BAIJ NATH Vs. STATE OF U P

JUDGEMENT

(1.) This is an application in revision by Baij Nath against the judgment and order dated July 1, 1981 by Sri Prahlad Narain, Sessions Judge, Mathura, in Criminal Appeal No. 307 of 1980 by means of which he upheld the conviction of the applicant under Section 7 read with Section 16 of the Food Adulteration Act and maintained the sentence on him passed by Sri R. S. Garg, Chief Judicial Magistrate, Mathura. Very briefly stated the prosecution case was that on November 26, 1979 at about 3 p. m. the applicant was found storing and exposing for sale Zeera in his shop in Mo-halla Pratap Bazar in Brindaban in the dis trict of Mathura. When the applicant told the Food Inspector that this Zeera was meant for human consumption, he gave a notice to the applicant and purchase 300 grams of this Zeera from him and paid its price at Rs. 4. 50. This was kept in three clean phials and was sealed and one of these was sent to the Public Analyst, Lucknow. He gave his report that the Zeera was ad ulterated. Sanction of the Chief Medical Officer was obtained, then a complaint was filed against the applicant and he has been convicted as aforesaid. This sample was taken on November 16, 1979 and the Public Analyst examined this Zeera and gave his report on December 27, 1979. A complaint was filed against the applicant on March 27, 1980. The ap plicant appeared on July 16, 1980 and be cause a notice under Section 13 (2) of the Prevention of Food Adulteration Act had airway been served on him, he made an ap plication on October 4, 1980 that the sam ple be sent to Central Food Laboratory at Calcutta for analysis again. This application was allowed, but when the sample was pro duced before the Magistrate, he found that the phial, in which this Zeera was kept, bad broken and the sample was not in a des-patchable condition, which could be sect to the Director, Central Food laboratory at Calcutta. It has been argued by the learn ed counsel for the applicant that since this sample was not sent to the Central Food Laboratory at Calcutta for analysis again, therefore, the was denied the right, which he had under Section 13 (2) of the Act and his sentence cannot be maintained. The report of the Public Analyst was sent to the applicant on April 15, 1980 and almost six months after he made an ap plication on October 4, 1980 that the sam ple be sent to the Central Food Laboratory for re-analysis This application was cer tainly made beyond the time of ten days as mentioned in Section 13 (2) of the Act. But on this application being made the applica tion was allowed and the Magistrate wanted to send this sample to the Central Food La boratory for re-analysis. It was, however, found that the phial, in which the sample was kept had broken and the Zeera could not be sent, as it was not in a despatchable condition. There was no evidence to show that this Zeera had in any manner deteriorated or that the seals of the phials, in which the sample was kept, had broken and it could not be said whether it is the same Zeera, which was taken by the Food Inspector from the appli cant and was sealed. The sample was, how ever, available, it was not shown that it had deteriorated or that the seals were broken, the Magistrate had, therefore, no choice and he had to send it to the Director, Central Food Laboratory at Calcutta. No doubt, the application was made by the applicant beyond ten days but this provision in Sec tion 13 (2) of the Act is obviously only dir ectory and is not mandatory very often an application cannot be made within the time of ten days for so many reasons, which can be beyond the control of the accused and it cannot be said that if an application is made beyond these ten days and is slightly delay ed, then too the sample need not be sent to the Central Food Laboratory. Where the sample is not deteriorated and is kept sealed and a delayed application is made that it may be sent to the Central Food Laboratory for re- analysis, it cannot be refused. In this particular case the sam ple was of a Zeera, which could not have deteriorated and the learned Magistrate did not say that had deteriorated in any manner and was not fit for being sent to the Public Analyst, he only thought that it was not in a despatchable condition and, therefore, he refused to send the sample to the Central Food Laboratory, Calcutta. By doing so, (he right available to the applicant under Sec tion 13 (2) of the Act was clearly denied and because the sample could not again be exa mined in the Central Food Laboratory, the correctness, of the report given by the Pub lic Analyst cannot be upheld and the appli cant could not be convicted. In this case no evidence was examined even to say that the application was made beyond the time of ten days allowed under Section 13 (2) of the Act and then was no thing to indicate when the letter sent by the Chief Medical Officer actually served on the applicant. For this reason too the right given to him under Section 13 (2) of the Act could not be denied, particularly when in spite of the phial being broken, he was making an application that the Zeera he sent to the Central Food Laboratory. Since the right of the applicant under Section 13 (2) of the Act was denied, his sentence cannot be maintained. This revision is, therefore, allowed and the conviction of the applicant and the sentence imposed on him are hereby set aside. The applicant is on bail and need not sur render. His bail bonds are hereby cancelled and sureties discharged. Fine, if deposited, shall be refunded to the applicant. .