- (1.) THE question that has been referred to us for decision is :- "Where in the plains of U. P. the prosecution under the Prevention of Food Adulteration Act is launched more than ten months after the taking of the milk sample by the Food Inspector, can the accused relying on the Full Bench decision in Nagar Swasthya Adhikari, Nagar Mahapalika v. Mongolia, 1970 ACrR 465 claim deprivation of his right under Section 13 (2) of the Act even though he does not apply for analysis of the other phial of the sample by the Director, Central Food Laboratory."
(2.) IN the case of Nagar Swasthya Adhikari, Nagar Mahapalika v. Mongolia (supra) it was observed 2 "Taking the facts and circumstances of each case into consideration it is for the Court to determine when it may become unsafe to rely on an analysis of the contents of the milk. There may not be any hard and fast time limits because conditions may differ from case to case. Refrigeration or the addition of greater quantity of formalin might make the milk last longer for accurate and reliable analysis. The climate of the places at high altitudes might by itself serve the purpose of refrigeration. However, on the basis of what has been held in earlier cases in known set of circumstances the court may safely presume that in the plains of Uttar Pradesh the composition of milk is likely to be affected after a period of ten months or so, if (1) only two drops of formalin of 40% strength are added to an ounce of milk, and (2) the milk is not kept in refrigerator or at a cool place." And it approved the decision of the Division Bench of this Court in Nagar Swasthya Adhikari v. Rambabu, 1969 AWR 465 in which it was held that where a prosecution under the Act in respect of milk is launched after 308 days of the taking of the milk the accused is; deprived of a valuable right conferred on him by Section 13 (2) of the Act of getting the sample in his possession analysed by the Director, Central Food Laboratory and therefore, the delay is fatal to the prosecution. It was further held that such an assumption could be made even if the accused did not make any application under Section 13 (2) of the Act for getting the sample of milk analysed by the Director. In the case of Ajit Prasad v. State of Maharashtra, AIR 1972 SO 1631 after quoting Section 13 (2) of the Act it was held :- "It is clear from the sub-section that the appellant should have made an application after paying the prescribed fee if he wanted the part of. the sample available with him to be sent to the Director for analysis. If be made the application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysis by the Director. If in pursuance of the application l:he part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the appellant could perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, since the appellant never applied under Section 13 (2) of the Act, he cannot complain.that he has been deprived of any right. In Babulal Hargovindas v. State of Gujarat', AIR 1971 SC 1277 Jagmohan Reddy, J., speaking for the Court, said that unless an application to sent the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by the Director. The learned Magistrate was wrong In thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed......There was, therefore, no evidence that the part of the sample available with the appellant had so deteriorated at the time the summon was served as to be incapable of being analysed." If there is any data or evidence before the Count on the basis of which it could be held the sample of milk had become unfit for analysis at the time of the launching of the prosecution then no useful purpose would be served in sending the sample for analysis to the Director Central Food Laboratory on the application of the accused. It is noteworthy that in the case of Nagar Swasthya Adhikari, Nagar Mahapalika v. Mongolia (supra) notice was taken of the data furnished by the experiments carried out in Criminal Revisions Nos.1612 of 1962, 1309 of 1963 and 432 and 595 of 1964 decided on 30-9-65 which was relied upon by this Court in the case of Nagar Swasthya Adhikari v. Rambabu (supra). There was, therefore, data before this Court in the case of Nagar Swasthya Adhikari Nagar Mahapalika v. Mongolia (supra) on the basis of which it was held that after a lapse; of 308 days it could be presumed that the sample of milk had deteriorate and was not fit for analysis, Thus the decision of the Supreme Court in Ajit Prasad v. State of Maharashtra (supra) and in Babulal Hargovindas v. State of Gujarat (supra) does not specifically or by necessary implication overrule the decision of this Court in Nagar Swasthya Adhikari, Nagar Mahapalika v. Mongolia (supra). The question that however, remains to be considered is whether the decision of this Court in Nagar Swasthaya Adhikari Nagar Mahapalika v. Mongolia (Supra) is still good law in view of the amendment to Section 13 (21 of the Act by Act No. 34 of 1976. Prior to the amendment under Section 13 (2) of the Act both the accused and the complainant had a right to make an application to the Court after the institution of the prosecution under the Act to get the sample analysed by the Director Central Food Laboratory on payment of the prescribed fee. It was on the basis of this right that it was held in the case of Nagar Swasthaya Adhikari Nagar Mahapalika v. Mongolia (Supra) that it was open to the Court to presume that after the lapse of more than ten months the sample of milk was unfit for analysis but even in such cases in order to negative this presumption the prosecution (complainant) could get the sample of milk analysed by the Director Central Food Laboratory and obtain a certificate from him that the sample of milk had not undergone any change so as to interfere with reliable and accurate analysis. After the amendment of Section 13 (2) of the Act it is no longer open to the prosecution (complainant) to get the sample of milk analysed by the Director Central Food Laboratory. This right has now been given under Section 13 (2) of the Act only to the accused and is to be exercised by him within ten days of the receipt of the notice under section 13 (2) of the Act. Thus under Section 13 (2) of the Act the prosecution (complainant) has now no right to rebut the presumption that the sample of milk is unfit for analysis if the prosecution is launched more than ten months after it was taken. It is noteworthy that in the case of Nagar Swasthya Addikari Nagar Mahapalika v. Mongolia (Supra) it was observed that even in some cases where the sample of milk is sent to the Director Central Food Laboratory after more than two years from the day it was taken it was found to be fit for for analysis.
(3.) THUS it would now not be proper to draw any presumption in favour | of the accused regarding the sample of milk being unfit for analysis if the prosecution is launched more than ten months after it has been taken as it cannot be rebutted by the prosecution (complainant). If the accused makes an application under Section 13 (2) of the Act to get the sample of milk analysed by the Director Central Food Laboratory but due to the delay in the launching of the prosecution the Director Central Food Laboratory in his report mentions that the sample of milk was not fit for analysis then the right of the accused under Section 13 (2) of the Act to get the sample of milk analysed by the Director Central Food Laboratory is lost and his conviction under Section 7/16 of the Act cannot be sustained but if he does not apply for the analysis of the sample of milk by the Director Central Food Laboratory under Section 13 (2) of the Act he cannot now complain regarding the loss of this right even if the prosecution is launched after more than ten months of the taking of the sample of milk. In view of the change in Section 13 (2) of the Act as pointed out above the decision of this Court in Nagar Swasthya Adhikari Nagar Mahapalika v. Mongolia (Supra) that the Court may presume that the sample of milk is unfit for analysis after the lapse of more than ten months and that the conviction of the accused under Section 7/16 of the Act cannot be sustained even if he has not applied for getting the sample of milk analysed by the Director Central Food Laboratory as his right to got the sample of milk analysed by the Director Central Food Laboratory is lost is, in our opinion, no longer good law.;