RAGHUBIR Vs. STATE

JUDGEMENT

(1.) THIS criminal revision is directed against the judgment and order dated 15. 6. 1985 passed by the Additional Sessions Judge II Jhansi in Criminal Appeal No. 63 of 1985 Raghubirv. State of U. P. whereby affirming the judgment and order dated 27. 2. 1985 passed by Magistrate Economic Offences Jhansi in criminal case No. 765 of 1984 whereby convicting the revisionist for the offence under Section 7/16 of Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentencing for six months rigorous imprisonment with fine of Rs. 1,000 and in default to undergo simple imprisonment for three months. . 2. The facts giving rise to this revision are these : On 11. 7. 1981 at about 10. 30a. M. Food Inspector took sample of cow milk from the revisionist who was going to sell it. After purchase of milk notice in form 6 was given to him and his thumb impressions were taken on receipt (Ext. Ka-1) and form 6 (Ext. Ka-2 ). The sample of milk was filled in three clear vials and eighteen drops of Formalin were mixed in each vial. The drawn samples were sealed. One vial of sample with copy of form 7 was sent to the public analyst through registered post arid rest of the two samples with form 7 were sent to the Chief Medical Officer. According to the public analyst report (Ext. Ka 6) the non fatty solid was found less than the prescribed limit. After obtaining prosecution sanction the complaint was instituted on 20. 2. 1982. At the trial the prosecution examined Food Inspector K. G. Khare (PW 1) and Food Clerk J. V. Singh (P. W. 2) The revisionist was examined under Section 313, Cr. P. C. He produced Ram Gopal (DW 1) who figured as a witness to the purchase of sample (Ext. Ka-1) in defence. 3. On appraisal of prosecution evidence the trial Court believed the evidence of prosecution witnesses and recorded the finding of conviction and sentence against the revisionist accordingly. The criminal appeal preferred against the order of conviction and sentence passed by the trial Court was dismissed by the impugned order. 4. The revisionist has challenged the findings recorded by both the Court below on the grounds the compliance of the provisions of Section 10 (7) of the Act having not been proved the finding of conviction is unsustainable. The sanction was granted without application of mind. The facts containing the offence having not been mentioned in the sanction, the order of sanction was illegal. The Chief Medical Officer was not local health authority having jurisdiction to grant sanction. The compliance of provisions of Section 13 (2) of the Act having not been made the finding of conviction is illegal. The institution of complaint after inordinate delay seriously prejudiced the rights of the revisionist. The contention of the revisionist is that the milk from which sample drawn was not for the purpose of sale. The authority of the Food Inspector to take sample has been challenged. There was non compliance of the provisions of Section 11 (C) (a) and Rule 9-Aof the Act and the finding recorded by both the Court below contrary to this aspect is erroneous. 5. Heard Shri Vivek Shandilya, learned counsel for the revisionist, learned A. G. A. and have perused the record. 6. The learned counsel for the revisionist submitted that the public analyst's report was not sent to the revisionist within ten days from the date of its receipt. The inordinate delay in prosecution prejudiced the right of the revisionist to get the sample examined by Director Central Food Laboratory. The report of the public analyst having not been sent to the revisionist within ten days, there was non-compliance of the provisions of Section 13 (2) of the Act. The learned counsel pointed out that the sample was drawn on 11. 7. 1981 and the notice with public analyst report was sent to the revisionist on 15. 3. 1982. It was submitted that witnesses in whose presence sample drawn were not examined by the prosecution. One of such witness was produced in defence. 7. The learned A. G. A. submitted that the sample was drawn in the presence of public witnesses and witness Ram Gopal (DW 1) admitted that the memo of taking sample and notice form 6 bear the thumb impression of the revisionist and his signatures. The learned counsel pointed out that non-fatty solid content was found less by 3. 1%. 8. The sample was taken on 11. 7. 1981. The public analyst's report was received on 11. 8. 1981. The complaint was instituted on 20. 2. 1982 The public analyst's report was sent with notice to the revisionist through registered post on 15. 3. 1982. Section 18 (2) of the Act provides a right to the accused vendor to make application for sample retest, after institution of prosecution under the Act. The prosecution in this case was launched more than seven months after the taking of sample of food article. In the sample kept at room temperature with preservative added in it, the percentage of fat and non-fatty solid contents for the purpose of analysis will be retained for about four months and in case it is kept in refrigerator the total period available for making analysis without decomposition will be six months. Section 13 (2) of the Act confers a valuable right on the vendor and to avail that opportunity the prosecution has to proceed in such manner that the vendor is not deprived of the said right. In the instant case the right of the vendor to have sample tested by the Director Central Food Laboratory was frustrated due to inordinate delay in the institution of complaint. The Public Analyst's report was received six months the institution of complaint. The public analyst's report having been made available to the prosecution within a month from the date of taking sample the prosecution could have been launched well in time to enable the revisionist to exercise his right under Section 13 (2) of the Act. The inordinate delay in launching prosecution was not explained. In view of these facts it is a case where revisionist was deprived of the opportunity of exercising his right to have the sample examined by the Director of Central Food Laboratory on account of latches on the part of the prosecution and his conviction is vitiated. Consequently, the revision succeeds. 9. The revision is allowed. The judgment and order of conviction and sentence dated 27. 2. 1985 passed against the revisionist by the trial Court and affirmed in appeal by the impugned judgment and order dated 15. 6. 1985 is set aside. The revisionist is acquitted for the offence under Section 7/16 of the Prevention of Food Adulteration Act. He is on bail. He need not surrender. His sureties are discharged. .