Delhi District Court
Subhash Chand vs State( Delhi Administration ) on 7 July, 2008
: 1 :
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE
NEW DELHI
Criminal Appeal No. 03/2004
Subhash Chand
son of Lila Singh
R/o C6/26, Hanuman Market,
Yamuna Vihar, Delhi.
Appellant
Versus
State( Delhi Administration )
Respondent
Date of Institution : 17.3.2004
Date when arguments
were heard/filed : 1.7.2008 & 7.7.2008
Date of Judgment : 7.7.2008
JUDGMENT
This appeal is directed against the judgment dated 13.12.2003 passed by learned Metropolitan Magistrate convicting the appellant under section 16 read with section 7 of the Prevention of Food Adulteration Act ( in short PFA Act ) and by subsequent order dated 05.02.04 the appellant was sentenced to undergo rigorous : 2 : imprisonment for a period of six months and to pay a fine of Rs. 3000/. In default of payment of fine he was directed to undergo simple imprisonment for a period of three months. Aggrieved by the said judgment and order on the point of sentence passed by the learned Metropolitan Magistrate the appellant has preferred this appeal challenging the same.
PROSECUTION CASE The prosecution, case in brief, is that on 30.12.88 at about 4.00 p.m. , Sh. Jeet Ram, Food Inspector purchased a sample of buffalo milk, a food article for analysis from appellant at M/s Subhash Dairy, C6/26, Hanuman Market, Yamuna Vihar, Delhi where the said food article was found stored for sale. Appellant was found conducting the business of the said food article at the time of sampling. 750 ML of buffalo milk was taken as sample from an open container bearing declaration as buffalo milk. The said sample was taken under the supervision and selection of LHA/SDM Mr Prakash Chander. The sample was taken after proper homogenization with the help of a clean and dry plunger and 20 drops of formalin were added to each sample bottle. Each bottle containing the sample was separately packed, fastened, marked and sealed according to the PFA Act and Rules. Vendor's signatures were obtained on the LHA slip and the wrapper of the sampled bottles. Notice was given to the appellant and the price of the sample was given to appellant. Panchnama was prepared at the spot. All the documents were prepared, signed by appellant and the witnesses. One counterpart of the sample was sent to the Public Analyst in intact condition and the two counterparts were deposited with the L.H.A. In the intact condition. The Public Analyst analysed the sample and found the same to be adulterated and non conforming to the standards. The Public Analyst opined that sample does not conform to the standards laid down under : 3 : item A.11.01.11 of Appendix "B" of the PFA rules 1955 because solids not fat content was also less than the minimum prescribed limit of 6 %. Appellant is alleged to be the vendor cum proprietor of M/s. Subhash Chand and also the in charge of and responsible to the said concern for its day to day conduct of the business. The appellant is alleged to have violated the provisions of section 16(1)(a) read with sec 7 of the PFA Act.
NOTICE The notice under sec. 251 CrPC for the offences under section 16/7 of the P.F.A. Act was given to the appellant by the learned trial court to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE In support of its case prosecution has examined three witnesses in all. PW1 Food Inspector Sh. Jeet Ram, PW2 Sh. Prakash Chander, Dy. Director Employment Govt of NCT of Delhi, PW3 Food Inspector Sh. Hukam Singh.
PLEA AND DEFENCE OF ACCUSED In support of its case appellant has examined DW1 Sunil.
In his statement recorded under section 313 CrPC he has stated that 1012 persons of PFA had visited his shop and had collected to purchase milk. However, 10 12 public persons were there but the Food Inspector did not ask any public person to join. But he preferred departmental witness. Appellant stated that no payment was given to him. His signatures were obtained on blank papers forcible. Bottles were not clean and dry. The said process was not conducted in his presence. No document was read over and explained to him The report of Public Analyst is based on improper sampling.
The milk which was taken from him was cows milk. Intimation letter and PA report were not served to appellant. Ex PW2/A is not bearing his signature.
FINDINGS:
: 4 : I have heard the learned counsel for the appellant and the learned Special Public Prosecutor for the respondent State and have gone through the written arguments filed on behalf of both the parties, the trial court record, appeal file and relevant provisions of law, carefully.
