ORDER
J. Das, J.
1. This criminal revision arises put of the order dated 24-7-1989 passed by Sri J. J. Patra, Sub-divisional Judicial Magistrate, Sadar, Cuttack in 2(c)CC Case No. 361 of 1988 directing to send the third sample bottle of the Mustard oil to the Director, Central Laboratory, for test.
The revision is also directed to quash the prosecution on account of delay in production of the second and 3rd samples in Court in contravention of Section 13(2A) of the Prevention of Food Adulteration Act.
2. The relevant facts of the case are that on 29-3-88, the Food Inspector of Cuttack Municipality purchased sample Mustard oil from the petitioner for analysis. On 30-3-1988, one part of the sample was sent to the Public Analyst and the report of the Public Analyst was received on 19-5-88. As the Mustard oil was found to be adulterated, prosecution Report was filed and cognizance was taken on 14-10-1988. On 31-10-88, the accused appeared through his advocate and filed a petition exercising right under Section 13(2A) of the P.F.A. Act to send the sample kept with the C.D.M.O. for analysis by the Director, Central Food Laboratory. On 8-11-88, the learned S.D.J.M. passed order directing to send the sample for analysis to the Director, Central Food Laboratory. Vide letter No. 1597 dated 16-12-88, the C.D.M.O., Cuttack was directed to produce the sample bottle on 10-1-89. It appears from the order sheet that on 10-1-1989 the sample bottle was not produced and hence the Court again passed order directing the prosecution to produce the sample bottle by 31-1-89. On 31-1-1989 also the sample bottle was not produced and hence again order was passed on the same day for producing the sample bottle on 28-2-1989. Vide letter No. 503 dated 2-2-1989, the C.D.M.O. was directed with reference to the previous letter No. 1597 dated 16-12-88 to produce the sample bottle on 28-2-1989. As per the direction of the Court, the sample bottle was produced on 28-2-1989. On 1-3-1989, the advocate for the accused filed a memo to the effect that the stopper including the slip of paper pasted on the bottle and thread etc. was drenched with oil and that showed that there was leakage of oil from the bottle through the stopper. The learned S.D.J.M. considered the memo and recorded that the sample bottle was not fit to be sent to the Central Food Laboratory, Calcutta for test. The learned S.D.J.M. passed the order directing the C.D.M.O. to produce the third sample bottle on 7-3-1989. Vide letter No. 203 dated 2-3-1989, the C.D.M.O. was directed to produce the third sample bottle on 7-3-1989. As the C.D.M.O. did not produce the sample bottle on 7-3-1989, the learned S.D.M.O. passed the order to remind the C.D.M.O. to send the third sample bottle by 15-3-1989. It appears that the letter No. 236 dated 8-3-1989 was written to the C.D.M.O. to produce the third sample bottle on 15-3-1989. On 15-3-1989 also the C.D.M.O., Cuttack did not produce the third sample bottle and hence order was passed to remind the C.D.M.O., Cuttack to produce the sample bottle on 3-4-1989. The letter No. 288 dated 17-3-199 was written to the C.D.M.O. to produce the third sample bottle on 3-4-1989. The sample bottle was not received on 3-4-1989 and hence again order was passed to remind the C.D.M.O. to produce the sample bottle 20-4-1989. Letter No. 363 dated 4-4-1989 was written to the C.D.M.O. to produce the third sample bottle on 20-4-1989 and on that date i.e. 20-4-1989, the third sample bottle was received. After the third sample bottle was received, a petition was filed on behalf of the accused that there is limitation of 5 days for production of the sample bottle after receipt of the requisition as per Section 13(2A) of the P.F.A. Act and the Local (Health) Authority has failed to produce the same within the period of limitation. It was also stated in the petition that the second sample bottle produced after 3 months was found to be profusely leaking and hence the accused apprehended that on account of the inordinate delay, the result of analysis by the Director may be substantially different and the accused would be prejudiced and hence the sample bottle should not be sent to the Central Laboratory and the trial should be commenced on the basis of the report of the Public Analyst. On 20-4-1989 a memo was filed on behalf of the accused through advocate to the effect that there was leakage from the third sample bottle also and the outer cover of the bottle was drenched with oil. It appears that on 24-4-1989 an objection was filed by the prosecution through advocate and the Court seal dated 24-4-1989 also appears on the petition, but it was recorded in the order sheet that no objection was filed. On 25-4-89, it is recorded on the order sheet that the advocate for the Cuttack Municipality filed objection. There is another Court seal dated 25-4-1989. Although a copy of the objection was filed along with the objection, as the same could not be served due to nonavailability of the advocate for the accused, the case was posted from date to date and on each date the accused was present, but it was recorded that copy of the objection was not