Darshan Lal vs The State of Punjab

Surinder Singh, J.—This Revision petition seeks to impugn the order passed by the Sub Divisional Judicial Magistrate, Fazilka, on November 12, 1981, as per which he directed that the third counter part of the sample of milk collected in the case, which is in the custody of the Local Health Authority, Ferozepore, be sent to the Central Food Laboratory, Ghaziabad, for analysis. The basis of the order is that as per report of the Laboratory, the milk in the second counterpart of the sample sent to the Laboratory for analysis, had been found curdle, though the seals of the sample were intact.

The main point which requires consideration in this case is, as to whether the Court was legally competent to direct the analysis of the third counterpart of the sample in the circumstances noticed above. The Proviso to Section 13 (2C) of the Prevention of Food Adulteration Act. 1954, lays down that where a part of the sample sent by the Court to the Director of the Central Food Laboratory, is lost or damaged, the Court shall require the Local Health Authority to forward the other part of the sample, if retained, to the Laboratory for re-analysis. The Learned Counsel for the petitioner has placed reliance upon Ram Parkash v. State of Himachal Pradesh 1978 C.L.R: (H.P.) 85, to contend that merely because the sample, in the bottle, of which the seals were intact was found to have been curdled, it could not be said that the sample had been either lost or damaged. As such, there was no occasion for ordering the re-analysis of the third counterpart.

After hearing the Learned Counsel for the parties. I find that the above contention must prevail. The word damaged'' as used in the Proviso necessarily means damage to the container or the seals fixed outside, as a result of which the sample may have become unfit for analysis. In the present case, there is no dispute and this fact is evident from the report of the Food Laboratory itself that the seals of the sample were intact. As considered in the authority noticed above, the curdling of the milk may have occurred on account of improper preservation and if this is so, the third analysis of the sample can be prejudicial to the petitioner. The learned Assistant Advocate-General has also submitted that the sample was sent to the Laboratory on the request made by the petitioner himself and the petitioner cannot be allowed to go to back on this request. The argument is not tenable. The petitioner utilised the opportunity allowed to him under the law and offered to get the second counterpart of the sample analysed. If due to the negligence of the Food Inspector, or some other similar cause, the sample was spoiled, the prosecution cannot be allowed to fill in the lacuna in the case. The scope for a third analysis of the sample, is limited as to the contingencies mentioned in the Proviso to section 13 (2C) and the present is not a case of that type.

There is another aspect of this case. It is not disputed that the sample of milk was received by the Director, Central Food Liberties, Ghaziabad on April 2. 1081, and the report of that Laboratory as per which the milk was found to have curdled, is dated May 25, 1981. This indicates that the sample was analysed after one month and 23 days of its receipt by the Laboratory. It has been rightly argued that u/s 13(2B) of the Prevention of Food Adulteration 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 not having been complied with, the petitioner is certainly entitled to take benefit of this violation.

In the result, the Revision petition succeeds and the impugned order of the trial Court is set aside. No third sample shall be forwarded to the Central Food laboratory for analysis. The trial Court shall proceed with the case in accordance with law. The parties through their counsel ate directed to appear in the trial Court on the date already fixed.