In this appeal the questions involved are the nonsupply of the report of the Public Analyst to the appellant and its effects and also the effect of delayed prosecution of the appellant. It is argued on behalf of the appellant that in the given facts and circumstances of the case the earliest the sample would be analysed by the CFL would come to more than 11 months from the date of taking the sample in the light of provisions of section 13 (2B) of the PFA Act. Therefore, the appellant had not gone for report of CFL as it would have been a useless exercise as the sample by that time was not fit for analysis.
The argument on behalf of respondent/State is that in the present case the accused deliberately neither availed his rights either in 13 (2) nor sent second counterparts to CFL that the sample is unfit for analysis nor accused brought on record that the samples were not fit for analysis.
The sample of buffalo milk, a perishable item, was lifted by the Food Inspector on 30/12/1998. The sample was sent to Public Analyst on 31st day of December, 1998.
The Public Analyst gave his report dated 14/1/1999 which is Ex PW1/F. The complaint was filed in the court of learned Metropolitan Magistrate against the appellant on 27/10/1999, i.e., after about 10 months of lifting the sample of buffalo milk from the appellant. The Local Health Authority PW2 Shri Prakash Chandra is alleged to have issued the letter Ex PW2/B to the appellant intimating him that the sample of milk was : 5 : found adulterated by the Public Analyst the copy of the report of Public Analyst was also enclosed and it was also intimated to the appellant that he can get the sample sent to be analysed by CFL by making an application in the court of Metropolitan Magistrate, New Delhi within 10 days.
After noting these basic facts it is to be seen as to what is the basic legal position with regard to the provisions of Section 13 of the PFA Act. The Subsection (2) of Section 13 Of the PFA Act requires that after institution of the prosecution against the person accused the Local Health Authority shall send the report of the Public Analyst to the accused informing him that if he so desires he can get the sample of the food article analysed from CFL. The provisions of Subsection (2) of Section 13 of the PFA Act have very important bearing as these give a valuable right to the accused to challenge the report of the Public Analyst by sending the counterpart of the sample to CFL and the certificate so issued by Director CFL supersedes the report of the Public Analyst which shows how important is the right of the accused to get the counterpart of the sample analysed from CFL. In order to prove that the requisite intimation was sent to the accused in this case PW2, the Local Health Authority has exhibited the document Ex PW2/A but neither any postal receipt is filed or proved on record nor any AD card to show that this letter Ex PW2/A was sent by Registered A.D.or was received by the appellant.
In Jameel v. State of U. P. 2000 CRI. L. J. 3049 (All), it was observed as follows:
"6. The factual position is that in this case a letter was sent by the District Health Authority : 6 : (Muzaffarnagar) by registered post A.D. to the accusedrevisionist on his correct address on 133 1981. It came back in the office with an English endrosement "Avoid to take delivery Sender".
There was an endorsement in Hindi on it also "Kai Bar Jane Par Bhi Prapt Karta Nahi Mila. Atah Wapas Hai". This Hindi endorsement bears the initial and date 26381. It is this Hindi endorsement which appears to be made by the Postman and the other endorsement in English appears to be made by the office on the basis of the same.
7. Now the question is whether this is a sufficient compliance of the provisions of Section 13(2) of the Prevention of Food Adulteration Act. The contention of the State is that if a person avoids to take delivery, it is sufficient delivery and there was no necessity to send it back again to it (the accusedrevisionist) that if a person is bent upon refusing to take delivery, no purpose would be served by sending it again and again. In my view if a letter had been sent and it were to come back with a categorical endorsement of the postman that the addressee was tendered the letter but he refused to take the delivery thereof, there will be a presumption of service, no doubt but here the position is not that. The endorsement, which had been made by the postman, only indicated that be had gone to the address of the addressee several times but at no pont of time, he found the addressee. From the endorsement made, it cannot follow that the addressee was in the house or kept away to avoid having to take the delivery of letter. If the endorsement had been that the addressee stated that the letter may be brought again for delivery to him, it might have been an avoidance to take delivery but his absence from the house : 7 : cannot lead to the presumption of service. If the letter had been delivered to a person belonging to the household of the addressee, even that might have been taken a sufficient service on him and it might have been presumed that it reached the hands of the addressee and in that case it might have been the burden on the addressee to show that it was not so. But here the endorsement of the post office does not show any service. The rule provides two alternative modes of service one by hand and the other by registered post. It was open for the concerned Local (Health) Authority to send the notice again by registered post at the address of the addressee or he could send it by the other mode contemplated method under the rule and when none of these two steps were taken by him, there is noncompliance of provisions of Section 13 (2) of the Prevention of Food Adulteration Act and Rule 9A framed thereunder as it existed at the relevant time. The provisions of Section 13 (2) of the Prevention of Food Adulteration Act remains the same and now after the amendment Rule 9A has been renumbered as Rule 9B but the contents remain the same even now. By provision of Section 13(2) of the Prevention of Food Adulteration Act, a very important right has been given to the accused who is facing trial, to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory by making an application to the Court within a period of ten days from the date of receipt of the copy of report. The requirement is to forward a copy of the report to the person from whom the sample was taken, by registered post or by hand or by both, which may be appropriate. So the accusedrevisionist is deprived of his right to move an application under that provision. This : 8 : consequently vitiates the conviction of the accusedrevisionist."
