JASRAJ CHOPRA, J. - (1.) THIS revision petition is directed against the appellate Judgment of the learned Additional Sessions Judge, Nagore Camp Deed-wana dated 6. 7. 1988 whereby the learned Additional Sessions Judge, upheld the judgment of the learned Chief Judicial Magistrate, Nagaur dated 23. 11. 1985 holding accused-appellant Jagdish Pd. guilty of the offence under s. 7/16 Prevention of Food Adulteration Act. The accused-petitioner Jagdish Pd. has been sentenced to 6 months' rigorous imprisonment together with a fine of Rs. 1,000/-and in default, to undergo three months' rigorous imprisonment.
(2.) LEARNED counsel appearing for the parties submitted that in this case, a very short point is involved and so, it may be heard and decided at this stage. On the request of the learned counsel appearing for the parties, the revision petition was heard finally at the admission stage. In this case the basis of conviction of accused-petitioner is that Til Oil sample, which was collected from him by Food Inspector Ban Kishan as found adulterated. As per the report of the Central Food Laboratory, the Oil contained adulteration of Alsi Oil. While examining the accused under s. 313 Cr. P. C. no question has been asked to the accused about this report sent by Central Food Laboratory. This point was raised before the learned first appe-late Court but the learned first appellate court was of the view that as the report of the Public Analyst has been put to the accused in his statement under s. 313 Cr. P. C. and he has defended his case on this very ground as to how Alsi Oil came to be mixed with Til Oil, he is not taken by surprise and hence, it causes one prejudice to him if the report of the Central Food Laboratory has not been put to him in his statement under s. 313 Cr. P. C. Mr. Mridul, jain the learned counsel appearing for the accused-petitioner has submitted that once a sample is sent to the Central Food Laboratory and a report is received from there, the report of the Public Analyst of the State merges in that report and actually, the report of the Central Food Laboratory supersedes the report submitted by the Public Analyst and, therefore, whether a particular sample is adulterated or is not adulterated can only be decided on the basis of the report of the Central Food Laboratory. Mr. Jain has further submitted that when this important circumstances has not been put to the accused in his statement recorded under s. 313 Cr. P. C, that circumstances cannot be used against the accused to hold that the sample taken from him was adults-rated because in its report, the Central Food Laboratory has recorded its opinion that the sample is adulterated. In this respect, he placed reliance on a decision of their lordships of the Supreme Court in Sharad Birdhichand Sarda V. State of Maharashtra (1), wherein it has been held that if the circumstances appearing in evidence are not put to the accused, they cannot be used against him. In arriving at this conclusion, their lordships placed reliance on Hatesingh Bhasatsingh V. State of Madhya Bharat (2), Shamu Babu Chaugale V. State of Maharashtra (3) and Harijan Megha Jesha V. State of Gujarat (4 ). Mr. Jain has further submitted that it is the duty of the prosecution to prove that the article, the sample of which has been taken from the petitioner is adulterated and if it is not proved he cannot be held guilty of that offence. In this respect, reliance was placed on a decision of their lordships of the Supreme Court in Bhim Sen V. State of Punjab (5), wherein the case was that the sample taken was of sweetened aerated water whereas the Public Analyst reported that the sample of aerated water does not contain the requisite amount of sucrose. It was 1 eld that when the sample was that of sweetened aerated water the standard of aerated water will not guide the sample of sucrose aerated water. This contention was not opposed by Mr. G. K. Vyas, the learned Public Prosecutor. It is settled law of the land that no circumstance can be used against the accused which has not been put to him in his examination under s. 313 Cr. P. C. for obtaining his explanation. Now, the question is whether this case should be remanded back to ' the learned lower court for putting a question to the accused in his statement under s. 313 Cr. P. C. about the report of the Central Food Laboratory, It was contended by Mr. Mridual Jain, the learned counsel appearing for the accused-petitioner that the negligence of the trial court in not putting the report of the Central Food Laboratory to the accused in his statement under s. 313 Cr. P. C. is not a mere technical error It goes to the route of the matter and therefore, when this is not a technicality, the case cannot be remanded back to the learned lower court after the lapse of about 5 years, in this respect, he placed reliance on a decision of their lordships of the Supreme Court in Machander v. Hyderabad State (6) wherein the accused confessed about the guilt and that confession was not put to him in his statement under S. 342 Cr. P. C. (01d) = s. 313 Cr. P. C (new) in a murder case. Their Lordships of the Supreme Court held that this error was not a mere technicality and the accused who has been facing trial for more than 4-1/4 years while in custody cannot be allowed to face this jeopardy of trial again. It was further held that the court would not be prepared to keep the persons who are on trial for their lives under indefinite suspense because trial Judges omit do their duty under s. 342 Cr P. C. (Old ). The error was not being a mere technicality, the accused-persons were acquitted. Mr. Jain has drawn my attention to a number of decisions relating to Prevention of Food Adulteration Act cases wherein the omission on the part of the trial Judge in not putting the Chemical Analyst report or for that matter, the Central Food Laboratory's report to the accused his statement under s. 313 Cr. P. C. was held to be a sufficient ground to acquit him, if he has faced trial for a period ranging between two and a half years to ten years.
(3.) HE invited my attention to Baldeo Krishan V. State of Punjab (7) wherein the learned Sessions Judge remanded the case back to the trial court directing the trial Magistrate to put the report of the Chemical Analyst to the accused in his statement under s. 313 Cr. P. C. On revision, the High Court held the accused is facing trial for the last over four years and, therefore, the remand of the case by the Sessions Judge was not considered proper and the order of remand was set-aside. My Attention was next invited to a decision of the Punjab & Haryana High Court in Subhash Chand V. State of Haryana (8), wherein the report of Public Analyst was not put to the accused during his examination under s. 313 Cr. P. C. The accused was facing trial since 1977. It has been held that the case cannot be remand back after the lapse of about 10 years. My attention was also invited to Vijay Kumar V. The State of Punjab (9 ). In that case too, the report of the Public Analyst with its contents was not put to accused by the trial Magistrate while examining him under s. 313 Cr. P. C. His conviction was not maintained and it has been held that on account of this legal infirmity committed in holding trial by the trial Magistrate, the accused deserves to be acquitted. The submission of the prosecution to remand the case back for retrial was not considered proper in view of the fact that the accused remained under agony of prosecution at the trial stage as well as if the appellate stage for about 2-1/2 years. ;