CHOUTHMAL SARMA Vs. P.C. SAIKIA

JUDGEMENT

(1.) THIS Re vision is directed against the order of conviction and sentence dated 7 -8 -74. passed by the learned Sessions Judge. Nowgong. in Criminal Appeal No. 24 (M -2) of 1974. confirming the conviction and sentence of the accused -petitioner under Section 16(1) read with Section 7 of the Prevention of Food Adulteration Act, 1954. (hereinafter called 'the Act') passed by the learned Chief Judicial Magistrate. Nowgong. on 23 -5 -74. in. C. R. Case No. 4216 of 1971. The accused -petitioner was sentenced to suffer rigor -ous imprisonment for 6 months and fine of Rs. 1,000 and in default of paymert of fine, to undergo rigorous imprisonment for the period of 3 months more.

(2.) THE petitioner was the owner of a grocery shop at Keyanpatty, Nowgong,Assam. On 10 -1 -71, the District Food Inspector of Nowgong visited his shop and took a sample of mustard oil from a sealed tin after conforming to the for -malities enjoined by the Act and the Rules framed there under. The Food Inspector divided the sample into three parts. retained two parts with him and delivered the other part to the peti tioner. The Food Inspector sent one part for analysis by the Public Analyst. Ext 4 is the report of the Analyst. The report revealed that the mustard oil was adulterated with linseed oil. After obtaining the requisite sanction from the authority, a complaint was filed in the court for prosecution of the accusedpetitioner on 13 -12 -71. The copy of the report, Ext. 4. was furnished to the accused -petitioner on 28 -4 -72 i.e. about 4 months 25 days after the complaint was filed. The accused. however, never applied to the court under Section 13(2) of the Act for sending the part of the sample mentioned in Sub -clause (i) or Sub -clause (in) of Clause (c) of Sub -section (i) of Section 11 to the Director of the Central Food Laboratory for analysis and certi ficate.

(3.) THE case was originally placed before the learned single Judge, B. N Sarma J. The main point urged on behalf of the petitioner before the learned single Judge was that Rule 9 (i). as inserted by Government Notification No GSR 1533 dt. 8 -7 -68. is mandatory. non -observance of which rendered the proceeding under the Act void, relying on the decision of the Single Bench of this Court (Lahiri J.) rendered on 14 -12 -77 in Criminal Revision No. 34 of 1976 (Agartala Bench). Sukhan Bhowmik v State. The learned single Judge. B. N Sarma J. by an order passed on 29 -3 -79. referred the case to a larger Bench for re -consideration of the decision of the learned single Judge. Lahiri J., as the Advocate General. Assam, seriously contended that that decision required reconsideration. The case was referred to a Division Bench, and this is how the case came up before us.