IMRAN Vs. STATE

JUDGEMENT

(1.) THE applicant has been convicted under Sec. 7/16 of the P. F. Act and sentenced to one year's R. I. and a fine of Rs. 1000/. His conviction and sentence have been maintained in appeal by the Sessions Judge. Hence this revision. I have heard counsel for the parties and have also perused the impugned order. I have also scrutinised the evi dence and the documents on the record. A sample of milk was purchased by the Food Inspector from the applicant on 18th October 1975 at 1. 30 a. m. in accord ance with the provisions of law existing on that date. One of the sample phials was given to the accused and out of the other two, one was sent for analysis to the public Analyst. THE report of the Public Analyst dated 17th April 1976 disclosed that the sample of milk was deficient in fat contents by 93% and in non-fatty solids by 43 percent. It appears that thereafter a complaint was filed against the applicant but the same was dismissed as not pressed. Sanction was obtained for the second time on 24th May 1977 and a second complaint was filed which wag taken cognizance by the court oil 2nd July 1977. On the basis of this complaint the applicant has been prosecuted and convicted as above. Learned counsel for the applicant has argued that the accused has been severely prejudiced because the sample of milk taken from him was not sent for analysis to the Director, Central Food Laboratory, Calcutta. In this connection, he points out that the cognizance of the offence, on the basis of the second complaint, was taken on 2nd July, 1977. On 5th August 1977 an application was filed on behalf of the accused. In this application a prayer was made that the sample phial may be summoned and sent to the Director, Central Food Laboratory. I have carefully perused this application. An order has been passed thereon by the Court on 5th August 1977 to the following effect : "allowed. F. I. to produce the phial by 8. 8. 77. " THEreafter it appears that nothing further took place in this connection and the judgment in question was delivered by the trial court on 15th May 1978. Prior to that, I find from the perusal of the impugned order that the Magistrate had put a question to the accused on 13th May 1978 whether he pressed his application for sending his sample for analysis or not. THE applicant did not press this application and as such the court ordered on 13. 5. 1978 'not Pressed'. Rightly or wrongly an order had been passed by the Magistrate on 5th August 1977 whereby he had allowed the application of the applicant and had directed the Food Inspector to produce the sample phial. THE second complaint in the instant case on which cognizance was taken by the court, is dated 28. 6. 1977. As already mentioned the Magistrate took cognizance of it on 2. 7. 77. THErefore, the new Prevention of Food Adulteration Act as amended by Act 10 of 1976, would be applicable to the facts of the present case even though the sample may have been initially taken when the unamended Act was in force. However, that is not the bone of contention between the parties. This fact cannot be denied that the Court has allowed the application for sending the sample. Under the new Act, however, there is no provision by which cost of sending the sample is to be deposited by the accused. As a matter of fact, the sample sought to be sent was one in the possession of the Food Inspector and in all fairness and justice, the court was not required to again verify from the accused, after having passed that order, whether he desired to send the sample for analysis or not. I do not find any warrant in law nor any justification for the Magis trate to have questioned the accused again on 13th May 1978 and to have asked him whether he desired to press his application dated 5th August 1977. THE judgment in the instant case was pronounced by the Magistrate on 15th August 1978. In all probability the Magistrate after wading through the record realised the procedural defect which had arisen in this case as a result of which the invaluable right of the accused to have his sample sent for analysis to the Director, Central Food Laboratory, was being infringed. THErefore, to correct this error, he appears to have put that question at a stage not provided in law for trial of such offences. Once the court had allowed the application for sending the sample phial in the possession of the Food Inspector, it was the mandatory duty of the court to see that the phial was sent and a report was obtained from the Director, Central Food Laboratory. But I find from a perusal of the order of the Sessions Judge that he was under the impression that no application for sending the sample under Sec. 13 (2) had been moved on behalf of the accused. That is not the correct position as it emerges from the record. THE applicant has been harassed quite enough. His pro secution has been delayed. One com plaint was filed against him, and it was dismissed as not pressed. In the second complaint which has proceeded, the applicant has been deprived of a valuable right. Even the Sessions Judge was of the opinion that there have been lapses on the part of the department, resulting in much delay in the filing of the complaint. In view of all these excep tional circumstances, I am of the opinion that this would not be a fit case which should be remanded for the purpose of the sample being sent for analysis again, after such a long lapse of time. THE applicant had been severely pre judiced by this lapse resulting in viola tion of the rights provided to the applicant under the Act. This revision application is accord ingly allowed. THE conviction and the sentence imposed upon the applicant are set aside. THE applicant is on bail. He need not surrender and his bail bonds are hereby discharged. .