In Rama Chandra Sahu v. State 1987 CRI. L. J. 2025 (Ori), it was observed as follows:
"8. Surprisingly, the prosecution did not adduce any documentary evidence to establish that a copy of the report of the public analyst (Ext. 5) was delivered to the petitioner in the manner prescribed in R. 9A of the Rules. The office copy of the forwarding letter was neither produced nor proved according to law. No document in the shape of a receipt was either produced or proved indicating the petitioner had received a copy of Ext. 5. The learned Additional Standing Counsel drew my attention to Ext. 6, a postal receipt, and urged that a copy of Ext. 5 was delivered at the post office and in due course it must have reached the destination so as to be delivered to the petitioner. The postal receipt, Ext. 6, does not prove anything beyond the fact that some article was delivered at the post office and a receipt was granted. It does not prove as to what was contained in the article which was delivered at the post office, much less the fact that the article contained a copy of the report of the public analyst (Ext. 5) along with the forwarding letter of the local health authority. In other words, on the basis of the postal receipt and without specific proof, no inference can be drawn that a copy of the report of the public analyst (Ext. 5) was delivered to the petitioner. I am therefore bound to conclude that a copy of the report of the public analyst (Ext. 5) was not delivered to the petitioner for compliance of the mandatory provisions of S.13(2) of the Act read : 9 : with R. 9A of the Rules."
In the present case, as already stated neither postal receipt nor AD card is filed by the prosecution before learned trial court to prove the service of Ex PW2/A. Therefore, the present case is on the worse footing than the above cases, there appears to be noncompliance of the provisions of Section 13 (2) by the Local Health Authority causing prejudice to the appellant.
Assuming that the report of Public Analyst was served upon the appellant by letter dated 3/11/1999 Ex PW2/A the question still arises, since the sample was lifted by Food Inspector on 30/12/1998, what is the effect of the delay of about 11 months in sending the report of Public Analyst dated 14/1/1999 Ex PW1/F, the sample of buffalo milk being a perishable item? The answer lies in the following authorities:
In S. P. Agrawal v. State of U. P. 1998 CRI. L. J. 643 (All), it was observed as follows:
"7. Learned A.G.A. argued that if the delay was caused by the accused in making an application u/S. 13(2) of the Act, to the trial Court for sending the samples to the Central Food Laboratory, he cannot take an advantage of the same. There is no quarrel to this principle of law. The criminal proceedings launched against the petitioner are not being quashed on this ground but are being quashed on the ground of delay in launching the prosecution and which deprives the petitioner of his valuable right of getting the sample sent to the Central Laboratory. It may be mentioned here that the right of the accused to get the sample sent to the Central Laboratory u/S. 13(2) of the Act and Rule 9A of the Rules framed thereunder, arises : 10 : only after launching of the prosecution because it has been provided therein that after the prosecution is launched, report of the Public Analyst should be sent to the accused immediately (as it stood at the relevant time) and thereafter, the accused could exercise his right of getting sample sent to Central Laboratory. Since the prosecution was launched late and by then the sample had deteriorated, it follows that the petitioner was deprived of his valuable right of getting the sample sent for analysis to the Central Laboratory.
