KV Baby v. Food Inspecter

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1994 SCC OnLine Ker 83 : (1994) 1 KLJ 709 : (1994) 1 KLT 1006 : 1994 Cri LJ
3421 : 1995 FAJ 344 : (1994) 2 FAC 96 : (1994) 2 ALT (Cri) 269 (DB)
In the High Court of Kerala

(BEFORE K.T. THOMAS AND K.J. JOSEPH, JJ.)
K.V. Baby
Versus
Food Inspector and another
Crl. M.C. No. 768 of 1991
Decided on March 9, 1994
Page: 711
ORDER
K.J. JOSEPH, J.:— The petitioner is the accused in a food adulteration case tried as
S.T. No. 892/77 on the file of the Judicial Magistrate of First Class, Vadakkancherry on
a complaint by the Food Inspector, Vadakkancherry Circle, on the allegation that the
petitioner accused sold adulterated cow's milk to the Food Inspector. He was found
guilty, convicted and sentenced by the trial Court. The appeal filed by the petitioner
accused was rejected by the Sessions Court, Trichur. The petitioner filed Crl. R.P. No.
704/1990 before this Court against the order of his conviction and sentence. This
Court as per its order dated 12-3-1992, reversed the conviction and sentence passed
on the petitioner accused and remanded the case back to the Court below for fresh
disposal of the case on merits according to law. The said order was passed by this
Court accepting the request of the petitioner that he wants to adduce further evidence
to show that the variation noticed in the result of the Public Analyst's, report, Ext. P.
13 was due to the natural causes beyond the control of human agency. The petitioner
also wanted to examine the Director, Central Food Laboratory, who issued Ext. P. 16
certificate in respect of the sample sent to him for analysis from the Court.
2. After remand, the petitioner/accused filed Crl. M.P. No. 1440/91 to summon the
Director of Central Food Laboratory as a witness in the case. The learned Magistrate as
per his order dated 7-5-1991 ordered that the Court is not feeling it necessary to
examine the Director of Central Food Laboratory as a Court witness. But, if the defence
counsel, so chooses to examine the witness, he will have to meet the expenses and
the learned Magistrate allowed the petition on condition of pre-payment of batta to the
Director of Central Food Laboratory within seven days. The petitioner/accused has
questioned the validity of the said order in this proceedings under Section 482 of Code
of Criminal Procedure.
Page: 712
3. According to the petitioner, the direction issued by the trial Court to pay the
batta to summon the Director of Central Food Laboratory as a witness in the case is
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illegal, and unjust. He has also stated that the Court below ought to have issued
summons to the Director of Central Food Laboratory, to appear and give evidence as a
Court witness. He further places reliance on Rule 206 of the Kerala Criminal Rules of
Practice, 1982 in support of his contention that it is the duty of the Court to pay the
batta to the witness sought to be summoned at the instance of the petitioner/accused
in the case, since the prosecution under the provisions of Food Adulteration Act as per
Section 20 of the Act can be instituted only with the written consent of the Central or
State Government or any person authorised by those Governments in that behalf and
the complaint in the case was instituted by the Food Inspector of the Municipality who
is a public servant and therefore, the batta of the witness summoned will have to be
paid by the Court. Incidentally, the petitioner questions the correctness of the decision
reported in Chandran v. Food Inspector (1986 KLT 1110). When the matter has come
up for hearing before a learned single Judge of this Court, the learned Judge found
that the submission made by the petitioner based on Rule 206 of the Kerala Criminal
Rules of Practice is well-founded and the learned Judge also doubted the correctness
of the above decision reported in Chandran v. Food Inspector (1986 KLT 1110) and
therefore, placed the matter before the Division Bench for an authoritative
pronouncement. Thus, the matter has come up before this Bench in these
proceedings.
4. We heard the learned counsel appearing on behalf of the petitioner as well as the
learned Public Prosecutor who is also the Director General of Public Prosecutions on
behalf of respondents. Elaborate arguments were addressed by the learned counsel
appearing on both sides.
5. Admittedly, the charge against the petitioner was tried as a summary trial
following the procedure prescribed for trial of summons cases by Magistrate,
prescribed under Chapter XX of the Code of Criminal Procedure, 1973, The relevant
provisions regarding the trial of summons cases by the Magistrate are Sections 251 to
259. Under Section 251, when the substance of accusation was stated to the accused
and he has not pleaded guilty to the charge, under Section 254 of the Code, the
Magistrate is to proceed to hear the prosecution and take all such evidence as may be
produced in support of the prosecution, and also to hear the accused and take all such
evidence as he produces in his defence. Sub-section 2 of Section 254 states that the
Magistrate may, if he thinks fit, on the application of the prosecution or the accused,
issue a summons to any witness directing
Page: 713
him to attend or to produce any document or other thing, Sub-section 3 of Section

