Shanker v. The State of Rajasthan — 1979 DIGILAW 255 (RAJ)

JUDGMENT 1. - This revision petition is directed against the order dated 20-2-1979 passed by the Munsif and Judicial Magistrate, First Class, Banswara, whereby the application dated 8-2-79, under section 13(2) of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the Act) presented by the Assistant Public Prosecutor, was allowed. 2. Before coming to the point in controversy in the present revision petition, it would be proper to take a note of some material facts. 3. The Food Inspector, Banswara, submitted a complaint on 27.3.76 against the petitioner under section 16(1) of the Act with the allegations that they visited Mohan Colony, Banswara, on 11.1.1976 and purchased 6.60 ml. buffalo milk for a sum of Rs. 1.15p for analysis from the petitioner. Necessary formalities were completed. One of the phials was sent to the Public Analyst for analysis who by his report dated 14-1-1976 found the sample adulterated. The present petitioner, during the course of trial on 30-11-1976 submitted an application under section 13 (2) of the Act for sending his part of the sample to the Central Food Laboratory for analysis. Thereupon his part of the sample was sent to the Central Food Laboratory. The Director, Central Food Laboratory, after analysis sent the certificate dated 28-2-1977 in form II. He was of the opinion that the sample of buffalo milk is not adulterated, but the result of the analysis is unusually high and it was suspected by him that the contents had been changed before it was sent to the Laboratory. As regards the condition of the seals on the container and the outer covering, he stated that the seals on the outer covering were found in order, but those on the container could not be compared for want of specimen impression of the seals. On receipt of the certificate the Assistant Public Prosecutor submitted an application on 8.2.1979 in which it was stated that the result of the analysis by the Central Food Laboratory was unusually high and it has been suspected that the [contents have been changed. The certificate also reveals that comparison of Seals was not made by the Director, Central Food Laboratory, as the specimen impression of the seal was not sent. The certificate also reveals that comparison of Seals was not made by the Director, Central Food Laboratory, as the specimen impression of the seal was not sent. It was also stated that locking to the contents of the certificate, it will be no exaggeration that the contents might have been replaced by removing threads or, the over of the container. So it was Frayed that in the interest of justice, the third part of the sample, which was produced in the Court, may be sent to the Central Food Laboratory for analysis, so that the true position may be revealed. This application was resisted by the petitioner. A written reply was submitted to the application and it was stated that there is no provision for tending the sample second time to the Central Food Laboratory and the Certificate is final and conclusive. The sample was sent after compliance of the necessary formalities contemplated under section 13(2) of tie Act and the relevant rules. It was also stated that a copy of the Memorandum sent to Central Food Laboratory was kept in the Court, which bears the seals of the Court as well as the specimen real applied on the container of the sample. It was stated that it is wrong that seal impression was not sent to the Director. It was also stated that the certificate was given on 28.2.1977 and the application has been submitted after about two years. It was also stated that when the seal impression was net sent by the Court, as stated in the Certificate, the sample should not have been Opened acred the seal impression should have been immediately called. It was also stated flat about three years hate passed since the date of purchase of tie sample from the petitioner and the contents of the sample have now been deteriorated. 4. The learned Magistrate, after hearing the parties, allowed the application of the Assistant Public Prosecutor for sending that part of the sample lying in the court to the Central Food Laboratory, Gaziabad. Dissatisfied with this order the present revision petition has been preferred. 5. I have heard Shri Dinkar Lal Mehta, counsel for the petitioner, and Shri S.L. Mardia, Public Prosecutor for the State. 6. Shri Mardia first of all raised a preliminary objection as to the maintainability of the revision petition. Dissatisfied with this order the present revision petition has been preferred. 5. I have heard Shri Dinkar Lal Mehta, counsel for the petitioner, and Shri S.L. Mardia, Public Prosecutor for the State. 6. Shri Mardia first of all raised a preliminary objection as to the maintainability of the revision petition. He submitted that the impugned order is an interlocutory order & the revision is barred under sub-section (2) of Section 397, Criminal Procedure Code. He urged that by the impugned order the learned Magistrate has simply called for the report from the C. F. L. Gaziabad after sending that part of the sample which was lying in the Court. Such an order is not of final nature and is in the nature of interlocutory order. Against such an interlocutory order no revision lies. In support of his contention Shri Mardia referred to the two decisions of this Court, A.P. Jain & 3 Ors. v. State of Rajasthan (1979 Cr. L R. (Raj.) 81) and Shakir Hussain v. State of Rajasthan & others (1979 Cr. L. R. (Raj) 198) He also relied upon the observations made by their Lordships of the Supreme Court in Amar Nath and others v. State of Haryana and others. ( AIR 1977 SC 2185 ) . 