8. Learned A.B.A. placed his reliance on a decision of this Court given in the case of Ganga Bishun v. State of U.P., (1982) 1 PFAC 195, in which it has been held that if report of the Public Analyst is served on the accused after two years and the accused does not make any application for sending sample to the Director, Central Food Laboratory, no prejudice is caused to the accused and in that case conviction recorded by the trial Court was maintained. That was a case of taking the sample of Kirana Article and it does not appear from the said decision whether it got deteriorated in the span of 2 years or not. In our case, it cannot be doubted that the sample of Ice Cream gets deteriorated in two months' time and in any case it could not last till the prosecution was launched against the petitioner."
In Raghuvirsingh, Food Inspector, Ujjain Municipal Corp v. Ramchandra 1995 (VII) All India Prevention of Food Adulteration Journal (AIPFAJ) 370 (MP), it was observed as follows:
"By provision of Section 13(2) of the Act a very important right has been given to the accused who is facing a trial for adulteration under the provisions : 11 : of Food Adulteration Act. He can get the sample of the article of food analysed by the Central Food Laboratory by making an application to the court within 10 days from the date of receipt of the copy of the report. It is to be noted that word 'shall' has not been used in Section 13(2) of Food Adulteration Act. However, it has been used in Rule 9A. The provisions of Section 13(2) and Rule 9A will have to be read together. As it has been observed by Supreme Court in the matter Collector of Manghyr v. Keshav Prasad (supra) it will have to be seen as to for what purpose these enactments of Section 13(2) and Rule 9A have been framed. The right to get the sample analysed from Central Food Laboratory is conclusive. Formerly, there was Rule 9(J) and that has been replaced by Rule 9A, words used in Rule 9A "the Local (Health) Authority shall immediately after the institution of prosecution" have their own importance. In the present matter the said copy of the report of the Public Analyst has been given to the respondent after 5 months. This cannot be by any stretch of imagination called compliance of the spirit which has been indicated by Section 13(2) and Rule 9A of the Act and Rules. The learned trial Magistrate has rightly held that noncompliance of provisions of Section 13(2) and Rule 9A has frustrated the prosecution. I do not find any perversity or illegality in it."
In Ram Singh v. State of M.P. 2005(2) FAC 245 (MP), it was observed as follows:
"11. It is not in dispute that right to examine the remaining sample from Central Food Laboratory was a valuable right of the applicant and this could not be destroyed by the prosecution and it is settled position of law that after 6 months the preservative mixed with the milk has lost its : 12 : strength as deteriorated and the sample does not remain fit for analysis. In this situation when the complaint was initiated after more than 7 months when the remaining sample had become deteriorated and not fit for analysis and then aforesaid notice under Section 13(2) was given which was apparently after deterioration of the remaining sample so the applicant was deprived to examine the same from Central Food Laboratory. So this cannot be said that the application under Section 13(2) of the Act was not moved by the applicant even after receiving the said notice Ex. P/16, therefore, he cannot get benefit of the said provision. For the sake of argument if such an application was moved instead that right could not be exhausted by the applicant in view of deterioration of the sample.
12. My aforesaid view is supported by the decided case of this Court in the matter of Shiv Dayal Saligram Tiwari v. State of Madhya Pradesh, 1977 (I) FAC 90: 1977 MPLJ 169 in which it was held as under: "Held, that in any case by the time the accused appeared the sample would have deteriorated and that in the circumstances accused was deprived of his right under Section 13(2) because of the inordinate delay in launching prosecution and he was entitled to acquittal. 1967 M.P.L.J. 640 : AIR 1967 SC 970 and 1974 M.PL.J. 241, Rel. AIR 1971 SC 1277 and AIR 1972 SC 1631, Dist. AIR 1951 Nag. 191, Ref. (Paras 6, 7)."
13. In view of the aforesaid, it is apparent that the applicant was deprived of his valuable right under Section 13(2) of the Act and when the notice was sent till then the sample was already deteriorated and this aspect was neither examined nor considered by the Courts below and due to this : 13 : apparent perversity the judgments of the Courts below are not sustainable in law."
