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Allahabad High Court · body

1984 DIGILAW 1061 (ALL)

Desh Raj v. State Of U. P.

1984-12-12

S.I.JAFRI

body1984
JUDGMENT S.I. JAFRI, J. 1. DESH Raj s/o Aya Ram resident of 183, Chukhuwala P. S. Kotwali, has filed this revision against his conviction under Section 7/16 Prevention of Food Adulteration Act and sentence of six months R. I. and a fine of Rs. 1,000/- affirmed by Sri V. K. Agarwal, Additional Sessions Judge, Dehradun, by his judgment and order dated 8-12-81 in Criminal Appeal No. 166 of 1980 arising out of criminal case no. 384 of 1980, Food Inspector v. DESH Raj. decided by Sri Sukhvir Singh, Munsif Magistrate, Dehradun. The learned Sessions Judge while confirming the conviction of the applicant had reduced the sentence of imprisonment from 9 months to six months R. I. and a fine of Rs. 1000/- Instead of Rs. 1500/-. 2. FOOD Inspector B. S. Jayra, PW 2 had filed the complaint against the applicant Deshraj under section 16 (I) (g) (i) (ii) of the Prevention of FOOD Adulteration Act (hereinafter referred to as the Act) in the court of the Judical Magistrate, Dehradun. It was alleged by the prosecute that on 30-6-1978 at about 8 A. M., C. B. Naitbani, Food Inspector visited the Diary of the applicant and found him exhibiting Cow milk for sale without licence. The Food Inspector disclosed his identity and gave a notice Ex. Ka-a stating that the applicant was not having any licence for sale of the milk and displayed no notice board as required under Rule 50 of the Act. The Food Inspector purchased 600 ml. of cow milk and paid Rs 1.65 to the applicant as price of the milk and obtained a receipt Ex. Ka-2 from the applicant. The Food Inspector also gave a notice Ex. Ka-3 to the applicant as required under rule 12 in Form VI disclosing his intention that the sample of the milk was to be taken for analysis by the Public Analyst. The Food Inspector took milk in three clean bottles. He also added 18 drops of formaline in each bottle as preservatory the Food Inspector then labelled and marked and sealed the phials according to rules. Out of these samples one sealed bottle was sent to the Public Analyst along with form VII on the same day by the Food Inspector. The other two bottles were deposited in the office of the Local Hearth Authority Dehradun. The Public Analyst report No. 15330/ dated 28-7-78 Ex. Out of these samples one sealed bottle was sent to the Public Analyst along with form VII on the same day by the Food Inspector. The other two bottles were deposited in the office of the Local Hearth Authority Dehradun. The Public Analyst report No. 15330/ dated 28-7-78 Ex. K-5 disclosed Milk Fat 4.3% and non-fatty solids 5.7%. The sample was found to be deficient in non-fatty solids by 33% and as such, it was adulterated. 3. THE Food Inspector B. S. Jayara PW 2 obtained sanction from the Local Health Authority on receipt of the report of Public Analyst as required under section 20 of the Act and filed the complaint on 14-4-1979 to prosecute the accussed in the court. A copy of the report of the Public Analyst together with the letter of C. M.O. was sett to the applicant as required under section 13 (2) of the Act. 4. SRI Keshav Sahai, learned counsel for the applicant contended that in this case sample was taken on 30-6-78 by the Food Inspector and it was analysed by the Public Analyst on 28-7-1978. A copy of the report of the analysis was sent to the applicant on 9-4-1979 i.e. after 283 days of the taking of the sample and the complaint was filed in the court on 14-4-1979 i.e. after 288 days of taking of the sample from the applicant. I have heard the learned counsel for the applicant and also the learned Government Advocate for the State at great length and I feel that this revision application must be allowed and the conviction and sentence recorded by the court below deserves to be set aside. 5. IN this case admittedly the report of the Public Analyst was sent to the applicant after a lapse of 283 days of the sample and the complaint was filed in the court after 288 days of taking of the sample. The learned counsel for the applicant submitted that the applicant was deprived of his right as conferred on him under Section 13 (2) of the Act. The learned counsel for the applicant submitted that the applicant was deprived of his right as conferred on him under Section 13 (2) of the Act. Section 13 (2) of the P.F.A. Act is reproduced below: "On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall after the institution of prosecution against the person from whom the sample of the article of food was taken and the person if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person of persons as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Inspector." 