Judgment : Has the accused any legal obligation to remit the fee for sending part of the sample to the Director of Central Food Laboratory for a certificate under Sec. 13(2) of the Prevention of Food Adulteration Act? The Magistrate held that the accused has to remit the fee. But the accused disputes it and hence challenges the Magistrate’s order in this petition. 2. Petitioner is one of the accused facing a charge for the offence under Sec.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short ‘the Act’). He made the application to the trial court to get the sample of food (kept by the Local (Health) Authority) analysed by the Director of Central Food Laboratory as provided in Sec. 13(2) of the Act. The learned Magistrate directed him to remit a fee of Rs.40 but he resisted saying that he is not liable to remit any fee under law for exercising his option under Sec. 13(2). But the learned Magistrate, by a considered order (1 should say a well considered order) overruled the petitioner’s objections. Petitioner approached the Sessions Court in revision against the Magistrate’s order. But the learned Sessions Judge dismissed the revision, for default without adverting to the point raised by the petitioner. Hence the petitioner filed the present petition under Sec.482 of the Code of Criminal Procedure. As the fee sought be paid is not a big sum for the petitioner, he was directed to remit it in the trial court without prejudice to his right to have the point decided. (Learned Counsel informed that the amount was remitted in trial court and the second sample was forwarded to the Director of Central Food Laboratory. The petitioner will not claim reimbursement of the amount even if the decision on this point is in his favour). 3. Medical charges were brought about by Act 34 of 1976. (It will be referred to as “1976 amendment”). There is no dispute that before the 1976 amendment the person who applied to have the sample analysed by the Director of Central Food Laboratory had the Legal obligation to remit the prescribed fee. 3. Medical charges were brought about by Act 34 of 1976. (It will be referred to as “1976 amendment”). There is no dispute that before the 1976 amendment the person who applied to have the sample analysed by the Director of Central Food Laboratory had the Legal obligation to remit the prescribed fee. Sec. 13(2), as it stood before 1976 amendment, was like this: “After the institution of a prosecution under this Act the accused vendor or the complaint may, on payment of the prescribed fee, made an application to the court for sending the part of the sample mentioned in Sub-clause-(1) or sub-clause (iii) of clause (c) of Sub-sec(1) of Sec. 11 to the Director of the Central Food Laboratory for certificate, and no receipt of the application the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of Sub-sec(1) of Sec.11are 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 within one month from the date of receipt of the sample, specifying the result of the analysis” After 1976 amendment, Sec.l3(2) stands thus: “On receipt of the report of the result of the analyst under Sub-sec(l) 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 article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Sec. 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or 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 or receipt of the copy of the report to get the sample of the articles of food kept by the Local (Health) Authority analysed by the Central Food Laboratory”. 4. The striking change in the Sub-section after 1976 amendment is the deletion of the words “...... on payment of the prescribed fee........”. 4. The striking change in the Sub-section after 1976 amendment is the deletion of the words “...... on payment of the prescribed fee........”. A closer reading will disclose certain other changes having much bearing on the question sought to be decided. A reference to the changes made in Sec.11 may be useful in this context. Under Sec.11 of the Act before 1976 amendment the food inspector who was taking sample had to deliver one part of the sample to the person from whom the sample was taken, and retain the third part for production in case any legal proceedings were taken. After 1976 amendment, the food inspector who takes the sample has to send the two parts (which, remain after sending one part to the Public Analyst) to the Local (Health) Authority. Sec.11(1)(C)(ii) after 1976 amendment specifies the purposes in sending the two remaining samples to the Local (Health) Authority. The first purpose is to keep one of the parts as a reserve to be sent to Public Analyst in the case the first part gets lost or damaged. The second purpose is to use it when the accused exercise his option to have it analysed at the Central Food Laboratory. There is another additional contingency which may arise for using one of the two remaining parts of the sample. When the Local (Health) Authority is of the opinion that the report of the Public Analyst is erroneous he has to forward one of the remaining parts of the sample to another Public Analyst for analysis. After 1976 amendment the Local (Health) Authority has the obligation, under Sec.13(2), to forward a copy of the report of the Public Analyst to the accused and to inform him that he may make an application to the court to get the other sample analysed by the Director of Central Food Laboratory. Before 1976 amendment, either the complainant or the accused could have applied for sending the other part of the sample to the Central Food Laboratory. Neither the food inspector nor the local authority had any obligation, before 1976 amendment, to inform the accused that he could exercise his option under Sec,13(2). After 1976 amendment, the complainant has no right to make an application to the court to send the other part of the sample to the Central Food Laboratory. Neither the food inspector nor the local authority had any obligation, before 1976 amendment, to inform the accused that he could exercise his option under Sec,13(2). After 1976 amendment, the complainant has no right to make an application to the court to