There is enough case law by now dealing with delay in sending the sample for analysis and to show that the milk is a perishable item and delayed prosecution entitles the accused to acquittal. Some of the observations in some cases are noted below:
In Gian Chand v State,1978 (I) FAC 15 (Del), it was observed as follows:
"9. The Food Inspector, when he appeared. during the trial did not say that the sample retained by him was kept in a refrigerator. In Municipal Corporation of Delhi vs. Ghisa Ram 195I77 F.A.C. (SC) 93: 1975 (I) F.A.C. 186 their Lordships of the Supreme Court observed as under:
"The opinion of one of the experts, Dr. Sat Parkash, given in this case shows that in the case of a food article, like curd, it starts undergoing changes after a. week, if kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. On the other hand if the sample is kept in a refrigerator, it will, preserve its fat and nonfatty solid contents for purposes of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the percentage of fat and nonfatty solids contents for purposes of analysis will be retained for about four months, and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months. In this case, when the Food Inspector handed over the sample to the respondent, the respondent was not : 14 : expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analysed successfully during the next 17 days, whereas, if a preservative had been added, it could have been analysed successfully during the next four months."
Normally the sample with the Food Inspector, to which preservative had been added, could not have remained fit for analysis after more than six months even if it had been kept in a refrigerator. There being no evidence to that effect it will have to be presumed that it was not kept in a refrigerator and, therefore, decomposition should have taken place earlier, particularly as the months of August and September are fairly hot. I am, therefore, inclined to agree with the learned counsel for the petitioner that the genuineness of the sample which had been produced before the trial Magistrate, on January 3, 1966, is not beyond doubt. The seal having remained with the Food Inspector a change of the sample was not impossible. Except on the basis that the sample was changed before being produced on January 3, 1966 it is difficult to explain the fact that it remained in a fit condition for analysis after eight months without being kept in a refrigerator."
In State v. V.K. Muttoo and Ors Criminal Appeal No. 144 of 1996, Decided On:
13.11.2007 (Del), it was observed as follows:
"8. ........Hon'ble Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram 1975 PFA cases 186. In that case complaint was filed in the court after about seven months from the date of raid and taking of sample of milk product (curd) from the shop of the accused which was on : 15 : 20/09/1961. The complaint was filed on 23/05/1962. Hon'ble Supreme Court held that in these circumstances, the valuable right available to the accused under Section 13(2) of the Act of having the sample tested at Central Food Laboratory had stood denied to him. It was also observed that ordinarily it was possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. Learned APP had submitted that this judgment was not applicable to the facts of the present case inasmuch as in that case the Director of Central Food Laboratory had found the sample sent to him to be unfit for analysis because of decomposition and because of that reason the accused could not have the benefit of the report of the Director which, if had been given, would have superceded the report of the Public Analyst so the Hon'ble Supreme Court had held that the delay in launching the prosecution against the accused had resulted in denial of the benefit of Section 13 (2) of the Act to him while in the present case despite the delay in the filing of the complaint in court the sample which was sent to the Director of Central Food Laboratory was found to be fit for analysis. So, learned APP contended, the acquittal of the accused of the present case by the trial Court relying upon the said judgment of the Hon'ble Supreme Court was totally unjustified and not sustainable at all. However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kind of cases should be launched promptly.
: 16 : In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the sample of the paneer was sent to the Central Food Laboratory after more than seven months from the date when it was taken from the shop of the respondent no. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. In these circumstances, if the learned Trial Court has come to the conclusion that the accused's right under Section 13(2) of the Act had got frustrated it cannot be said that this conclusion of the trial Court is unreasonable, wholly unjustified or perverse."
