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3. In Vijay Raj v. State of Rajasthan (supra), the accused petitioner Vijay Raj was facing trial in the court of learned Chief Judicial Magistrate, Jodhpur for the offence under Section 7/16 of the Act. According to prosecution, sample of chilies powder was taken on 29th July, 89 by the Food Inspector. After analysis by the Public Analyst, the sample was found not conforming to the prescribed standard of purity. The complainant was examined on 5.1.95. The charge was framed on 8th August, 95 and thereafter, further evidence of the prosecution was taken. The complainant closed his evidence and the accused petitioner was examined Under Section 313 Cr.P.C. He was then asked to produce his evidence. On 19th August, 1995, the accused petitioner moved an application under Section 13(2) of the Act to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, Calcutta in his defence under Section 247 read with Section 243(2) Cr.P.C. The application of the accused was rejected by the learned Chief Judicial Magistrate by his order dated 22nd August, 1995 on the ground that the application was not filed within a period of ten clays from the dale of receipt of a copy of the Public Analyst. A revision petition was filed by the accused against the order passed by the learned Chief Judicial Magistrate, Jodhpur. The revision petition was dismissed by the learned Additional Sessions Judge No. 1, Jodhpur by his order dated 17.11.1995 after hearing both the parties. Feeling aggrieved by the orders passed by the learned Chief Judicial Magistrate, Jodhpur and the Additional Sessions Judge No. 1, Jodhpur, the petitioner filed a petition under Section 482 Cr.P.C. before this Court. The learned counsel for the petitioner contended that the both the courts below erred in rejecting the application of the accused to get the sample analysed by the Central Food Laboratory, Calcutta in his defence as contemplated under Section 247 read with Section 243 Cr.P.C. The argument advanced by the learned counsel for the petitioner was that the accused petitioner was at liberty to lead a defence evidence by procuring a report from the Central Food Laboratory, Calcutta to rebut the prosecution case and the learned Chief Judicial Magistrate was bound to call for any document in defence and his denial tentamounts to negation of right to lead evidence in defence. It was further submitted by the learned counsel for the petitioner that it is a basic principle of Criminal Jurisprudence which has been incorporated under Section 247 read with Section 243 Cr.P.C. that an accused is entitled to every opportunity to meet the prosecution and prove his innocence. Therefore, in complaint filed under Section 7/16 of the Act, the accused would be at liberty to claim that sample kept with the Local (Health) Authority be sent to the Central Food Laboratory, Calcutta for analysis. On the above mentioned grounds, it was contended by the learned counsel for the petitioner that denial of chance to adduce evidence in defence for incorrect reasons amounts to flagrant violation of the mandatory provisions contemplated under Section 243 Cr.P.C. Reliance was placed by the learned counsel for the petitioner on the decision given by this Court in Joga Ram v. Stale (supra).

4. In view of the submissions made by the learned counsel for the petitioner, the learned Judge considered the following three questions :-

"(1) Whether Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A of the Rules framed thereunder had the effect of repealing, altering or modifying Section 247 read with Section 243, Cr.P.C. ?

(2) Whether right of the accused-petitioner to claim to send the sample for analysis to the Central Food Laboratory, Calcutta under Section 247 read with Section 243 Cr.P.C. is an absolute right of the accused-petitioner and Magistrate cannot refused to send the sample to the Central Food Laboratory, Calcutta even if he is of the opinion, that such application has been moved to defeat the mandatory provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rules framed thereunder?

It was further observed :-

"I am also of the opinion that right of the accused-petitioner to claim to send the sample for analysis to the Central Food Laboratory, Calcutta under Section 247 read with Section 243 Cr.P.C. is not an absolute right. A Court can refuse to send sample for analysis to the Central Food Laboratory, if it is of the opinion that the application is made at the stage of Section 247 Cr.P.C. to defeat the mandatory provisions contemplated under Section 13(2) of the Prevention of Food Adulteration Act and Rule 9A of the Rules framed thereunder."

27. The view that Section 13(2) of the Act and Rule 9-A of the Rules, alters the provisions of Section 243 and 247 of the Criminal Procedure Code, so far as the right to defend by sending one of the samples to the Central Food Laboratory is concerned, it is sufficient to refer to the decision of the Hon'ble Supreme Court in Ram Dayal v. Municipal Corporation Delhi (7).

28. In that case the samples sent to the Public Analyst was analysed and the report was received from him on 10th September, 1965 to the effect that Laddus were adulterated with unpermitted colour. Thereafter, a complaint was filed against the accused and he was convicted by the Magistrate on October 17, 1966 and sentenced to imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/- in default to undergo six months R.1. The Municipal Corporation filed a revision before the learned Sessions Judge for the enhancement of the sentence. The Sessions Judge after hearing the parties accepted the contention of the Municipal Corporation that minimum sentence of imprisonment for six months and a fine of Rs. 1,000/- should have been imposed by the trial Court. The learned Sessions Judge, therefore, referred the case to the High Court recommending that the accused having been found guilty under the provisions of Section 16 of the Act should have been awarded awarded a minimum sentence of six months and a fine of Rs. 1,000/-. Before the High Court, several contentions were raised on behalf of the accused. One of the contentions was that the request of the accused for summoning the Public Analyst for cross-examination had not been acceded to, and therefore, the accused had been prejudiced, as such the entire proceeding against him were vitiated. The High Court rejected this contention on the ground that Section 510 of the Code of Criminal Procedure 1898 had no application in that it. It was dealt with Chemical Examiner or any Assistant Chemical Examiner and other experts mentioned therein. The High Court further observed that where the accused desired to challenge the report of the Public Analyst under the Act, he had to follow the procedure provided in Section 13(2) for sending the sample to the Director of Central Food Laboratory for his examination, because any report given by him will supersede the report of the Public Analyst and would be final and conclusive as to the facts stated therein. Before the Hon'ble Supreme Court, it was contended by the learned counsel for the accused that the application made on behalf of the accused Under Section 510(2) for calling the Public Analyst, which was summarily rejected on 28th August, 1966, and therefore, the accused had been prejudiced and the proceedings as such were vitiated. The Hon'ble Supreme Court considered the contentions of the learned counsel for the accused. At page 37 of the report, the Hon'ble Supreme Court observed :-