send the other part of the sample to the Central Food Laboratory. Sec. 13(2) after 1976 amendment would thus show that it is the obligation of the State or local authority to subject the sample to analysis. Such analysis would be made by the Public Analyst first, and if the accused needs, such analysis must be arranged to be made at the Central Food Laboratory. The only difference is that in the analysis to be made by the Public Analyst the accused has no part to play, whereas the Director of Central Food Laboratory cannot be asked to analyse the sample if the accused does not want it. In other words, if the accused expresses his desire to have the sample analysed by a superior expert, law provides that it must be done. This right or option is not conditional on the accused remitting the expenses needed for analysing the sample. The result of such analysis by the Director of Central Food Laboratory is binding on the prosecution in the same way as it is binding on the accused because the certificate of the Director of Central Food Laboratory will supersede the report of the Public Analyst. Such certificate is not an item of defence evidence, as it takes the place of the report of the Public Analyst. In the absence of any clear statutory insistence an accused cannot be asked to bear the expenses to bring in a document having greater probative value and a substitution for the earlier document of the prosecution. Hence, the deletion of the words "on payment of the prescribed fee" from Sec. 13(2) coupled with the other changes, conveys the message that it is no longer obligatory for the accused to bear the expenses for such analysis. 5. Let me now turn to see whether any such obligation is cast by the rules even if the Act does not provide for either way. 5. Let me now turn to see whether any such obligation is cast by the rules even if the Act does not provide for either way. Sec.23 of the Act confers power on the Central Government to make rules "to carry out the provisions of this Act" and Sec.24 confers power on the State Government to make rules "for the purpose of giving effect to the provisions of this Act in matters not falling the purview of Sec.23". There is no rule in the Kerala Prevention of Food Adulteration Rules, 1957 which obliges the accused to pay and fee for sending one part of the sample to the Director of Central Food Laboratory. But, Rule 4(6) of the rules framed by the Central Government says that "the fees payable in respect of such a certificate shall be Rs.40 per sample of food analysed". The said rule was inserted by notification dated 20.11.1956. In the form prescribed regarding the memorandum to be sent to the Director of Central Food Laboratory, the followings entence is also used: "A fee of Rs.40 has been deposited in the Treasury creditable under the Receipt Head -082- Public Health, Sanitation and Water Supply - Fees and Fines etc., "and treasury challan for the same is enclosed." The said sentence was added by notification dated 13.2.1974. The above quoted sub-rule and the form with those words might have been necessary at a time when the statute required that the accused should bear the expenses for sending the sample for analysis to the Central Food Laboratory. After the 1976 amendment when the statutory insistence was removed the sub-rule became consequently obsolete. 6. Learned Magistrate has relied on the decision of the Allahabad High Court in Asghar v. State, (1980)1 F.A.C. 254, in which a learned single Judge has held that it is the duty of the accused-applicant to first deposit the fee payable as prescribed under Rule 446 of the Prevention of Food Adulteration Rules and thereafter to make an application for sending the sample to the Director of Central Food Laboratory for re-examination. Very probably, learned Judge would have considered the position which prevailed before the 1976 amendment, for, the sampling of the food article in that case was on 20.7.1975. Very probably, learned Judge would have considered the position which prevailed before the 1976 amendment, for, the sampling of the food article in that case was on 20.7.1975. Learned Judge relied on, in support his conclusion, the decision of the Supreme Court in Ajit Prasad Ram Kishan v. State of Maharashtra, 1972 F.A.C. 545, in which their Lordships have observed that it is clear from Sub-sec.(2) that the “appellant should have made an application after paying the prescribed fee, if he wanted the part of the sample available with him to be sent to the Director for analysis”. From the facts of the decision it is clear that the Supreme Court made those observations on the basis of the law which remained prior to 1976 amendment. In the decision of the Allahabad High Court a different view was taken by another single Judge in the light of the law which came into being after the 1976 amendment. Vide Ram Pyare v. The Nagar Swasthya Adhikari, 1987 F.A.J. 404. Yadav, J., held that the expenses incurred in sending the sample to be analysed by the Central Food Laboratory for prosecution of a person from whose possession the sample was taken shall be borne by the Local Authority or by the State Government. Of course, the said conclusion was based on Rule 12 of the U.P. Prevention of Food Adulteration Rules which contains a specific provision that all expenses incurred in connection with the collection and despatch of food samples for analysis and in the prosecution of persons under the Act or rules framed thereunder shall be met by the local authority and where no such local authority exists, such expenses shall be met by the State Government. Even though there is no such rule either in the Central Rules or in the rules framed by the State of Kerala, I am inclined to take the view that the accused cannot be asked to bear the expenses for getting the sample analysed by the Director of Central Food Laboratory for the reasons adverted to above. I, therefore, allow this petition and set aside the order of the trial Magistrate. However, as indicated earlier the amount already paid by the accused need not be reimbursed to him. Criminal Miscellanous Case is disposed of in the above terms.