BHAWGAN DASS Vs. STATE OF HARYANA

JUDGEMENT

(1.) BHAGWAN Dass has come up against the judgment of the Additional Sessions Judge, Kurukshetra, dated October 5,1983 upholding the judgment of the Sub -Divisional Judicial Magistrate Kaithal dated March 18,1983 convicting him for an offence under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (for short the Act) and sentencing him to rigorous imprisonment for 6 months and a fine of Rs. 1000/ -.

(2.) THE case of the prosecution was that on October 27, 1977, the Food Inspector Moti Ram alongwith Dr. M.L. Sharma and one Dula Ram visited the shop of Bhagwan Dass petitioner, who was then found in possession of about 15 kgs, of sarson oil in a container for public sale. Suspecting the sarson oil to be adulterated, the Food Inspector took sample of the same after observing all the formalities. He sent a sample to the Public Analyst for analysis, who vide his report, Exhibit P.D, found the same to be adulterated. So the Food Inspector filed the prosecution report.

(3.) THE only point laboured with little persistence on behalf of the petitioner is that there is non -compliance of the mandatory provisions of section 13(2 -B) of the Act. There appears to be substance in the contention. Now it is the admitted position that the sample was taken on Oct 27, 1977 and it was received in the office of the Public Analyst on 31st of October, 1977 and the report of the Public Analyst is dated November 15, 1977. In so far as these dates are concerned, there is no dispute in face of the clear admissions made by the complainant as also from the exhibited documents. The record further reveals that on the request made by the petitioner, second sample was sent to the Central Food Laboratory, Ghaziabad, for analysis and the same was received there on 21st June,1980 but the Director submitted the report on September 29, 1980. The interval between the date of receipt of the sample by the Central Food Laboratory and the date of report was more than 30 days. There was, therefore, contravention of Section 13(2 -B) of the Act. Mr. Rakesh Mahajan appearing on behalf of the State has contended that no prejudice has been caused to the petitioner by the delay. The argument is that it is incumbent that a person who sets up a case of delay should establish that he has been prejudiced by the delay. In other words the stand taken is that the violation of this section vitiates the proceedings only if the prejudice is made out. I am unable to agree to this interpretation to hold that Section 13(2 -B) of the Act is only directory, which will amount to encourage slackness on the part of Director to the detriment of the accused. The learned counsel for the petitioner has rightly argued that under Section 13(2 -B) of the Act, it was mandatory on the part of the Director to analyse the sample and send his report to the Court within one month from the date of the receipt of the sample. This mandatory provision having not been complied with, the petitioner is certainly entitled to take benefit of this violation.