Murlidhar, J. - (1.) THE applicant Raghubir Singh has been convicted under Sec. 7/16, Prevention of Food Adulteration Act (hereinafter called the Act) and sentenced to one year's R.I. and a fine of Rs. 2000/-, in default further R. I. for six months.
(2.) THE prosecution case which has been believed by the courts below is that on 8-1-1976 at 9:30 A. M. the applicant had in his possession for sale adulterated cow milk. THE sample taken by the Food Inspector was on analysis by the Public Analyst found to contain only 2.7% fat contents and 4.8% non-fatty solids as against the prescribed 35% and 8.5% respectively. THE defence that the milk was not for sale has been rejected by the courts below and is no longer in controversy. The only point canvassed in the revision is that the conviction is vitiated because there had been no compliance of rule 9(j) or Sec. 13(2) of the Act in the present case. The relevant facte are that the Public Analyst report was dated 12-3-1976. On 27-3-1976 the register in the office of the local Health Authority showed despatch of a copy of the Public Analyst report to the accused but the registration receipt was not produced, the Food Clerk saying that they pass on the cover to the Despatch section and, therefore, did not have the receipt with him. This evidence was secured in the lower appellate court. The prosecution was launched by the complaint dated 25-6-1976. The accused never gave any application for sending his phial to the Central Food Laboratory for analysis. At the argument stage, however, the plea about non-compliance of Sec. 13(2) appears to have been raised. The trial court rejected the argument on the ground that the applicant could not be allowed to complain when he never moved for sending the sample for analysis to the Central Food Laboratory. The lower appellate court held on the evidence secured by it that there was a presumption that the copy of the Public Analyst report had been sent to the accused under rule 9(j) on 27-3-1976 and the rule had been complied with. It did not discuss the applicability or breach of Sec. 13(2) of the Act. The contention is that in the absence of the registration receipt and on the admission that the register only showed passing of the cover containing the copy to the Despatch section, it was not possible to hold that the copy of the report had been sent by registered post to the accused. In my opinion the lower court's view that the entry about the despatch of the copy in the local Health Authority's register on 27-3-1976 justifies a presumption that further consequential official acts namely due despatch by registered post of the cover by the Despatch section had been regularly performed. While it would have been better if the Despatch section record and the registration receipt also had been proved, I do not find sufficient ground to interfere with the finding that rule 9(j) had been complied with.
(3.) THE main argument, however, is about non-compliance of Sec. 13(2) of the Act. Before taking this up it should be mentioned that the sample was taken on 8-1-1976 when Sees. 11 and 13(2) stood in the form before their amendment by U. P. Act 34 of 1976 with effect from 1-4-1976. Under the then state of Sec. 11(1)(c) the Food Inspector used to deliver one of the sample phials to the accused. Rule 9 (j) required the Health Authority to forward a copy of the Public Analyst report to the accused within 10 days of the receipt of the report and Sec. 13 (2) conferred a right on the accused on payment of prescribed fee to have his phial of the sample analysed by the Central Food Laboratory. Act 34 of 1976 with effect from 1-4-1976 altered both Sees. 11 and 13(2). Under the amended provisions no phial of sample was given to the accused and while one was sent to the Public Analyst two phials were deposited by the Food Inspector with the local Health Authority. Under the new Sec. 13 (2) on the institution of the prosecution the Health Authority was to send a copy of the Public Analyst report to the accused with an intimation that he may, if he likes, apply within ten days to have one of the remaining sample phials with the Local Health Authority sent for analysis to the Central Food Laboratory. If such an application was made the report of the Central Food Laboratory was to be obtained. Section 13 (2-D) provides that until the receipt of the report from the Central Food Laboratory the court has to keep the proceedings in the prosecution stayed. Thus it appears that firstly under the position of law prior to 1-4-1976 the local Health agency's duty with regard to the prosecution were over as soon as it had sent a copy of the Public Analyst's report under rule 9 (j) to the accused. THEre was no further duty analogous to present Sec. 13 (2) to be fulfilled by it after the launching of the prosecution. THEre was only the right of the accused to ask for analysis from the Central Food Laboratory. After 1-4-1976, However, rule 9 (j) remained intact though it was later on deleted with effect from 4-1-1977 and substituted by rule 9-A which provides for sending the copy of the Public Analyst report after the launching of the prosecution. In the present case the prosecution was launched during this period of 1-4-1976 to 4-1-1977. One question that arises is whether Sec. 13 (2) as amended required any compliance in case of samples taken prior to 1-4-1976 under the then Sec. 11. Learned counsel for the applicant has relied upon a number of decisions : Chhtrapal Singh v. State, 1980 ALJ 348, P. K. Murthy v. Kumba Konam Municipality, 1980 CrLJ 51 and State of Haryana v. Jagtar Singh, 1980 CrLJ 1232, to urge that the provisions of Sec. 13 (2) of the Act as amended by U. P. Act 34 of 1976 are mandatory. In my opinion it is not necessary to go into this question in the present case for whatever may be the position on this point it seems clear that the amended Sec. 13 (2) cannot be held to be mandatory so far as the samples taken under theformer Sec.11 are concerned. This is because the amended Sec. 13 (2) is integrally connected with the amended provision of Sec. 11 regarding the mode of sample taking. It requires, apart from the copy of the Public Analyst report, an intimation that the accused may apply to have the sample kept by the Local Health Authority analysed by the Central Food Laboratory. This would be pointless when the accused himself has a phial of the sample and could properly apply only to cases where the accused has no such phial with him. Even if we assume that this extra right attaches in such cases to the third phial of the sample in possession of the Health Authority under the former Sec. 11 (1) (c) (iii), it cannot take away the right the accused had under the previous law of having his phial of the sample sent to the Central Food Laboratory. Even apart from the right conferred by Sec. 13 (2) as it stood at the time of sample taking and indeed prior to 1-4-1976, the accused would have a right to have his phial of the sample analysed by the Central Food Laboratory as part of his general right of defence and right to dispute the authenticity of the report of the Public Analyst. THE Central Food Laboratory is established under rule 3 of the Prevention of Food Adulteration Rules 1955. Under rule 3 (1) the Central Food Laboratory in addition to the functions entrusted to the Laboratory by the Act is required to carry out certain other functions! including "(a) analysis of samples of food sent by any officer or authority authorised by the Central Government for the purpose and submission of the certificate of analysis to the authorities concerned". THEre does not seem to be any doubt that a court would be entitled to send a food article for analysis to the Central Food Laboratory under this clause even apart from the purposes required by the Act. Of course in such cases the fee prescribed by rule 4 (6) would have to be paid. THE point, however, is that the accused could demand analysis of his sample phial by the Central Food Laboratory under rule 3 (a) even as part of his right to defend himself. More specifically as earlier indicated he could demand such an analysis of the sample phial in his possession under Sec. 13 (2) as it stood when the sample was taken. In this situation trie provisions of amended Sec. 13 (2) in their application to the present accused would only be of an ancillary character at the highest and not creative of any valuable right even if the amended Sec. 13 (2) were held to be applicable; In that case the breach of this provision would be of consequence only if any prejudice were shown to have been caused to the applicant. On the principle laid down in Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 and Babulal Hargovind Das v. State of Gujarat, AIR 1971 SC 1277 viz. that the accused can not succeed on the ground of prosecution's default with regard to the right u/Sec. 13(2) unless prejudice actual or presumptive is shown to have been caused to his right of getting the sample analysed by the Central Food Laboratory. This could be done if the accused had applied for such examination and his request had been denied or if the Central Food Laboratory found the sample to have decomposed and incapable of analysis and this disability could be regarded as the result of prosecution failure to comply with Sec. 13 (2). As it is I would hold that in cases like the present one where the sample was taken before 1-4-1976 the amended Sec. 13 (2) would not be applicable as a procedural section because the procedure dealt with by it commences from the moment of sample taking dealt with in amended Sec. 11. This being the situation the; argument of non-compliance with the amended Sec. 13 (2) cannot help the applicant. THE conviction must, therefore, be confirmed. On the question of sentence, however, I think six months' R. I. and a fine of Rs. 1000/- in default further six months' R. I. will suffice.;