7. Shri Dinkar Lal Mehta, on the other hand, submitted that the impugned order is without jurisdiction. The Magistrate was not competent under the law to send the third part of the sample to the Central Food Laboratory, when once the second part of the sample, which was in possession Of the petitioner, was already sent by the Magistrate under section 13(2) of the Act. The certificate of the Director, Central Food Laboratory is final and conclusive- On the basis of the certificate of the Director, Central Food Laboratory, the petitioner is entitled to an acquittal and no further proceedings can be conducted. Sending of the third sample would adversely affect the rights of the petitioner. He urged that the impugned order, even if not taken to be a final order, is an intermediate order as propounded by their Lordships of the Supreme Court in Madhu Limoye v. State of Maharashtra ( AIR 1978 SC 47 ) . Sending of the third sample would adversely affect the rights of the petitioner. He urged that the impugned order, even if not taken to be a final order, is an intermediate order as propounded by their Lordships of the Supreme Court in Madhu Limoye v. State of Maharashtra ( AIR 1978 SC 47 ) . He also relied upon certain observations made in Madhu Limaye's case (supra), in support of his contention that the impugned order is revisable by this Court under section 397, CrPC, and is not an interlocutory order. 8. Having heard both the sides on the preliminary objection, I am clearly and firmly of the opinion that the nature of the order sought to be challenged in the present revision petition, is not an interlocutory order and revision against such an order is not barred under section 397(2), CrPC. Certain tests have been laid down in the authorities to determine the nature of the order, that is when it can be said that the order is an interlocutory one or not. I need not embark upon detail examination of the question as in my opinion, the present case is covered by the principles laid down by their Lordships of the Supreme Court in Madhu Limaye's case (supra). Before dealing with the tests considered in Madhu Limaye's case it would be proper to examine the decisions referred to by Shri Mardia. 9. In A.P. Jain's case (supra) the petitioners were permitted to appear through their pleader and their personal attendance was exempted. On conclusion of the prosecution evidence, an application was moved that the petitioner may be permitted to make their statements under section 342, Cr. PC (Old), through their pleader. The learned Magistrate dismissed the application by his order dated 14 9.1977 and directed the petitioners to appear before him in person. The legality and propriety of that order was challenged in revision petition. Sidhu, J., after considering the observations, extracting the quotation in Amarnath's case (supra), observed that there cannot be any doubt that the impugned order is an interlocutory order, pure and simple, exactly of the type in respect of which section 397(2) of the New Code expressly excludes the revisional jurisdiction under section 397(1). 10. In Shakir Hussain's case the Magistrate passed an order for the custody of truck pending trial. 10. In Shakir Hussain's case the Magistrate passed an order for the custody of truck pending trial. It was held that the order of the Magistrate is an interlocutory order and revision is barred. 11. In fact Shri Mardia placed his reliance on the observations made in pars 6 of the report of their Lordships of the Supreme Court in the case of Amar Nath and others v. State of Haryana and others (supra) where they have stated that the orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders, against which no revision would lie under section 397(2) of the 1973 Code. On the basis of these observations he urged that the Magistrate's order is nothing, but an order for calling of the report of the Director, Central Food Laboratory, Gaziabad, and is only a in aid of the pending proceeding, so the impugned order is squarely covered by these observations, so it is clearly an interlocutory order. Ex facie the submission may sound substance, but if we go a little deeper into essential nature of the impugned order, the submission will not stand scrutiny. In Amarnath's case (supra) there are further observations to this effect that the orders which do not decide or torch the important rights or the liabilities of the parties, may be interlocutory, but any order which substantially affects the rights of the accused or decides rights of the parties, cannot be said to be interlocutory order. It is further observed that the orders which are matters of moment and which affect or adjudicate the rights of the accused or, a particular aspect of the trial cannot be said to be interlocutory so as to be outside the purview of the revisional jurisdiction of the High Court. It may be stated, as submitted by Shri Mehta, that a very important question arises in the present revision petition, as to whether the prosecution has any right, what so ever, to send the third sample for analysis in the facts and circumstances of the present case. According to Shri Mehta, law does not contemplate sending of the third sample and the action or the Magistrate is with out jurisdiction. According to Shri Mehta, law does not contemplate sending of the third sample and the action or the Magistrate is with out jurisdiction. This question needs consideration by the Court and in case it is found that the third sample cannot be sent for analysis, the consequence would be that the petitioner would be entitled to an acquittal on the basis of the certificate issued by the Director, Central Food Laboratory. In this manner the impugned order substantially affect the rights of the petitioner and in any case it is an order which is a matter of moment in the language of Fazl Ali, J , which affects the rights of the petitioner or in any case a particular aspect of the trial. 