Decided on December 24,1980

STATE Respondents


- (1.)MURLIDHAR, J. The applicant Padam Chandra has been convicted under Section 7/16, Prevention of Food Adulteration Act (hereinafter referred to as Act) and sentenced to six months' R. I. and a fine of Rs. 1,000, in default further rigorous imprisonment of six months.
(2.)THE prosecution case was that on 17-8-1977 a sample of Bundi ka Laddu displayed for sale at the shop of the applicant was obtained by the Food Inspector. On analysis the Public Analyst vide his report dated 21-6-1977 found the sample to contain the prohibited coal-tar dye metanil yellow. THE applicant was accordingly prosecuted. His case was that he had prepared the Laddus on the order of D. W. 1 Ram Swarup from the materials, including the colour, supplied by Ram Swarup and the same were not for sale but for delivery to Ram Swarup. This defence has been disbelieved by the courts below and the matter is concluded by findings of fact in which no infirmity could be shown.
Learned counsel tried to urge that there had been contravention of Section 10 (7) of the Act in the case because the only witness other than Rathore, Food Inspector who took the sample, was another Food Inspector Ram Singh. But the Food Inspector Rathore has explained that the independ ent public witnesses present at the spot had declined to be witnesses and, therefore, only Ram Singh, Food Inspector, was made a witness. By asking independent persons to be witnesses the Food Inspector complied with Section 10 (7) of the Act. It is not in his power to compel if the independent persons do not agree to become witnesses. His duty is only to call public witnesses and this was duly fulfilled. The sample cannot, therefore, be held to be defective for breach of Section 10 (7) of the Act. Moreover, in this case taking of the sample is virtually admitted.

The main argument of the learned counsel was that there has been non-compliance of Section 13 (2) of the Act. The Food Inspector proved that after launching the prosecution on 16-8-1977 the Health Authority had sent intimation dated 18-8-1977 to the accused with a copy of the analysis report requiring him to apply for sending the sample to Central Food Laboratory within 10 days of the receipt of the intimation if he so cared. No registration receipt or acknowledgment about this intimation was filed by the prosecution. This led the trial Court to remark that the prosecution had been unable to show that the intimation was sent by registered post. The trial court took the view that in the absence of any prejudice the non-com pliance of Section 13 (2) could not affect the matter. Further that there could be no prejudice because the accused had not made any move to have the reserved phial of the sample sent to the Central Food Laboratory pending his trial. It is not necessary in this case to go into the question whether breach of Section 13 (2) in a case where the accused makes no move for sending the sample to the Central Food Laboratory vitiates the conviction because in this case at the appellate stage the accused did apply for the sample being sent to the Central Food Laboratory and the lower appellate Court did send it to that Laboratory through the trial Court at the applicant's cost. The report of the Central Food Laboratory on record dated 26-9-1979 confirms the report of the Public Analyst about the presence of the prohibited coal-tar dye. Whatever may be the position in which the sample was not got sent to the Central Food Laboratory, I am clear that the alleged breach of Section 13 (2) of the Act cannot be taken advantage of by an accused who did obtain a report of the Central Food Laboratory howsoever belatedly during the trial or pending the appeal and the report is against him. There as absolutely no basis for supposing that if this report had been obtained earlier and within ten days of the intimation the result might have been different. Therefore, this point too fails.

(3.)LASTLY, learned counsel reiterated the plea that the Central Food Laboratory had reported that while the seal of the outer cover of the sample tallied with the sample the inner cover seal of the sample was different. It was contended that this meant that there could be no assurance that the original sample was sent. I find myself in agreement with the lower appellate court's view that the identity of the outer cover seal fixed the identity of sample phial. I also find the explanation of the Food Clerk of C. M. O. Office, Mainpuri, to the effect that the inner cover was already sealed by the Food Inspector and, therefore, only the outer cover was sealed by him and hence the inner cover seal did not tally with the sample seal, to be quite cogent and satisfactory. The trial court had also examined the Food Clerk. I find nothing wrong with the lower appellate Court's acceptance of this explanation. Before leaving the judgment I would like to mention that there is one part of the judgment with which I must express my disagreement. After finding that the discrepancy of the seal on the inner cover was of no consequence and this would not vitiate the report of the Central Food Laboratory, the learned Sessions Judge went on to observe "in any case I am of the view that as the appellant had not taken advantage of Section 13 (2) of the Act within the stipulated time he should not be permitted to take advantage of the defect in respect of which objection has been raised by the learned counsel for the appellants. After the lower appellate Court's conduct in forwarding the sample for analysis by the Central Food Laboratory and receipt of the report this observation must be disapproved. For the purposes of this case there can be no question of the accused having no right to obtain the Central Food Laboratory report after 10 days of the intimation or latest after his appearance in the ease. Therefore, I would rest the decision of the discrepancy in the seal found by the Central Food Laboratory not vitiating the prosecution only on the ground of the discrepancy having been satisfactorily explained.
No other point was argued.


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