SAMIR KUMAR DAS Vs. KHAGEN GHOSH

JUDGEMENT

(1.) THE petitioner, a Food Inspector of the Corporation of calcutta, filed a petition of complaint before the learned Metropolitan Magistrate, calcutta on September 11, 1975 the learned Magistrate took cognizance of the case and issued summons on the opposite parties Nos. 1 to 4 under section 16 (1) " (a) (i) read with section 7 of the prevention of Food Adulteration act (hereinafter referred to as the Act ). The accused opposite parties'' appeared and the learned magistrate proceeded with the enquiry of the case as the case was triable by a Court of Session. Subsequently the learned Magistrate, on February 15, 1979 recorded an order that the instant case was triable by him in view of a decision of this Court and the case need not be sent to any Court of Session, the learned Magistrate thus, proceeded to hear the case. On November 16, 1979 an application was filed on behalf of the accused persons for sending the sample given to them to the Director of Central Food Laboratory. The sample was produced by the accused. The learned magistrate found that the seals were in tact but the bottle was leaking and he rejected the said prayer of the accused. The learned Magistrate, however, by the same order directed the prosecution to produce a part of the sample kept by the prosecution for analysis by the Director of the Central Food Laboratory. The said sample was produced by the prosecution and was sent to the Director of the Central Food Laboratory for analysis. The report dated January 7, 1980 of the Director of the Central Food laboratory showed that the sample was found decomposed and unfit for analysis. The learned Magistrate by an order dated January 25, 1980 discharged the accused persons under section 245 (2) of the code of Criminal Procedure. 1973 observing' that there was no other part of the sample which could be sent for analysis. The learned Magistrate has further observed that the seized article of food is an adulterated product has not been prima facie established. ' Being aggrieved, the petitioner has obtained the present Rule.

(2.) THE prosecution case is that on 5th august, 1975 the accused opposite parties were selling an article of food, namely, Kamalabhog (sweets) at their place of business, 208, Vivekananda Road calcutta which was unfit for human consumption The petitioner after observing all legal formalities purchased the sample from the accused opposite party no. 4 and handed over one part of the same to the opposite party no. 4 who was a seller and sent the other part to the Public Analyst on 5th August 1975. The Public Analyst submitted a report stating that the article of food sent for analysis was adulterated and unfit. for human consumption.

(3.) MR. Chatterjee, learned Advocate for the petitioner, has contended that the learned Magistrate committed grave error and irregularity in discharging the accused persons under section 245 (2) of the Cr. P. C. It is contended that the report of the Public Analyst is there and the same shows that the seized food was adulterated and unfit for human consumption. Referring to the case of State of Kerala vs. Parameswaran P. Vasude van Nair, 1975 Cr. L. J. 97. Mr. Chatterjee has argued that as there is no report of the Director of the Central Food Laboratory the report of the Public Analyst has to be taken into account. It has been further argued that the report of the Public Analysis evidence unless tit is superseded by the certificate issued by the Director of the Central food Laboratory. Mr. Chatterjee contends that in the instant case there was an. inordinate delay on the part of the accused in making prayer for sending the sample to the Director of the Central Food La- , boratory and the prosecution cannot be deprived of its right to refer to the report of the Public Analyst in such circumstances. Mr. Chatterjee contends that the accused should have asked for sending the sample to the Director of the central Food Laboratory within 10 days from the date of the coming into force of the amended provision of section 13 (2)of the Act. Mr. Chatterjee has referred to the case of V. K. Chowdhury. State, 1980 (1) C. L. J. 490 and has argued that this decision shows that the Amendment act of 1976 has retrospective operation and the accused persons were required to file an application under section 13 (2)of the Act within ten days from April 1, 1976 when the amendment came into force. The contention of Mr. Chatterjee is that the application was filed on November 16, 1979 and no satisfactory reasons were given by the accused persons for the delay in making the prayer, mr. Chatterjee has also referred to the; municipal Corporation of Delhi v. Ghisa ram, AIR 1967 S. C. 970. Mr. Chatterjee has argued that the order of the learned magistrate should. be set aside and the case should be sent back to the learned magistrate for trial in accordance with law.