Ramji vs State of U.P.

P.N. Bakshi, J.—The applicant has been convicted u/s 7/16 of the Prevention of Food Adulteration Act and sentenced to 6 months R.I. and a fine of Rs. 1,000/-. In default, he is directed to undergo further 3 month''s R.I. His conviction and sentence has been maintained in appeal by the Addl. Sessions Judge, Varanasi; hence this revision.

It appears that a sample of mixed buffalo and cow milk was purchased by the Food Inspector from the applicant on 6th December, 1979 in accordance with the formalities provided by law. One of the sample bottle was sent for analysis to the Public Analyst, whose report dated 8-11-1980 disclosed that it was deficient in non-fatty solids by 6 per cent. After obtaining the requisite sanction a complaint was filed against the accused on 27th December, 1980. A copy of the report of the Public Analyst and the intimation as required u/s 13(2) of the PFA Act was sent to the accused on 29th January, 1981. The applicant pleaded not guilty. The prosecution produced Sri S.P. Gupta, the Food Inspector and Sri Alauddin Ansari, Food Cleric Mahapalika, Varanasi, in support of its case. Both the courts below on a consideration of the materials on record came to the conclusion that the offence u/s 7/16 of the PFA Act was established against the accused.

Learned Counsel for the applicant has submitted that there has been considerable delay in the launching of the prosecution. The sample of milk was purchased by the Food Inspector on 6th December, 1979. The report and the intimation is alleged to have been despatched on 28th January, 1981. Thus about a year and 7 weeks had elapsed since the taking of the sample. Therefore, the sample of milk must have deteriorated and as such the applicant has been deprived of his right to get the sample reanalysed by the Director Central Food Laboratory. Admittedly on the appearance of the accused no application has been made by him for sending the sample for reanalysis to the Central Food Laboratory Calcutta. Learned Counsel argued that since the sample must have deteriorated therefore, it was not necessary to file an application in court for sending the sample for reanalysis. His valuable right u/s 13(2) of the PFA Act, has thus been infringed. The conviction of the applicant should, therefore, be set aside.

In support of his argument learned Counsel has cited Division Bench case of the Allahabad High Court, Nagar Swasthya Adhikari v. Ram Babu 1969 A CrR 308. From a perusal of the judgment of the Division Bench it appears that on the direction of this Court certain experiments have been conducted by the Public Analyst to determine the period within which deterioration would set in a sample of milk to which formaline bad been added. By a process of calculation this Court took the view that analysis of sample of cows and buffalo milk examined after 308 days be disregarded, since after this period deterioration will set in and the sample would not be fit for analysis. Therefore, in the case of such a belated prosecution, the accused would be deemed to have been deprived of his right u/s 13(2) of the PFA Act. It is not necessary that he should file an application in Court for getting his sample reanalysed.

This Division Bench dicision would ordinarily be binding upon me but in view of what the Supreme Court has held in Babu Lal Hargovindas v. State of Gujarat 1971 AWR 575 SC 1 would respectfully observe that the aforesaid decision of this Court can not be considered to be good law. A three Judges Full Bench of the Supreme Court has observed as follows:

In view of the above dictum of the Supreme Court it has now become necessary for an accused to make an application to the court for getting his sample reanalysed, if he desires to take that advantage of Section 13(2) of the PFA Act. If the sample has deteriorated due to lapse of time, it is obvious that the report of the Director of Central Food Laboratory would be that the sample had decomposed or had deteriorated and is unfit for analysis. In these circumstances the benefit of Section 13(2) of the PF A Act would be available to the accused. Experiments are conducted under different and variable conditions and the slightest difference in the quality of the milk, the atmospheric conditions, mixture of formaline and such other circumstances can lead to differing results. Thus no universal rule of thumb can be laid down on the basis of such experiments for the guidance of the court. The safest and the surest test in such individual case is to have sample sent for reanalysis so that the Director of Central Food Laboratory may as a question of fact certify in each case that the sample has deteriorated and is incapable of analysis due to efflux of time. It is for this reason that the Supreme Court has directed that the accused must apply to the Court for getting his sample reanalysed, if he is to exercise his invaluable right u/s 13(2) of the PFA Act.

Two other cases of Supreme Court have been cited by the applicant, viz. State of Tamil Nadu Vs. S. Shanumugham Chettiar and Another, which has been later on referred to again in Nebh Raj Vs. State (Delhi Administration) and Another, . Both these cases have been decided by the same Bench of the Supreme Court. The facts of these cases are different and the observations made therein apply to different circumstances, existing in each of these cases. Both these Supreme Court cases do not deal with the question of the application of Section 13(2) of the PFA Act and therefore, they are of no assistance to the accused.

A similar question arose before me in the unreported case of Raja Ram v. State of U.P. Cr. Rev. No. 1910 of 1982 - See 1982 ACR 506 - wherein also I had taken the same view in consequence of the decision of the Supreme Court in Babu Lal Hargovind Das v. State of Gujarat 1971 AWR 575 SC.

For the reasons given above, I am of the opinion that there is no merit in this revision, which is hereby dismissed.