12. Besides the fact that the impugned order satisfies the test laid dawn in Amarnath's case (supra) the impugned order satisfies the tests as laid down in Madhu Limaye's case (supra). His Lordship Untwalia, J., is Madhu Limaye's case (supra) examined the question in the light of the provision of revision as it exists under the Old Code of Criminal Procedure and necessary intendment of the Legislature in the New Code of Criminal Procedure and did not agree with the view expressed in the case of S. Kuppuswami Rao v. The King ( AIR 1949 PC 1 ) . It was observed as under:- "But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1). On such a strict interpretation only those orders would be revisable which are orders passed on the final determination of the action but are not appealable order Chap. XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. In what cases then the High Court will examine the legality or propriety of an order of or the legality of any proceeding of an inferior Criminal Court ? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies? In what cases then the High Court will examine the legality or propriety of an order of or the legality of any proceeding of an inferior Criminal Court ? Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies? Such casts will be very few and far between. xx xx xx xx xx xx xx xx "In such a situation it appears to us that the real intention of the legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the same noticed in Kuppuswami's case ( AIR 1949 PC 1 ) (supra), but, yet it may not be an interlocutory order -pure and simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-s. (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purpose of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither available, nor possibles, to make a catalogue of orders to demonstrate which kinds of orders would be merely purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are well known and can be called out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely nut interlocutory so as to attract the bar of sub sec (2) of S 397. In our opinion it must be taken to be an order of the type falling in the middle course." 13. In our opinion it must be taken to be an order of the type falling in the middle course." 13. The case of Wohan Lal Magan Lal Theaker v. State of Gujarat ( AIR 1968 SC 733 ) has also been considered and it was observed that in the majority decision four tests were called out from some English decisions and one of the tests is that if the order in question is reversed world the action have to go on?" Considering this test it was observed "we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2)." This test as well fully applies to the impugned order. In case the plea of the petitioner is accepted, it will conclude the proceeding, so in this view of the matter, in m7 opinion, the impugned order, cannot be termed as an interlocutory order. 14. In the light of the above discussions, therefore, the preliminary objection is overruled. 15. Having disposed of the preliminary objection I now proceed to consider the revision on merits. 16. Shri Dinkarlal Mehta, learned counsel for the petitioner, submitted that part of the sample given to the accused having been sent for analysis to the Director, Central Food Laboratory, Calcutta, on his application under section 13(2) of the Act and the Director having sent his certificate after analysis, that part of the sample which was produced before the Magistrate, could not be sent for analysis under section 13 of the Act. Section 13 or any other provision does not lay down that the Magistrate is empowered to send the third sample for analysis to the Director, Food Laboratory. The third sample remained in the possession of the complainant before being produced in the Court so the petitioner is not bound to accept that sample. Shri Mehta supported his contention placed reliance on the decision of the Allahabad High Court in Nagar Swssthya Adhikari Municipal Board, Agra v Gopi Chand (1972 Cr. L J. 1695) and on a decision of Andhra Pradesh High Court In re Kada Sambamurty (1973 Cr. L.J. 78) . 17. Shri Mehta supported his contention placed reliance on the decision of the Allahabad High Court in Nagar Swssthya Adhikari Municipal Board, Agra v Gopi Chand (1972 Cr. L J. 1695) and on a decision of Andhra Pradesh High Court In re Kada Sambamurty (1973 Cr. L.J. 78) . 