MATHUR, J. - (1.) THE learned Single Judge has referred following question for adjudication :- ``whether the right of the accused to move an application under Section 13 sub-section (2) of the Prevention of Food Adulteration Act, 1954 is extinguished if he does not submit an application for sending one of the sample to Central Food Laboratory, for analysis, within the period of ten days from that of receiving a copy of the receipt of the Public Analyst ?''
(2.) THE view that an application for sending one of the samples to the Central Food Laboratory filed under Section 13 (2) of the Prevention of Food Adulteration Act (hereinafter referred to as ``the Act'') beyond the period of ten days from the date of the receipt of the copy to the public Analyst taken by the learned Single Judge of this court in Vijay Raj vs. State of Rajasthan (1), relying on the decision of the Apex Court in Tulsi Ram vs. State of M. P. (2), is in conflict with the view taken in Hanuman vs. State of Rajasthan (3), relying on the earlier decision of this court in Joga Ram vs. State (4), and N. K. Dixit vs. C. J. M. , Sitapur THE learned Single Judge in Hanuman vs. State (supra), has distinguished the decision of the Apex Court in Tulsi Ram vs. State of M. P. (supra ). In Joga Ram vs. State (supra ). THE court held that accused has a right to request the court to send one of the samples to the Central Food Laboratory for analysis and the application for sending the sample to the Central Food Laboratory may be filed after the institution of the case till the case is finally disposed of and the court is duty bound to send the sample to the Central Food Laboratory. In Vijay Raj vs. State of Rajasthan (supra), the accused petitioner Vijay Raj was facing trial in the court of learned Chief Judicial Magistrate, Jodhpur for the offence under Section 7/16 of the Act. According to prosecution, sample of chilies powder was taken on 29. 07. 89 by the Food Inspector. After analysis by the Public Analyst, the sample was found not conforming to the prescribed standard of purity. The complainant was examined on 5. 1. 95. The charge was framed on 8. 08. 95 and thereafter, further evidence of the prosecution was taken. The complainant closed his evidence and the accused petitioner was examined u/s 313 Cr. P. C. He was then asked to produce his evidence. On 19. 08. 1995, the accused petitioner moved an application under Section 13 (2) of the Act to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, Calcutta in his defence under Section 247 read with Section 243 (2) Cr. P. C. The application of the accused was rejected by the learned Chief Judicial Magistrate by his order dated 22. 08. 1995 on the ground that the application was not filed within a period of ten days from the date of receipt of a copy of the Public Analyst. A revision petition was filed by the accused against the order passed by the learned Chief Judicial Magistrate, Jodhpur. The revision petition was dismissed by the learned Additional Sessions Judge No. 1, Jodhpur by his order dated 17. 11. 1995 after hearing both the parties. Feeling aggrieved by the orders passed by the learned Chief Judicial Magistrate, Jodhpur and the Additional Sessions Judge No. 1, Jodhpur, the petitioner filed a petition under Section 482 Cr. P. C. before this Court. The learned counsel for the petitioner contended that the both the courts below erred in rejecting the application of the accused to get the sample analysied by the Central Food Laboratory, Calcutta in his defence as contemplated under Section 247 read with Section 243 Cr. P. C. The argument advanced by the learned counsel for the petitioner was that the accused petitioner was at liberty to lead a defence evidence by procuring a report from the Central Food Laboratory, Calcutta to rebut the prosecution case and the learned Chief Judicial Magistrate was bound to call for any document in defence and his denial tentamounts to negation of right to lead evidence in defence. It was further submitted by the learned counsel for the petitioner that it is a basic principle of Criminal Jurisprudence which has been incorporated under Section 247 read with Section 243 Cr. P. C. that an accused is entitled to every opportunity to meet the prosecution and prove his innocence. Therefore, in complaint filed under Section 7/16 of the Act, the accused would be at liberty to claim that sample kept with the Local (Health) Authority be sent to the Central Food Laboratory, Calcutta for analysis. On the above mentioned grounds, it was contended by the learned counsel for the petitioner that denial of chance to adduce evidence in defence for incorrect reasons amounts to flagrant violation of the mandatory provisions contemplated under Section 243 (2) Cr. P. C. Reliance was placed by the learned counsel for the petitioner on the decision given by this Court in Joga Ram vs. State (supra ). In view of the submissions made by the learned counsel for the petitioner, the learned Judge considered the following three questions :- `` (1) Whether Section 13 (2) of the Prevention of Food Adulteration Act and Rule 9a of the Rules framed thereunder had the effect of repealing, altering or modifying Section 247 read with Section 243, Cr. P. C. ? (2) Whether right of the accused-petitioner to claim to send the sample for analysis to the Central Food Laboratory, Calcutta under Section 247 read with Section 243 Cr. P. C. is an absolute right of the accused-petitioner and Magistrate cannot refused to send the sample to the Central Food Laboratory, Calcutta even if he is of the opinion, that such application has been moved to defeat the mandatory provisions contemplated under Section 13 (2) of the Prevention of Food Adulteration Act and Rules framed thereunder? (3) Whether if legislature provides a particular thing to be done in a particular manner, does it amount that it has prohibited to do the same thing in any other manner'' The learned Single Judge held that since the case was instituted on the complaint filed by the Food Inspector, the provisions of Section 247 Cr. P. C. were attracted to the case and this section provides that after conclusion of complainant's evidence, the accused be called upon to end his defence and produce his evidence and provisions of Section 243 shall apply. The learned Judge took notice of the amendments made in Section 13 (2) of the Act by Act No. 34 of 1976 and the amendment of Rule 9a of the Rules, which amendment came into force w. e. f. 04. 