Mohd. Hamid Hussain, J. - (1.) The ADM (J) Mathura has made this reference for setting aside the order dt. 12-1-1972 of the Magistrate rejecting the application of the applicant Mishri Lal for summoning the Public Analyst for cross-examination.
(2.) Misri Lal was being prosecuted u/S. 7/16 of the Prevention of Food Adulteration Act. The Food Inspector had sent a sample of milk taken from the applicant for test to the Public Analyst who reported it to be adulterated and on the basis of this report, the applicant was being prosecuted. While the Food Inspector was being examined as a prosecution witness, the applicant applied for the Public Analyst to be summoned for cross-examination. This prayer of the applicant was rejected by the impugned order. The ADM (J) has recommended for setting aside of the said order on the ground that the magistrate did not comply with the mandatory provisions of S. 510 (2) and S. 257 Cr.P.C.
(3.) The Public Analyst can only be summoned u/S. 510(2) Cr.P.C. for cross-examination in respect of his report but not merely because the Food Inspector stated in cross-examination that it was for the Expert to say whether the contents of the sample of phial (Ex. 2 produced in court) had undergone any chemical change. The application dt. 12-1-1972 for summoning the Public Analyst was in the following terms : "Sir, Submitted that due to non-addition of proper preservative chemical changes have taken place in milk sample contained in Ex. 11. Fats and non-fatty solids have decomposed and a lump of solids of fat and non-fatty solids have been framed, which is clearly visible in sample phial. P. W. 1 has said in cross-examination that only an expert can say whether chemical changes have taken place or not so as to render it affecting analysis. It is, therefore, prayed that court be pleased to note down the observation on condition of milk and Public Analyst be summoned for cross-examination u/S. 510 (2) and 257 of Cr.P.C. Till then further proceedings be stayed." On the margin of this application the impugned order of the magistrate dt. 12-1-1972 is to the effect:- "Heard the counsel for the defence and the F. I. Apparently there seems no decomposition. I, therefore, find no necessity to call the analyst. I have also compared the sample with that of F. I's. Both the samples are more or less similar. The F.I. also argued that this plea has simply been taken to linger the case. Rejected.";