RAM CHANDRA BANERJEE Vs. A K CHATTERJEE STATE

JUDGEMENT

(1.) THIS Rule is at the instance of the two accused petitioner's, Ram Chandra Banerjee and sarat Lal Jain, praying for quashing the Criminal Proceedings pending in the Court below under Section 16 (1) (a) (ii) of the Prevention of Food adulteration Act, 1954 or in the alternative for transferring the case to some other court and / or for directing the public Analyst to be recalled.

(2.) THE facts leading on to the Rule can be put in a short compass. A prosecution was launched under section 16 (1) (a) (ii) of the prevention of Food adulteration Act, 1954 by Dr. A. K. Chatterjee, Divisional Medical Officer, eastern Railway, Howrah, against the two accused persons stating that he collected a sample of milk from the stall of the accused on 30. 12. 66 after complying with the necessary formalities and the same when analysed was found to be adulterated. In the report of the Public Analyst dated 12. 1. 67, the milk was kept in the stall for the preparation of tea by the accused persons at the Bandal Railway station. The complaint was filed ultimately on 26. 3. 68 about 15 months after the date of the incident. The accused persons were placed on their trial before the learned Sub-divisional Judicial Magistrate, Hooghly, to answer a charge under section 16 (1) (a) (ii) of act XXXVII of 1954. The accused pleaded not guilty. Two witnesses were examined on behalf of the prosecution on 11. 11. 68 and the Analysts report was proved. A material application was filed on behalf of the accused persons before the learned Magistrate on 4. 12. 70 under section 13 (2) of Act XXXVII of 1954 exercising the right of the accused to pray for sending the sample in question to the Director of Central food Laboratory for a certificate. The learned trying Magistiate ultimately by his order dated 12. 1. 71 was pleased to reject the aforesaid application on the ground that it would be infructuous inasmuch as the sample was taken away back on 30. 12. 66. Thereafter the public analyst was examined as a court witness. On 26. 5. 71 an application was filed by the accused petitioner, praying that the said court witness may be recalled to put some material question to him on the point of co-relation between fat and solids-not-fat percentage as observed in Richmond's Dairy Chemistry. The said application was also rejected by an order dated 1. 9,71 by Shri d. N. Mondal, Judicial Magistrate, 1st class, Hooghly. The petitioners apprehended that they would not receive an impartial tried and prayed for transfer but the same was also rejected. The aforesaid orders were impugned and the present Rule was issued.

(3.) MR. Samarendra Kumar Dutta, advocate, appearing on behalf of the accused-petitioners, did not press the other two grounds relating to transfer and the recall of the public Analyst and he pin-pointed one material ground, viz. that a continuance of the proceedings in the court below would be an abuse of the process of the Code because of a non-conformance to the provisions of section 13 (2) of the Prevention of food Adulteration Act, 1954. In this context he further submitted that the sample taken as far back as on 30. 12. 66 was completely rotten and even the learned Judicial Magistrate himself found that it was infructuous to allow the prayer for sending the other part of the sample to the Director of Central laboratory for the requisite certificate, but there is a clear non-consideration resulting in a failure of justice of the material fact that this had denied a valuable right to the accused in a criminal trial and through no fault of the accused. Mr. Dutta further contended that there is a non-conformance of the provisions of section 10 (1) inasmuch as the Food inspector had no power to take sample of the article of food which was not meant for sale by the accused persons inasmuch as this was kept there for the purpose of preparing tea by the vendor, mr. Mukti Prasanna Mukherjee, Advocate appearing on behalf of the State, joined issue. Mr. Mukherjee contended that it is rather late in the day to raise objections under section 10 (1) inasmuch as those are more technical than real. As to the main ground taken by mr. Dutta, Mr. Mukherjee's reply shortly is that the accused should have availed of the right under section 13 (2) at the proper stage and the learned Judicial magistrate was right in rejecting the said application because at that point of time it was quite infructuous.