17. Shri Mardia, on the other hand, submitted that the certificate issued by the Director, Central Food Laboratory, in the present case, ceases to be a final and conclusive of the evidence of the fact stated therein. In view of the fact that compliance of rule 4 (3) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as "the Rules"), was not made in as much as a specimen impression of the seal used to seal the container and the cover was not separately sent to the Director and as such he Director could not compare the seal on the container with the specimen impression of the seal. The certificate of the Director without compliance of sub-rules (3) and (4) of rule 4 of the Rules is no certificate in the eye of law and is inadmissible in evidence. The compliance of rule 4(3) & (4) is mandatory and according to Shri Mardia Sub-rule (3) contemplates sending of two different specimen court seals, one to be affixed on the container and the other on the matter covering In such a situation it was competent fir the Magistrate to have ordered for sending the third sample for analysis, to the Director, Central Food Laboratory, on the application of the Assistant Public Prosecutor. Reliance was placed on some case law by the learned Public Prosecutor to support his contention. 18. By way of rejoinder Shri Mehia, learned counsel for the petitioner, submitted that the accused in any case is entitled to the benefit arising from the circumstance of abdicating of duties on the part of the Court or on the part of the Director He referred to the office copy of the memorandum retained in the file, a copy whereof was sent to the Director along with the specimen impression of the seal, as contemplated in sub rule (3) of rule 4 of the Rules. He also referred to the postal receipt and the acknowledgement receipt of the Director. He pointed out that the copy of the memorandum bears the seal with which the container and the outer cover were sealed. He also referred to the postal receipt and the acknowledgement receipt of the Director. He pointed out that the copy of the memorandum bears the seal with which the container and the outer cover were sealed. The copy of the memorandum retained in the office file makes specific mention that a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover are sent separately by registered post. Thus, there is compliance of rule 4(3) of the Rules. He also urged that if the report of the Director is scrutinised, it would appear that he has found the seals on the outer covering in order. This would mean that the seals of the cover were compared and they could only be compared with the specimen impression of the seal of the Court, which was put on the container by the court. He also submitted that the Director might be labouring under the misapprehension that the seals other than that of the court on the container could not be compared, as that specimen impression of the seal was not sent. Shri Mehta further submitted that sub rule (3) of rule 4 does not contemplate two specimen court seals impressions. There would be only one court seal to be affixed on the container as well as on the outer cover. He further urged that there were latches on the part of the prosecution in not moving the application early soon after the receipt of the certificate and after three years it would not be proper to send the third sample for analysis. He further supported his contention by certain citations. 19. In the light of the submissions and counter' submissions the true legal position has to be found and it has to be seer as to whether the court has at all power to send the third sample for analysis under section 13 of the Act. Section 13, no doubt, does not contemplate sending of the third sample to the Director for analysis nor there is any other provision under which such a course can be adopted by the Magistrate. Section 13, no doubt, does not contemplate sending of the third sample to the Director for analysis nor there is any other provision under which such a course can be adopted by the Magistrate. But situation may arise when for one reason or the other certificate of the Director may not be forth coming or even when the certificate comes, on account of non-compliance of certain formalities, the legal efficacy of the certificate, as contemplated under section 13(5), may be nil regarding the evidence of the facts stated therein and it may be said that the certificate, without observance of necessary formalities is inadmissible. 20. Before dealing with the cases cited at the Bar it would be proper to have a look to the relevant provisions of the Act and the Rules. Section 13(2) (3) and (5), prior to its amendment, was as under:- "13. Report of Public Analyst. - (1)xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (2) After the institution of a prosecution under this Act the accused vendor or 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 (iii) 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 1l are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form wherein one month from the date of receipt of the sample, specifying the result of the analysis. (3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2) shall supersede the report given by the Public Analyst under sub-section (1). (3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2) shall supersede the report given by the Public Analyst under sub-section (1). (4) xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx xx (5) Any document purporting to be a report signed by a Public Analyst, unless it has been superseded under subsection (3) or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Section 272 to 276 of the Indian Penal Code (Act 45 of 1860) : Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein."Rule 4(3) and (4) is also reproduced as under for facility of reference:- "4. Analysis of food samples.