JAINARAIN SINGH Vs. STATE

JUDGEMENT

(1.) The applicant has been convicted under Sec. 7/16 of the Prevention of the Food Adulteration Act and sentenced to 6 months' R.I. and a fine of Rs. 1000.00. In default of payment of fine, he is to undergo 3 months' R.I. His conviction and sentence has been maintained in appeal by the Sessions Judge, Kanpur, hence this revision.

(2.) I have heard learned counsel for the applicant, and have also perused the impugned orders. It appears that a sample of mixed milk of cow and buffalo was purchased by the Food Inspector from the applicant, which on analysis was found to be deficient in non-fatty solids by 13 per cent. After obtaining sanction, the applicant has been prosecuted and convicted as above.

(3.) Counsel for the applicant has submitted that he has been deprived of a valuable right under Sec. 13(2) of the P.F. Act inasmuch as the copy of the report of the Public Analyst was not sent to him after the institution of the prosecution to enable him to file an objection to the court concerned for getting his sample re-analysed. It appears that in the instant case the report of the Public Analyst was despatched to the applicant on 30th March, 1978. The complaint itself was filed on 27th May,1978, and congnizance was taken by the court on 30th May, 1978 fixing a date in July, 1978. Under Sec. 13 (2) of the Act a delinquent is entitled to file an application within 10 days of the receipt of the report of the Public Analyst for getting the sample in dispute re-analysed. Under the same Section, the report has to be sent to the applicant after the institution of the prosecution. In the instant case, the report was sent to the applicant on 30th March, 1978, while the complaint itself was filed on 22nd May, 1978, i.e. the report was sent about 7 weeks prior to the institution of the prosecution. Under the aforesaid section, as mentioned above, a right of analysis accrues to the accused provided the application for this purpose is filed within 10 days of the receipt of the report. It is noteworthy that in the instant case no prosecution had been instituted against the applicant, as such it was not possible for the applicant to file any such application for re-examination of the sample. Thus by sending the report of the Public Analyst to the applicant 7 weeks prior to the institution of the prosecution case, the right given to the accused under section 13(2) of the Act has been rendered nugatory. It is not possible for the accused to make any application for analysis within the stipulated time since the prosecution had not been launched. Sec. 13(2) of the Act is a mandatory section. Its non-compliance has resulted in a mis-carriage of justice. In the instant case the deficiency is only in non-fatty contents to the extent of about 13 percent. The right of the applicant had been lost to get the analysis confirmed by superior authority. He has thus been severely prejudiced.