- (1.) VIRENDRA Saran, J. This revision has been filed by Narain Prasad against the judgment and order dated 3-4-1987 of Shri S. K. Saxena, Vth Additional Sessions Judge, Gorakhpur, dismissing Criminal Appeal No. 9 of 1986 against the judgment and order dated 30-5-1984 of the Special Judicial Magistrate, (Economic Offen ces), Gorakhpur convicting and sentenc ing the applicant under Section 7/16 Prevention of Food Adulteration Act, (for short the Act) to 6 months' R. I. and a fine of Rs. 1000/ -.
(2.) I have heard Sri A. B. L. Gaur, learned counsel for the revisionist-ap plicant and learned State counsel. According to the prosecution case, a sample of mustard oil was collected on 23-4-1980 from the applicant and was sent for analysis to the Public Analyst who reported that the mustard oil in question was adulterated. Accepting the prosecu tion case the Courts below convicted and sentenced the applicant as mentioned above. Leaned counsel for the applicant has contended before me that the convic tion of the applicant is bad in law for want of compliance of the mandatory provisions of Section 13 (2) of the Act. He has also submitted that there is also non-compliance of the mandatory provisions of Section 10 (7) of the Act. Lastly it has been argued that the Chief Medical Of ficer has granted sanction to prosecute without application of mind and hence the sanction is bad in law.
(3.) ADVERTING to the first submission of learned counsel for the applicant, the case of the applicant is that he has not received the copy of the report of the Public Analyst in time to make an application under Sec tion 13 (2) of the Act. It was submitted before the Court below and also before me that on the postal receipt the seal of the post office does not indicate the year when the report was allegedly sent to the ap plicant. The learned lower appellate Court rejected this argument for the reason that PW. 2 Vijai Bahadur Yadav had stated that the report was sent to the applicant by post. In a criminal case if there remains a doubt whether the report was sent to the applicant in time to enable him to make an application under Section 13 (2) of the Act, it would tell upon the prosecution case because the applicant was deprived of his valuable right to get the sample analysed by the Central Food Laboratory and prejudice is bound to occur. Since in the postal receipt the year when the registered cover containing report of the Public Analyst is missing, it leaves room for doubt whether the same was sent to the applicant in time. The matter should have been clarified at the trial to enable the Court to come to a definite conclusion. The offence was committed as far back as 20years, hence it would not be useful even to send the case for re-trial and in the circumstances of the case I am of the view that the prosecution has not been able to prove with reference to the postal receipt as to when the report of the Public Analyst was sent to the applicant. Accordingly, this revision is allowed. The conviction and sentence passed against the applicant is set aside. The applicant is on bail. He need not surrender and his bail bonds are discharged. Fine, if paid by the applicant, shall be refunded to him forthwith. Revision allowed. .;