GEORGE KUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) Has the accused any legal obligation to remit the fee for sending part of the sample to the Director of Central Food Laboratory for a certificate under S.13(2) of the Prevention of Food Adulteration Act The Magistrate held that the accused has to remit the fee. But the accused disputes it and hence challenges the Magistrate's order in this petition.

(2.) Petitioner is one of the accused facing a charge for the offence under S.16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'). He made the application to the Trial Court to get the sample of food (kept by the Local (Health) Authority) analysed by the Director of Central Food Laboratory as provided in S.13(2) of the Act. The learned Magistrate directed him to remit a fee of Rs.40/- but he resisted saying that he is not liable to remit any fee under law for exercising his option under S.13(2). But the learned Magistrate, by a considered order (I should say a well considered order) over ruled the petitioner's objections. Petitioner approached the Sessions Court in revision against the Magistrate's order. But the learned Sessions Judge dismissed the revision, for default without adverting to the point raised by the petitioner. Hence the petitioner filed the present petition under S.482 of the Code of Criminal Procedure. As the fee sought be paid is not a big sum for the petitioner, he was directed to remit it in the Trial Court without prejudice to his right to have the point decided. (Learned counsel informed that the amount was remitted in Trial Court and the second sample was forwarded to the Director of Central Food Laboratory. The petitioner will not claim reimbursement of the amount even if the decision on this point is in his favour).

(3.) Material changes were brought about by Act 34 of 1976. (It will be referred to as "1976 amendment"). There is no dispute that before the 1976 amendment the person who applied to have the sample analysed by the Director of Central Food Laboratory had the legal obligation to remit the prescribed fee. S.13(2), as it stood before 1976 amendment, was like this: