M. C. JAIN, J. - (1.) THE petitioner has been convicted for offence punishable under section 16 (1) (a) (i) of the Food Adulteration Act, 1954 and he has been sentenced to undergo 6 months' rigorous imprisonment and a fine of Rs. 1000/-, in default of payment of file to undergo further rigorous imprisonment for 2 months by the Chief Judicial Magistrate, Sirohi by his judgment dated September 15, 1976. His conviction and sentence have been upheld by the learned Additional Sessions Judge, Sirohi by his judgment dated August 21, 1978.
(2.) THE petitioner was prosecuted on the allegations that the Food Inspector Shri S. S. Gour found the accused selling the mixed milk of cow and buffalo near Rajmata Dharamshala, Sirohi on 30-9-1975 at 8 a. m. and after giving him the notice of his intention of taking the sample of milk for analysis, purchased 660 Ml. or milk and divided it equally into three phials, which were properly sealed. On analysis, the sample was found to be adulterated. THE complaint was presented against the accused-appellant and after trial, he was found guilty and he was convicted and sentenced as aforesaid. Mr. Samdaria, learned counsel for the petitioner submitted that the petitioner was deprived of his valuable right for getting the sample analysed by the Director of Central Food Laboratory. The petitioner submitted an application to that effect on 28-5-1976 and also deposited the fees and necessary charges on 3-8-1976, but the specimen sample produced in the court, was not sent for analysis to the Director of Central Food Laboratory and thus, the petitioner was deprived of his valuable right Reliance was placed by him on a decision of the Supreme Court in Municipal Corporation of Delhi vs. Ghisa Ram. (1 ). I have carefully considered the above submission of the learned counsel for the petitioner and I find force in it. An application was submitted by the petitioner on 23-5-76 for sending the court sample to the Director of Central Food Laboratory and it was stated in the application that the petitioner was prepared to pay the requisite fees and charges. It appears that the Magistrate erroneously passed an order "comply as per orders", on the same day. Fee for sample testing and expenses to the tune of Rs. 50/- were deposited on 3-8-76 This question was not raised before the Magistrate but it was raised before the Additional Sessions Judge. The learned Additional Sessions Judge rejected the submission on the ground that this matter was not pressed at any time before the Magistrate. The attention was never invited by the petitioner on his application for getting the court sample analysed by the Director of Central Food Laboratory. The learned Additional Sessions Judge also recorded that no fee was deposited by the petitioner and the fee should have been deposited before nuking an application. It may be mentioned that when an application was made by the petitioner, it was the duty of the Magistrate to have passed the necessary orders, requiring the petitioner to deposit the requisite fees and charges, and then to send the sample for analysis to the Director of Central Food Laboratory, but erroneous order has been passed. The order pre supposes that the order has been passed whereas no order had been passed earlier. The question of passing any order earlier, could not arise as the application itself was presented on 28-5-75. Thus, it would appear that in compliance of sub-section (2) of Section 13 of Prevention of Food Adulteration Act, 1934 prior to amendment by Act No. 34 of 1936 has not been made and on account of such non-compliance. the petitioner has been deprived of his valuable right, which has seriously prejudiced him. In Municipal Corporation's case supra, it has been observed that sub sec. (2) of Sec. 13 of the Act confers a valuable right on the vendor to have the sample given to him analysed by the Director of Central Food Laboratory, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents and that obviously, the right has been given to the vendor in order that for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. It was further observed that where there is denial of this right on account of the deliberate conduct of the prosecution, the vendor in this trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. Viewed in the above observations, it can also be said in the present case that the petitioner has light of the seriously been prejudiced on account of deprivation of his valuable right conferred by the provisions contained in sub-section (2) of Sec. 13 of the Act. and so, his conviction cannot be upheld. In this view of the matter, this revision petition deserves to be allowed on the above ground alone. In the result, the revision petition is allowed. The conviction and sentence of the petitioner is set aside and he is acquitted of the offence under Sec. 7/16 of the Prevention of Food Adulteration Act. .;