MODI DAHYABHAI AMBALAL Vs. JAYANTILAL C SHAH

JUDGEMENT

(1.) Mr. Desai the learned advocate for the applicants contends that the additional sample bottle kept by the complainant was required to be so sent on a complaint filed against them and the accused making a request to the Court for having it so analysed by the Director and the Court was wrong in compelling the accused to produce the sample bottle given to them for that purpose. The accused has a right to take alter- native defence putting the complainant to the proof of all the ingredients of the offence said to have been committed by them. In order to appre- ciate the contention it is necessary to set out relevant part of secs. 11 and 13 of the Act. Sec. 1(1) of the Act is as follows:

(2.) As I said above on receipt of any such application as in the present case from the accused the Court has to ascertain that the mark and seal or fastening as provided in clause (b) of sub-sec. (1) of sec. 11 are intact before directing the sample to be sent to the Director. It appears unfortunate that the learned Magistrate did not choose to decide this application before the labels from the two bottles before the Court were removed and allowed the same to be removed for the purpose of proving the signatures of the panchas on the slips etc. on 11-1-67 while the evidence of the peon was being recorded. It would have done well if the application of the accused was decided immediately after receiving the objections filed by the accused with regard to the order passed by him on 2-1-67 so that the accused would not have any cause of grievance in the sense that these bottles can not be sent for analysis to the Director of the Central Food Laboratory. No useful purpose would be served as has been felt by the learned Magistrate in sending these bottles now to the Director of the Central Food Laboratory particularly when its wrappers are removed and the bottles cannot be said to be intact as required under the law. It may well be said that no sooner an application is received for any such purpose contemplated under sec. 13(2) of the Act either from the accused-vendor who is alleged to be a vendor or from the complainant as the case may be and the payment of the prescribed fee has been made it would be the paramount duty of the Court immediately to call for that bottle from the complainant which he has retained and after it is produced he has to ascertain himself that the mark and seal or fastening as provided in clause (b) of sub-sec. (1) of sec. 11 were intact. He may thereafter decide the application and if he directs it to be sent to the Director of the Central Food Laboratory he shall have to send it under its own seal. The provisions contained in secs. 11 and 13 of the Act have to be scrupulously observed for on that depends the decision of the case inasmuch the report then received supersedes the report of the Public Analyst under the Act.

(3.) It was however urged by Mr. Desai by reference to a case of . that as held therein when such a right comes to be denied to the accused for no fault of his but only due to the inordinate laches of the prosecution no weight could be given to the report of the Public Analyst. The Supreme Court however cautioned that it should not be understood as laying down that in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated the vendor cannot be convicted on the basis of the report of the Public Analyst. It is however for the learned Magistrate to consider what effect should be given to the report of the Public Analyst in view of the circumstances relating to sample bottles before the Court including the difficulty now in sending the bottles when their wrappers are opened to the Director of the Central Food Laboratory for analysis. However as I agree with the learned Magistrate that no useful purpose would be served in sending such bottles now to the Director of the Central Food Laboratory the application is liable to be rejected.