Pritam Singh Safeer, J. - (1.) This petition has come up in consequence of an order passed by Shri N.C. Kochhar, Addl. Sessions Judge, Delhi, on the 5th of March, 1973, in exercise of the jurisdiction, given by section 438 of the Criminal Procedure Code, hereafter called "the Code".
(2.) The circumstances, which may be noticed, are that the petitioner was being prosecuted under sections 7/16 of the Prevention of Food Adulteration Act, hereafter called "the Act". In the course of trial, the petitioner moved application dated the 2nd February, 1973. The application was moved under section 13(2) of the Act. The provision is:- "S. 13(2). After the institution of a prosecution under this Act the accused-vendor or the complainant may, on payment of the prescribed tee, make 'an application to the Court for sending the part of the sample mentioned in sub-clause (i), sub-clause (iii) of clause (c) of sub-section (1) of section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis." It was imperative for the Court, in the first instance, to ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 were intact or not. Only after having ascertained that the mark and seal were intact, the Court could have ordered the despatch of the part of the sample submitted by the petitioner to the Court. The trial Court found that the concerned Food Inspector was Shri G.M. Mittal. It seems that the Court, in competent exercise of its jurisdiction under section 13(2) of the Act, sent for Shri G.M. Mittal and recorded his statement. I have heard the Counsel for the parties. I find that the statement was not recorded on oath. Exercising ' the power given by section 561A of the Code, it is directed that Shri G.M. Mittal be produced before me on the 10th of May, 1973 whom will examine on oath regarding the two bottles, which have been produced in Court. One of them is the bottle which had been submitted along with the application made by the petitioner and the other bottle has been produced on behalf of the Food Inspector by the Counsel who is appearing on behalf of the respondent. Further orders in this petition will be passed after examining Shri G.M. Mittal, Food Inspector. At this stage it is submitted that Shri G.M. Mittal is present today. He may be examined on oath. Shri G.M. Mittal son of Sh. Girdhari Lal aged 39 years, r/o Chiragh Delhi, Food Inspector, Municipal Corporation of Delhi, on S....:-
(3.) The seal on the top of the bottle submitted by the petitioner alongwith his application dated the 2nd of February, 1973 is intact. The said seal, I although broken in part, covers the knot of the strings coming from the four directions. The knot even now is united under the seal. I affixed the seal at the top of the lid of the bottle, which was submitted by the petitioner to the Court with his application dated the 2nd of February, 1973. The strings around the said bottle were tied by me. The knot under the seal at the top of the lid of the bottle is in the same situation in which tied it when gave the sample to the petitioner. It is impossible to open the bottle without unfastening the knot which was made by me and which is intact under that portion of the seal which is still as it was, when affixed the seal. It is correct that in case of fastening the samples used a material which has paper on it and the cloth underneath it. The cloth is not torn from anywhere. ORDER;