DHADU BEHERA Vs. PURI MUNICIPALITY

JUDGEMENT

(1.) JUDGMENT of conviction passed by learned Additional Chief Judicial Magistrate, Puri as confirmed by learned Second Additional Sessions Judge, Puri, with modification of sentence is the subject matter of challenge in this revision application.

(2.) ACCUSED petitioner faced trial for alleged violation of the provisions of Section 16 (1) (a) (i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (in short the 'Act'). Prosecution case, in short, is that on 1 -11 -1981, at about 5. 30 p. m. the Food Inspector attached to Puri Municipality found that the accused had exposed cheese for sale for. human consumption, suspecting the same to be adulterated, 600 grams thereof were purchased on payment of requisite price ; after service of notice, purchased quantity was divided into three equal parts which were put in separate clean dry bottles and sixteen drops of formalin in each of the bottles were added as a preservative ; one bottle was sent to the Public Analyst for analysis, the other two bottles were deposited with the local Health Authority, Puri, on .17 -11 -1981, the Public Analyst certified the sample to be adulterated as it contained higher moisture than the prescribed limit ; relevant papers were placed before the Chief District Medical Officer, Puri, who on being satisfied that there was necessity for launching prosecution, gave written consent therefor on 30 -12 -1981 ; prosecution report was filed in Court on 27 -3 -1982 ; a copy of report along with notice Under Section 13 (2) of the Act was sent to accused petitioner on 29 -1 -1982 which was received by him on 1 -5 -1982.

(3.) THE main plank of petitioner's challenge is that there was unusual delay in communicating to the petitioner about his right to get sample examined. It is submitted that right to get sample tested by the Central Food Laboratory is a very vital right as it supersedes earlier report of the Public Analyst, and even if the petitioner would have opted for sending the sample for test, it would have been an exercise in futile, because samples could not have remained analysable after about six months Learned counsel for State and Puri Municipality, however, submits that petitioner having not availed opportunity to get the sample analysed, cannot make a grievance of delay. Almost an identical question came for consideration of this Court in Criminal Revision No. 517 of 1989 : Charan Behera v. State Referring to an earlier decision of this Court in the case of Satrughana Behera v. Puri Municipality : 34 (1968) CLT 236 : and a decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Ghisa Ram : AIR 1967 SC 970, I had held that delay in all cases does not cause prejudice to the accused. It would depend upon material which is intended to be sent for analysis. As observed by the Supreme Court in case of State of Tamil Nadu v. Shanmugham Chettiar and Anr. : 1980 (2) FAC 187 and by this Court in the case of Gopinath Baliarsingh v. State : 1989 (I) FAC 37, there are certain articles which do not get decomposed or otherwise unfit for analysis because of delay while some others do In case of milk and milk products, after some months the likelihood of decomposition is almost certain. Article in hand is cheese. Therefore, delay substantially affected analysability of article. In view of what has been stated in Charan Behera's case (supra), I set aside conviction and sentence, passed by Courts below and direct acquittal of the petitioner. Bail bonds be discharged. Criminal Revision is allowed.