254 provides that the Magistrate may, before summoning any witness, on such
application, require that the reasonable expenses of the witnesses incurred in
attending for the purpose of the trial, be deposited in Court. Section 254 of Code of
Criminal Procedure, 1973 corresponds to Section 244 of the Code of Criminal
Procedure, 1898 without any difference in its language, As can be seen from Section
254 of the Code, the Magistrate shall proiced to hear the prosecution and take all such
evidence as may be produced in support of the prosecution and also to hear the
accused and take all such evidence as he produces in his defence. Therefore, the
application to produce witnesses to prove the respective cases of the prosecution and
the defence is on the respective parties. But to enable the party, who is unable to
procure the evidence of a witness by himself, under Sub-section (2) of Section 254, he
can make an application to the Magistrate to issue a summons to any witness directing
him to attend or produce any document or other thing in Court.
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6. As can be seen from Section 254(2), the Magistrate has the power to issue
summons to any witness directing him to attend or to produce any document on the
application of the prosecution or the accused and under Sub-section (3) of Section
254, and the Magistrate may, before summoning any witness on such application,
require the reasonable expenses of the witness incurred in attending for the purpose of
the trial, be deposited in Court.
7. Therefore, the question to be decided is who will have to meet the reasonable
expenses of the witnesses incurred in attending for the purpose of the trial and
whether the prosecution is to be directed to deposit the batta for the witnesses or the
accused at whose instance, the witness is summoned to deposit in Court the
reasonable expenses. It is not specifically stated in Sub-section (3) of Section 254
that the said expenses shall be made by the prosecution.
8. In this connection, it is pertinent to note the procedure contemplated for trial of
warrant cases by the Magistrate which is specifically provided in Chapter XIX of the
Code of Criminal Procedure. In respect of trial of warrant cases by Magistrates
instituted on police report, the relevant sections are Sections 238 to 243 of the Code
of Criminal Procedure. In case the accused is not discharged under Section 239 of the
Code, the Magistrate shall frame charge under Section 240 and evidence has to be
taken if the accused refuses to plead, or does not plead or claims to be tried in respect
of the charges framed against the accused under Section 242 of the Code wherein
evidence of the prosecution has to be taken first. Thereafter, under Section 243 of the
Act, evidence for defence has to be taken. Under Section
Page: 714
243(2) of the Code, if the accused applies to the Magistrate to issue any process for
compelling the attendance of any witness for the purpose of examination or cross-
examination, or production of any document or other thing, the magistrate shall issue
such process, unless, he considers, that such application should be refused on the
ground that it is made for the purpose of vexation or delay or for defeating the ends of
justice and such reason shall be recorded by him in writing. Sub-section (3) of Section
243 of the Code, gives power to the Magistrate to require that reasonable expenses
incurred by the witness in attending for the purpose of the trial, be deposited in Court
before summoning any witness on application under Sub-Section (2). Therefore, in
respect of an application under Section 243(2) of the Code of Criminal Procedure, the
Magistrate shall issue such process on the application of the accused unless he
considered that such application should be refused on the ground that it is made for
the purpose of vaxation or delay or for defeating the ends of justice and such ground
shall be recorded by him in writing. A similar provision conferring power on the
Magistrate refusing to issue process in respect of summons cases is not specifically
stated in Section 254 of the Act.
9. Again, in respect of trial of warrant cases instituted otherwise than on police