6. IT was urged by the learned defence Counsel that the applicant was deprived of this valuable right of getting the; sample of the milk kept in the office of the Chief Medical Officer analysed by the Director of Central Food Laboratory in order to challenge the report of the Public Analyst and in this way the applicant had been very seriously prejudiced in his defence which entitled him to be acquitted of the charge under section 7/16 of the Act. IT is quite apparent that the sample; of milk was taken from the applicant on 28-7-78 and it was kept in the office of C. M. O. Dehradun, for the purpose of its analysis by the Director of Central Food Laboratory in order to challenge the report of the Public Analyst by the applicant If he desired as such. IT is borne out from the record that the copy of the report of the Public Analyst dated 28-3-1978 was sent by the Food Inspector to the applicant on 9-4-79 i.e. after 283 days of taking of the sample from the applicant. IT is borne out from the record that the copy of the report of the Public Analyst dated 28-3-1978 was sent by the Food Inspector to the applicant on 9-4-79 i.e. after 283 days of taking of the sample from the applicant. Thus the sample: of the milk kept in the office of the Chief Medical Officer, Dehradun by the Food Inspector, must have become decomposed and deteriorated rendering it unfit for analysis by the Director of Central Food Laboratory in order to challenge the report of the Public Analyst. The applicant was, therefore, deprived of his right as conferred on him under section 13 (2) of the Act. The Food Inspector ought to have been cautious and prompt; in sending the report of the analysis to the accused within a reasonable lime in order to afford opportunity to the accused to get the sample kept in the office of Local (Health) Authority, analysed in order to challenge the report of the Public Analyst. Moreover, the Food Inspector had filed the complaint in the court of the magistrate on 14-4-79 that is after a gap of 288 days of taking of the sample. This undue delay in launching of the prosecution on the part of the Food Inspector and also sending the report of the Public Analyst to the applicant after a long gap as stated above had very seriously prejudiced the applicant in his defence and is fatal to the prosecution. This lapse on the part of the Food Inspector has rendered the conviction of the applicant liable to be set aside. The learned counsel for the applicant placed reliance on a case reported in 1975 Prevention of Food Adulteration Act 186 Municipal Corporation of Delhi v. Ghisha Ram wherein their Lordships of the Supreme Court have held that the delay of seven months in filing the complaint by the Food Inspector was prejudicial to the defence of the accused in view of the right conferred on him under section 13 (2) of the P. F. A. Act and conviction of the applicant was set aside by the court. 7. THE learned counsel for the applicant also cited a case reported in Satrughana Behera v. Puri Municipality, 1968 Cr LJ page 123 wherein their Lordships held that the milk becomes decomposed after a period of 5-1/2 months. 7. THE learned counsel for the applicant also cited a case reported in Satrughana Behera v. Puri Municipality, 1968 Cr LJ page 123 wherein their Lordships held that the milk becomes decomposed after a period of 5-1/2 months. Therefore, in the present case, it was futile for the applicant to have asked for the analysis of the sample by the Director of Central Food Laboratory on receiving the copy of the report the analysis after a long gap of 283 days. THE sample kept in the office of the C.M.O. must have become decomposed and deteriorated making it unfit for analysis on account of such inordinate delay. 8. THE adulteration of food is a crimes which very seriously affects the Society at large and it is in the larger interest of the health of people that the Food Inspector must be vigilant, careful and prompt in sending the report of the analysis to the accused at the earliest opportunity. They should also be prompt in launching the prosecution thereafter so that the guilty persons may not go unpunished. In the result, the revision is allowed, the conviction and sentence of the applicant as recorded by the courts below are set aside. The applicant is on bail. He need nor surrender. His bailbonds are cancelled. The amount of fine, if paid by the applicant shall be refunded by the trial court. Revision allowed.