served. Ultimately on 21-7-1989, the matter was heard. On 21-7-1989 a memo was filed on behalf of the accused to the effect that the accused did not want the sample to be sent to the Central Laboratory for analysis. In the objection filed on behalf of the prosecution it was stated that the third part of the sample bottle which was produced on 20-4-1989 was in good condition and there was no possibility of decomposition of the sample. The allegation of the accused that the sample bottle was profusely leaking was denied in the objection. Besides other points of objection were taken. It appears that after considering the memo and the petition filed on behalf of the accused and the objection filed on behalf of the prosecution, the learned S.D.J.M. passed order on 4-7-1989 that in the interest of justice the third sample bottle should be sent to the Central Laboratory for test and opinion even if the accused does not want to exercise his right as contemplated under Section 13(2A) of the P.F.A. Act. Against this order, the revision is directed.
3. In course of argument the learned advocate for the petitioner raised the contention that the sample bottle was not sent by the C.D.M.O. within 5 days after receipt of the requisition as contemplated under Section 13(2A) of the P.F.A. Act and the learned advocate for the Opp. Party stated that some letters of the S.D.J.M. were not received by the C.D.M.O. and after receipt of the letter when the sample was produced, the Mal-khana clerk refused to accept the same and in the letters received by the D.D.M.O., there was direction to produce the sample only on specific dates and the sample bottles were accordingly produced. On account of this I called upon the Opp. Party to file an affidavit in support of his contention and hence an affidavit has been filed by Niranjan Behera, the Food Inspector, Cuttack Municipality.
In the affidavit it has been stated that for the first time a letter of the S.D.J.M. bearing No. 1597 dated 16-12-1988 was received wherein there was direction to produce the sample bottle on 10-1-1989. It is further stated in the affidavit that on 19-1-1989 the sample bottle was produced, but as the Malkhana clerk was on leave and as there was nobody to receive the sample bottle, an endorsement was made in the letter of the C.D.M.O. “Directed to produce the sample bottle by another date as M.C. is on leave.” It has also been stated that this direction has not been reproduced in the order sheet dated 10-1-1989. It has also been stated that the letter No. 503 dated 2-2-1989 was received by the Local (Health) Authority and in accordance with the direction in that letter, sample bottle was produced on 28-20-1989 and the same was also received by the Court. In the affidavit it has been clearly stated that for the third and last time, the Local (Health) Authority received a letter from the Court of the S.D.J.M. bearing No. 363 dated 4-4-1989 with the direction to produce the third sample on 20-4-1989 and the direction has been complied with. In the affidavit it has been denied that the Local (Health) Authority received the letters Nos. 203 dated 2-3-89, 236 dated 8-3-1989 and 288 dated 17-3-1989.
The other statements in the counter-affidavit are not very much relevant for the purpose of this revision.
4. On perusal of the counter-affidavit and the action taken by the S.D.J.M. in making requisition for the sample bottle, I find that there is lack of coordination between the S.D.J.M. and the Local (Health) Authority and hence there has been delay. Added to this, the S.D.J.M. does not appear to have been conscious regarding the provisions contained in Section 13(2A) of the P.F.A. Act and the necessity for expedition and he has unnecessarily adjourned the case from time to time in the routine manner and in his letters also he has given direction to produce the sample bottle on a particular date which is quite distant from the date of the letter. By this way, there has been unnecessary delay and for this the S.D.J.M. is more to be blamed. On the other hand although the Local (Health) Authority is required to produce the sample bottle within 5 days from the date of receipt of the requisition, he has not done so and for doing so he has also given reasonable explanation that he could not do so as he complied with the direction of the S.D.J.M. Hence, the Local (Health) Authority does not lack bona fides. However, as the Local (Health) Authority is concerned with the administration of law contained in the Prevention of Food Adulteration Act, he should have also acted like a watch-dog and as he is very such concerned with the expeditious trial and success of the case, he should have approached the S.D.J.M. sufficiently ahead of time and pointed out the defect in the Court’s direction. I am constrained to give this observation for further guidance of the lower Courts and Local (Health) Authorities, as acts are being performed both by the Courts and the Local (Health) Authorities without due regard to the provisions of the Act resulting in prejudice to the trial. However, this observation is not very much relevant for the purpose of disposal of the revision.
