ASGHAR Vs. STATE

JUDGEMENT

(1.) THE applicant has been convicted under section 7/16 of the P. F. A. Act and sentenced to six months R. I. and a fine of Rs. 1000/-. His conviction and sentence have been maintained in appeal by the Sessions Judge, Saha ranpur. Hence this revision.

(2.) I have heard counsel for the applicant and have also carefully perused the impugned order. According to the prosecution case a sample of buffalo milk was purchased by the Food Inspector from the accused applicant which he was carrying for sale on a cycle on 20th July 1975 at about 12 noon. The sample was collected and bottled in accordance with the procedure prescribed by law. One of the sample phials, which was sent for analysis to the Public Analyst, disclosed that it was adulterated inasmuch as there was a deficiency of about 3% in fat contents and 26% in non-fatty solids. After obtaining sanction the applicant has been prosecuted and convicted as above.

(3.) COUNSEL for the applicant has submitted that it was not necessary for the applicant to have deposited the fee prior to his making the aforesaid application. This matter appears to be concluded by the: decision of the Supreme Court reported in Ajitprasad Ram Kishan v. State of Maharashtra, AIR 1972 SC 1631. In this decision while considering the applicability of section 13 (2) of the Act their Lordships of the Supreme Court observed as follows; "It is clear from the sub-section that the appellant should have made an application after paying the prescribed fee, if he wanted the part of the sample available with him to be sent to the Director for analysis. If he had made the application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysis by the Director." These observations even though they might be in the nature of obiter dictum are still binding upon this Court. As such, the law appears to be clear that it is the duty of the accused applicant .to first deposit the fee payable as prescribed under Rule 4 (6) of the P. F. A. Rules and thereafter to make an application for sending the sample to the Director, Central Food Laboratory for re-examination. In this view of the matter, I am in agreement with the view expressed by the Sessions Judge that the application which was filed by the accused applicant for his sample for analysis to the Director, Central Food Laboratory was not maintainable and has been rightly rejected.