In State v. Anil Batra and others 2008(I) FAC 191 (Del), it was observed as follows:
"9. ........Learned Trial Court has relied upon one judgment of the Hon'ble Supreme Court in 'Municipal Corporation of Delhi v. Ghisa Ram 1975 (I) PFA cases 186. In that case the complaint was filed in Court after about seven months from the date of raid and taking of sample of milk product (curd) from the shop of the accused which was on 20/09/1961. The complaint was filed on 23/05/1962. Hon'ble Supreme Court held that in these circumstances, the valuable right available to the accused under section 13(2) of the Act of having the sample tested at Central Food Laboratory had stood denied to him. It was also observed that ordinarily it was possible for the prosecution to obtain the report of the Public Analyst and institute the prosecution within 17 days of the taking of the sample. Mr. Dudeja, : 17 : learned APP had submitted that this judgment was not applicable to the facts of the present case since in that case the Director of Central food Laboratory had found the sample sent to him to be unfit for analysis because of decomposition and because of that reason the accused could not have the benefit of the report of the Directory which, if had been given, would have superseded the report of the Public Analyst and so the Hon'ble Supreme Court had held that the delay in launching the prosecution against the accused had resulted in denial of the benefit of Section 13 (2) of the Act to him while in the present case despite the delay in the filing of the complaint in court the third counter part of the sample which was sent for analysis, as per the CFL report, did not conform to the prescribed standard. So, learned APP contended, the acquittal of the accused of the present case by the trial Court relying upon the said judgment of the Hon'ble Supreme Court was totally unjustified and not sustainable at all. However, in my view the acquittal of the respondents in the present case in view of the decision of the Hon'ble Supreme Court in Ghisa Ram's case (Supra) cannot be said to be unjustified because the crux of the judgment of the Hon'ble Supreme Court is that prosecution in these kinds of cases should be launched promptly. In that case reference was also made to the opinion of an expert that if a food article, like curd, is kept in a refrigerator and a preservative is added to the sample the total period which may be available for making analysis of that sample without decomposition will be six months. In the present case, the third sample of the paneer was sent to the Central Food Laboratory after the expiry of more that in six months from the date when it was : 18 : taken from the shop of the respondent no. 1 and there is no explanation forthcoming from the side of the prosecution for that delay. It is admitted by the prosecution that the sample was not kept in refrigerator but was kept in at room temperature till the time frim taking of the samples to sending it to CFL. PW5 FI, Rajesh Kumar in his cross examination has categorically stated that their department had not refrigerator in the office and the sample bottles were kept by them at ordinary room temperature in steel Almirah. I these circumstance, if he learned Trial Court has come to the conclusion that the accused's righty under section 13(2) of the Act had got frustrated it cannot be said that this conclusion of the trial Court is unreasonable."
In Municipal Corporation of Delhi and R.N: Gujral, Asst. Municipal Prosecutor v. Bishan Sarup 1972 FAC 273 (Del), it was held that if on account of delay or lapse on the part of the prosecution to institute a prosecution this valuable right of the accused is in any way impaired the question becomes of paramount importance for the purpose of determining if the defence was prejudiced on this account. If prejudice is caused to the accused on accused on account of the delay in the institution of the prosecution, as when the sample is rendered unfit for analysis in the meanwhile, or deterioration of the sample is proved to have occurred in the meanwhile, then the accused is entitled to the benefit of doubt, as the prosecution itself, in such a case prevents the accused from getting the final verdict to which he is entitled under Section 13 of the Act.
In The State of Punjab v. Balwant Singh 1992 (II) Recent Criminal Report (R.C.R.) 57 (P & H), it was observed as follows:
: 19 : "8. Another aspect of the matter is that the sample was received by the Public Analyst on 2661985 and it was analysed on 2671985 as is evident from the report Ext. PD. This report was forwarded to Shri S. L. Lamba, Food Inspector on 281985 for launching prosecution against the accused. Complaint dated 1381985 was filed in the Court. A latter dated 1481985 issued by the local Health Authority was received by the accused along with a copy of the Public Analyst's report wherein a direction was issued to the accused that if he was interested, he could get the second sample tested from the Central Food Laboratory Ghaziabad and if he so desired, he could ask for the same within ten days of the receipt of the letter. On 20819856, the accused moved an application for producing the sample in the Court. The sample was produced in the Court on 18101985 and it was analysed by the Central Food Laboratory on 28101985. Thus the whole process consumed more than four months resulting in violation of the provisions of Section 13(2) of the Act. This Section envisages prompt despatch of the sample within a period of five days from the receipt of such requisition from the Court.
Where sample of food article like milk which is of perishable nature is kept for such a ling time of more than four months at room temperature (Particularly when sample is taken in the hot month of June) it is likely to deteriorate. The accused lost no time in availing of this statutory protection. Had moved the application on 208 1985 for production of the sample in the Court but it was produced on 18101985. To add to the miseries of the accused it was analysed on 2810 1985 i.e., much more than four months from the taking of the sample. Under these circumstances, : 20 : nonproduction of the sample in the Court for such a long time will certainly cause material prejudice to the accused and breach of the aforesaid mandatory Section of the Act which is fatal to the prosecution."
