N.L.Tibrewal, J. - (1.) A very short question of law is involved in this petition. The petitioner is facing trial under section 7/16 of Prevention of Food Adulteration Act (for short 'the Act'). The accusation against him is that the Food Inspector took sample of 'Chilly' from his shop and the same was found adulterated on analysis by the Public Analyst.
(2.) On June 30, 1989 and October 28, 1989 the petitioner moved as applications under Section 13(2) of the Act with a prayer to send the second sample for analysis by Director Central Food Laboratory. The learned Magistrate allowed the said application, but vide impugned order dated October 12, 1990, directed the petitioner to deposit the entire expenses of analysis to be charged by the Central Food Laboratory.
(3.) The learned counsel for the petitioner had challenged the said order on the following two grounds:- (i) that the accused petitioner cannot be asked to pay the amount of fees of analysis chargeable by the Central Food Laboratory after the amendment if the Act in the year 1976; (ii) The Magistrate is under a duty to make the compliance of Subsection (2-B) of Section 13 of the Act before sending the sample to the Central Food Laboratory. The present Section 13 of the Act has been substituted by Section 10 of Act 34 of 1976. Section 13(2), as it stood prior to the amendment is reproduced below:- "(2) After the institution of a prosecution under this Act the accused vnder on the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in sub-clause (i) or sub-clause (ii) of clause (C) of sub-section (1) of section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section 11 are intact and may then dispatch the part of the sample under his own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed fees with in one month from the date of receipt of sample specifying the result of his analysis.;