P.N.Bakshi - (1.) THE applicant has been convicted under section 7/16 of the P. F. A. Act and sentenced to six months R. I. and a fine of Rs. 1000/-. His conviction and sentence have been maintained in appeal by the Sessions Judge, Saha ranpur. Hence this revision.
(2.) I have heard counsel for the applicant and have also carefully perused the impugned order. According to the prosecution case a sample of buffalo milk was purchased by the Food Inspector from the accused applicant which he was carrying for sale on a cycle on 20th July 1975 at about 12 noon. The sample was collected and bottled in accordance with the procedure prescribed by law. One of the sample phials, which was sent for analysis to the Public Analyst, disclosed that it was adulterated inasmuch as there was a deficiency of about 3% in fat contents and 26% in non-fatty solids. After obtaining sanction the applicant has been prosecuted and convicted as above. Both the courts below on a consideration of the evidence on record and the facts and the circumstances of the case, have come to the conclusion that the guilt of the accused is conclusively established. I do not find any illegality or perversity in the findings of fact, recorded concurrently by the subordinate courts to warrant interference in revision. Counsel for the applicant has submitted that he has been deprived of his right to send the sample for analysis to the Director, Central Food Laboratory Calcutta inasmuch as the application which he filed under Section 13 (2) of the P. F. A. Act was rejected by the trial court. This point was also canvassed before the Sessions Judge. The Sessions Judge was of the opinion that even though the application filed by the applicant should not have been rejected on the ground it has been rejected by the trial court, yet since the amount of the fee payable has not been deposited by the applicant prior to the filing of his application under section 13 (2) of the Act the application was liable to be rejected.
(3.) COUNSEL for the applicant has submitted that it was not necessary for the applicant to have deposited the fee prior to his making the aforesaid application. This matter appears to be concluded by the: decision of the Supreme Court reported in Ajitprasad Ram Kishan v. State of Maharashtra, AIR 1972 SC 1631. In this decision while considering the applicability of section 13 (2) of the Act their Lordships of the Supreme Court observed as follows; "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 he had 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." These observations even though they might be in the nature of obiter dictum are still binding upon this Court. As such, the law appears to be clear that it is the duty of the accused applicant .to first deposit the fee payable as prescribed under Rule 4 (6) of the P. F. A. Rules and thereafter to make an application for sending the sample to the Director, Central Food Laboratory for re-examination. In this view of the matter, I am in agreement with the view expressed by the Sessions Judge that the application which was filed by the accused applicant for his sample for analysis to the Director, Central Food Laboratory was not maintainable and has been rightly rejected. The last point argued by the learned counsel for the applicant is the question of sentence.. He has submitted that adulteration in.the instant case is not very heavy. It is 2% in fat contents and 26% in non-fatty solids. He has also argued that the incident in question had taken place prior to the amendment of the Prevention of Food Adulteration Act (Act 3 of 1976). He has also submitted that the applicant is not a previous convict. Offences under the Prevention of Food Adulteration Act cannot be treated very lightly, since they are deterimental to the health of the community. But having regard to all these circumstances, I am of the opinion that the interest of justice would be served by giving some relief to the applicant.;