S.C.MITAL,J. - (1.) FACTS giving rise to this petition are that on 18th September, 1980 sample of cow's milk was taken by Dr. Baldev Singh from the shop of Nand Kishore. It was divided into three parts and duly sealed. One of them was given to Nand Kishore. The second was sent to the Public Analyst who received it on 19th September, 1980. The Pubic Analyst sent his report dated 17th October, 1980 declaring that the sample was of adulterated milk. Thereafter on 10th November, 1980 a complaint was filed against Nand Kishore and he was summoned for 19th December 1980. Upon coming to know of its, Nand Kishore on 21st November, 1980 applied for the above said sample with him to be tested by the Director Central Food Laboratory, Ghaziabad. In due course, the sample was sent to the said laboratory. In its report dated 31st March, 1981 it was mentioned that the sample was in a condition not fit for analysis for the following reasons :- "The sample showed separation and could not be homogenised for purposes of test. The third counter-part of the sample may be sent for analysis." Thereafter Nand Kishore requested the trial Magistrate to sent to third sample but his request was declined vide order dated 6th May, 1981 (Annexure E) which reads :- "As the sample has been found to be not fit for analysis due to separation of fat by expiry of time it can be presumed that third part of the sample has also rendered unfit for analysis. So sample need not be sent to Central Food Lab." There on 16th September, 1981, the trial Magistrate framed the charge against Nand Kishore. Feeling aggrieved, he has prayed for quashing not only of the charge but also of the proceedings.
(2.) BEFORE proceeding further, it may be pointed out that in December, 1981, notice of motion was issued to the State for 15th January, 1982. Thereafter in spite of four adjournments granted to the State for filing the written statement it was not so done. The present petition was admitted on 26th March, 1982. Even today the learned counsel for the State contends that a dozen of letters have been written by the office of the Advocate General, Punjab, but no reply has been received from the complainant. In this view of the matter, the above said salient facts of the case remain uncontroverted. Not only that for want of instructions the learned counsel is unable to oppose this petition. Be that as it may, the learned counsel for Nand Kishore contended that from the very beginning Nand Kishore has been active in the exercise of his valuable rights conferred by Section 13(2) of the Prevention of Food Adulteration Act by taking steps to get the sample with him tested by the Central Food Laboratory. Thus under no circumstance can he be said to be guilty of laches. Besides, the report of the Central Laboratory was clearly misconstrued by the trial Magistrate inasmuch as if the sample had been found unfit for analysis owing to delay, the report would have so mentioned. Quite to the contrary the laboratory asked for the third counter-part of the sample to be sent. Thus argued the learned counsel that Nand Kishore was deprived of his said valuable right and for no valid reasons.
(3.) THE other aspect of the matter highlighted was that after the filing of this petition the complainant took no steps to assist this Court either after the issuance of notice of motion or admission and now with the lapse of time even if the third sample is ordered to be sent to the Central Food Laboratory, it would not be of any avail.;