Shamsuddin (in Jail) vs State

N.K. Mehrotra, J.—This is a revision u/s 397/401, Cr. P.C. against the judgment and order dated 27.8.1999, passed by the 15th Additional Sessions Judge, Lucknow in Criminal Appeal No. 62 of 1998, Shamsuddin v. Statedismissing the appeal and confirming the order dated 17.8.1998 convicting and sentencing the accused u/s 7/16 of the Prevention of Food Adulteration Act in Criminal Case No. 26 of 1990, State v. Shamsuddin to one year rigorous imprisonment and a fine of Rs. 2,000.

Heard the learned Counsel for the accused revisionist and the learned Additional Government Advocate.

The brief facts of the case, according to the prosecution, are that the sample of ''matar ka besan'' was collected by the Food Inspector from the shop of the accused at Mohanlal Ganj, district Lucknow, from his shop on 7.6.1988 and after an analysis of the said sample, it was found to be containing ''starch of khesari'' in a small quantity. Accordingly, a case u/s 7/16 of the Prevention of Food Adulteration Act was instituted against the revisionist in the Court of the Judicial Magistrate. The sample taken from the shop of the revisionist was sent for the report of the Public Analyst and it was found adulterated. The public analyst on the basis of the microscopic test, found mixture of starch of khesari and matar. The public analyst reported that the use of the flour of khesari is prohibited. After receiving the report of the public analyst, a complaint was filed. The accused was charged u/s 7/16 of the Prevention of Food Adulteration Act. Prosecution examined Ravindra Singh, Food Inspector, P.W. 1 and Smt. P. K. Rastogi, Food Clerk. The Food Inspector stated how the ''matar ka besan'' was exhibited for sale and how after performing all the formalities, as required under the Rules, purchased ''matar ka besan'' from the shop of the revisionist. He has proved all the documents prepared by him at the time of taking sample. The accused has also examined himself in defence. The defence case is that no sample was taken from his shop and it was not meant for sale. Besides this defence theory, he contended the non-compliance of certain procedure before the trial court. Learned trial court rejected all the contentions and convicted and sentenced the accused u/s 7/16 of the Prevention of Food Adulteration Act as above. The accused preferred an appeal against this judgment, which was dismissed by the Sessions Judge by the impugned judgment.

Learned Counsel for the revisionist has argued before me that the accused moved an application for further examination of the sample by the Central Food Laboratory by exercising his valuable right u/s 13(2) of the Prevention of the Food Adulteration Act and this application was rejected by the learned Magistrate without any sufficient reason and his valuable right has been affected. Therefore, the accused cannot be convicted for the charge u/s 7/16 of the Prevention of Food Adulteration Act. I find that both the courts below have recorded a finding that there is sufficient compliance of the provision u/s 13(2) of the Prevention of Food Adulteration Act.

Section 13, Sub-sections (1) and (2) are as follows:

Section 13(1).-The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed u/s 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons as the case may be, informing such person or persons that if it is so desired, either or both of them may make 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 of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

Both the courts below have recorded a finding about the compliance of Section 13(2) on the assumption that Section 13 requires the service of the report of the public analyst on the accused and both the Courts have found that the copy of the report of the public analyst was served on the accused. No doubt this findings is not required to be disturbed. A perusal of the record of the Court of the Magistrate goes to show that on 15.3.1990, accused moved application u/s 13(2) of the Prevention of Food Adulteration Act read with Rule 9A of the Prevention of Food Adulteration Rules. He stated in the application that he was informed by the Chief Medical Officer on 7.3.1990 that the sample taken from his shop was found adulterated and if he wants to get it further analysed by the Central Food Laboratory, he should move within ten days in the competent court. After stating these facts, the revisionist requested the Court concerned that his second phial of sample be summoned from the office of the Chief Medical Officer and be sent for further analysis by Central Food Laboratory, Calcutta. This application was rejected because nobody was present to press it and details of the case was not given. I find that this application was rejected on insufficient ground. u/s 13(2), the accused has a valuable right which entitles the accused to get his sample re-examined by the Central Food Laboratory and if such an application is moved by the accused, it is mandatory for the learned Magistrate to send it for re-examination of the Central Food Laboratory. No doubt this application should be submitted within ten days from the date of the receipt of the report of the public analyst and in this case, this application is found to have been moved within 10 days from the date of the receipt of the copy of the report of the public analyst. In Rajendra v. State of U.P. (1996) 33 ACC 539, and Ashok Kumar and Anr. v. State of Punjab 1984 (IX) AIPFAJ 406, it was held that the provisions of Sub-section (2) of Section 13 of the Prevention of Food Adulteration Act are mandatory and a violation thereof which has the effect of depriving the accused of the valuable right given to him thereof, will entitle the accused to be acquitted.

Any irregularity in compliance of the provision of Section 13(2) of the Act, may be cured but complete denial of the opportunity of re-examination of the sample by the Central Food Laboratory to the accused would raise the presumption of prejudice having been caused to the accused. In this case, the accused had moved an application and in that application, the copy of the report of the public analyst was enclosed. Therefore, there was no justification to dismiss this application on the ground that case number was not disclosed. The two courts below have not looked to the aforesaid legal position before passing the impugned orders. I find that this illegality cannot be cured at this stage and no conviction of the accused revisionist can be upheld if it is found that the accused revisionist has been deprived of his valuable right of getting the sample re-examined by the Central Food Laboratory.

In view of the above, the revision is allowed. The impugned judgment and order dated 22.7.1998, passed by the 15th Additional Sessions Judge, Lucknow in Criminal Appeal No 62 of 1998, Shamsuddin v. State and the judgment and order dated 17.7.1998, passed by the Ist Additional Chief Judicial Magistrate, Lucknow, in Criminal Case No. 26 of 1990 convicting and sentencing the accused u/s 7/16 of the Prevention of Food Adulteration Act is set aside.