BHOOREY SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) The applicant has been convicted under Sec. 7/16 of the Prevention of Food Adulteration Act and sentenced to six months' R.I. and a fine of Rs. 1000.00. His conviction and sentence have been maintained in appeal by the Sessions Judge, Bareilly. Hence this revision.

(2.) I have heard counsel for the applicant and have also perused the impugned order. I have also scrutinised the record of the case. A sample of buffalo milk was purchased by the Food inspector from the applicant at about 10.30 A.M. on March 30, 1977 in accordance with the formalities prescribed by law. One of the sample phial was sent to the Public Analyst for analysis, whose report disclosed that it was deficient in fat contents by 8%. After obtaining sanction the applicant has been prosecuted and convicted as above. Both the courts below on a consideration of the evidence on record and the circumstances of the case have held the accused guilty of the offence in question.

(3.) Counsel for the applicant has submitted that there is nothing in the record to indicate that Sec. 13(2) of the P.F.A. Act has been complied with. He submits that no copy of the report of the Public Analyst was sent to him with the result that he could not apply for the examination of the second sample by the higher authorities, viz. the Director, Central Food Laboratory, Calcutta. I have very carefully read the evidence of the Food Inspector and have also examined the documents on the record. Nowhere has the Food Inspector stated that the copy of the report of the Public Analyst was sent to the accused-applicant, as is required under Sec. 13(2) of the P.F.A. Act. No other evidence has been produced to prove the sending of the report to the accused. Counsel for the State has submitted that had the report of the Public Analyst not been sent to the accused-applicant, he would certainly have made a grievance of it in the courts below. This point, it appears, was not raised on behalf of the applicant either before the trial court or before the appellate court. Even in revision before this Court the learned counsel has challenged the conviction of the applicant on the ground of non-compliance of Sec. 9(j) of the P.F.A. Act. However, it appears that the Food Inspector was not cross-examined on this question, because he has not given any statement in the examination-in-chief to vouch that a copy of the report of the Public Analyst was sent to the accused. It has already been held by me that Sec. 13(2) of the P.F.A. Act is mandatory. The duty for complying with this mandatory provision of law rests with the prosecution. It was the duty of the prosecution to have led specific evidence to prove that the report of the Public Analyst along with a note, as required therein, reminding the applicant of his right to apply afresh for the examination of the sample within ten days, was sent to the accused. This provision not having been complied with, it can validly be argued on behalf of the applicant that he has been deprived of a right granted to him under the Act. Moreover, I find that in the instant case the deficiency was only in fat solids to the extent of 8% which is a small deficiency. The probability of there being error in analysis cannot be totally ruled out. That could be got tested by the accused if he had been forwarded a copy of the report of the Public Analyst so that he could exercise his statutory light and have the same-reexamined by the Director, Food Laboratory, Calcutta.