MURARI LAL Vs. STATE

JUDGEMENT

(1.) THE applicant Murari Lal has been convicted under Section 7/16, Food Adulteration Act (hereinafter called the Act), and sentenced to six months' R. I. and a fine of Rs. 1000/-, in default further rigorous imprisonment for six months. THE prosecution case was that on 24-12-1976 at about 10 A. M. a sample of milk was taken from the applicant's Halwai shop in which milk in a karaha was displayed for sale. On analysis the sample was found to contain milk fat 2. 3 per cent and non-fatty solids 10. 5 percent thereby being clearly deficient in fatty con tents. THE applicant's case was that he dealt in sweets only and the milk was not for sale but for his own use in preparation of sweets. THE defence has been rejected by both the Courts below who have found that the milk was for sale and it was adulterated being deficient in fat contents. THEse findings are in the absence of any flaw binding in revision. Learned counsel for the applicant has raised two legal points. Firstly he submitted that both the witnesses to the sample-taking were depart mental witnesses, namely, Madanlal, peon, and Ram Bharose Lal, Safai Naik and, therefore, there had been a breach of Section 10 (7) of the Act. THEre is no substance in this conten tion because the Food Inspector has deposed that he had asked the public persons present but they had declined to become witnesses and it was than that he had to resort to departmental witnesses. This assertion of the Food Inspector remained unrebutted. In the circumstances it cannot be said that there was any violation of Section 10 (7) of the Act. THE second point urged by the learned counsel was that there has been a breach of Section 13 (2) of the Act, THE relevant facts are that the Public Analyst report is dated 10-2-1977 and the Challan was submitted to the Court on 25-3-1977. THEre was an urebutted assertion that the Health Authority had sent a copy of the Public Analysts report to the accused on 26-3-1977. THE Autho rity's register containing this note and the registration receipt about this despatch were summoned by the Magistrate and inspected by the accused counsel on 3-8-1977. How ever, the accused stated that he did not receive a copy of the Public Analyst report. THE accused had appeared in the case for the first time on 31-5-1977 and 14-7-1977 was fixed for prosecution evidence. On that date the accused put in an applica tion that he wanted the sample phial to be requisitioned from the Health Authority and sent to the Central Food Laboratory. This application was directed to be put up on the date fixed. On 14-11-1977 an order was passed "office pleased necessary action if regular. " Finally on 3-6-1978 the application was rejected as delayed. Before this, however, follow ing the statement of the Food Inspector on 13-10-1977 the state ment of the accused was recorded on 21-11-1977, and in this he reiterated that his milk sample may be summon ed and sent to Calcutta for analysis. THEre can be no dispute that this was a request to have the sample of milk analysed by the Central Food Labora tory. It was claimed that mere proof of a registration receipt about the des patch of a registered cover to the accused on 26-3-1977 cannot suffice to show compliance with Section 13 (2) of the Act by sending a copy of the Public Analyst report with an intima tion to apply to the Court within ten days in case the accused wanted analy sis by the Central Food Laboratory. I cannot agree with this contention. In my opinion the inference of the Courts below that the registration receipt related to the Public Analyst report and the intimation required by Section 13 (2) is correct. In the first place after ascertaining this position the defence counsel was apparently satisfied and did not want the witness who brought the record to be cross examined. Next. Once the fact of despatch of a registered cover allegedly containing the Public Analyst's report copy to the accused after launching of the prosecution is proved a presumption under Section 114, Evidence Act, can legitimately be made that the matter sent was the matter required by Section 13 (2) of the Act for there was no occasion for any other communication on that date. I also find myself in agreement with the Courts below in disbelieving the accused's denial of having received this communication. THErefore, this argument cannot be of any help to the defence. Learned counsel alternatively con tended that even if it is taken that the communication under Section 13 (2) dated 26-3-1977 had not been received by him the Magistrate by failing to accede to his request in the application dated 14-7-1977 for getting the sample analysed by the Central Food Laboratory had seriously prejudiced him and, therefore, the con viction was unsustainable. I should straight way say that I am not impres sed by the trial Court view that the application dated 14-7-1977 was inserted in the records subsequently. THEre is no reason to suspect the authenticity of this application and the deliberate character of the order to put it up on the date fixed. THE accused's statement dated 14-11- 1977 confirms that the defence wanted to have the sample analysed by the Central Food Laboratory. THE short question then is whether having failed to apply within 10 days of the intima tion under Section 13 (2) of the Act the accused was barred from seeking analysis by the Central Food Labora tory and is the order of rejection of this application proper. This is an important question for deciding which amongst other things the scope and purpose of Section 13 (2) of the Act have to