report, the relevant Sections are Sections 244 to 250 of the Code of Criminal
Procedure. In respect of such a trial also, after evidence of the prosecution and
framing the charges under Section 246 of the Code, the evidence for defence is
provided under Section 247 of the Code of Criminal Procedure. Under Section 247 of
the Code, the provisions contained in Section 243 shall apply in respect of the
evidence for defence. As stated earlier, under Section 243(3) of the Code, the
Magistrate is bound to issue process to the defence witness unless he considers that
such application is made for the purpose of vexation or delay or for defeating the ends
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of justice and such ground shall be recorded in writing.
10. Under Sub-section 3 of Section 243 of the Code, the magistrate has a discretion
to pass an order under this Sub-section. The discretion is subject to Section 312 of the
Code of Criminal Procedure and the Rules made by the State Government under it. The
Magistrate cannot pay from Government funds for the expenses of witnesses
attending, if he is not authorised to do so by the rules of the State Government. In the
absence of any rule made by the State Government, the Magistrate has discretion,
under Sub-section 3 of Section 243 either to direct the accused persons to pay the
expenses of the witnesses, or else to summon them at the expense of the State. But,
if the Magistrate, in respect of warrant cases, both instituted on police report and
cases instituted otherwise than on police report unless, he considers that such
application shall be refused on the ground that it is made for the purpose of vexation
or delay or for defeating the ends
Page: 715
of justice, such a ground shall be recorded in writing. As stated earlier there is no such
corresponding provision in Section 254 of the Code of Criminal Procedure.
11. Even in the absence of similar provision in Section 254 of the Code of Criminal
Procedure, Section 312 of the Code prescribes subject to the rules made by the State
Government, any criminal Court may, if it thinks fit, order payment, on the part of
Government, of the reasonable expenses of any complainant or witnesses attending for
the purpose of any enquiry or trial or other proceedings before such Court under this
Code. Therefore, a discretion is conferred on the Magistrate to order payment or
reasonable expenses of a witness attending for the purpose of any enquiry, trial or
other proceedings before such Court under the Code. But in this case, the Magistrate
did not exercise the discretion conferred on him regarding payment of batta while
issuing summons to the Director of Central Food Laboratory to give evidence in the
case on the side of the accused, but the Magistrate has ordered payment of batta to
the side witness to be paid by the accused in this case. The said direction is, therefore,
perfectly justified and well within the jurisdiction conferred on the Magistrate under
Section 254(3) of the Code of Criminal Procedure.
12. The learned counsel appearing on behalf of the petitioner places reliance on
Rule 206 of the Kerala Criminal Rules of Practice to substantiate his contentions that
the allowances to the defence witness shall be paid by the Court since the Food
Adulteration Case is one instituted with the sanction of the Government by a public
servant, which would come under Rule 206(b) of the Rules. But there is a specifie
Provision wherein Rule 206 of the Kerala Criminal Rules of Practice is not applicable in
respect of summons issued under Section 254(2) of the Code. Rules 206, 207 and 210
(4) of the Kerala Criminal Rules of Practice is extracted below:
“206. Cases in which the Government will pay batta:
(1) Subject to the rules hereinafter contained, the allowances to complaints and
witnesses (whether for the prosecution or for the defence) shall be paid by the
court in the following classes of cases, namely:—
(a) cases shown in the First Schedule of the Code as non-bailable;
(b) Cases in which prosecution is instituted or carried on under the orders or
with the sanction of the Government or of any public servant acting as
such:
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Page: 716
(c) Cases in which the witness has been compelled to attend by a process
issued under S. 311 of the Code;
(d) Cases in which the court certifies that the attendance of such witness was
in furtherance of the interests of public justice.
207. Batta by private complainants and by accnsed:
13. In cases other than those coming under the proceeding rule the complainant or
the accused, as the case may be, shall deposit in court the allowances for the
witnesses cited by him. The party citing the witness shall, subject to the approval of
the court, fix the class in which the witness is to be placed with due regard to his
station in life.
208…………………………………
209…………………………………
210. Classification of witnesses (1)………………………………………
(2)……………………………..
(3)…………….. ……………………
(4) When a public servant appears in his official capacity as a witness in a case
which does not fall under Rules 206 or 207 as in a case in which sub-section (3) of
S. 254 or sub-section (2) of S. 243 of the Code is applied, the party at whose
instance he is summoned, shall pre-pay into court the travelling and halting
allowance admissible to him under the Service Rules applicable to him. The amount
