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Rajasthan High Court · body

1993 DIGILAW 639 (RAJ)

Padam Chand v. State of Rajasthan

1993-09-25

Y.R.MEENA

body1993
JUDGMENT 1. - This Misc. petition is directed against the order of Chief Judicial Magistrate dated 30.3.93, whereby he has been allowed the application of prosecution and ordered that third sample be sent to Central Laboratory. Calcutta for examination. 2. On 6.11.1983, the-complainant Udai Bhan Sharma, Food Inspector, inspected the shop of M/s. Bhawani Ram Bhagwan Sahai Halwai, Pansari Bazar, Alwar. Dr. Subash Sapra and Surendra Kumar were also present along with him. At the time of inspection, the petitioner was selling the articles. The Food Inspector asked him to give 1.5 kg. Barfi, prepared by Khoa and sugar. The petitioner gave him barfi. Thereafter, the sample was tested by Public Analyst, Alwar and he found that barfi was adulterated due to extra addition of starch. The papers were submitted to the Local Health Authority & Chief Medical and Health Officer. Alwar for want of sanction to launch the prosecution against the petitioner. The sanction was granted by the authority on30.8.89. After obtaining sanction, the complaint was filed before Chief Judicial Magistrate, Alwar. The accused-petitioner has been summoned. 3. On 29.4.92 the petitioner moved an application that the sample be tested from Central Food Laboratory, Calcutta. The report from Director, C.F.Laboratory, Calcutta received and in that report it has been mentioned that the sample is decomposed and it is unfit for analysis. Thereafter, the APP filed another application under Section 13 of the Food Adulteration Act, 1954 (hereinafter to be referred as 'Act' 1954') that in the interest of justice the third sample be sent for analysis. The Trial Court accepted the application and ordered for sending the third sample to Central Food Laboratory, Calcutta for analysis. 4. Being dissatisfied with the order dated 303.93, the petitioner has filed this Misc. petition and submitted that the third sample can be sent to Central Food Laboratory, Calcutta, only when the first sample is lost or damaged and not when the sample is decomposed. It is further submitted that prosecution has no light to file an application under Section 13(2-C) of the 'Act 1954'. The provisions of Section 13(2-C) of the 'Act 1954', reads as under: "13. It is further submitted that prosecution has no light to file an application under Section 13(2-C) of the 'Act 1954'. The provisions of Section 13(2-C) of the 'Act 1954', reads as under: "13. Report of Public analyst:- (2-C) where two parts of the sample have been sent to the Court and only one part of the sample has been sent by the Court to the Director of the Central Food Laboratory under Sub-section (2-B), the Court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the Court : Provided that where the part of the sample sent by the Court to the Director of the Central Food Laboratory is lost or damaged, the Court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof, the Court shall proceed in the manner provided in Sub-section (2-B)". Heard learned Counsel for the petitioner. The limited question for consideration is that whether on the application of APP, the third sample can be sent to Central Food Laboratory, Calcutta, and if the second sample is found decomposed by the Central Food Laboratory, Calcutta, the third sample can be sent to Central Food Laboratory, Calcutta ? 5. The scheme provided in the provision of Section 13 of the 'Act 1954' is that under Sub-section (1) the public analyst will deliver the result of the analysis of any article of food submitted to him for analysis. Sub-Section (2) of Section 13 provides that on receipt of the analysis report the complaint to be filed and one copy of the report will be sent to accused person. Sub-Section (2) of Section 13 provides that on receipt of the analysis report the complaint to be filed and one copy of the report will be sent to accused person. On result of the public analyst report, regarding the article of sample taken from the accused-person if the accused-person so desire, he can move an application to the Court within a period of 10 days, from the date of receipt of copy of the report, to get the sample of the article of food kept by the Local (Health) Authority be analysed by the Central Food Laboratory, Sub-section (2-A) of Section 13 of the 'Act 1954' provides that on the application of the accused-person under Sub-section (2) the Court will ask to Local (Health) Authority for the sample which is kept by the Local (Health) Authority and the Local (Health) Authority will send the second sample to the Court within a period of five days. Sub-Section (2-B) of Section 13 of the 'Act 1954'. Further provides that on receipt of the sample from the Local (Health) Authority under Sub-section (2-A), the Court shall after completing the formalities dispatch that sample to the Director, Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month. 6. The Sub-section (2-C) of Section 13 of the 'Act 1954' provides that when out of two parts of the samples only one part of the sample has been sent by the Court to the Director of Central Food Laboratory, Calcutta, the remaining part of the sample is to return to the Local (Health) Authority and that Local (Health) Authority shall destroy the third part of the sample, after the certificate from the Director of Central Food Laboratory has been received by the Court. 7. The proviso of Sub-section (2-C) of Section 13 of the 'Act 1954' further provides that where the part of the sample sent by the Court to the Director of Central Food Laboratory is 'lost' or 'damaged', the Court shall require the Local (Health) Authority to forward the third part of the sample, if any, retained by it to the Court and on receipt thereof the Court shall proceed in the manner provided in Sub-section (2-B) of Section 13 of the 'Act 1954'. 8. 8. A plain reading of proviso of Sub-section (2-C) of Section 13 of the 'Act 1954' clearly shows that when the part of the sample sent by the Court to the Director, Central Food Laboratory is 'lost' or 'damaged' the Court shall require the part of the sample retained by the Local (Health) Authority and on receipt of that sample from the Local (Health) Authority shall proceed in the manner provided in Sub-section (2-B) of the Section 13 of the Act, 1954. 9. It nowhere provides that the third sample can be sent to the Director, Central Food Laboratory, Calcutta only on the application of the accused. The only requirement of proviso to Sub-section (2-C) of Section 13 of the 'Act 1954' is that in case the sample is lost or damaged the Court shall send the third sample, which has been retained by the Local (Health) Authority. 10. There is no dispute on the facts that the third sample is retained by the Local (Health) Authority. The second sample which had been sent to the Central Food Laboratory, Calcutta found decomposed. Therefore, on application of the APP it is ordered that the third sample be sent to Central Food Laboratory, Calcutta. 11. The limited question now remains for consideration is that whether the third sample can be sent to Director, Central Food Laboratory, in a case when the second sample found decomposed by the Central Food Laboratory, Calcutta ?. The word used in the proviso of Sub-section (2-C) of Section 13 is "lost or damaged". It is true that the word decomposed has not been used in the proviso, but after seeing the scheme of the provisions of Section 13 of the 'Act 1954'. It is apartment that if the sample sent to Central Food Laboratory, Calcutta is either 'lost' or 'damaged' or not fit for analysing, the third sample retained by the Local (Health) Authority can be sent to Central Food Laboratory, Calcutta, under the order of the Court. So that the report of analysing of the sample can be ascertained finally, from the Central Food Laboratory, Calcutta.In view of this matter, I found no justification to interfere in the impugned order of the learned Chief Judicial Magistrate, Alwar dated 30.3.93.In the result, this petition is hereby dismissed. Petition dismissed. *******