P.N.Bakshi - (1.) THE applicant has been convicted under Secs. 7/16 of the Prevention of Food Adulteration Act and sentenced to 6 months' R. I. and a fine of Rs. 1000/-. His conviction and sentences has been maintained in appeal by the Sessions Judge, Kanpur vide his order dated 22nd July, 1980. Hence this revision.
(2.) I have heard learned counsel for the parties and have also perused the impugned orders. According to the prosecution case a sample of refined rapeseed oil was purchased by the Food] Inspector from the shop of the applicant on 2.20 P. M. on 21st June, 1978 in accordance with the procedure prescribed by law on payment of price. Out of the three sample phials in which the rapeseed oil was divided, one was sent for analysis to the Public Analyst Lucknow, the other two were kept in the office of the Medical Health Authority. The report of the Public Analyst indicated that the sample was adulterated. Details of this report shall be dealt with later. After obtaining sanction from the Chief Medical Officer, Kanpur, applicant has been prosecuted and convicted as above. Counsel for the applicant has made three submissions in this case. The main submission advanced by him is that in the instant case, there has been a violation of Sec. 13 (2) of the P. F. Act, inasmuch as on intimation has been sent to the applicant intimating to him that on the receipt of the report of the Public Analyst he can apply to the court within 10 days thereof for sending the sample of rapeseed oil for re-examination to the Director Central Food Laboratory. Reliance has been placed upon my own decision in Chhatra Pal Singh v. State, 1979 ACrR 512. I have carefully scrutinized the entire record of the case, have also examined the statement of the Food Inspector and the report of the Public Analyst. U/Sec. 13 (2) of the Prevention of Food Adulteration Act, a mandatory duty is cast upon the prosecution to prove that the report of the Public Analyst along with an intimation, as laid down therein, has been forwarded to the accused. This burden can not be shifted on the accused. It can be discharged either by the production of the Food Inspector himself, or of some clerk from the office of the Health Authority. Oral evidence can be led to prove this fact, apart from the documentary evidence with regard to the despatch of the said report and intimation which might be evidenced either by the production of the register or by the acknowledgement due receipt of the letter by which the despatch is made. In the instant case it have perused the statement of the Food Inspector. He does not say a single word with regard to the despatch of the report of the Public Analyst nor does he speak about the sending of the intimation along with it as required under law. No person has been produced from the office of the Chief Medical Officer to prove the despatch of the report of the Public Analyst and the intimation. Thus, there is total lack of evidence on this score. In the statement u/Sec. 313 CrPC the applicant has been put a question to the effect that the report of the Public Analyst was sent to him. He was honest enough to admit that it was received by him. Therefore, inspite of this deficiency of the prosecution evidence, it may be accepted that the report of the Public Analyst was received by the accused. But the question is whether the intimation which must also accompany this report informing the accused that he can have the sample in question re-analysed within 10 days of the receipt of the report was sent to him or not ? As I have already mentioned above, there is no oral evidence as well as documentary in this connection filed by the prosecution. Even along with the report of the Public Analyst, the usual copy of intimation referred to above has not been filed in this case by the prosecution. Therefore, the court is completely in the dark whether this mandatory duty was complied with by the prosecution, or not. I further find that no question has been put to the accused in examination u/Sec. 13 CrPC to the effect that the intimation as required u/Sec. 13 (2) has been sent to him. The accused cannot be taken by surprise. No advantage can be given to the prosecution of the lapse which it has committed in the prosecution of its case.
(3.) IT is significant to note that the report of the Public Analyst indicates that the sponification value-Iodine value, and free fatty acid (as oleic acid) was in excess by 177-0, 110-00 and 025 per cent respectively. How much it was in excess has not been mentioned at all in this report. IT may be excess by 1 per cent. IT may also be in excess by 20 per cent. All this is speculation. The court has been kept in the dark with regard to the exact result of the analysis. Assuming that the excess is minimal or extremely small, the likelihood of an error in analysis cannot be ruled out. In the instant case an application was as a matter of fact filed by the applicant on 13th July, 1979 praying that the sample phial in the possession of the department be sent for re-analysis to the Central Food Laboratory because the applicant was not satisfied with the report of the Public Analyst. In this application, it is also mentioned that the applicant was ready to pay the necessary expenses for sending the sample for re-analysis. IT is true that this application was filed at the stage of argument in the case, but if the applicant has been kept in dark with regard to his right to send the sample for re-analysis by the absence of an intimation having been given to him it would be most unfortunate if the delay in making the application results in deprivation of hi� right of re-analysis. The courts below while rejecting this application has observed that it should have been filed within 10 days from the date of receipt: of the copy of the report of the Public Analyst. This was not practically possible in the circumstances of the case mentioned above. Therefore, the observation of the court that the application was made merely to delay the proceedings does not appear to be justified. From the set of facts, it is abundantly clear that; the accused has been severely prejudiced as a result of the inaction of the prosecution in complying with the mandatory duty which has been cast upon it. About 3 years have now passed since the sample was taken by the Food Inspector. IT would perhaps serve no useful purpose, if the case is remanded back for re-examination of the sample. In my view, therefore, where there has banden flagrant disobedience of a mandatory provision of law which severely affects the rights of a party, this court would be amply justified in quashing the conviction of the accussed. The application in revision is accordingly allowed. The conviction of the applicant for the offence u/Sec. 7/16 of the P. F. Act is set aside. The fine if paid shall be refunded to him. Revision allowed.;