the fee for the second ana! ysis, in view of R_ule 4(6) providing for such fee and the absence of any provision exempting the applicant from paying the fee, is correct. 12. We, therefore, allow this appeal and set-aside the impugned judgement of the High Court and restore the order· of the Revisional Court, affirming the order of the learned Magistrate directing the respondents to remit the fee for the second an~lysis under section 13(2) of the Act. D. G. Appeal allowed. ORDER l. The issue involved in this appeal has been considered by us in Crl. Appeal No. 38/2001. The Addi. Chief Judicial Magistrate, Gundal, following the decision of the Gujarat High Court in Special Crl. Appeal No.

803/1998 (which is the subject matter ofCrl. A. No. 38/2001 decided today), has directt! d the complainant (Food Inspector/State) by order dated 30. 12. 1997 to PCJY the fee for second analysis of the sample under section 13(2) of the Prevention of Food Adulteration Act, 1954 ('Act' for short). The said order was confirmed by the High Court by order dated 9. 5. 2000 in Crl. Revi~ion No. 21/2000. 2. Following the decision rendered by us today in Crl. Appeal No. 38/ 200I, this appeal is allowed and the order of the High Court and the learned Magistrate directing the complainant to pay the fee are set aside, and it is declared that the accused-respondent is liable to pay the fee for the second analysis under section 13(2) of the Act. I D. G. Appeal allowed. ·