Shree Ganesh Das Oil and Rice Mills vs State of Assam and Others

K.N. Saikia, J.—The Petitioners, a partnership firm in these two cases pray (sic)or quashing the proceeding in C.R. Case Nos. 408 and 409 of (sic)1981 u/s 16 read with Section 7 of the Prevention of Food Adulteration Act, hereinafter referred to as ''the Act'', pending before the Chief Judicial Magistrate, Tezpur.

On 7.1.81 the Area Food Inspector visited the shop of one Nandalal Agarwala named Dinesh Bhandar and obtained sample of mustard oil and sent the same to the public Analyst. The said vendor disclosed the name of the Petitioners as manufacturer and seller of the said sample of mustard oil. The Public Analyst in his report dated 20.2.81 opined that the sample was sub-standard. Whereafter obtaining sanction the vendor as well as the Petitioners were prosecuted and charge framed against both on 13.11.81. However, the Petitioners were not provided with a copy of the public Analyst''s report wherefore they could not make an application to the court as allowed u/s (2) of the Act.

It is submitted by Mr. S.K. Sen, the learned Counsel for the Petitioners that Section 13(2) of the Act is mandatory and that the Petitioners have thus been deprived of valuable right u/s 13(2) of the Act and that the vendor having been protected under the warranty, did not apply for getting the sample analysed by the Director of Central Food Laboratory, and that unless he is given a copy of the report and he applies within ten days of the receipt thereof he will be deprived of the opportunity of defending himself by producing the report of the Central Food Laboratory. Hence the prayer for quashing the proceeding.

Mr. C.R. De, the learned Public Prosecutor, submits that manufacturer or seller is not entitled to a copy of the Public Analyst''s report and, as such, no infirmity can be found with the impugned proceedings and no prejudice can be pleaded by them. Mr. De relies on V.N. Kamdar and Another Vs. Municipal Corporation of Delhi, wherein at para II it has been observed:

Read literally, Section 13(2) would not enable the Manufacturer, distributor or dealer to pray the court to have tack sample sent for analysis by the Central Food Laboratory even if he is impleaded u/s 20A and tried along with the vendor, for, that Sub-section gives the liberty to move the court for that purpose only to the accused vendor and the complainant. But, even if it is assumed that the manufacturer, distributor or dealer is also entitled to take advantage of the section and move the court to have the sample analysed by the Central Food Laboratory we see no reason why, when he is separately tried, he should not have the sample retained by the Food Inspector and produced in court sent for analysis by the Central Food Laboratory, if it is available and in a fit condition. The Magistrate may, u/s 20A, implead the manufacturer, distributor or dealer at any time in the course of the trial. At the time he is impleaded, the sample produced in court by the Food Inspector might not be in a fit condition to be sent for analysis to the Central Food Laboratory. It is, therefore impossible to predicate in the abstract whether a joint trial would be more advantageous to the manufacturer, distributor or dealer than a separate trial.

In that case the question was whether the manufacturer had the right to joint trial rather than a separate trial.

In our instant case, admittedly the name of the Petitioners was disclosed by the vendor at the time of taking the sample and they have been prosecuted along with the vendor and charge framed against both. Besides, Sub-section (2) of Section 13has now been made more comprehensive so as to confer the right under it to the manufacturer and seller as well. Sub-section (2) of Section 13 reads thus:

(2) On receipt of the report of the result of the analysis under Sub-section (l) to the effect that the article of food is adulterated, the Local (Health) Authority shall (sic) after the institution of prosecution against the person (sic) whom the sample of the article of food was take. (sic) the person if any whose name, address and other (sic) have been disclosed u/s 14A for (sic) such manner as may be prescribed, a copy of the (sic) 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 then 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.

It is, therefore, clear that the manufacturer or seller is also entitled to a copy of the Public Analyst''s report and to apply to the court to get a sample analysed by the Central Food Laboratory. In V.N. Kamdar (supra) their Lordships even assumed that the manufacturer, distributor or dealer was also entitled to take advantage of the Section 13(2) of the Act and observed that he could move the court to have the sample analysed by the Central Food Laboratory.

In Chouthmal Sarma v. P.C. Saikia and Anr. (1983) 1 GLR 34 after considering the decisions in Municipal Corporation of Delhi v. Ghisa Ram 1975 (1) FAC 186 : AIR 1976 S.C. 970 ; Babu Lal Hargovindas Vs. The State of Gujarat, and Ajit Prasad Ramkishan Singh Vs. The State of Maharashtra, it was held that unless an application u/s 13(2) of the Act was made, it was not open to the accused to challenge the conviction on the ground that he had been deprived of the opportunity u/s 13(2). In Ghisa Ram (supra) the Supreme court on the facts found that in a case where there was denial of right u/s 13(2) on account of the deliberate conduct of the prosecution, the vendor was so seriously prejudiced that it would not be proper to uphold the conviction the basis of the report of the Public Analyst, even, though the report continued to be evidence in the case. In Dalchand v. Municipal Corporation 1982 (2) FAC 29 where the effect of non-compliance of the Rule was such as to wholly deprive the right of the person to challenge the public Analyst''s report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would (sic) be writ large; but where no prejudice was caused, there could (sic) no cause for complaint.

In the instant case, however, as has been stated, the (sic)ndor did not apply for a sample being sent to the Central Food Laboratory, he himself being protected by the warranty, and if the manufacturer or seller is not given opportunity, to make a similar application he would be deprived of the protection of the Central Food Laboratory''s report, which, under the law would supersede the report of the Public Analyst. Under such circumstances the court may be justified in considering such an application if made by the Petitioners as manufacturer and seller and in sending a sample to the Central Food Laboratory so that the Petitioners may not be left to make a grievance in the event of their conviction that they were deprived of such an opportunity given by law. There would, however, be no justification to interfere with the proceedings at this stage on this ground as it is still open for the Petitioners to file such an application before the appropriate Court and it is for the court to consider the application and to send the sample to the Central Food Laboratory; and it is ordered accordingly.

With the above observation these applications are disposed of. The proceedings will now continue. The stay orders granted by this Court are vacated. Let the records be sent down forthwith.