01. 1977. Regarding the first question, the learned Judge held : ``in my humble opinion, the provisions contemplated under Section 247 read with Section 243 (3) Cr. P. C. will be deemed to be altered and amendment to the extent of their inconsistency with the mandatory provisions contemplated under Section 13 (2) of the Prevention of Food Adulteration Act and Rule 9a framed thereunder and an argument contrary to it is not acceptable. '' Regarding the second question, the learned Single Judge held : ``in my considered opinion, the cumulative effect of the aforesaid discussions would be that in view of the specific provisions contemplated under Section 13 (2) of the Prevention of Food Adulteration Act and Rule 9a of the Prevention of Food Adulteration Rules, 1955, the accused-petitioner can be permitted to adduce all evidence in his defence under Section 247 read with Section 243 Cr. P. C. to rebut the prosecution case and to prove his innocence except making an application to the court after expiry of period of ten days from the making an application to the court after expiry of period of ten days from the date of receipt of the copy of the Analyst's report to get the same of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. '' It was further observed :- ``i am also of the opinion that right of the accused- petitioner to claim to send the sample for analysis to the Central Food Laboratory, Calcutta under Section 247 read with Section 243 Cr. P. C. is not an absolute right. A Court can refuse to send sample for analysis to the Central Food Laboratory, if it is of the opinion that the application is made at the stage of Section 247 Cr. P. C. to defeat the mandatory provisions contemplated under Section 13 (2) of the Prevention of Food Adulteration Act and Rule 9a of the Rules framed thereunder. '' Regarding the third question, the learned Judge observed :- ``it is well to remember that when Parliament provides a specific procedure to make an application to the court within a period of ten days from the date of receipt of the copy of the Public Analyst report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, Calcutta then it must be presumed that Parliament has prohibited the accused-petitioner to move such an application before a Court after expiry of the aforesaid period at the stage of Section 247, Cr. P. C. ''
(3.) THE decision given by another learned Single Judge of this Court in Joga Ram vs. State (supra), held to be not applicable in view of the decision given by the Hon'ble Supreme Court in Tulsi Ram vs. State of M. P. (supra ). THE learned Judge observed as under:- ``i am further of the opinion that the decision rendered by the learned Single Judge of this Court in the case of Joga Ram (supra) and decision rendered by the learned Single Judge of Allahabad High Court in the case of Bharam Swaroop (supra), do not hold water in view of the decision rendered by the Apex Court in the case of Tulsi Ram (supra ). '' The provisions of Section 13 (2) of the Act were considered by the learned Single Judge in Hanuman vs. State of Rajasthan (supra ). While deciding that case, the decision given in the case of Vijay Raj vs. State (supra), was not brought to his notice. The decision of the Hon'ble Supreme Court in Tulsi Ram vs. State of M. P. (supra), was considered. For the reasons given in the judgment, the conclusion was expressed in the following words :- ``for the reasos mentioned above, the view taken by the learned Chief Judicial Magistrate that the right conferred by Section 13 (2) of the Prevention of Food Adulteration Act is not exercised by the accused within the period of ten days prescribed by Section 13, then such right shall stand extinguished as erroneous and the provisions of Code of Criminal Procedure as well as the words used in Section 13 (2) of the Prevention of Food Adulteration Act. The order dated 22. 3. 96 passed by the learned Chief Judicial Magistrate deserves to be quashed and set aside and is quashed and set aside. '' In Joga Ram vs. State (supra) and Hanuman vs. State (supra), it has been held that the accused can move an application for sending one of the samples to the Central Food Laboratory for analysis, at any time after the institution of the case to the conclusion of the trial and the application of the accused cannot be rejected on the ground that it was filed after the expiry of the period of ten days prescribed by Section 13 (2) of the Act. On the hand, in Vijay Raj vs. State (supra), a learned Single Judge of this Court has taken the view that if the application for sending one of the samples to the Central Food Laboratory for analysis is made after the expiry of the period of ten days from the date of receipt of a copy of the report of the Public Analyst, then such application would not be maintainable in spite of the provisions contained in Sections 2343 and 247 Cr. P. C. (1973 ). ;