5. The learned advocate for the petitioner argued that the period of 5 days for production of the sample bottle from the date of receipt of the requisition is mandatory and as the Local (Health) Authority has not produced the sample bottle within the period of limitation and there has been great delay in production of the sample bottle for sending the same to the Central Food Laboratory, the whole prosecution is vitiated.
6. In a decision reported in AIR 1983 SC 303 : (1983 Cri LJ 448) (Dalchand v. Municipal Corporation, Bhopal and another) it has been observed:
“There are no ready tests or invariable formula to determine whether a particular provision in a statute is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of.”
On the basis of the above observation with regard to the interpretation of the statute, it was held by the Supreme Court in the same decision that Rule 9(j) (omitted with effect from 4-1-1977) which provided for sending a copy of the report of the Food Analyst to the accused within 10 days of the receipt of the report is directory and as obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. It was held that the period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the report of the Public Analyst.
7. In a decision of the Orissa High Court reported in 1984 FAJ 127 : (1984 Cri LJ 766) (Cuttack Municipality v. Prakash Kumar Barik), it has been held by following the observation of the Supreme Court in Dal-chand’s case (1983 Cri LJ 448) (supra) and other 2 cases of the High Courts of Madhya Pradesh and Himachal Pradesh (at p. 768 of Cri. L. J.):
“Further, there is a catena of decisions of various High Court, namely, Tulasiram v. State of Madhya Pradesh 1983 FAJ 338 and the State of Himachal Pradesh v. Inder Jeet 1983 FAJ 311 : (1983 Cri LJ 1694) where while considering the impact and content of rule 9-A and Section 13(2), it has been held that such provisions are not mandatory. The only question is, whether the accused has been in any way prejudiced for the non-compliance. In “Dalchand v. Municipal Corporation, Bhopal 1983 Cri LJ 448 (SC)” (supra), the Supreme Court considered the question of Rule 9(i) as it obtained prior to the insertion of Rule 9-A and which is almost in pari materia with Rule 9-A.”
8. In a decision reported in 1985 Cri LJ 1270 (State of Himachal Pradesh v. Punnu Ram), the High Court of Himachal Pradesh considered whether Rule 7(3) (as substituted in 1977) which provides for completion of analysis of food by the Public Analyst within 45 days is directory or mandatory and after considering various decisions including the decisions of the Supreme Court, held that the rule is directory. In the said decision (supra) it was observed (at p. 1272 of Cri LJ.:
“The duty entrusted to the Public Analyst vide R. 7(3) is controlled by the word “shall” which, in legal parlance, means that the requirement is imperative. However, the word “shall” need not be given that connotation in each and every case and it can be interpreted as directory instead of being mandatory depending upon the purpose which the legislature wanted to achieve as disclosed by the scheme of the Act and the Rules.
Adulterating an article of food is undoubtedly a heinous crime. It is a hazard to the health of consumers, that is, the people at large. The motive obviously is to make a quick buck and amass illegal wealth. No society can condone such an act of perfidy. The elected representatives of the people have taken note of this compulsion in enacting the Prevention of Food Adulteration Act, 1954 in order to curb and, if possible, eradicate the widespread evil of food adulteration so much so that deterrent minimum punishments have been prescribed for those found guilty. The laudable object enunciated above cannot and should not be permitted to be defeated through imparting non-existent meaning to some mere technicality found here and there in the Act or the Rules.
The object of the Act was also considered by the Hon’ble Supreme Court in Municipal Corporation of Delhi v. Kacheroo Mal, AIR 1976 SC 394 : 1976 Cri. LJ 336, wherein the following observations were made in para 4 thereof:
“The Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It is well settled that wherever possible, without unreasonable stretching or straining, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention….”
