A S GILL Vs. STATE

JUDGEMENT

(1.) THIS original revision challenges the order dated 2nd May, 1983, passed by the 8th Additional Sessions Judge, Sitapur in Criminal Appeal No. 120 of 1982, dismissing an appeal against the judgment dated 23rd August, 1982, passed by Special Judicial Magistrate, 1st Class, Sitapur, confirming the conviction and sen tence of the petitioner under Section 16 of the Prevention of Food Adulteration Act.

(2.) THE petitioner was running a grocery shop in Mohalla Nanak Mandi, Sitapur Tbwn and on 24. 9. 78 Food Inspector after disclosing his identity as such purchased 750 grams of mustard oil and took the same in possession as samples in accordance with the rules. Later on, on receipt of Public Analyst report, which confirmed that the sample of the mustard oil contained Tisi Tel' (Oil) to the extent of 8 per cent and that the mustard oil was adulterated one. After due formalities prosecution was launched and the petitioner was convicted of the of fence and sentenced to rigorous imprison ment of six months and a fine of Rs. 1,000/-, in default of fine further rigorous imprison ment for a period of two months. THE petitioner challenged his conviction and sentence before the learned Sessions Judge in appeal, which was dismissed.

(3.) LEARNED Counsel for the petitioner has relied upon the decisions Jagdish Vs. State of UP, 1991 A. C. C. 82 and Desk Raj v. State of U. P and another 1985 A. C. C. page 109. In case Jagdish Vs. State of U. P (Supra) it was a sample of Jalebi and there was no evidence if any preservative was added and as such the delay in launching the case was presumed to defeat the right of the accused under Section 13 (2) of the Act and it was held that nothing useful and productive would have been achieved by availing the right of Section 12 (2) by the accused, as after a gap of nine months the samples of Jalebi must have decomposed and must have become unfit for analysis, Similar in case of Desh Raj v. State of U. P. (supra) the sample taken was of cow's milk. The delay in filing the complaint and sending of copy of the report of the Public Analyst to the accused person was considered as negativiting the right of accused u/s. 13 (2) of the Act, as the sample lying with the health authorities must have decomposed by that time. How ever, in the instant case the sample is that of mustard oil and there is no plea or sugges tion that the sample could have deteriora ted in its condition in any manner during the time it was left lying with the health authorities till launching prosecution against the petitioner. The learned Counsel contends that the copy of the Public Analyst report was sent to him on 03. 5. 79, 27 days after filing of the complaint. Be that as it may, the petitioner did not choose to chal lenge the report by moving an application for sending of the other sample bottle for analysis of the Central Food Laboratory. In a decision in Julsiram v. State of Madhya Pradesh, AIR 1985 SC 299 while consider ing Rule 9-A of Food Adulteration Rules, 1955, the Hon'ble Supreme Court observed: "the expression "immediately" in Rule 9-A is intended to convey a (sic) of continuity rather than urgency. What must be done is to forward the report to the person from whom the sample was taken at the earliest opportunity, so as to facilitate the exercise of the statutory right under Section 13 (2) in good and sufficient time before the prosecution commences leading evidence. Non- compliance with Rule 9-A is not fatal. It is a question of prejudice. "