- (1) xx xx xx xx xx (2) xx xx xx xx xx xx xx xx xx xx (3) A copy of the memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director. (4) On receipt of the packet it shall be opened either by the Director or by an officer authorised in writing in that behalf by the Director, who shall record the condition of the seal on the container." 21. Form of the Memorandum to be sent to the Director, Central Food Laboratory, is Form I, which embodies the following clause:- "(b) A copy of the memorandum and the specimen impression of the seal used to seal the container and the cover are sent separately by Registered Post." 22. Similarly Form II under Rule 4(5) with respect to test or analysis by the Central Food Laboratory, is as under:- "FORM II [See Rule 4(5)] (Certificate of test or analysis by the Central Food Laboratory) Certificate No ..................Certified that the sample(s), bearing number............purporting to be a sample/samples of .......................received or...............with Memorandum No .......................... dated ................... from .........................has/have been tested/analysed and that the result/results of such test(s) analysis is/are stated below :....................................... .................................................................................................................2. The condition of the seals on the container and the outer covering on receipt was as follows :......... ............................. dated ................... from .........................has/have been tested/analysed and that the result/results of such test(s) analysis is/are stated below :....................................... .................................................................................................................2. The condition of the seals on the container and the outer covering on receipt was as follows :......... ............................. Director Central Food Laboratory,,.,........Place Date ..................................................If opinion is required on any other matter, suitable paragraph(s) may be added." 23. It would appear from the provision of sub-section (2) of section 13 that after the institution of the prosecution an application can be submitted either by the accused vendor or by the complainant for sending the part of the sample mentioned in sub-clause (i) or sub-clause (iii) of clause (c) of sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate; meaning thereby that the complainant or the accused may make an application for sending that part of the sample which has been given over to the accused or that part of the sample which has been retained for production in Court. The choice is given both to the complainant as well as to the accused vendor. Sub-section (2) of section 13 further provides that when such an application is received from either side of the parties the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of subsection (1) of Section 11 are intact. After so examining the mark and seal or fastening, the court is required to despatch the part of the sample "under its own seal" to the Director. Sub-rule (3) of Rule 4 further provides that a copy of the memorandum as well as a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director and on receipt of the packet under sub-rule (4) of Rule 4 it is provided that the packet shall be opened either by the Director or by an officer authorised in that behalf by the Director, who shall record the condition of the seal on the container. According to sub-rule (3) the seal has to be affixed on the container as well as on the cover by the court. In accordance with the proforma of the certificate the Director is required to note the condition of the seals on the container as well as on the outer covering. According to sub-rule (3) the seal has to be affixed on the container as well as on the cover by the court. In accordance with the proforma of the certificate the Director is required to note the condition of the seals on the container as well as on the outer covering. If the scheme of sub-section 13(2), sub-rules (3) and (4) of Rule 4 and Form I and Form II is examined it would be evident that after ascertaining the mark and seal of the packet, whether in possession of the accused vendor or that which is produced in the Court, which remained in the complainant's possession, the court is required to send the sample after affixing its seal on the container as well as on the outer cover and the court is further required to send a copy of the memorandum and such specimen impression of the seal to the Director. The reason for sending a copy of the memorandum and the specimen impression of the seal appears to be that on receipt of the packet, the Director may compare the seal on the outer cover with the specimen impression of the seal and after opening the outer cover, and further compare the seal on the container with the specimen impression of the seal sent by the court. A memorandum in Form I is required to be enclosed in a outer cover addressed to the Director, but a copy of the memorandum accompanied with the specimen of the seal have to be sent separately by Registered Post for this very purpose and till this registered letter reaches, the packet need not be opened and it may be opened only after receipt of the copy of the memorandum and the specimen impression of the seal so that the seals on the outer covering of the packet may be compared. From sub-rule (4) it cannot be taken that the Director is only required to record the condition of the seal on the container. If sub-rule (3) is read along with Form I and Form II. In my opinion, the intention is quite manifest that the seals on the outer covering have also to be examined and their condition is to be recorded. Recording of the condition implies that the seals should be compared with the specimen impression of the seal sent under sub-rule (3). 