B.N.Lokur, J. - (1.) On account of the difference of opinion between Single Judges of this High Court on the question 'whether the accused is entitled to the benefit of Section 13(2) of the Prevention of Food Adulteration Act even though the accused has not made an application challenging the report of the Public Analyst and has not attempted to send sample with him for examination of the Director, Central Food Laboratory, Calcutta', Bishambhar Dayal, J., as he then was, has referred it to a Division Bench for decision so that the controversy be resolved.
(2.) On a scrutiny of the views expressed by the Single Judges, it appears to us that the question which had really been agitated before them was whether inordinate delay in prosecuting an accused for selling adulterated milk was fatal to the prosecution on the ground that he was denied the right conferred by Section 13(2) of the Prevention of food Adulteration Act, 1954, even though no application was made under that sub-section challenging the adverse report of the Public Analyst and at the same time making a request for the examination of the sample by the Director of Central Food Laboratory.
(3.) At the outset, we may respectfully refer to the following observations of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram, 1967 ACC 97 SC : "It appears to us that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that the right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein."';