DHARAM SWARUP Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE applicant has been convicted under sections 7/16 of the Prevention of Food Adulteration Act and sentenced to 6 months' R. I. and a fine of Rs.1000/-. In default of payment of fine, he has been directed to undergo 3 months' R. I. In appeal his conviction and sentence has been confirmed by the Sessions Judge, Etawah. Hence this revision. I have heard the learned counsel for the applicant and have also perused the impugned orders. THE applicant had a shop in village Basrehar. THE Food Inspector purchased a sample of Hing on 19th December, 1972 from his shop on payment of price. THE sample was sent, in accordance with law, for analysis. THE Public-Analyst reported that the sample of Hing was adulterated. It contained 37.3 per cent starch which exceeded the maxmium prescribed limit of 1 per cent. On these allegations, the applicant has been prosecuted and convicted. THE sole point argued by the learned counsel for the applicant is that he had filed an application before the Magistrate on 20th January, 1975 praying that the sample of Hing in his possession may be sent to the Director, Central Drug Research Institute for analysis and that the applicant be permitted to deposit the expenses in connection therewith. This application was rejected by the Magistrate. Learned counsel urged that his staturory right to have his sample tested conferred under section 13 (1) of the Prevention of Food Adulteration Act, as it stood prior to its amendment by Act No. 34 of 1976, has been violated. It appears from the record that two applications were filed by the applicant on 20th January, 75. In the first application it was mentioned that the report of the Public-Analyst disclosed that the Hing in question was adul terated by 1 per cent, and therefore, the Public Analyst should be summoned for cross-examination. This application was rejected by the Magistrate on the ground that the allegations in this application were false since the report of the Public-Analyst indicated that the extent of adulteration was 29 per cent. As such he rightly rejected this application. THE second application filed on the same date was for sending the sample of the accused-applicant for analysis by the Director, Central Drug Research Institute, Calcutta. This application was rejected by the Magistrate on the ground that it was filed too late. THE order of the Magistrate dated 20th January, 1975 runs thus : "THE evidence is closed and the case is now fixed for argument today. This application should have been moved when the accused got the report of examination of the Public Analyst. It is too late now and is rejected. Sd. 20-1-1975. It is true that the aforesaid application has been made at a very belated stage. THE Report of the Public Analyst was received by the applicant on 7th March, 73. THE instant application has been made almost after two years on 20th January, 75, but the question is whether the Court had a right to reject even this belated application ? From a perusal of Section 13 (2) as it stood prior to its amendment by Act no. 34 of 1976, I find that no limitation has been prescribed for the exercise of the right of the accused conferred on him for getting his sample analysed. If he exercises this right at a belated stage, he runs the risk of the sample being deteriorated. In other words, if the report of the Director, Central Drug Research Institute, Calcutta is to the effect that the sample has deteriorated because of the lapse of time, in that case the accus ed would be deprived of the benefit of the opinion of the Director and the report of the Public Analyst would, therefore, be the last word, subject of course to its acceptance by the court. THE right conferred on an accused to get his sample tested by the Director, Central Drug Research Institute, Calcutta by making an application under section 13 (2) of the Act for sending the sample, in the possession of the accused, for analysis by the said authority is statutory right granted to the accused and it cannot be defeated on the ground of. laches. No limitation is prescribed for the exercise of this right by the accused except that the right should be exercised prior to the decision of the case. This implies that unless the trial is over the accused is at liberty to exercise this right u/s 13 (2) of the Prevention of Food Adulteration Act at any time after the institution of the case till the time judgment is delivered by the court, I am supported in my views by a number of decisions. In case, Jayavelu and another v. Food Inspector, Corporation of Madras reported in 1971 Cr. L. J 122, it was held by a Single Judge of the Madras High Court that : "No limitation is placed in Sec. 13 (2) of the Act as to when the accused can exercise the right conferred there under on him. It is not always necessary that immediately after the prosecution is instituted, the accused should take steps for sending the sample to the Director of the Central Food Laboratory. It is left to the accused to wait till the examination of the Public-Analyst in court and if the evidence of the Public Analyst is not unfavourable to him, he may even decide not to exercise the right conferred on him. No time limit can be prescribed for the accused to exercise his right save that he should exercise such a right before the close of the trial." THE same view has also been expressed by a single Judge of our Court in Netrapal v. Nagar Swasthya Adhikari, Agra 1970 A. C. C. 84 that : '"It is clear from the provisions laid down in sub-section (2) of Section 13 of the Act that the accused from whom the sample was taken could apply for sending the sample mentioned in sub-section (1) or sub-cl. (iii) of cl. (c) of sub-section (10) of Section.il 'after the institution of a pro secution under this Act'. It is nowhere provided in the Act that the application should be made at an earlier stage or before the date for defence evidence is fixed. Prosecution of an accused continues till judg ment is pronounced." Further in Ved Prakash v. THE State reported in 1978 A. I. P. F. A J. 383, a single Judge of the Punjab and Haryana High Court has also expressed the same view. "THE right of the accused to get examined any of the two samples that is retained by the Food Inspector and supplied to himself has been recognised by the statute, under section 13 (2) of the Prevention of Food Adulteration Act, 1954. THE section does not provide any time limit for the exercise of this right by the accused person during the pendency of the case. THE right of the accused to get any of the samples examined by a greater expert has not been contested on behalf of the State. THE order of the learned Magistrate under revision is not only erroneous but bad in law and by doing this the learned Magistrate has tried to shut out the statutory right of the accused to show that the analysis of the sample retained by the Food Inspector would not tally with the report of the Public Analyst on the basis of which he has been sent up for trial." A gross illegality has been committed by the Magistrate in rejecting the application, filed on behalf of the accused on 20th January, 1975 for sending a sample for analysis to the Director, Central Drug Research Institute, Calcutta. In these circumstances this revision application is allowed and the order of conviction recorded by the Magistrate, as confirmed by the Sessions Judge must be set aside and the case is remanded to the trial court for disposal in the light of the observations made above. THE sample which the accused desired to send for analysis to the Director, Central Drug Research Institute Calcutta vide his application dated 20th January, 75 should now be sent for analysis and the case should thereafter be decided in accordance with law. THE record of the case shall be despatched to the court of the Magistrate within 10 days to enable speedy disposal of the case.