Mahavir Singh - (1.) THIS is a revision by Jogi against the order of the learned Sessions Judge, Gonda dismissing his appeal against his conviction under Section 7/16 of the Prevention of Food Adulteration Act and sentence of rigorous imprisonment for six months and a fine of Rs. 1000/-.
(2.) THE prosecution case is that on 29 -11-75 at about 10 A. M. the Food Inspector Sri Suresh Chandra Arya (P. W. 1) took a sample of cow's milk from the possession of the applicant in mohalla Puraina Talab, Balrampur, district Gonda. THE sample sent to the public analyst was reported to be adulterated being deficient in fat 'content by about 26% and non fatty solids by about 44%. The applicant had at first admitted that he was selling cow's milk on that date and that a sample was also given to him but he denied to have taken any price. Lateron he changed his earlier case and alleged that his sample was not taken rather the sample of another person was taken and it was alleged to be his. The Judicial Magistrate held that the sample was of the applicant and that it was adulterated and so he convicted and sentenced him as mentioned above. An appeal against that order was also dismissed. In revision only one point has been taken. It was alleged that the applicant had been deprived of the right of getting the sample analysed from the Director Central Food Laboratory as he was not given any notice of the report of the Public Analyst and he Learnt about the same being adulterated only when he received the summons. Accordingly it was contended that the conviction passed on such report of the Public Analyst was vitiated.
(3.) THERE is no doubt that if an accused in deprived of a right given to him by Section 13 (2) of the Prevention of Food Adulteration Act by the conduct of the prosecution authorities, the conviction passed on such a report is vitiated as held in Sukamal Gupta v. Corporation of Calcutta, AIR 1967 SC 970. In the present case, however, the applicant was not entitled to the benefit of this view. It has been held in A jit Prasad Ram Kishan Singh v. State of Maharashtra, AIR 1972 SC 1631 that if an accused does not make any application under Section 13 (2) of the Prevention of Food Adulteration Act for getting the sample re-analysed by the Director, Central Food Laboratory, he cannot complain that he was deprived of his right to have the sample analysed by the Director. In this case the applicant had admittedly moved no application in the trial court under Section 13 (2) of the Prevention of Food Adulteration Act for getting the sample analysed by the Director of the Central Food Laboratory and so he cannot complain that he was deprived of his right under that subsection. It has been held in Ajit Prasad's case that in every case, the mere delay and laches on the part of the complainant in getting the summons served was not, in the absence of evidence to show that the sample had deteriorated when the summons are served, sufficient to hold that the accused was prejudiced by reason of deprivation of the right under Section 13 (2).;