24. In my opinion, the intention is quite manifest that the seals on the outer covering have also to be examined and their condition is to be recorded. Recording of the condition implies that the seals should be compared with the specimen impression of the seal sent under sub-rule (3). 24. From the scheme of the above provisions it can certainly be found that the provisions of sub-rules (3) and (4) of Rule 4 are mandatory. Not only sending of the copy of the memorandum and the specimen impression of the seal are mandatory, but looking to the purpose of their sending it is equally imperative that the seal on the outer cover and the container affixed by the court, have also to be compared and their condition recorded. If it is not done it would be breach of these provisions and it will affect the finality and conclusive character of the opinion expressed in the certificate. I am unable to agree with the contention of Shri Mardia that sub rule (3) contemplates two different specimen court seals, one on the outer covering and the other on the container. If the language or expression "under its oven seal" under section 13(2) is read along with sub rules (3) and (4) of Rules 4 as well as the language of Form I and Form II, it would be clear that the law only contemplates one court seal and not two different court seals, I am unable to read sub-rule (3) in the manner as Mr. Mardia wants me to read, as one specimen impression of the seal on the outer covering and another specimen impression of the seal on the container As regards the nature of sub-rule (3) of Rule 4 it has been held in Harichand Gopal V. The State (1976 FAJ 64 and Atmarem Parshottom and another V. The State of Gujarat (1975 FAJ 574) that this provision is mandatory. In Atmaram Parshottam's case (supra) it is further observed that unless the mandatory provisions of the Act & the Rules are complied with, the report of the Director of the Central Food Laboratory cannot be treated as evidence much less as final and conclusive evidence of the facts stated therein, as contemplated by sub section (5) of section 13 of the Act. I am in agreement with the views expressed in these decisions. 25. I am in agreement with the views expressed in these decisions. 25. Now the question arises whether compliance of sub-rules (3) and (4) of Rule 4 has been made in the present case and if not mad: what will be the consequences? 26. On the basis of the record it can certainty be found that the Magistrate on its part complied with what was required to be performed by him at the time of despatching the petitioner's sample to the Director. There is a copy of Form I which bears the seal raid to be affixed on the certainer & the cover. There is a postal receipt & the a acknowledgement of the Director. On the basis of this record it can be pressured that the copy of the memorandum and the specimen impression of the seal were sent to the Director. From the certificate of the Director it does not appear that the registered letter did rot reach him. When the certificate states that the seals on the outer covering Here insider, it implies that the seals on the outer covering were Compared with the specimen impression of the seal, else the seals on the cuter covering could tot be in order' But simultaneously the Director further states in his certificate that the seal on the container could not be compared for want of specimen impression of the seals. It is not clear as to which seals were rot , the court seals or the seals which were affixed at the time lasting the sample. But in any case from the certificate it is clear that the Director the sample without comparing the seals on the container. Even if it is fraud that sub-rule (3) of Rule 4 has been complied with, still on the part of the Director it appears that analysis was done without comparison of the seals As a matter of fact if the court seal impression had not reached, then Director should rot have opened the packet, as no comparison could be made by him of the seals of the outer covering with the specimen impression of the court seals and he should have asked the court for sending of the specimen impression of the court seal before opening the packet. Instead of asking the court for sending the specimen impression of the seals, the packet was opened by him and without comparison he analysed the contents of the container. Thus it cannot be said that the Director analysed the sample after compliance of the rules. 