- (1.) THIS original revision challenges the order dated 2nd May, 1983, passed by the 8th Additional Sessions Judge, Sitapur in Criminal Appeal No. 120 of 1982, dismissing an appeal against the judgment dated 23rd August, 1982, passed by Special Judicial Magistrate, 1st Class, Sitapur, confirming the conviction and sen tence of the petitioner under Section 16 of the Prevention of Food Adulteration Act.
(2.) THE petitioner was running a grocery shop in Mohalla Nanak Mandi, Sitapur Tbwn and on 24. 9. 78 Food Inspector after disclosing his identity as such purchased 750 grams of mustard oil and took the same in possession as samples in accordance with the rules. Later on, on receipt of Public Analyst report, which confirmed that the sample of the mustard oil contained Tisi Tel' (Oil) to the extent of 8 per cent and that the mustard oil was adulterated one. After due formalities prosecution was launched and the petitioner was convicted of the of fence and sentenced to rigorous imprison ment of six months and a fine of Rs. 1,000/-, in default of fine further rigorous imprison ment for a period of two months. THE petitioner challenged his conviction and sentence before the learned Sessions Judge in appeal, which was dismissed. Learned Counsel for the petitioner has urged two plea in this revision petition, firstly that the petitioner has been deprived of his right under Section 13 (2) of Preven tion of Food Adulteration Act on account of delay in launching prosecution against him and secondly that the sanction to prosecu tion has not been proved, which vitiates the whole trial. Learned Counsel for the petitioner and learned Government Advocate have been heard. It is no doubt true that the prosecution case was launched some what after lapse of few months after receipt of report of Public Analyst. But whether the such delay is fatal to this case, is to be seen. The sample was taken on 24th September, 1978 and the Public Analyst report is dated 28th October, 1978. The sanction Ex. Ka-7 was accorded on 28th March, 1979 and com plaint was lodged on 7. 4. 79. The prosecu tion had proved that the copy of the report was forwarded to the petitioner on 3. 5. 79 videex. Ka-8.
(3.) LEARNED Counsel for the petitioner has relied upon the decisions Jagdish Vs. State of UP, 1991 A. C. C. 82 and Desk Raj v. State of U. P and another 1985 A. C. C. page 109. In case Jagdish Vs. State of U. P (Supra) it was a sample of Jalebi and there was no evidence if any preservative was added and as such the delay in launching the case was presumed to defeat the right of the accused under Section 13 (2) of the Act and it was held that nothing useful and productive would have been achieved by availing the right of Section 12 (2) by the accused, as after a gap of nine months the samples of Jalebi must have decomposed and must have become unfit for analysis, Similar in case of Desh Raj v. State of U. P. (supra) the sample taken was of cow's milk. The delay in filing the complaint and sending of copy of the report of the Public Analyst to the accused person was considered as negativiting the right of accused u/s. 13 (2) of the Act, as the sample lying with the health authorities must have decomposed by that time. How ever, in the instant case the sample is that of mustard oil and there is no plea or sugges tion that the sample could have deteriora ted in its condition in any manner during the time it was left lying with the health authorities till launching prosecution against the petitioner. The learned Counsel contends that the copy of the Public Analyst report was sent to him on 03. 5. 79, 27 days after filing of the complaint. Be that as it may, the petitioner did not choose to chal lenge the report by moving an application for sending of the other sample bottle for analysis of the Central Food Laboratory. In a decision in Julsiram v. State of Madhya Pradesh, AIR 1985 SC 299 while consider ing Rule 9-A of Food Adulteration Rules, 1955, the Hon'ble Supreme Court observed: "the expression "immediately" in Rule 9-A is intended to convey a (sic) of continuity rather than urgency. What must be done is to forward the report to the person from whom the sample was taken at the earliest opportunity, so as to facilitate the exercise of the statutory right under Section 13 (2) in good and sufficient time before the prosecution commences leading evidence. Non- compliance with Rule 9-A is not fatal. It is a question of prejudice. " Similarly the Hon'ble Supreme Court in another decision injagdish Prasad v. State of West Bengal AIR 1972 SC 2044 observed that "where no application is made under sub- section (2) for sending the sample to the Director of the Central Food Laboratory, and the report of the Public Analyst is not superseded under sub-section (3) by the certificate of the Director, a con viction of the accused on the basis of the report of the Public Analyst and on his evidence would be proper. " The petitioner could very well establish the denial of his right under Section 13 (2) on account of delay in forwarding the report of the Public Analyst to him, if on an application the other sample bottle had been examined and a report of the Director of Central Food Laboratory had confirmed that the sample had become unfit for analysis. As such it is not a case of any prejudice caused to the petitioner by delay, if any, in forwarding the report of the Public Analyst to him.;