S.K.Jain - (1.) A milk sample was collected by the Food Inspector from the accused Kallo on July 25, 1974, after completing all the formalities prescribed by the law and the Rules. One portion of the sample was sent to the public analyst who found the milk to be containing 4.7% fat and 4% non fatty solids. Thus the sample was found deficient by 22% in milk fatty and 56% in non-fatty solids. This resulted in the conviction of the accused by the learned C.J.M., Moradabad under Section 7 read with Section 16(1) (a) (i) of Prevention of Food Adulteration Act. He was sentenced to undergo RI. for six months and to pay a fine of Rs. 1,000 and in default of payment of fine, to further undergo R.I. for three months. The learned VIIIth Addl. Sessions Judge, Moradabad, upheld the order of conviction and sentence vide his judgment darted June 14, 1982. It is that judgment of VIIIth Addl. Sessions Judge, Moradabad which has been challenged by the appellant in this criminal revision and which requires my scrutiny of its sustainability.
(2.) AFTER the report of the public analyst was received its notice was sent to the accused who applied for second sample collected from him to be sent to the Director Central Laboratory for analysis and report. According to the report of the Director, fatty solids were found to be 4.3% which are almost the same as was found by the public analyst: but non-fatty solids was found to be 6.9% against the minimum prescribed limit of 8.5%. It may be noticed that the public analyst found non-fatty solids to be 4% in the milk sample sent to him for analysis. Placing reliance on Ratan Lal v. State of Himachal Pradesh, 1991 (2) ECC and FA 373, the learned counsel for the petitioner has submitted that the court can proceed with a case in which it had taken cognizance of the offence on the basis of complaint instituted with a valid written consent under Section 20 (1) of the Act in respect of a sample of food found to be adulterated by the Public Analyst for certain reasons, without there being a fresh written consent, in regard to the nature of adulteration, later found in the sample by the Director of Central Food Laboratory, which is different from that found earlier by the public analyst. I have examined the above said judgment. Its ratio leaves no scope for doubt that a fresh written consent of the sanctioning authority under Section 20 is required where the public analyst finds adulteration of one kind (species) and the Director Central Food Laboratory, finds adulteration of a different kind (species). It would, however, be noticed that in the present case the public analyst as well as the Director, Central Food Laboratory in their respective reports, have come to the conclusion that the milk fat contents in the sample sent to them were 4.7% and 4.3% respectively. Their findings with respect to nonfat solid contents, however, differed widely inasmuch as the public analyst has given it as 4% whereas according to the Director, Central Food Laboratory, it is 6.9%. There has been no explanation from the side of the prosecution about such a vast difference in two parts of the sample collected at the same time from the accused. The possibility of this difference being attributed to some basic difficulty in collecting the sample cannot be altogether overruled and this was one of the aspects which the sanctioning authority under Section 20 (1) of the Act would be required to consider before certifying the case to be fit for prosecution. To put it somewhat differently, it is clear that adulteration pertaining to deficiency in milkfat is of same species but even then the vast difference in nonfat solids could have a bearing on over all suitability of the case for being sent to a court of law for prosecution off the accused. In such a case, therefore, it was incumbent on the prosecution to have obtained fresh written consent before proceeding with the case in the Court of law. There is yet another infirmity which goes to the very root of the case. The milk sample as stated earlier was collected on July 25, 1974. It was sent to the Public Analyst and was received by him on July 30, 1974. He analysed the sample on August 20, 1974. The complaint was filed on 8.11.1976 i.e. more than two years after the sample was analysed. Notice of the report of public analyst was sent to the accused on 4.4.1977 i.e. after three years of the taking of the sample. On the request of the accused second part of the sample was sent to the Central Food Laboratory where it was received on 24.5.1979. It was analysed in that laboratory on 11.6.1979 i.e. five years after the collection of the sample. It has been forcefully urged by the learned counsel for the applicant that the constituents of the sample must have deteriorated after lapse of such a long period even though the sample was found fit for analysis by the Director. In support of his aforesaid contention, he has placed reliance on the following judgments:- 1. Shive Dayal v. State of Madhya Pradesh, 1977 CrLJ 1548. 2. Desh Raj v. State of U.P. and another, 1985 (1) FAC 135 (All). 3. Gopi Ram v. State of Haryana, 1987 FAC 442 (PandH). 4. Lallu v. State, 1990 Cr LJ 835 (All). 5.State of Himachal Pradesh v. Umardin, 1989 (2) FAC 3 (HP).
(3.) THE above authorities, when read together, clearly say that various time limits laid down in the Act and Rules framed thereunder are directive in nature and not mandatory and further that the said periods are not to be equated with period of limitation. All the same, it is incumbent upon the authorities concerned to have the samples analysed and the prosecutions launched with utmost despatch and that inordinate delay in making available to the accused his right to get the sample re-tested from the Director of Central Food Laboratory would tantamount to denial of his valuable and mandatory right under Section 13 (2) of the Act, A delay of eight months has been considered to be fatal to the prosecution case. The learned counsel for the State has urged that Director, Central Food Laboratory, did opine that the sample was fit for analysis which means that it has neither degenerated nor decomposed in any manner. Be that as it may it appears that too much delay in such matters against the express directory provisions made in law and the Rules have to be treated with full deference and cannot be given a go by in a light hearted fasion. It also appears to me that a sample of milk, inspite of the fact that formalin or other preservative is added to it would certainly deteriorate in quality if the lime lag is inordinatelly long. In the present case, the delay involved is of four years eleven months and seventeen days and such delay cannot but be regarded as denial of the mandatory right vested in the accused under Section 13 (2) of the Act. This, in turn is positively fatal to the prosecution case.;