MESSRS HTKALAL RAMKHMAR Vs. STATE

JUDGEMENT

(1.) This application raises a question of interpretation of Section 13(2) of the Prevention of Food Adulteration Act, Act XXXVII of 1954. The point arises in this way. The present Petitioner is being prosecuted for keeping in his possession adulterated Gur. In launching the prosecution, the Food Inspector in conformity with the provisions of the Act took sample of the commodity and in conformity with Section 11(1)(c)(i) delivered one of the parts to the present Petitioner; he sent; another part for analysis to the Public Analyst and retained the third part with himself. After cognisance of the case was taken and summons issued, the accused Himangsu Sekhar Baherji appeared in Court on August 17, 1960 and on that date filed an application under Section 13(2) of the Act praying for sending the part of the sample that was given to him in terms of Section 11(1)(c)(i) to the Director of Central Food Laboratory for a certificate and he produced that sample phial. On examining that phial, as is required by Section 13(2), the learned Magistrate found that seal etc. were broken and there was no label on it showing that it was the sample taken by the Food Inspector. Thereupon, the present Petitioner asked the learned Magistrate to call for the third phial kept with the Food Inspector under the provisions of Section 11(1)(c)(iii). The learned Magistrate acceded to this prayer and called for that third phial and fixed August 30, 1960 for production. On that later date the Food Inspector filed an application before the learned Magistrate stating that the phial that was kept by him was not traceable although he had searched for the same. In that application he said, Now if your honour perm is me to take a fresh sample from the seized tin tying lander the custody of the accused then I may take the same and Send it to your Court as per your honour's order.

(2.) Upon that application the learned Magistrate recorded an order on August 30, 1960, saying, "Allowed the prayer of Food Inspector. Seen petition. To 7.10."

(3.) Against this last order the present Rule has been obtained and the learned Advocate for the Petitioner, Mr. Sarkar has raised two contentions. His first contention is that Section 13(2) mentions that either of the two samples mentioned in Sub-clauses (i) and (iii) of Section 11(l)(c) can be availed of by the accused for exercising his right under Section 13(2) and in the present case, the prosecution! having failed to produce the sample covered by Sub-clauses (iii) of Section 11(1)(c), his legal right under Section 13(2) is being denied and therefore, he has prayed for Squashing the proceedings. Mr. Sarlrar's second contention is that the learned Magistrate had no power to direct taking of fresh sample from the seized tin of GUR and to send it for the purpose of obtaining a certificate under Section 13(2). He also pleaded that a long period has elapsed since the Gur was seized and it will be extremely prejudicial to the accused person to take a sample from that tin now.