- (1.) S. K. Aganval, J. Heard Shri G. P. Dixit, learned counsel for the applicant and learned A. G. A.
(2.) THE only question raised before this Court by learned counsel for the applicant is that the guarantee to the ap plicant under the provision of Section 13 (2) of the Prevention of Food Adulteration Act has been defeated. In this case the rejection of his application for sending the second phial of the sample to Central Food Laboratory after his appearance in court amounts to denial of justice. His right was further obstructed by failure of the prosecution to serve him with a notice, as required under the provision of Section 13 (2) and Rule 9 (A) of the Prevention of Food Adulteration Act. Learned Sessions Judge after ex amining this aspect of the matter had come to the conclusion that the prosecution has failed in this case to comply with the provision of Section 13 (2) of the Preven tion of Food Adulteration Act. He was of the opinion that since the prosecution has not brought on record the original docu ment which has been received back from the Post Office after their failure to serve the applicant with that letter, therefore, the court is at a loss to find out the reason why it was not served upon the applicant. The prosecution has made no effort to send the notice and the report of the analyst to the applicant. Even it has made no effort to serve the applicant on first date of his appearance in court on the receipt of summons issued by the court after launch ing of the prosecution. From a perusal of the judgment it appears that the applicant had made the application for sending his sample lying with the Health Authority on 7-12-1983 in the trial court. The application is Ext. Kha-11 on record. This application was rejected by the trial court on the ground that it had not been moved within 10 days. The learned Sessions Judge rightly observed that once the service of the notice and the report of analyst as required under Section 13 (2) and Rule 9 (A) has not been served upon the applicant, this bar of 10 days will not operate against him. He has remanded the case back to the learned Judicial Magistrate.
(3.) IN the above circumstances there remains no doubt that the applicant was denied his legal right guaranteed by Sec-lion 13 (2) of Prevention of Food Adul teration Act in this case. IN this denial the prosecution is to blame itself. IN the circumstances the direction given by the learned Session Judge in appeal on 5-6-1987 i. e. after five years of the laking of sample will in no way Serve any useful purpose. Since the time of admission of this revision i. e. 10-11-87, nearly 13 years have already elapsed, the sample must have deteriorated and no analysis may be possible. In the result no conviction against the applicant can be possible. If the order of learned Sessions Judge remanding the case back to the learned Magistrate is upheld, it will be wholly futile to send the sample for analysis to Central Food Laboratory as due to decomposition analysis is not likely to yield any positive result. Nearly 18 years since the sample was taken have already elapsed.;