1. This rule is directed against an order of conviction passed by Mr. J. A. Khan, Magistrate, 1st Class, Jessore sentencing the accused-petitioner to pay a fine of Rs, 500 in default to suffer simple imprisonment for two months under section 6(1) of the East Pakistan Pure Food Ordinance, 1959 (hereinafter called the Ordinance).
2. The prosecution case, in short, is that on 7-12-66 P. W. 1 Lutfur Rahman, a Sanitary Inspe ctor of Jessore Municipality visited the shop of accused Sunity Kumar Roy at Haji Md. Mohsin Road within Jessore Municipality and found him keeping and selling mustard oil in his grocery shop. The Sanitary Inspector on suspicion collected sample of the said oil in three phials from the shop and sealed the bottles after expressing his intention of taking the same by serving notice upon the accused in presence of the witnesses. He made over one of the phials to the accused and sent another to the Public Analyst, Dacca for analysis. After getting the report of the Analyst and obtaining the sanction from the Chairman, Jessore Municipality he lodged a formal complaint against the accused before the Sub-Divisional Magistrate, Sadar on 6-3-67 for action under the East Pakistan Pure Food Ordinance. The accused-petitioner was thus summoned under section 6(1) of the Ordinance and put on trial before Mr. J. A. Khan, Magistrate, 1st Class, Jessore to meet a charge thereunder.
3. The plea of the accused was one of innocence. He asserted that the sample oil taken by the Sanitary Inspector was not mustard oil but a heterogeneous compound formed by the residue of different oils and called "Nigrano mustard oil" which he kept in his shop not for the purpose of human consumption but for giving it to the goldsmith who used such kind of liquid for their daily use.
4. Three witnesses for the prosecution and four for the defence were examined in the case. The report of the analyst was also produced before the Court. The learned Magistrate, on appraisal of the evidence and materials on record, con-victed and sentenced the accused-petitioner as stated above. In appeal the learned Sessions Judge, Jessore, affirmed the said order of conviction and sentence. Being aggrieved thereby, the accused-petitioner moved this Court and obtained the present Rule.
5. Mr. Md. Abdul Haque, the learned Advocate appearing for the petitioner has contended that in the absence of formal proof, the report of the analyst, Exh. 2 cannot be accepted in evidence or given due weight and as such the charge against the accused cannot be said to have been, proved beyond reasonable doubt. He has also submitted that the sample oil seized by P. W. 1, not being an article of food as defined in section 3(5) of the Ordinance but being a "Nigrano mustard oil" a compound of residue of different oils, used as fuel for lighting purposes, the conviction of accused- petitioner under section 6(1) of the said Ordinance is bad in law.
6. At the very out-set, it should be mentioned that section 6(1) of the Ordinance is a prohibitory section and not a penal" section. This section only constitutes an offence. The penal section in the Ordinance is section 44. The conviction in the case) ought to have been made under section 44 read with section 6(1) of the Ordinance.
7. The question as to admissibility of the report of an analyst without formal proof, 'as 'raised 'above, was considered by me in an earlier case reported in Jafar Hossain v. Dacca Municipal Committee .
8. In that case, a similar question having been arisen, this Bench while interpreting section 510, Cr. P. C. observed, amongst others, that the report of an analyst could not go into evidence without formal proof and as is it was an inadmissible piece of evidence. I still maintain the same view that the report of an analyst not covered by section 510, Cr. P. C. and it is not admissible thereunder without a formal proof.
9. During the hearing of that case, the learned Advocate for the Municipality drew the attention of the Court only to section 510, Cr. P. C. and this Bench considered there only the provisions of that section. As no body drew the attention of the Court to section 32(3) of the East Pakistan Pure Food Ordinance, 1959, this Bench had no opportunity to consider there the provisions of this section. It is unfortunate at the time of hearing of that case, I was deprived of the assistance which I expected from the learned Advocate. Today Mr. Latifur Rahman, the learned Advocate for the opposite-party has, however, drawn my attention to section 32(3) of the said Ordinance. It appears from the provisions of sections 4 6(3), 31(3) and 32(3) of the Ordinance, that a report of an analyst is admissible in evidence. Subsection (3) of section 32 of the Ordinance has clearly made it admissible. Since the Special Law, namely, the East Pakistan Pure Food Ordinance, 1959 has made the report of the analyst admissible in evidence, I must hold that the report of a public analyst appointed under the Ordinance, is admissible in any inquiry, trial or proceeding under the said Ordinance.