It has also to be borne in mind that the provisions of a statute creating public duties are, generally speaking directory. The purpose is to incorporate certain procedural instructions for strict compliance by public functionaries. Nevertheless non-compliance of these instructions per se cannot render the acts done as null and void. It will have to be shown that such non-compliance has caused prejudice and failure of justice. The above principles pertaining to the interpretation of statutes are well settled by now.
xx xx xx xx xx Sub-rule (3) of Rule 7 merely lays down the time limit (45 days) within which the Public Analyst has been directed to complete the analysis and deliver the report to the Local (Health) Authority. It is one step forward to achieve the object of the Act by bringing the culprit to book as speedily as possible. If the Public Analyst neglects to perform this statutory duty within the prescribed time and takes a few days more, he can certainly be hauled up by way of departmental action but it is difficult to understand much less appreciate a single good reason how such breach of the Rule creates a vested right in the accused entitling him to be discharged or acquitted on this short ground," 9. In view of the principles of law enunciated in the judicial decisions cited above, it is clear that Sub-section (2-A) of Section 13 must also be held to be directory. Sub-section (2-A) of Section 13 reads as follows: "13(2-A): When an application is made to the court under Sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition."
In the above Sub-section the word “shall” appears twice. The first part is when an application is made to the court under Sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample etc. In this part the word “shall” is of a mandatory character. Section 13(2A) and this part of Sub-section (2-A) gives a valuable right to the accused to get the sample of article kept with the Local (Health) Authority analysed by the Central Food Laboratory and this right cannot be denied to the accused. This is also the consensus of the judicial opinion.
The second part is that when such requisition is made, the said authority shall forward the part or parts of the sample to the court within a period of 5 days from the date of receipt of such requisition. In this part even though the word “shall” appears, it cannot be said to give this part a mandatory character to the purpose for which this part is enacted. This part is enacted by the Legislature creating public duties and the purpose is to incorporate procedural instructions for strict compliance by public functionaries. The design of the statute is the avoidance or prevention of public mischief, that is food adulteration which is wide-spread in the society and if this particular provision is enforced literally to its letter, it will tend to frustrate the design. Hence in view of the judicial decisions cited above, the provision must be held to be directory and unless there is proof of prejudice in addition to non-compliance of the provisions, there is no scope to invalidate the act complained of.
Even if a literal construction is made, the second part of Sub-section (2-A) cannot be said to be mandatory. It imposes duty on the Local (Health) Authority to forward a part of the sample to the court within 5 days from the date of receipt of the requisition. There is, however, nothing in the Act as to when the court will make the requisition. As per scheme of the Act, the court will make requisition at any time after institution of the prosecution and after the application is made by the accused under Section 13(2A) of the Act. Thus, the requisition may be made by the court either early or after some delay. In such circumstances, the despatch of the sample within 5 days from the date of receipt of the requisition may also be early or may be delayed depending upon the receipt of the requisition. Hence, even if the public functionary makes some delay, beyond 5 days in sending the sample, there may not be any difficulty in carrying out the intention of the legislature and scheme of the Act. Hence, the period of 5 days has been provided with a view to expedition. This period of 5 days, however, is not designed to prescribe a period of limitation with painful consequence, if the Act is not done within that period. In this view of the matter also, the second part of Sub-section (2-A) of Section 13 must be held to be directory.
10. From the facts stated in the preceding paragraphs, it appears that the court of the S.D. J.M. was also not very conscious regarding the provisions contained in Sub-section (2-A) of Section 13 of the Act and hence the direction of the court was mistaken and contrary to the spirit of the said Sub-section.
