- (1.)HEARD the Counsel for the parties and perused the records. The criminal revision impugns framing of charges by the learned C. J. M. , Raisen in regular Trial No. 482/97 for offence under Section 7/16/16 (i) of the Prevention of Food Adulteration Act (for short 'the Act' ). As per case of the prosecution, on 27-5-1996, the non-applicant No. 1, the Food Inspector, took a sample of Quality Vanilla Ice-Cream party pack, manufactured by Fun and Food Ltd. , Ujjain from the Suryodaya Restaurant, Bareli. After following the procedure, the sample was sent to the public analyst, who gave his report on 5-7-1996 wherein the milk fat was found to be 5. 6. 1, which is below the standard prescribed for the ice-cream. Thereafter, on applications made by the co-accused and the applicant, the learned C. J. M. , Raisen under seal of the Court, sent two samples to the Director, Central Food Laboratory for testing. However, as per letter dated 11-12-1998 enclosed with the reports of the Director, the samples sent with the order of the Court were found in a condition not fit for analysis for one reason or the other. Under the circumstances, the applicant filed an application for discharge, which has been rejected by the impugned order dated 28-7-99 on the ground that the evidence of the public analyst cannot be rejected in the absence of an evidence to the contrary.
(2.)SHRI Singh, learned Senior Counsel appearing for the applicant, amongst others, submits that on account of the samples being in a condition, not fit for carrying out tests/analysis, the certificate envisaged under the provisions of Section 13 (3) of the Act to be issued by the Central Food Laboratory in terms of the said provision could not be issued and, thus, an important right of the applicant thereunder read with Section 13 (2) has been defeated. He further submits that in the absence of a report from the Central Food Laboratory confirming the test of the public analyst, the later has no meaning. Mr. Singh further submits that testing of a sample by the Central Food Laboratory was the only material which could have inculpated the applicant for the charge framed against. Thus, it is a case of no evidence and, therefore, to allow the proceedings to go on would amount to an abuse of the process of the Court. Mr. Singh to substantiate his submissions refers to, and places his reliance on, a judgment of the Hon'ble Apex Court in the matter of Calcutta Municipal Corporation v. Pawan K. Saraf and Anr. [1999 (1) FAC 8]. Para 16 being the relevant part of the judgment on reproduction read as under:-
"if the argument of the learned Counsel for the Corporation is upheld and the certificate of the Director of Central Food Laboratory is sidelined as pleaded by him, the consequence is that there will not be anything surviving to show the quality or standard of the food articles involved in the case. Even that apart, the accused will be deprived of his statutory right to disprove the Report of the Public Analyst. "

(3.)MR. Singh also places reliance on a judgment of this Court in the matter of Standard Agency and Ors. v. State of M. R, reported as [1998 (1) FAC 188]. Para 5 being the relevant part of the judgment on reproduction read as under:-
"the contention appears to be justified. It appears that the samples were not taken in proper containers of adequate strength but were sent highly belatedly for analysis. Thus, the samples could not be subjected to analysis by the Central Food Laboratory. It is settled law that the right conferred on the accused petitioners under Section 13 (2) is a valuable right and having been deprived of the same, they cannot be held guilty for the alleged offence. "