be considered. Prior to the present Section 1 3 (2) brought in force by U. P. Act 34 of 1976 with effect from 1st April 1976, the provision permitted the accused of the complainant to apply for send ing the sample to the Central Food Laboratory on payment of the pres cribed fee. On such application and analysis the report of the Director, Central Food Laboratory, superseded the report of the Public Analyst. U. P. Act 34 of 1976 also changed Section 11 of the Act so that under the present Section 11 the accused does not get any phial of the sample taken and while one is sent to the Public Analyst the other two phials are deposited with the Health Authority. Do these changes mean that the accus ed has no right to have the sample analysed by the Central Food Labora tory unless he strictly complies with the terms of intimation given to him under Section 13 (2) of the Act THEre may be cases where for one reason or the other the accused could not apply within 10 days for sending the sample to the Central Food Laboratory but later on bona fide wants this testing to be done. Should the Court reject such a request on the bare ground that it is delayed. This does not appear to be the law. THE most important feature is that Section 13 does not anywhere prescribe that the effect of failure to apply within ten days for sending the sample to the Central Food Laboratory would be forfeiture of the right to get this analysis done. In accordance with the basic principles of criminal juris prudence any procedural omission or error by the accused should lead to the minimum possible adverse result that the statute prescribe. Here the intimation to apply within ten days is an enabling one and in the absence of any specific bar against an applica tion after ten days cannot be read as denying any right to have Central Food Laboratory analysis if applica tion is not made within ten days of the intimation. THE matter may be looked at from another angle. THE option to apply and have the sample analysed by the Central Food Labora tory is not a special right conferred upon the accused. It is a right for both the complainant and the accused to obtain a second opinion and thus minimise any chances of error in the Public Analyst's report. It is thus only a part of the general right of the accused to dispute the report of the Public Analyst THE machinery of setting up a Central Food Laboratory and the procedure for obtaining its report through Court only ensures an authentic scientific second opinion which would not be open to suspici ons and objections that a report privately procured by the accused from a non-or Bcial laboratory might be. If the matter is looked at in this perspective no harm gets done if the accused seeks analysis after ten days. It may of course be that in a certain case the delay is so inordinate that it may legitimately be held that analysis will be pointless. Thus it has been held that milk sample is likely to be decomposed and not admit of proper analysis under the rules after ten months. If a request is, therefore, made after more than ten months for sending the sample to the Central Food Laboratory, not withstanding the receipt of the intima tion under Section 13 (2) well in time, the rejection of the application may be in order. THE purpose of the changes brought about by U. P. Act 34 of 1976 in Section 13 (2) and the manner of deposit of the spare sample phials appears to be merely to regu late the unlimited right of the parties under the former provision to apply for analysis at any state with the object of avoiding delays that might render the sample incapable of analysis as well as avoiding delay in legal proceedings. THE utmost that can be said is that if the accused fails to apply for analysis by the Central Food Laboratory within 10 days and delays his request, the follow ing consequences will follow: (1) If the request is unduly delayed so much so that the sample can reasonably be expected to have decomposed or deteri orated or the request can be regarded as not bona fide and calculated to obstruct the trial Court, the Court may reject the prayer. A judicial decision in each case after considering the extent of the delay and the explana tion of the accused for the delay will have to be given on the application and (2) In case the application is allowed and the Central Food Labo ratory report is that the sample had decomposed, the accused will not be able to get the advantage of this result if the prosecution can show that this is only because of the accused's delay in not applying within ten days of the notice. In the present case the request was initially made on 14-7-1977 which was at a time when the sample could still be expect ed to be fit for analysis. THE Magis trate kept the matter pending for over a year before rejecting the appli cation. THE accused cannot be pena lised for this delay. THE Magistrate's failure to deal with the application of the accused promptly has in this case clearly prejudiced him for in July/august 1977 the sample might have brought a favourable result from the Central Food Laboratory that would have superseded the report of the Public Analyst. It must, therefore, be held that though there was no breach of Section 13 (2) of the Act by the prosecution the accused was prejudiced in his defence by the Magistrate's action in delaying the disposal of the application dated 14-7-1977. Accordingly the revision succeeds and is hereby allowed. THE convic tion and sentences of the applicant are set aside and he is acquitted THE applicant is on bail and he need not surrender. THE bail bonds are dis charged. .