so pre-paid shall be credited to Government but the court shall give the witness a
certificate containing the particulars, specified in sub-rule (2) so as to enable him to
draw the travelling and halting allowance admissible under the Service Rules.”
14. Rule 210, of the Kerala Criminal Rules of Practice, 1982 specifically states that
when a public servant appears in his official capacity as a witness in a case which does
not fall under Rules 206 or 207 as in the case in which Sub-section 3 of Section
254 or Sub-Section 2 of Section 243 of the Code is applied, the party at whose
instance he is summoned, shall pre-pay into the Court the travelling and halting
allowances admissible to him under the Service Rules applicable to him. The said Rule
also says that the amount so pre-paid shall be credited to Government, but the Court
shall give the witness a certificate containing the particulars specified, in Sub-Rule 2
so as to enable him to draw the travelling and halting allowances admissible under the
Service Rules.
Page: 717
15. Rule 210 of the Kerala Criminal Rules of Practice specifically excludes the cases
coming under Section 254(3) of the Code of Criminal Procedure. Admittedly, the
instant case comes under the purview of Section 254(3) of the Code and therefore,
Rules 206 and 207 of the Kerala Criminal Rules of Practice are not applicable in
respect of the application submitted by the petitioner for issuing summons to the
Director, Central Food Laboratory as a defence witness in the case.
16. Moreover, Rule 206 of the Kerala Criminal Rules of Practice, 1982 itself is not
applicable in the case of the petitioner since the said Rule also is subject to the roles
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hereinafter contained. Rule 210(4) is a specific Rule contained in the said Chapter
dealing with the case in which Government have to pay batta, advance payment, etc.
It is, therefore, to be examined whether there is any other provision in the Rule which
would go against the application of Rule 206 of the Criminal Rules of Practice. In so
long as Rule 210(4) specifically excludes the application of Rule 206 in respect of
cases coming under Section 254(3) of the Code of Criminal Procedure, there is
absolutely no justification for the learned counsel appearing on behalf of the petitioner
to rely upon Rule 206 of the Kerala Criminal Rules of Practice and to insist that the
allowances and batta of the defence witness shall be paid by the Court in respect of
his case Such a contention is not legally available to the petitioner in this case.
Moreover, we feel that the learned Magistrate did not exercise his discretion in favour
of the petitioner/accused under Section 312 of the Code of Criminal Procedure and
directed the State Government to pay the batta for the witness that he wanted to
examine.
17. As we have stated earlier, the Magistrate has a discretion to pass an order
under the said Section subject to any rules that may be made by the State
Government in that behalf. In the absence of any rule made by the State Government,
the Magistrate has discretion under Sub-Section 3 of Section 243, and Sub-Section 3
of Section 254 either to direct the accused persons to pay the expenses of the witness,
or else to summon them at the expenses of the State. But in respect of trial before a
Court of Sesssion, under Section 233 of the Code of Criminal Procedure, 1973, there is
no such corresponding provision like Section 243(3) and Section 254(3) requiring the
reasonable expenses of the witnesses incurred in attending the Court for the purpose
of trial to be deposited in court. Such a direction to deposit the batta necessary for the
witnesses is conspicuously absent in respect of Sessions trial before a Court of
Session. Even though under Section 216 of the Code of Criminal Procedure, 1898,
there is a Provision empowering the Court requiring such sum to be deposited as the
Magistrate thinks it necessary to defray the expenses of obtaining the attendance of
the witnesses and all the other proper expenses, the substance of the said Section was
not incorporated in the new amended. Section 233 of the Code of Criminal Procedure,
1973. Thus, the intention of the
Page: 718
Parliament in that regard is clear viz. that in respect of Sessions trial, the Court of
Session has no option to direct the accused person to deposit the necessary batta for
the defence witness. Even though under Section 233(3) of the Code, the Sessions
Judge has the power to refuse an application filed by the accused before the issue of
any process for compelling the attendance of any witness if he considers for reasons to
be recorded, that such application is made for the purpose of vexation or delay or in
defeating the ends of justice. But there is no provision under Section 233 of the Code
of Criminal Procedure directing the accused to deposit the batta and expenses of a
witness which the accused wanted to examine in the Session trial.
18. As stated earlier, under Rule 210(4) of the Kerala Criminal Rules of Practice,
1982, the provisions contained in Rules 206 or Rule 207 is not made applicable and
therefore, the petitioner/accused is not legally entitled to contend that the State
Government shall meet the batta and expenses necessary for examining the Director,
Central Food Laboratory on his side as a defence witness under Rule 206 of the Kerala
