STATE OF PUNJAB Vs. ASHOK KUMAR

JUDGEMENT

(1.) ASHOK Kumar was acquitted by Sub Divisional Judicial Magistrate, Muktsar, on November 30, 1982, in a complaint filed under section 16(1)(a)(i) of the Prevention of Food Adulteration Act. The State has come up in appeal.

(2.) ON May 14, 1980, a sample of cow's milk was purchased from Ashok Kumar accused by Dr. Avtar Singh, a Food Inspector. After receipt of the report of Public Analyst to the effect that the sample of milk purchased not upto the prescribed standard, prosecution was launched by filing criminal complaint. Copy of the report of the Public Analyst was alleged to have been sent to Ashok Kumar accused by registered post. In the report of the Public Analyst it was found that the sample of milk contained milk fat 3.5% and milk solids, not fat 7.6%. According to the opinion of the Public Analyst there was deficiency of 12.5% in the milk fat and 11.0% in milk solids not fat. Sub Divisional Judicial Magistrate, Muktsar, acquitted the accused on the ground that Rule 9-A of the Rules framed under the Act and the provisions of Section 13(2) of the Act were not complied with. Rule 9-A of the Rules was not complied with as immediately on receipt of the report of the Public Analyst, copy thereof was not sent to the accused. On account of delayed prosecution the accused was denied his right of making an application to the Court for sending the second sample to the Director, Central Food Laboratory. The sample was purchased on May 14, 1980. The Public Analyst submitted his report on June 6, 1980. The criminal complaint was filed on September 22, 1980 and copy of the report of the Pubic Analyst is stated to have been sent to the accused, on September 30, 1980. On this date the Sub Divisional judicial Magistrate came to the conclusion that Rule 9-A of the Rules was violated as immediately copy of the report was not sent to the accused. In support of this contention reliance was placed on the decision of the Kerala High Court in Kannarath Valappil Kunhappa v. The Food Inspector, 1982 Crl. LJ 778 and that of the Bombay High Court in The State of Maharashtra v. Tukaram Baburao Mane, 1982 Crl. LJ 1462. In both these cases it was hold that copy of the report of the Public Analyst was required to be sent forthwith which was significant from the word immediately" used in the Rules. The apex Court has taken a different view of the interpretation of Rule 9-A of the Rules and Section 13(2) of the Act in Tulsi Kam v. The State of Madhya Pradesh, 1984(II) FAC 146, wherein it was held that non-compliance of Rule 9 A was not per se fatal. What section 13(2) of the Act required was that before commencement of the evidence, copy of the report of the Public Analyst should be made available in good and sufficient time to enable him to exercise his right of having the sample analysed by the Central Food Laboratory, if he so desired."

(3.) THE contention of counsel for the State is that the aforesaid decision of the Supreme Court was not considered by the Full Bench in Deboo's case (supra) and following the ratio of the decision of the Supreme Court in Babulal's cast (supra), acquittal of the accused be set aside as he did not move the Court for sending second sample to the Central Food Laboratory and thus no prejudice was caused to him. We have given due consideration to these arguments. However, the same cannot be accepted. In Babulal's case (supra) the question involved was of non compliance of provisions of Section 10(7) of the Act in not joining independent witnesses at the time of purchasing sample of food. It was assumed in that case that copy of the report of the Public Analyst was delivered to the accused and he could move the Court for getting second sample of food sent to the Central Food Laboratory. In Deboo's case (supra) the Full Bench decided the mandatory or directory nature of the provision of Section 13(2) of the Act and prejudice if any caused for non-observance thereof. In fact them is no conflict with the ratio of the decision in Babulal's case and the decision of the Full Bench of this Court in Debtors case.