Vidaya Parkash vs State of Punjab

C.S. Tiwana, J.

Vidya Parkash filed this petition on May 15, 1982, under Section 482 of the Code of Criminal Procedure for the quashing of a complaint instituted against him but the Food Inspector on May 20, 1981, for his prosecution under Section 16 of the Prevention of Food Adulteration Act (hereinafter called the Act) as it was alleged that he had sold, 1,500 gms of vanaspati which was found by the Public Analyst to be adulterated. The complaint is at present being tried by the Chief Judicial Magistrate, Jullundur. The petitioner wanted to exercise his right under Section 13(2) of the Act by getting the second sample examined from the Central Food Laboratory. It was reported by the Director that the sample having been sent in a bottle with a hard plastic screwcap which was found to have cracked, it showed leakage of the contents. The paper cover cracked, it showed leakage of the contents. The paper cover was found to be stained. A request was made by the Public Analyst for the despatch of the third part of the sample for analysis. The petitioner did not want that to be done perhaps under the fear that another sample analysed would show the adulteration committed by him. It is provided by the proviso to subsection (2c) of section 13 of the Act that where the 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 sample. If any retained by it to the Court, and on receipt thereof, the Court shall proceed in the manner provided in subsection (2B).

It has been urged by the learned counsel for the petitioner that the damage to the sample had arisen on account of the negligence on the part of the Food Inspector in sealing the sample. According to him, rule 16 of the Prevention of Food Adulteration Rules provides that the stopper shall first be securely fastened so as to prevent leakage of the contents in transit, In the present case, instead of a stopper, a plastic cap had been used and for that reason there was said to be a leakage. Darshan Lal v. The State of Punjab, 1981(1) FAC 290 (SB), was cited for showing that if the samples were damaged due to the negligence of the Food Inspector the prosecution cannot be allowed to fill in the lacuna in the case. It was a case in which the seals of the sample were intact but the contents sent for analysis had been found curdled. The instant case has to be judged on the ratio of a Full Bench decision of this Court reported a Cashmiri Lal v. State of Haryana, ILR 1981(2) Punjab and Haryana 513. It has been held that some of the provisions of section 13 of the Act and the rules are in essence procedural to protect and safeguard some privileges so long as they are not infringed or violated. A marginal variation of the procedural provisions cannot be necessarily called fatal. It has necessarily to be considered whether any prejudices has been caused to the petitioner by sealing the sample with a plastic cap instead of a stopper which was not available at the relevant time.

The sample which was actually ordered to be sent had some faded, signatures and seals. The Chief Judicial Magistrate noted in his order, dated September 29, 1981, that he had been unable to see any signatures on the slip attached to the sample has already been sent and result in till awaited.

The petitioner has also thus challenged the order sending the third sample. The last prayer is that the report, if received, should not be taken into evidence, State of Maharashtra v. Shrinivas Surao Shenvi, 1979 (IJ) FAC 5, was cited in support of this proposition that no value can be attached to the result of the analysis if extraordinary delay is made by the Central Food Laboratory. There is nothing on record to show as to whether the sample has in fact been received by now or as to what is the reason for the delay. It is for the Public Analyst to say that the sample had been so damaged as not to be fit for analysis. It will have to be taken into consideration whether the delay has resulted on account of the conduct of the petitioner in the challenging the order of sending of sample. This fact has to be taken into consideration that the petition for the quashing of the complaint itself. I consider it better to leave all the questions for determination open, so that the petitioner may obtain a finding thereon from the trial Court itself. The whole matter is required to be judged in the light of Kashmiri Lal''s case (supra) which has made a material change in interpreting the various provisions, of the Act and the rules framed thereunder. The petitioner has come to the Court for the exercise of its powers to secure the ends of justice. To have a guilty person convicted is as much in the interest of justice as the acquittal of an innocent person. I thus dismiss this petition and leave the trial Court to decide all the controversial questions raised before the this Court. The petitioner shall make his appearance before the trial Court on December 13, 1982, so that further proceedings might be taken.