JATIN ACHARJEE AND ANOTHER Vs. STATE OF ASSAM

JUDGEMENT

(1.) A petty retailer along with his poor vendor were put on trial under Sec. 7 read with Sec. 16 of the Prevention of F od Adulteration Act, for short the Act, for having sold adulterated Arhar Dal because it was insect infested up to the extent of 98%. The defence was that article was sale as cattle fodder. That, however, is not material in view of the decision of the Supreme Court in State of Tamil Nadu Vs. R. Krishnamwihy, 1980 (I) FAC 7 as it is common knowledge that Arhar Dal is used for human consumption also.

(2.) The conviction has really been challenged by Shri Kataki principally on two grounds First, non-compliance with Rule 7(3) ; and secondly, non-compliance with Rule 22 of the Prevention of Food Adulteration Rules, hereinafter referred to as the Rules, Another point which could have been available before the decision of the Supreme Court in Municipal Corporation of Delhi Vs. Tek Chand, 1979 (IF) FAC 218 is that the article must have been further found as unfit for human consumption (to which effect there is no mention in the report of the Public Analyst), as was held in Municipal Corporation of Delhi Vs. Kacheroo Mai, 1975 (2) FAC 223 that this requirement is conjunctive, whereas in Tek Ghand it was regarded as disjunctive.

(3.) As to the first submission, the real grievance is related to delay in launching of prosecution. It may be stated that the sample was taken on 4-12-74 and was sent next day to the Public Analyst which was received on 26-12-74. The report of the Public Analyst is dated 8-2-75 but the prosecution was launched on 8-5 75. As it is not known on which date the report of the Public Analyst was delivered to the Local Health Authority, it is difficult to hold any violation of Rule 7(3) of the Rules. The learned Counsel however, submits that the delay in launching the prosecution affected the right of the petitioner under Sec. 13(2) of the Act. But as the accused did not avail of that right he cannot take a grievance about violation of Sec. 13(2) inasmuch as it has been held in Babulal Vs. State of Gujarat, 1972 FAC 18 that the grievance that the accused has been deprived of his right under Sec. 13(2) is not open when the accused had not filed an application under Sec. 13(2). This view was reiterated in Ajit Prasad Vs. Slate, of Maharashtra, 1972 FAC 545.