In Ram Singh v. State of M.P. 2005 (IV) RCR (Criminal) 184 (MP), it was observed as follows:
"11. It is not in dispute that right to examine the remaining sample from Central Food Laboratory was valuable right of the applicant and this could not be destroyed by the prosecution and it is settled position of law that after 6 months preservative mixed with the milk has and lost its strength as deteriorated and the sample does not remain fit for analyses. In this situation when the complaint was initiated after more than 7 months when the remaining sample had become deteriorated and not fit for analysis and then aforesaid notice under Section 13(2) was given which was apparently after deterioration of the remaining sample so the applicant was deprived to examine the same from Central food Laboratory. So this cannot be said that the application under Section 13(2) of the Act was not moved by the applicant even after receiving the said notice Ex.P/16, therefore, he cannot get benefit of the said provision. For the sake of argument if such an application was moved instead that right could not be exhausted by the applicant in view of deterioration of the sample.
12. My aforesaid view is supported by the decided case of this Court in the matter of Shiv Dayal Saligrarn Tiwari v State of Madhya Pradesh,1977 : 21 : MPLJ 169 in which it was held as under : "Held, that in any case by the time the accused appeared the sample would have deteriorated and that in the circumstances accused was deprived of his right under Section 13(2) because of the inordinate delay in launching prosecution and he was entitled to acquittal. 1967 M.P.L.J. 640: AIR 1967 SC 970 and 1974 M.P.L.J. 241, Rel. AIR 1971 SC 1277 and AIR 1972 SC 1631, Dist. AIR 1951 Nag. 191, Ref. (Paras 6.7). Quoted from Pla citum."
13. In view of the aforesaid, it is apparent that the applicant was deprived of his valuable right under Section 13(2) of the Act and when the notice was sent till then the sample was already deteriorated and this aspect was neither examined nor considered by the Courts below and due to this apparent perversity the judgments of the Courts below are not sustainable in law."
In Gopi Ram v. The State of Haryana 1987 (I) FAC 153 (P & H), it was observed as follows:
"4. The petitioner was served on March 21, 1979 for, appearance in Court i e. exactly four months after the date on which, the sample was taken In the wake of, the above finding, it is only after March 21, 1979 that the, Petitioner could be expected to apply to the Court for sending the second sample for reanalysis. A period of four months having already elapsed, the sample of milk could not have remained fit for analysis. The learned counsel has placed reliance upon the observation of Their . Lordship of the Supreme Court in Municipal Corporation of Delhi v, Ghisa : 22 : Ram, 1975 (I) FAG 186 as followed by this Court in Resham Singh v. The State of PunJab, 1972 FAC 732 that even if a preservative is added in the sample of milk at room .temperature, the percentage of fat and nonfatty, solids contents for purposes of analysis will be retained only for about four months. This period having already elapsed, it has been rightly argued that petitioner was deprived of his valuable right causing him serious, prejudice. "
In Makhan Singh v. State of U.P 1988 (II) FAC 62 (All), it was observed as follows:
"3. The contention of the revisionist is that an account of undue delay in filing the Complaint against him for the alleged adulteration and also on account of inordinate delay in sending the report of the Public Analyst to him be was 'deprived of his valuable right to move for obtaining the report of the Director of Central Food Laboratory under Section 13(2) of the Act with regard to the sample of the milk taken. His contention is that as the report of the Public Analyst was sent to him as late as on 1211980 that is to say about 8 months after taking of the sample it was obviously quite useless for him to move far obtaining the, report of the Central Food Laboratory under Section 13 of the Act, because by that time the sample must be decomposed and deteriorated and would not have remained fit for analysis his connection it is material to note that even the complaint against the , revisionist on the basis of the report of the Public Analyst seems to have been reveived in the Court on 10180. The complaint is dated 311279. The revisionist has relied on the cast of Municipal Corporation of . Delhi v. Ghisa Ram 1975(1) FAC 186 and Desh : 23 : Raj v. State of U.P. 1985(I) FAC 135 in support of his contention. On account of inordinate delay the revisionist was virtually deprived of his valuable right under Section 13 of the Act to get the sample analysed by the Director of Central Food Laboratory. It was of no use to move for obtaining the report of the Director , of Central Food Laboratory as the sample kept in the office of Chief Medical Officer, must have decomposed and deteriorated making it unfit for analysis by the Director. Consequently, the conviction and sentences of the revisionist cannot be upheld in the revision. The revision has to be allowed."
