MOHAMMED ZAHIR Vs. FOOD INSPECTOR FOOD CELL

JUDGEMENT

(1.) THIS revision is directed against the order dated 29.1.2003 passed by the learned Chief Judicial Magistrate, Cuttack in 2(C)CC No. 341 of 1995 rejecting the petition filed by the petitioner to drop the proceeding.

(2.) FROM the record, it appears that the complainant Food Inspector inspected the business premises of the petitioner on 2.6.1995 where the petitioner was transacting the sale of Besan. The complainant after disclosing his identity purchased samples of Besan (750 grams), which he divided into three equal parts and kept in three clean bottles. After the three bottles were sealed, one sample was sent to the Public Analyst, Orissa, Bhubaneswar and the rest two bottles were deposited with the local Health Authority. On 10.7.1995 the Public Analyst, Orissa submitted a report saying that the Besan is adulterated and it contains wheat, starches and brans. After obtaining the Public Analyst report the complainant submitted the prosecution report in the Court alleging commission of offence under Section 16(1)(1A) read with Section 7 of the Prevention of Food Adulteration Act and cognizance was taken. The petitioner after receipt of summons appeared in the Court and filed an application under Section 13(2)of the Act praying for sending the second sample to the Central Food Laboratory for further analysis. It further appears that there was some delay in sending the second sample to the Central Food Laboratory by the local Health Authority. Subsequently the sample sent to the Central Food Laboratory was found to be unfit for analysis and the said sample was returned with the instruction to send the third sample. The third sample could not be sent as there was dispute as to who will bear the cost. Ultimately, the Court passed an order dated 5.2.2002 directing the local Health Authority to bear the cost, but the prosecution never deposited the cost as a result of which the third sample could not be sent for analysis.

(3.) THE learned counsel appearing for the petitioner challenged the said order of the learned Chief Judicial Magistrate on the ground that the valuable right conferred by the Statute under Section 13(2) of the Act having been denied to the petitioner, serious prejudice has been caused to him and there being no possibility of conviction, continuance of the preceding will amount to abuse of process of Court. The learned counsel referred to some decisions in support of his contention. The learned Addl. Government Advocate, on the other hand submitted that since the first sample sent to the Public Analysis was found adulterated and on the basis of the same prosecution report was filed, there is no reason to drop the proceeding and at this stage the Court is not to find out as to whether the case will end in acquittal or conviction. According to the learned Addl.Govt. Advocate, since prosecution report was submitted on the basis of the report of the Public Analyst, the proceeding should be allowed to continue. In order to appreciate the contention of the learned counsel for the petitioner it is necessary to refer to Section 13(2) of the Prevention of Food Adulteration Act.