B.N. Maitra, J. - (1.) On 10-8-1977 a Food Inspector of the Corporation of Calcutta took samples from the oil mill of the petitioner. On 18-10-1977 the petitioner received two copies of the report of the Public Analyst. On 19-10-1977 the Municipal Magistrates Court was closed due to the Puja Vacation. The court re-opened on 3-11-1977. On the re-opening date the petitioner was taking steps to trace out the particulars of the case. After receipt of such particulars he made an application on 4-11-1977 under section 13(2) of the Prevention of Food Adulteration Act to get the samples of the mustard oil analysed by the Central Food Laboratory. The prayer was rejected because there was delay of one day.
(2.) The learned advocate appearing on behalf of the petitioner has contended that according to the provisions of section 13(2) of the Act the accused has to make an application to the Court within a period of 10 days from the date of receipt of the report to get the sample analysed by the Central Food Laboratory. Here the copy of the report was received on 18-10-1977. On the next day Municipal Magistrates Court was closed for the Puja vacation and on 3-11-1977 that Court re-opened. On the date of re-opening of that court the petitioner was busy in making enquiry regarding the particulars of the case. So, on that date he could not file any application according to the provisions of Section 13(2) of the Act. Such application actually was filed on the next date, that is, on 4-11-1977. So, there was only one days delay in making the prayer. Considering the facts and circumstances of the case the Court should condone the delay and allow the prayer. This prayer has been opposed by the learned lawyer appearing on behalf of the opposite party No. 2 and also on behalf of the State.
(3.) According to the provisions of section 13(2) of the Prevention of Food Adulteration Act such application has to be made to the court within a period of 10 days from the date of receipt of the copy of the report. Here the last day expired on 3-11-1977. Section 5 of the Indian Limitation Act does not apply to lower criminal Courts. That court has no inherent power to condone the delay. In such circumstances the court was justified in rejecting the prayer. Moreover, before the learned Magistrate no reason was assigned why there was delay in filing the application. Hence the submissions made on behalf of the petitioner cannot be accepted.;