I.S. Tiwana, J. - (1.) PETITIONER Darshan Lal was convicted by the Chief Judicial Magistrate, Faridkot, under Section 16(1) (a)(i) road with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and was sentenced to nine months rigorous imprisonment and a fine of Rs. 1000/ - in default of payment of which to undergo further rigorous imprisonment for six months His(sic) appeal against this conviction and sentence also failed in the Court of Sessions Judge, Faridkot
(2.) IN brief, the allegations against him are that on 11th December, 1973 at about 10(sic) am. Dr Yash Goel, Medical Officer, went to the canteen of Brijendra College, Faridkot, in the company of Dr. K. L. Narang and after disclosing his identity, purchased 660 ml. of unspecified bottled milk from the Appellant against the payment of 80 paisa. Makhan Lal D W. 1 was also present at that time. The milk purchased was divided into three equal parts and was put in three dry and clean bottles. Sixteen drops of formaline were put in each of the bottle. The bottles were properly labelled, wrapped and sealed with the seal of Dr. Yash Goel. One of the bottles was passed on to the Petitioner against his receipt Exhibit P C The Public Analyst, vide his report Exhibit P. D. gave the following analysis: - Milk fat... 28% Milk solid not fat... 9%(sic) The trial of the Petitioner resulted to his conviction as indicated in the opening part of the judgment. To assail the conviction of the Petitioner, his learned Counsel, Shri D. R. Purl, has raised two contentions before me. Firstly, he submits that the delay, caused in proceeding against the Petitioner has deprived him of a valuable right under Section 13(2) of the Act and secondly Dr Goel did not take representative sample of the milk and had only taken 60(sic) ml of boiled milk after removing the layer of fat from the top of the same.
(3.) SO far as the first submission of the learned Counsel is concerned, he points out that the sample of milk was taken from the Petitioner on 11th December, 1973 and the complaint against him was filed on 18th January, 1974 yet he was served for the first time on 24th of July, 1975,(sic) that is, almost more than one year and seven months after taking over the sample. The learned Counsel further submits that no fault possibly can be laid on the Petitioner for this delayed service. He has taken me through the various orders recorded by the trial court from 16th(sic) of February, 1974 onwards till the accused put in appearance on 24th July, 1975 and in almost all the orders it is recorded that the summons or the warrant, bailable or non bailable issued against the Petitioner had not been received back. None of these orders indicates that either the accused was evading service or had in any other manner avoided the same Rather it appears that the prosecuting agency was taking everything very lightly. Otherwise I do not see any reason as to why the service could not be effected on the Petitioner for such a long time In such circumstances, I feel the learned Counsel is well justified in arranging that had the Petitioner been joined in the proceedings within a reasonable time from launching of the prosecution against him, he could have availed of his right under Section 13(2) of the Act in disproving or contradicting the report of the Public Analyst by getting the sample of milk in his possession examined from the Central Laboratory at Calcutta According to him the prosecution cannot be allowed to take advantage of its own laxity the deliberate inaction in not joining the Petitioner in these proceedings. He relies on a judgment of this Court in Mehar Chand v. The State, (1970) 72 P.L.R. 1009, wherein it has been laid down as under - ; That the provisions of Section 13(2) of the Act will be defected by delayed commencement of prosecution against an accused person, the laxity or negligence on the part of the Food Inspector and may be in some casts the deliberate practice of delaying the filing of complaint so as to render nugatory the provisions of Section 13(2) of the Act, the court should not countenance with favour the laxity, negl gence(sic) or practice Again the matter of making complaint promptly is a matter of public policy. The courts should see that there does not occur any delay in filing complaints against the offender after the sample of food is taken Though it was case where there was a delay of two months and two days in filing the complaint from the date of taking the sample of milk yet to my mind the delay in filing the complaint or filing it within a reasonable time and not making the accused aware of the same for a considerable time should not make any difference. Had the accused been served in good time he might have been able to take advantage of the provisions of Section 13(2) of the Act nless(sic) the prosecution can show that the fault lies on the part of the accused in not joining the;