27. It may be stated that no direct case has been cited before me where in this aspect of the case might have been considered as to what would be the effect of the certificate of the Director when comparison of the seals on the container has not been made by the Director with the specimen impression of the seal. 28. In Ratanlal v. The State (1974 FAC 245) the sample was of 'haldi' and the report of the Public Analyst was that it contained lead chromate on an application of the Municipal Committee the sample in its possession, was sent to the Director. The Director's report was that the test for chromate was negative and that Tapioca Starch was present in the sample and so it was adulterated. The two reports were inconsistent and Contradictory. A further application under section 13(2) was made by the accused for sending his sample, but it was rejected by the Magistrate and it was contended that the rejection was an unjustified denial of an opportunity to prove the innocence of the accused. As regards the finality and conclusiveness of the report, it was observed that it was so only to the extent that the sample received in the offence contained what the report also closed, but the Directors report cannot be final or conclusive with regard to safe keeping of samples during storage and transit. The request of the Public Prosecutor for sending the sample in possession of the petitioner was turned down on the ground that more than three years had elapsed and benefit of doubt was given. 29. The request of the Public Prosecutor for sending the sample in possession of the petitioner was turned down on the ground that more than three years had elapsed and benefit of doubt was given. 29. In Bhugwandas Gurnemal v. The State of Gujarat (1974 FAC 373) it was held that the Prevention of Food Adulteration Rules, 1955, impose statutory obligation to follow the procedure of the Act read with rule 4(3) while sending the sample to the Director and in this connection it is observed that identity of sample is required to be established and for this purpose the court can call for the report of the Magistrate on the point whether he has complied with the direction contained in the rule for sending the sample. In this case the question was as to whether the container was sent by the court under its own seal or on the seal of the Food Inspector alone. If such a fact is not ascertained and mandatory requirement is not felt to be observed, the prosecution can rely upon the report of the Public Analyst. If the report of the Public Analyst is superseded by the certificate of the Director, so as to become conclusive, the court will have to consider whether in the interest of justice and for securing a fair trial to the accused, the report of the Magistrate should be called for to ascertain whether he carried out the statutory requirements of Rule 4 read in the light of section 13(2) of the Act. In this case four questions with referred by the Single Judge to the larger Bench and questions Nos. 3 and 4 were answered accordingly. 30. In the present case as well the Magistrate could have inquired from the Director as to whether the registered letter sent by the court, reached the Director or not containing the copy of the memorandum and the specimen impression of the seal & could have clarified as to whether the seals on the outer covering were compared or not or the packet was opened without comparing the seals on the outer covering and whether which seals on the container could not be compared and on soliciting such an information from the Director the matter would have been clarified and it would have been known as to where and what compliance was not made. 31. 31. On behalf of the petitioner reference was made to the case Nagar Swasthya Adhikari, Municipal Board, Agra v. Gopi Chand (supra). In this case the phial was smashed in transit and the accused could not get the sample examined by the Director. The prosecution produced the sample phial retained in the Nagar Mahapalika and stated that if the accused likes, he can have it sent. The complainant's counsel was not prepared to have the phial sent It was observed that the accused was not bound to accept the sample in the possession of the Prosecution. It may be stated that this authority can be of no assistance to the petitioner. Under section (13) on the application of either of the two parties, any of the sample can be sent. This case does not Jay down that when the sample is smashed the third sample cannot be sent. In this case there was no application by the prosecution for sending the third sample. 32. In the other case In Re Kada Samabamurty (supra) on which reliance has been placed by Shri Mehta, it was observed that although there is no specific prohibition for entertaining a second application for sending the third sample also to the Director for examination, the intention that a second application is not permissible for sending the sample for a second time to the Director is clear from the proviso to subsection (5) of section 13 which makes the certificate signed by the Director final and conclusive It may be stated that in this case the Food Inspector never complained that the seal or the mark on the bottle was not intact, and the Court was satisfied about the mark and the seal on the bottle. Thus, there appeared to be no infirmity of noncompliance of any rule or provision of the Act. On that basis it was held that the second application by the Food Inspector is not maintainable. If after compliance of the provisions of the Act and the Rules by all concerned certificate is issued, it would be final and conclusive under subsection (5) of section 13 and thereafter no second application would be maintainable, but where compliance is not made the position will be different. 