NAGAR SWASTHYA ADHIKARI Vs. HARI SINGH

JUDGEMENT

(1.) This is an appeal by the Nagar Swasthya Adhikari, Nagar Mahapalika, Agra, against the judgment dated 15-5-1975 of the Judicial Magistrate 1st Class, Agra, acquitting the respondent of an offence punishable under Section 16 read with Section 7 of the Prevention of Food Adulteration Act. The facts apparent from the evidence on the record and not controverted in this Court are, as found by the learned Magistrate, that sample of cow milk was taken according to law for analysis by the Food Inspector, R. M. Chaturvedi (P. W. 1) on 26-6-1973 at about 9-30 A. M. from the accused-respondent on payment. As the law then was, it was divided and sealed in three different phials after putting in each the necessary quantity of preservative. The portion sent to the Public Analyst was reported to be adulterated as it was found to be deficient in fat content and non-fatty solid content by 31% and 33% respectively. After the respondent was pro secuted, he made an application to the Court that as the phial given to him broke when a portion of his house collapsed, that one retained in the office of the appellant be sent to the Director, Central Food Laboratory, Calcutta, for analysis in accordane with Section 13 (2) of the Prevention of Food Adulteration Act, as it then was. Unfortunately, the portion retained the office of the appellant, which was seat to the Director, Central Food Laboratory, Calcutta, broke in transit and, therefore, the Director was unable to analyse the sample. Under the circumstances, it cannot be denied that the valuable right given to an accused under sub- section (2) of Section 13 of the Prevention of Food Adulteration Act could not be exercised by the accused for no fault of his. In other words, the accused was deprived of that right. It was urged on behalf of the appellant that, before the amendment, an accused had right under Section 13 (2) of the Prevention of Food Adulteration Act to get the portion given to him under Section 11 (1) (c) (i) sent 'to the Director for analysis under Section 13 (2) of the Act and that the accused had no right to have the portion, retained in the office of the Nagar Swasthya Adhikari under Section 11 (1) (i) (c) (iii), sent to the Director. On perusing Section 13 (2), as it was before the amendment, I find that there is nothing therein which prevents an accused from claiming that the sample retained under Section 11 (c) (iii) of the Act be sent to the Director for analysis. Section 13 (2) of the Act was as follows;- "after the institution of a prosecution under this Act the accused-vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample mentioned in sub-clause (i) of sub-clause (iii) of clause (c) of sub-section (1) of Section 11 to the Director of the Central Food Laboratory. . . . . . . . . . . . " In my view, a right has been given both to the accused-vendor and also to the complainant to apply for the sending of the sample mentioned either in sub-clause (i) or in sub-clause (iii) of clause (c) of sub- section (1) of Section 11 to the Director of the Central Food Laboratory. There is nothing in this section from which it may be inferred that the accused-vendor cannot claim that the sample retained in accordance with sub-clause (iii) of clause (c) of sub-section (1) of Section 11 be sent for analysis to the Director. As a matter of fact, it would be a very unjust interpretation. Sometimes, prosecution takes place after a considerable lapse of time. The sample given to an accused-vendor may get destroyed or lost for no fault of his. Under those circumstances, I fail to see why he should not be allowed to claim that the sample retained in the office of the Nagar Swasthya Adhikari be sent to the Director in the exercise of his right given under Section 13 (2) of the Act. To revert to the language of Section 13 (2) it may be pointed out that it did not lay down that after the institution of a prosecution under this Act the accused-vendor may on payment of the prescribed fee make an application to the Court for sending the part of the sample mentioned in sub-clause (i) of clause (c) of sub-section (I) of Section 11 and the complainant may on payment of the prescribed fee make an application to the Court for sending the part of the sample mentioned in sub-clause (iii) of clause (c) of sub-section (1) of Section 11 to the Director of the General Food Laboratory for analysis. To my mind, the same right was given under this section both to the accused-vendor and the complainant to make an application to the Court for send ing either of the two parts mentioned in sub-clause (i) and sub-clause (iii) of clause (c) of sub-section (1) of Section 11 to the Director for analysis. The right, it may be repeated, was given both to the accused-vendor and the complainant to apply to the Court for sending either of the two parts to the Director. It appears that because it is not always possible for an accused- vendor to take proper care of the part of the sample given to him, the section has been amended and now no part of the sample is to be given to the accused-vendor and the accused-vendor can claim in accordance with the amended section that the part of the sample retained by the Food Inspector in his office be sent to the Director for analysis. Under the circumstances, I find that the accused has been rightly acquitted in this case. The appeal is dismissed. .