10. The provisions in the Ordinance have laid down a special rule of evidence and made a document purporting to be a report of the analyst admissible in evidence without calling such analyst as a witness. The provisions relating to the production of a report by the analyst in place of the analyst's own personal appearance in Court, being the special provisions of law, must be strictly adhered to.
11. In view of the fact that the report of an analyst may be used as evidence, without his being examined as a witness, his report should be full and complete and must contain the grounds of his opinion. A meagre and cryptic report, without any reasons, may lead to a miscarriage of justice and cannot be deemed as sufficient for the purpose. Such a report is hardly of any help. In the instant case, the analyst has given a very short report without recording any reasons and the one line report stating that the sample of mustard oil is adulterated as it is not derived exclusively from mustard seeds, is not enough. It is unsafe to solely rely on such boiled certificate. The Court cannot1 give due weight on a cryptic report without any corroboration. In order to take benefit of the special provisions of the Ordinance, the prosecution must bring a full and complete report or produce the analyst before the Court to explain the reasons as to how he reached the conclusion. The report being the only evidence to prove adulteration must be all comprehensive or otherwise it is desirable that the analyst should be examined in support of his report and the accused given an opportunity of cross-examining him. In this connection, the cases reported in PLD 1956 SC (Ind.)
12. 59, AIR 1933 All. 394, AIR 1934 Oudh 62, AIR 1938 Lah. 496 and AIR 1944 Born. 321 may be referred to.
13. The acceptance of a report of the analyst as evidence in a criminal case without subjecting him to cross-examination is extremely dangerous and no person should be put in peril of any punishment on such a written report not given on oath and untested by cross-examination. This is particularly so when the report is not merely factual but also contains opinion of the expert. So a report cannot form the basis of conviction without affording opportunity to the accused to cross-examine the expert and the Court must insist upon examination of the expert if it wants to rely on it. This view receives support from the cases reported in 21 D L R 623, 9 D L R 564, AIR 1939 Lah. 149, AIR 1933 All.
14. 837 and AIR 1960 Mad. 370.
15. There is another aspect of the matter. The report of an analyst or Chemical Examiner cannot be of any use as evidence unless there is proof of the identity of the articles sent to the analyst or Chemical Examiner with the articles examined by him. The prosecution must produce the evidence F that articles sent to the expert were the same which were recovered from the accused. In the instant case, the sealed sample bottles containing mustard oil taken from the shop of the accused and tested by the analyst were not produced before the Court. This is another defect in the prosecution case.
16. There is no direct evidence in the case to show that the analyst who analysed the sample mustard oil submitted any report to P. W.
1. That being so, how the report Exh. 2 can be safely accepted as the report of a particular analyst. In the circumstances, the analyst ought to have been examined in the case. In the absence of examination of the analyst, the Court may make a presumption against the accuracy of the report. The report is, no doubt, admissible G in evidence but there is no presumption that it is accurate. It depends on the circumstances of the case whether or not the Court should raise a presumption at all vide I L R 2 Cal. 465.
17. It appears that according to the scheme of the Ordinance every local authority may have an analyst with the approval of the Provincial Government and such a Public Analyst can easily be produced before the Court without delay, expense or inconvenience. It is not understood why the analyst is not examined in the case.
18. Thus considering all aspects of the matter, I think the first point raised by the learned Advocate for the petitioner has considerable substance. The non-examination of the analyst has been fatal in the case. The accused, in the circumstances, can rightly complain that the prosecution case has not been proved beyond reasonable doubt.
19. For the reasons stated above, the order of conviction and sentence is liable to be set aside and it is accordingly set aside. But in view of the other evidence on record, I am not inclined to acquit the accused at this stage. The offence alleged is one against the society and in the circumstances, I think the matter should go back to the original Court for retrial.
20. In view of the order, I propose to pass in the case, I do not like to enter into discussion of the other point which relates more or less to facts, as raised above, at this stage.
21. In result, this Rule is made absolute. It is directed that the accused-petitioner be retried in accordance with law in the light of the observations made above.