K.S. Tiwana, J. - (1.) Mohinder Singh, petitioner, was checked by Sohan Lal, Food Inspector, on August 25, 1972, at Amritsar, while he was carrying 12 litres of cow's milk for sale. In accordance with the provisions of the Prevention of Food Adulteration Act (hereinafter referred to as the Act), the Food Inspector purchased 660 millilitres of milk from the petitioner on cash payment. After making the milk homogeneous, it was divided into three equal parts and put into three separate bottles. After adding the required quantity of the preservative, the bottles were properly sealed. On analysis, the Public Analyst found the milk to be deficient in milk solids not fat. During the course of the trial, the petitioner moved an application to the trial Court for sending the third sample, which had been deposited by the Food Inspector with the Municipal Committee, Amritsar, to the Central Food Laboratory, Calcutta, for analysis in accordance with the requirements of the Act. Under orders of the Court, that sample was produced by the Municipal Committee which was examined in the Court by the Magistrate in the presence of the petitioner, his counsel and the Food Inspector. After taking all precautions of sealing, etc., that sample was dispatched to the Central Food Laboratory, Calcutta, for analysis. Unfortunately, the bottom of the sample broke in the transit and the contents leaked out. For that reason the Central Food Laboratory, Calcutta, could not give any report. The learned trial Magistrate believed the prosecution evidence and overruled the contention raised on behalf of the petitioner that as the report of the Central Food Laboratory, Calcutta, could not be obtained in the case, reliance should not be placed on the report of the Public Analyst. The learned trial Magistrate convicted the petitioner for an offence under section 16(l)(a)(i) of the Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000.00. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for three months. The appeal taken by me petitioner was dismissed by the Additional Sessions Judge, Amritsar. Dissatisfied with that judgment, the petitioner filed the present revision petition.
(2.) So far as the merits of the case are concerned. I do not find any necessity to review the evidence in view of the concurrent findings of the subordinate courts.
(3.) The main question raised by the learned counsel for the petitioner is that when the third sample, which was deposited with the Municipal Committee, Amritsar, could not be examined as it broke in the transit for which he was not responsible, the petitioner could not be convicted for the offence charged. The argument is that the petitioner has been given a right under the Act to get his sample or the third sample deposited with the Municipal Committee or the other authority, analysed from the Central Food Laboratory, Calcutta. If due to the breakage, leakage, improper preservation, etc. of that sample, the accused is deprived of the opportunity to get that report, then he is gravely prejudiced in his defence. In support of his argument, the learned counsel for the petitioner has cited Bhagwandass Vs. The State and another, A.I.R. 1962 Punjab 419 , and Gurbachan Singh Vs. The State of Punjab, 1972 F.A.C. 582. The learned counsel has relied on the observation of D. Falshaw, C.J., in Bhagwandass's case (supra) to the effect, "the sample to be given to the accused is solely for his own protection; and obviously is intended to enable him, to have it analysed privately for the purpose of producing evidence at the trial, if necessary, to contradict the report of the Public Analyst, while the third sample is kept in reserve for the matter to be decided by the Director of the Central Food Laboratory in case either party in prosecution is not satisfied with the report of the Public Analyst". This judgment was followed by the learned Single Judge of this Court in Gurbachan Singh's case (supra). The facts of both these cases are distinguishable from the case in hand. In Bhagwandass's case (supra), the Food Inspector while taking the sample of aerated water had collected three different bottles by way of sample. It was observed in that judgment that one bottle could not represent the contents of the other as the contents contained in separate bottles cannot be uniform and it was in that context that the above quoted observation was made. The learned Chief Justice was not seized of any matter in that case as the one in hand about the difficulty of the Court in obtaining the report of the Central Food Laboratory. The facts in Gurbachan Singh's case, (supra) are also different. In that case, the third sample, which was sent under the orders of the Court to the Central Food Laboratory, Calcutta, was not fit for examination as the contents of the milk from the botile had spilt and the remaining contents appeared to be less. In that case, the learned Judge quoted Chintamani Vs. State, 1964 All. Law Journal 893 wherein it was held as under:- "The Prevention of Food Adulteration Act confers on the accused a right of appeal against the report of the Public Analyst and statute further entitles the accused to have the sample retained by the Food Inspector sent for examination in order to test the veracity of the report made by the Public Analyst and, if due to the default of the complainant, the accused is deprived of this right he is entitled to get the benefit of doubt." In view of the above observations, the learned Judge observed, "It would, therefore, appear that the right of the accused to obtain a report of the Director of the Central Food Laboratory was taken away by the carelessness of the complainant to keep the bottle with the seal intact and in proper condition." In that case, the mind of the learned Judge was influenced by the carelessness or the default of the Food Inspector in not preserving the sample properly which had stood in the way of the accused to have the sample analysed from the Central Food Laboratory, Calcutta.;