Biseswar Agarwalla v. State — 1979 DIGILAW 311 (CAL)

Judgment In this application under S. 401 read with S. 482 of the Code of Criminal Procedure. the petitioner prays for quashing the proceeding of Case No. 363C of 1973 pending against him in the Court of the Sub-divisional Judicial Magistrate, Raigunj, West Dinajpur under the Prevention of food Adulteration Act. 1954 (hereinafter referred to as the Act) on the sole ground that provision of Rule 9(j) of the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules), framed under the Act, has not been complied with. 2. The allegation against the accused persons, the petitioner and another (since dead) is that on June 7, 1973 they manufactured and stored for sale Mustard Oil in their oil mill which on analysis was found to be adulterated and unfit for human consumption. 3. Mr. Dutt, the learned Advocate appearing for the petitioner, submitted that under Rule 9(j) it was obligatory on the part of the Food Inspector, who seized the sample to send by hand or registered post a copy of the report received by him from the Public Analyst to the accused persons and for his failure to perform his statutory obligation the accuses persons have been deprived of their statutory and valuable right, conferred by S.13 (2) of the Act, to have the sample examined by the Central Food Laboratory Accordingly. Mr. Dutt submitted, the prosecution cannot base its case on the report of the Public Analyst and if the said report was left out of consideration there was no material on record to sustain the charge levelled against the petitioner and the other accused persons. In support of his contention Mr. Dutta relied upon the judgment of this Court in the Case of Bholanath Nayek v. State, reported in 1977 Criminal Law Journal 154 (1976 CHN 70l). 4. Rule 9 lays down the duties of the Food Inspector and clause (j) thereof. as it stood at the material time cast the following duty: "To send by hand or by registered post a copy of the report received in Form III from the Public Analyst to the persons from whom the sample was taken in case it is found to be not conforming to the Act or Rules made thereunder as soon as the case is filed in the Court" 5. Section 13(2) of the Act gives the right to the accused for moving the Court, before which the prosecution is launched to have the sample examined by the Central Food Laboratory in case the accused feels that the report of the Public Analyst is not reliable or acceptable to him and needless to say, this is a very valuable right conferred by the Statute upon the person arraigned. There cannot be any manner of doubt also that to enable the accused to exercise that right that an obligation has been cast upon the Inspector to furnish a report of the Public Analyst in the manner indicated under Rule 9(j). The question therefore that falls for determination in this case is whether failure on the part of the Food Inspector to comply with his obligation under Rule 9(j) has deprived the accused persons from exercising their statutory right conferred by S. 13(2) of the Act. 6. In my considered view, as an abstract proposition of law it cannot be said that breach of obligation on the part of the Food Inspector as envisaged under Rule 9(j) amounts to a denial to the accused his right under S.13(2) of the Act. Whether the accused has been deprived of his such right or not bas to be considered in the facts and circumstances of a given case and while considering those facts and circumstances it may be necessary to ascertain whether such deprivation was due to the failure on the part of the Food Inspector to perform his duties under Rule 9(j). 7. In this connection a reference may be made to the judgment of the Supreme Court in the case of Municipal Corporation of Delhi v. Ghisaram reported in AIR 1967 SC 907 wherein it was observed as follows :- "It appears to us that when a valuable right is conferred by S. 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be accepted that the prosecution will pH1ceed in such manner that right will not be denied to him. The right is a valuable one because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. The right is a valuable one because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. 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. In a case where there is a denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be propel 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. We are not to be understood as laying down that, in every case where the right of the vender to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, he applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right Different considerations may arise if the right get frustrated for reasons for which the persecution is not responsible." 8. In view of the above discussion and law laid down by the Supreme Court I am unable to accept the contention of Mr. Dutt that whenever there is a breach of Rule 9(j), the accused shall be deemed to have been deprived of his right under S. 13(2) of the Act and the prosecution will be debarred from basing its case on the report of the Public Analyst. 9. Let me now therefore consider whether in the facts and circumstances of the instant case, it can be said that the accused persons have been deprived of their legitimate right under S. 13(2) of the Act for non-compliance with the provision of Rule 9(j). 10. The sample was taken on June 7, 1973 and the Public Analyst gave his report on June 14, 1973. 10. The sample was taken on June 7, 1973 and the Public Analyst gave his report on June 14, 1973. The Food Inspector filed his complaint with the requisite sanction and the learned Sub-divisional Judicial Magistrate took cognizance upon the said complaint on June 19, 1973 and issued summons upon the accused persons. On June 21, 1973 the two accused persons, including the petitioner, appeared before the learned Magistrate and were released on bail. From the record it further appears that on June 26, 1973 the accused persons filed an application for return of the seized tins and drums and they presented themselves before the learned Magistrate on each date of the hearing of the case. The facts and circumstances of the instant case therefore clearly indicate that since taking of (he sample, all steps to prosecute the accused were taken with utmost expedition and the accused persons were or could have been. with due diligence, fully aware of the report of the Public Analyst filed with the complaint n. the provision of Rule 9 (j), as it then stood, cast a duty upon the Food Inspector to comply with the requirements thereof, as soon as the case was filed in the Court and the right of the accused persons to have the sample examined in accordance with the provision of S. 13(2) of the Act also accrued to them after institution of the prosecution. In other words. the obligation of the Inspector to send a copy of the report to the accused and the right of the accused to have the sample examined accrued on June 19, 1973 when the complaint was filed Inasmuch as the accused persons appeared before the Court immediately thereafter nothing prevented them. if they so chose, to file an application in accordance with the provisions of S. 13(2) of the Act to assert their rights thereunder after going through the report of toe Public Analyst. 12. In the case of Bholanath Nayek (supra) the sample was taken on June 25, 1974, the Public Analyst analysed the sample on September 5, 1974 and made a report to the Food Inspector which was immediately received by him, but the complaint was filed on December 26, 1974. 12. In the case of Bholanath Nayek (supra) the sample was taken on June 25, 1974, the Public Analyst analysed the sample on September 5, 1974 and made a report to the Food Inspector which was immediately received by him, but the complaint was filed on December 26, 1974. It was in the context of the belated c1mphint and the substituted provision of Rule 9(j), which enjoined that the Inspector was to send the report to the accused within 10 days of his receipt of the copy of the report from the Public Analyst and had nothing to do with the institution of the prosecution, that this Court observed that the prosecution was not entitled to rely upon the report of the Public Analyst as the Food Inspector failed to comply with the requirements of Rule 9(j) in the facts and circumstances of the present case however I am unable to hold that due on failure on the part of the Food Inspector to comply with the requirement of Rule 9(j) the accused persons have been deprived of their fight under S. 13th of the Act. 13. On the above conclusion. I reject the application and discharge the Rule. Rule discharged.