In Sheikh Abdul v. State of Maharashtra 1986 (III) FAC 122 (Bom), it was observed as follows:
"2. ............The usual procedure was followed. One of the samples of the milk was sent to the Public Analyst and his Report was received by the Local Health Authority on 521980. The Authority, however, dragged its feet for the full period of 4 months further and did not institute prosecution before 761980 and thereafter on 961980 a notice was given by the local authority to the petitioner under section 13 of, the Food Adulteration Act informing him that he was at liberty to send to the Director of Central Food Laboratory another sample of milk. There is a dispute as to whether such a notice was received by the petitioner or not. But the lower Court has recorded a finding in that behalf and I find no reason to disagree with the same. The fact, however, remains that at the most the petitioner would have asked for the 2nd sample to be sent to : 24 : the Director, by making an application in that behalf on or before 1961980. The sample would have been thereafter sent to the Director. This means that the sample of the milk would be reaching the Director long after the expiry of the period of 6 months. From the very nature of things, the milk could not remain undecomposed for that much of period, exceeding even 6 months. There is no evidence in this case that the milk was kept in the cold storage. The only contention is that pre servative was added. It has been held by our Court in 1982, Maharashtra Law Journal p.181 that even assuming that the preservative was added, the normal course is that the milk would get decomposed and it is futile to send the sample for analysis after that period. In these circumstances, the normal presumption would be that the milk must have been decomposed. If the Department wanted to prove that the milk had remained in tact even after such a longer period, it was for the prosecution to prove that fact by examining proper experts in that behalf."
In view of the above cases it is clear that the buffalo milk which is a perishable item cannot be preserved for a period of about 11 months. It is to be noted that the sample of buffalo milk was taken by the Food Inspector from the appellant on 30/12/1998 and the alleged intimation under section 13 (2) of the PFA Act was sent on 3/11/1999 by Local Held Authority by letter Ex PW2/A. By that time the sample must have lost its value on account of deterioration and decomposition in the light of the above case law and had become useless and unworthy of analysis. Therefore, even if the intimation was sent to the appellant by Ex PW2/A it was useless for the right to send : 25 : the sample to CFL could not be exercised on account of the sample having become decomposed due to lapse of considerable time. Therefore, the right of the appellant under section 13 (2) of the PFA Act stood frustrated on account of delay in sending intimation in launching prosecution against him. It is also to be noted that on 4/4/2000 the learned trial court has noted that the accused has stated that he did not want to exercise his right under section 13 (2) of the PFA Act. But the statement of the appellant before learned trial court has no significance for the simple reason that as on 4/4/2000 there was no sample available worth sending for analysis. Therefore , the statement of the appellant before learned trial court is meaningless. It may also be that the appellant who is dealing with the milk vending has refused to exercise his right under section 13 (2) of the PFA Act knowing fully well that the sample by then was not worth sending CFL on account of the deterioration in value.
In the light of the above discussion the appellant certainly is entitled to acquittal having been deprived of his valuable right under section 13 (2) of the PFA Act and on account of delayed prosecution and/or in not sending intimation or sending delayed intimation regarding his right to exercise option of sending the counterpart of the sample to CFL for analysis to challenge the report of Public Analyst, after the sample had become worth less for this purpose, therefore, there is no need to examine the other arguments raised on behalf of the appellant and counter arguments of respondent/State pertaining to unrepresentative sample, delayed prosecution of the appellant in trial court and the sample bottles were not cleaned at the spot by the Food Inspector. The appeal succeeds.
: 26 : RESULT OF APPEAL:
In view of the above discussion the appeal is allowed. The impugned judgement of conviction and order on sentence passed by the learned trial court are setaside. The appellant is acquitted of the offences under sections 7/16 Of the PFA Act. The fine ,if paid by the appellant in terms of impugned judgement and order on sentence passed by the learned trial court be directed to be refunded to him by learned trial court. The bail bonds furnished in the appeal are cancelled. The trial court record be returned alongwith the copy of this judgment. The judgment be sent to the server (www.delhidistrictcourts.nic.in). The appeal filed be consigned to the record room.
Announced in the open court on 7th day of July 2008 ( S. K. SARVARIA ) Additional Sessions Judge New Delhi