STATE OF GUJARAT Vs. SHAILESHBHAI MANSUKHLAL SHAH

JUDGEMENT

(1.) This appeal by special leave is by the State of Gujarat against the judgment dated 7.10.1999 passed by the Gujarat High Court in Special Criminal Application No. 803 of 1998.

(2.) The Food Inspector, Rajkot launched a prosecution against the respondents in respect of offences under Ss. 7(i) and (v) of the Prevention of Food Adulteration Act, 1954 ("Act" for short) punishable u/s. 16 of the said Act. During the pendency of the said proceedings, the first respondent made an application u/s. 13(2) of the Act to get a second analysis of sample of the article of food kept with the Local (Health) Authority, by the Central Food Laboratory. The learned Judicial Magistrate allowed the said application on 8.5.1996 and directed the respondents to deposit the fee prescribed under R. 4(6) of the Prevention of Food Adulteration Rules, 1955 ('Rules' for short) for issue of Certificate by the Central Food Laboratory. The respondents neither deposited the said amount nor challenged the said direction for deposit of the fee. Nearly one year later, the respondents raised an objection that having regard to the provisions of the Act and the Rules, they were not required to deposit any fee for the second analysis. The learned Additional Chief Judicial Magistrate, Gondal, rejected the said objection by order dated 18.9.1997. The Sessions Court, in revision, affirmed that order.

(3.) The revisional order was challenged by the respondents before the Gujarat High Court in Special Criminal Application No. 803 of 1998. The High Court, by its order dated 7.10.1999, allowed the application, set aside the orders of the learned Magistrate and Additional Sessions Judge and held that it is the obligation of the State or Local Authority to subject the sample to analysis u/s. 13(2) and there was no obligation on the accused to bear or pay the fee for the second analysis. It followed the decision of a learned Single Judge of the Kerala High Court in George Kutty V/s. State of Kerala, 1991 1 PFAC 133 and held that the right to have a second analysis was a privilege subject to payment of fee under the old sec. 13(2) of the Act, and that stood converted to an unconditional legal right of the accused under the new sec. 13(2), substituted by Act 34 of 1976. As a consequence, the learned Magistrate was directed to take appropriate steps in the matter, without requiring any payment by the accused.