ANG CHINCK WOGN Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS Rule is directed against an order dated 19th January, 1979 passed by the learned Metropolitan Magistrate, 4th Court, Calcutta, rejecting the prayer of the accused petitioners for their discharge under section 245 (2) of the Code of Criminal Procedure in case No. 1160 of 1974 under section 16 (1) (a) (i) read with section 7 of the Prevention of Food adulteration Act, 1954 and also against an order dated 19. 12. 78 rejecting the prayer of the accused for sending the sample to the Central Food Laboratory under section 13 (2) Food Adulteration Act, 1954.

(2.) ON the 30th May, 1974 the Food Inspector of the Corporation of Calcutta, opposite party No. 2, filed a complaint against the petitioners and two others before the learned metropolitan Magistrate, 4th Court, Calcutta, under section 16 (1) (a) (i) read with section 7 of the Prevention of Food adulteration Act, 1954. The learned magistrate took cognizance of the alleged offence and issued process- against the petitioners and others fixing 13. 8. 74 for their appearance, On 13. 1. 75 the accused appeared before the learned magistrate and on. 17. 3. 75 the case was adjourned to 22,4. 76 for hearing on the point whether the accused should be committed to the Court of session or to the learned Magistrate should try the case himself. Then the case was adjourned till 30. 6. 76 and on 2. 2. 77 a petition, was filed by the accused challenging the maintainability of the case and that matter was fixed for hearing on 9. 6. 77. Before that on 7. 4. 77 a petition was filed by the accused under section 13 (2) of the Prevention of Food Adulteration Act. That petition was heard by the learned magistrate and on 30. 4. 77 the learned magistrate rejected that petition on the ground that the case is tribal by the court of sessions and so he could not pass any order. Against that order the petitioners came up to the High Court and the High Court decided that the case was table by the learned magistrate and not by the court of session and the case came back to the learned Magistrate on 14. 7. 78. On 17. 8. 78 the accused entered appearance on receiving notice from the learned magistrate's court and-on 23. 11. 78 the acculturates filed another application under section 13 (2) of the Prevention of Food Adulteration Act on the ground that the sample be sent to the Central Food Laboratory for examination but that application was rejected as according to the learned Magistrate the sample was taken as long back as 26. 3. 74 and it was rather too late to have the sample examined by the Central Food Laboratory. Then on the ground that by not permitting the petitioner to have the sample examined by the Central Food Laboratory the petitioners prayed that he be discharged under section 245 (2) of the Code of Criminal Procedure, in as much as, they had been prejudiced in their defense as a valuable right has been denied to them by not sending the sample to the Central Food Laboratory for further examination and report. That application was rejected by the learned Magistrate on 19. 1. 79. It is against that order that the petitioners have came up before this Court as also the previous order dated 13. 12. 78 rejecting the prayer for sending the sample to the Central Food Laboratory for examination under section 13 (2) of the Prevention of Food Adulteration Act, 11954.

(3.) MR. Bose, learned Advocate appearing on behalf of the petitioners, has submitted that the petitioners had made an application for sending the sample to the Central Food Laboratory for examination first on 7. 4. 77 which was rejected by the learned Magistrate on the ground that the case was triable by the Court of Sessions and so the learned Magistrate did not accede to the request of the petitioner for sending the sample. Again an application was made on 23. 11. 78 for sending the sample to the Central Food Laboratory for examination. That application war, rejected and thereby a valuable right of the accused has been denied to them. The reasons for rejecting the last application by the learned Magistrate are that the sample was taken as far back as on 26. 3. 74. "now at this distant date I am not inclined to send the sample to the Central Food laboratory for analysis. Hence the defense prayer is considered and disallowed. " It will be seen from this order that the main reason for disallowing the application was that once before on 26. 3. 77 a similar application was rejected by the learned Magistrate's predecessor. The previous application was rejected, as have already stated, by the learned Magistrate because according to him the case was triable by sessions. But that question was ultimately decided by the High Court wherein it was held that the trial should be held by the learned Magistrate himself. As soon as the case went back the petitioners made the said application for having the same examined by the central Food Laboratory under section 13 (2) of the Prevention of Food Adulteration Act on 23. 11. 78. That application was also rejected because of the long gap and since the report of the analyst had been submitted and a petition of complaint filed on the basis of that report. Therefore the delay in making the application for examination under section 13 (2) of the prevention of Food Adulteration Act was not due to any larches on the part of the accused petitioner because as early as March 1977 they did make an application and that was rejected. Therefore a valuable right which was available to the accused has been denied to them. On this ground alone the entire proceeding should be quashed.