33. If after compliance of the provisions of the Act and the Rules by all concerned certificate is issued, it would be final and conclusive under subsection (5) of section 13 and thereafter no second application would be maintainable, but where compliance is not made the position will be different. 33. Similarly in Shri Laxman Dass v. Municipal Corporation Of Delhi and State (1977(1) FAC 203) the report of the Public Analyst was to the effect that the sample was adulterated, whereas the Director's report was that the sample was not adulterated and the Magistrate wanted to hold an enquiry as according to him there was much difference in the two reports. It was held that the report of the Director of Central Food Laboratory is final and conclusive and that it is an abuse of the process of the Court to discard the certificate of the Director and to embark on an inquiry is an endeavour to give credence to the superseded report of the Public Analyst. In this case as well, it does not appear that there was any noncompliance. 34. In Satyanarayan v. State of Maharashtra (1978 FAJ 189) column No. 3 was missing in the memorandum sent by the court, which related to the sending of the copy of the memorandum and the specimen impression of the seal and it was found that there was no compliance of sub-rule (3) of Rule 4 of the Rules and it was also found that the sample was not sent under the; seal of the court at all and thug section 13(2) of the Act as well as the rule 4(3) of the Rules were not followed. In view of these facts, it was observed that the Magistrate had abdicated his functions and it left the matter to the Food Inspector and the Magistrate dealt with the whole matter in a very casual manner. On that basis it was observed that it will not be safe to convict the accused on the basis of such a material This authority too does not deal with the question that if there has been noncompliance of the provision of the Act and the .ales, the third sample can be sent or not. On that basis it was observed that it will not be safe to convict the accused on the basis of such a material This authority too does not deal with the question that if there has been noncompliance of the provision of the Act and the .ales, the third sample can be sent or not. It appears that there was no such prayer in this case & the accused was given the benefit of doubt, because of non-compliance of the provisions of section 13(2) of the Act and rule 4(3) of the Rules. 35. From what I have discussed above it would appear that the provision of section 13(2) can be resorted to even second time if there has been noncompliant of the provision contained in section 13(2) or rule 4. There is no bar in section 13 in resorting to this provision second time. The bar is only when the certificate issued by the Director can be considered final and conclusive. If for any reason the certificate ceases to be final and conclusive, then there is no prohibition under the Act for taking resort under section 13 (2) by any of the parties. If the complainant moves first under section 13(2) and if an adverse certificate comes against the accused, but such a certificate, if ceases to be final and conclusive because of non-compliance, then, in my opinion, the accused can move the Court under section 13(2) to have the sample sent for analysis to the Director. Similarly if no certificate can be had from the Director for any reason, then as well this provisions can again be resorted to. 36. However, the question arises whether in the facts and circumstances of the present case, would it be desirable, proper and justified to send the sample lying with the Court to the Director for analysis. It appears that it cannot be said that there has been no non-compliance of the provision of section 13(2) of the Act or rule 4(3)(4) of the Rules either on the part of the Court or the Director in this case in the light of the documents on record and more particularly wren the certificate does not state that the specimen impression of the seal of the Court did not reach the hands of the Director. The certificate does not clarify as to which specimen impression of the seal was not received on account of which there was want of comparison. As observed, the Director should not have opened the packet without the receipt of the registered letter containing the copy of the memorandum and the specimen impression of the seal of the Court. It would not be just and proper to send the third sample now for analysis. There has been gross and condonable latches on the part of the prosecution. For two years, no application was moved after the receipt of the certificate and now more than three and half years have passed since the date of taking the sample. In my opinion, it would be futile to send the third sample for analysis to the Director. A similar request was turned down in Ratanlal's case (supra) and it was observed that the accused has remained under suspense and agony for more than three years and it would not be desirable to prolong the proceedings any further. Thus, the facts and circumstances of the case do not warrant sending of the third sample to the Director for analysis. 37. In the result, this revision petition is alloyed and the order of the Munsif and Judicial Magistrate Banswara, dated 20-2-1979 is set aside. The case is sent back for disposal according to law in the light of the observations made above.Revision allowed. *******