Narinder Singh and anr. vs State of Punjab

Pritpal Singh, J.

This petition under section 482, Code of Criminal Procedure, has been filed by Narinder Singh and Thakar Singh for quashing the complaint filed against hem by the Food Inspector under the Prevention of Food Adulteration Act (hereinafter referred to as the Act), which is pending in the Court of Judicial Magistrate Ist Class, Amritsar, and also for the quashing of the proceedings before the Court.

A sample of paneer was taken by the Food Inspector from the petitioner''s shop on 9th November, 1982. As required under the Act, the sample was divided into three Parts, each of which was separately sealed. One of the parts of the sample was sent to the Public Analyst for analysis. The other two parts were retained by the Local (Health) Authority. The Public Analyst in his report dated 9th of December, 1982, opined that the sample contained fats to the extent of 49.13 per cent as against the prescribed standard of 50 per cent. On the receipt of this report, the Food Inspector filed a complaint under section 16(1) (a) read with section 7 of the Act on 12th of January, 1983, in the Court of Judicial Magistrate Ist Class, Amritsar. The petitioners were, summoned by the Magistrate to face trial in the said complaint. In compliance with section 13 (2) of the Act, the Local (Health) Authority sent the report of the Public Analyst to the petitioners which they received on 24th of January, 1983. The Local (Health) Authority also intimated to the petitioners that if they so desired they could send, the second part of the sample to the Director, Central Food Laboratory, for testing and to this effect they could make an appropriate application within ten days of the receipt of that intimation. The petitioners filed the application under section 13 (2) of the Act, on 31st of January, 1983, that is, within the prescribed period of ten days after the receipt of the intimation. The trial Court directed the Local (Health) Authority on 18th of February, 1983, to send the second part of the sample to the Director, Central Food Laboratory In pursuance of this direction, the sample was sent to the said Laboratory on 6th of the April, 1983. The Central Food Laboratory sent a report dated 15th April, 1983, intimating that the sample was decomposed and, therefore. It was not fit'' for analysis. Despite this report, the trial Magistrate framed charge against the petitioners on 18th November, 1983, under section 16 (1) (a) read with section 7 of the Act.

The contention on behalf of the petitioners is that in view of the report of the Central Food Laboratory they cannot be tried on the said complaint.

It is provided under section 13 (1) of the Act that the Public Analyst shall deliver a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis Subsection (2) lays down that on receipt of the report of the Public Analyst, the Local (Health) Authority shall send a copy of the same to the accused informing him that if he so desires he may wake an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample kept by the Local (Health) Authority analysed by the Central Food Laboratory. Admittedly. the petitioners made such an application to the Court within the prescribed period of ten days. Subsection (2A) provides that when such an application is made to the Court, the Court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority to the Central Food Laboratory within five days from the date of receipt of such requisition It is then laid down in subsection (2B) that the Director of the Central Food Laboratory shall send a certificate to the Court within one month from the receipt of the sample specifying the result of the analysis. In the present case the provisions of subsection (2 A) of section 13 of the Act were violated. The Local (Health) Authority was required to forward the part or parts of the sample kept by it to the Central Food Laboratory within five days of the date of receipt of the requisition. The order was passed by the trial Court on 18th of February, 1983, but the sample was forwarded to the Central Food Laboratory nearly two months thereafter. that is, on 6th of April, 1983. The effect of this violation of subsection (2A) is now to be considered.

It is manifest that section 13 (2) of the Act provides a safeguard in favour of the accused. If the accused is dissatisfied with the analysis performed by the Public Analyst, he is entitled to get the second part of the sample tested by the Central Food Laboratory. The report of the Central Food Laboratory supersedes the reports of the Public Analyst. Should the report of the Central Food Laboratory be in favour of the accused, the prosecution will end because then the earlier report of the Public Analyst would become, redundant. In view of the provisions of section 13(3) & (5), the report given by the Public Analyst superseded only when the analysis of the sample sent to the Director, Central Food Laboratory is actually made by him on the basis of which he issues a certificate. It has been held in Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970, that if for any reason no certificate is issued by the Director of the Central Food Laboratory, the report given by the Public Analyst does not cease to be evidence of the fact contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory in the present case, no certificate has been issued by the Director of the Central Food Laboratory because he found the sample decomposed and unfit for analysis In this situation, it could certainly be contended by the respondentPunjab State that the report of the Public Analyst does not cease to be evidence of the facts contained therein provided the decomposition of the sample before it reached the Central Food Laboratory could not be attributed to any fault of the, Local (Health) Authority. It is observed by the Supreme Court in the aforesaid judgment that when a valuable right is conferred by section 13(2) of the Act on the vendor to have the second sample analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that the aforesaid right will not be denied to him. The right is a valuable one because the certificate of the Director supersedes the report of Public Analyst and is treated as conclusive evidence of its contents. Obviously the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the second sample analysed by a greater expert whose certificate is to be accepted by the Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, e.g. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed, the vendor, in his trial. is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. As mentioned earlier, it was incumbent upon the Local (Health) Authority to have forwarded the second part of the sample to the Director, Central Food Laboratory within a period of five days from the date of receipt of the requisition from the Court in pursuance to the application made by the accused. The Local (Health) Authority in the present case kept the second part of the sample till 6th of April, 1983, even though the trial Court had ordered on 18th of February, 1983, that it should be sent to the Central Food Laboratory This delay, in violation of section 13(2) of the Act is manifestly the cause for the sample becoming decomposed and unfit for analysis by the Central Food Laboratory. Quite clearly, therefore, this violation of subsection (2A) has caused serious prejudice to the rights of the petitioners. In the ratio of the aforesaid Supreme Court judgment this delay, which resulted in the decomposition of the sample as it could not be analysed by the Central Food Laboratory, has so seriously prejudiced the petitioner''s case that even if they are tried on the complaint the Food Inspector no conviction could be. recorded against them on the basis of the report of the Public Analyst although that report continues to be evidence in the case of the facts contained therein. In these circumstances, the continuation of the trial of the petitioners on the complaint of the Food Inspector would certainly amount to abuse of the process of the Court.

Taking this view, I allow this petition and quash the complaint filed by the Food Inspector against the petitioners as well as the proceedings being taken in pursuance thereof in the Court of Judicial Magistrate Ist Class, Amritsar.