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2006 DIGILAW 1159 (PAT)

Tinku Kumar v. State Of Bihar

2006-12-01

ABHIJIT SINHA

body2006
Judgment 1. Heard Shri N.K. Agrawal, learned counsel for the petitioner, Shri Jharkhandi Upadhaya, learned A.P.P. for the State. 2. It appears that on 27.2.2006 the Food Inspector, Madhubani visited the Grocery shop of the petitioner took samples of Vanaspati and sent it to the Combined Food and Drug Laboratory Agamkuan, Patna for analysis/test and on receipt of the report of the Public Analyst that the said Vanaspati sample does not conform to the prescribed standard the Civil Surgeon, Madhubani, submitted prosecution report in the Court of the learned Chief Judicial Magistrate, Madhubani and on the basis thereof G.O. Case No. 95 of 2006/T.R. No. 1977 of 2006 offence under Sec.16 of the Prevention of Food Adulteration Act, 1954 was registered and by order dated 21.7.2006 the learned Chief Judicial Magistrate, Madhubani took cognizance of offence. Aggrieved by the order of taking cognizance the petitioner has filed the instant application for quashing the order taking cognizance. 3. It has been submitted that the petitioner is the seller of Rag Vanaspati but the Food Inspector did not mention this fact in his requisition slip and simply stated that he bought three packets of Vanaspati from the petitioners shop and sent it to the Public Analyst. In this connection it was stated that the provision of Sec.11 (i)(b) of the Food Adultration Act prescribes that any product taken for examination should be devided into three parts in presence of that person, from whose premices the material is taken but in the instant case the three packets of Vanaspati was not devided into three parts. 4. The next contention of the learned counsel for the petitioner is that the Local (Health) Authority, Madhubani, after receipt of the report from the Public Analyst did not forward a copy of the result of the analyst to the petitioner so that he could make an application to the Court within a period of 10 days from the date of receipt of the report, to get the sample analysed by the Central Food Laboratory and this according to the learned counsel for the petitioner was clearly a contravention of the Provision of Sec.13(2) of the said Act. In this connection reference has been made to the case of Mali Ram Agarwal vs. State of Bihar reported in 1995(1) FA.C. 159. In this connection reference has been made to the case of Mali Ram Agarwal vs. State of Bihar reported in 1995(1) FA.C. 159. It is said that the petition was filed before the Court of S.D.J.M., Madhubani who is in seisin of the case praying therein that as per the provisions contained in Sec.13(2) of the Act, the sample should be analysed by the Central Food Laboratory but. the said petition was rejected. 5. It was further submitted that the sample was received by the Public Analyst on 2.3.2006 and after analysing the same in between the period 13.4.06 and 20.4.06 he sent the report of the adulteration only on 20.7.06, i.e. after 49 days from the date of receipt of the sample and this was in clear violation of the provision of Rule 7(3) of the Prevention of Food Adulteration Rules which prescribed that the report be sent by the Public Analyst within a period of 40 days from the date of receipt of the sample. Non-service of the report as such was barred by limitation. The learned counsel for the petitioner has also referred to the case of Satyanarain Patwari & Anr. vs. The State of Bihar reported in 1980 B.B.C.J. 563 wherein his Lordship held that non service of the report on the dealers causes prejudice to the dealer or the person from whom sample was taken. 6. The learned State counsel could not refute the submissions advanced by the learned counsel for the petitioner. 7. In vide of the contravention of the mandatory provisions of the Act and the Rules the prosecution of the petitioner cannot be sustained in law as the valuable right accruing to the petitioner is being violated. 8. Due regard being had to the facts and circumstances of the case the prosecution of the petitioner in the facts and circumstances of the case cannot be sustained in law and has to be quashed. 9. In the result this application is allowed and the impugned order dated 21.7.2006 passed in G.O. Case No. 95 of 2006 is hereby quashed.