Criminal Rules of Practice. As we found earlier, Rule 206 of the Criminal Rules of
Practice itself starts by saying “subject to the rules hereinafter contained”. Therefore,
obviously, Rule 210(4) would not come under the purview of Rule 206 of the Criminal
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Rules of Practice. Therefore, it follows that in respect of an application filed under
Section 254(2) of the Code of Criminal Procedure by the accused, the Magistrate can
issue summons to the defence witness on condition that if the accused pre-pays into
Court the travelling and halting allowances admissible to him under the Service Rules
applicable to the witness, Under the impugned order, the Magistrate has only ordered
payment of batta to the defence witness as contemplated under Rule 210(4) of the
Kerala Criminal Rules of Practice, 1982 and we are satisfied with the said order passed
by the learned Magistrate as perfectly legal and valid.
19. In the reference order passed by a learned single Judge of this Court dated 18-
3-1992, learned Judge has doubted the correctness of the decision reported in
Chandran v. Food Inspector (1986 KLT 1110) herein this Court has held that in the
trial of warrant cases and summons cases, if the accused enters upon his defence and
applies for issue of summons to any witness, for appearance in Court or for production
of any document, the Magistrate may require him to deposit in Court reasonable
expenses that may be incurred by the witness before issuing summons. The learned
Judge also found that such cases, will not fall within the purview of Rule 206 and 207
of the Kerala Criminal Rules of Practice. In the light of the decision and findings that
we arrived at in this case, we are satisfied that the decision rendered by the learned
single Judge, in Chandran v.
Page: 719
Food Inspector (1986 KLT 1110) does not require re-consideration by the Division
Bench. The criminal reference is answered above.
20. In this case, Ext. P16 certificate was obtained from the Director, Central Food
Laboratory. It is with reference to the said certificate, the petitioner accused wanted to
examine the Director of the Central Food Laboratory as a witness on his side. In that
context, we would like to refer to the binding nature of the facts stated in the
certificate issued by the Director, Central Food Laboratory under Section 13 of the
Prevention of Food Adulteration Act, 1954. Under Sub-Section 3 of Section 13 of the
Act, the certificate issued by the Director of Central Food Laboratory under Section 2B
shall supersede the report given by the Public Analyst under Sub-Section (I) of the
Act. Under Sub-Section 5 of Section 13 of the Act, 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 Central Food
Laboratory, may be used as evidence of facts stated therein in any proceedings under
this Act or under Sections 272 to 276 of the Penal Code, 1860. The said Sub-section
further provided that any document purporting to be a certificate, signed by the
Director, Central Food Laboratory shall be final and conclusive evidence of the facts
stated therein. Therefore, the report of the Central Food Laboratory will supersede, the
report of the Public Analyst and if there is a certificate signed by the Director, Central
Food Laboratory, the earlier report of the Public Analyst loses its evidentiary value. The
certificate issued by the Director of the Central Food Laboratory does not require any
formal proof under Section 13(5) of the Act. It has been held so by a catena of
decisions rendered by this Court and the Supreme Court, Following the Full Bench
decision of this Court reported in Mathukutty v. State of Kerala (1987 (2) KLT 867).
This Court held in the decision reported in Anil v. Chief Food Inspector (1991 (2) KLT
23) that the certificate signed by the Director of Central Food Laboratory does not
require any formal proof under Section 13(5) of the Act and the same can be used as
evidence of the facts stated therein in any proceedings under this Act or under Section
272 to 276 of the Penal Code, 1860. We are in respectful agreement with the decisions
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referred to above. Nor can the defence be permitted to disprove the facts contained in
the certificate, since the sub-section declared them to be conclusive proof. Under
section 4 of the Evidence Act, Court cannot allow evidence to be given for disproving
anything Which is declared by the statute as conclusive. In the light of the statutory
provisions and the binding nature of the facts stated in the certificate issued by the
Director, Central Food Laboratory, citing the Director of Central Food Laboratory as a
witness
Page: 720
in Food Adulteration cases to prove or disprove the facts stated in his certificate issued
by him is not congenial to the scheme and purpose contemplated under the provisions
of the Prevention of Food Adulteration Act.
21. There is no merit in the Criminal Miscellaneous Case and hence the same is
dismissed.
———
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SCC Online Web Edition, Copyright © 2020

Page 1 Tuesday, September 08, 2020

In the High Court of Kerala

him to attend or to produce any document or other thing, Sub-section 3 of Section

9. Again, in respect of trial of warrant cases instituted otherwise than on police

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