In a decision of the Supreme Court reported in AIR 1988 SC 1531 : (1988 Cri LJ 1661) (A. R. Antulay v. R. S. Nayak) it has been observed: "It has been said long time ago that "Actus Curias Neminem Gravabit" an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law." The Supreme Court in the same decision observed "To take care that no act of the court in the course of the whole of the proceeding does an injury to the suitors in the court. In view of the above principles of law, it can be safely said that no party has been prejudiced in the case, as mistake of the court contributed to some lapses. 11. In the circumstances discussed above, the contention of the learned advocate for the petitioner that the whole prosecution is vitiated, as the Local (Health) Authority did not send the second and third samples within 5 days from the date of receipt of the requisition cannot be sustained, as such a view is neither legal nor proper. 12. The next contention of the learned advocate for the petitioner is that the third sample should not be sent for examination by the Central Food Laboratory as directed by the S.D.J.M. by the impugned order dated 24-7-1989. In paragraph-9 of the revision petition, the reason for not sending the third sample to the Central Food Laboratory for analysis has been stated. Paragraph-9 runs as follows:
“That on 20-4-89 on inspection of the third sample bottle in the court, the advocate for the petitioner found that the third sample also was profusely leaking. Besides this the sample bottles were produced by the Local (Health) Authority much beyond the period of limitation of five days mandatorily prescribed under Section 13(2A) of the Act. The advocate for the petitioner then and there filed a memo recording the aforementioned facts as well as the petition praying therein not to send the samples to the Central Laboratory for further analysis since the delay caused by the prosecution in producing the sample as well as the apparent leakage on the sample bottle would adversely affect the valuable right of the petitioner. The learned Sub-divisional Judicial Magistrate did not pass any judicial order on the petition filed by the petitioner on the same day. Certified copy of the memo and the petition dated 20-4-89 is annexed hareunto as Annexures-2 and 3.”
Thus, it appears from the above paragraph that the petitioner does not. want to send the third sample for analysis to the Central Food Laboratory as he apprehends that the delay caused by the prosecution in producing the sample as well as the profuse leakage of the sample bottle will adversely affect the valuable right of the petitioner.
13. Section 13(2) gives a valuable right to the accused to get the sample kept with the Local (Health) Authority examined by the Director of the Central Food Laboratory. It is the option of the accused either to exercise the valuable right or not to exercise the same. If the accused exercises the valuable right and prays to the court to send the sample kept with the Local (Health) Authority, the court cannot refuse such a prayer. On the other hand, if the accused does not want to exercise the valuable right, the court cannot force him to exercise that right. Hence, when the accused clearly states that he does not want to exercise his valuable right for sending the third sample to the Central Food Laboratory for analysis, I think that the court should not have sent that sample for analysis to the Central Food Laboratory. However, it must be made clear that by not sending the third sample to the Central Food Laboratory, the accused will be deprived of the right of challenging the facts that the third sample is not fit for analysis or that his valuable right has been adversely affected. This is observed on the basis of the reasons recorded in the subsequent paragraphs.
14. As per Section 11 of the Act, the Food Inspector is required to divide the sample into 3 parts and keep the same in 3 dry-cleaned bottles or containers as the nature of the article permits. One part is to be sent to the Public Analyst for analysis and the remaining 2 parts are to be sent to the Local (Health) Authority for the purpose of Sub-sections (2-A) and (2-B) of Section 13 of the Act.
As per Sub-section (2-A), the court may be required to send one part of the sample kept with the Local (Health) Authority for analysis by the Director of Central Food Laboratory. As per Sub-section (2-B), after considering the report of the Food Inspector if the Local (Health) Authority is of the opinion that the report is erroneous, the said authority shall forward one of the parts of the sample kept by it to any other Public Analyst for analysis.
The third part is preserved only for meeting contingencies like loss or damage of the part sent to the Director of Central Food Laboratory by the Court.
In this case, the court found that the second part of the sample was leaking and hence, the court did not think it desirable to send that part for analysis and called upon the C.O.M.B. to send the third part. The approach of the court is quite correct as in view of the proviso to Sub-section (2-C) of Section 13, the second part of the sample is deemed to be damaged.
The court, however passed order to send the third part of the sample to the Central Food Laboratory. The court has given an opportunity to the Cuttack Municipality to file objection and after hearing both the parties, the learned S.D. J.M. passed the order dated 24-7-1989. Hence it must be presumed that the learned S.D.J.M. considered the memo and the objection of both the parties and found the third sample bottle not to be damaged and fit to be sent to the Central Food Laboratory for analysis.
15. Neither the accused nor his advocate is authorised to take a view that the sample is not fit for analysis and hence the valuable right of the accused has been adversely affected. When the court has taken the view that the third sample can be sent for analysis, this view will supersede the apprehension expressed by the learned advocate for the petitioner. It has also been held by the High Courts including the Supreme Court, that if the sample continues to remain fit for analysis in spite of the delay, the accused is certainly not prejudiced. It has also been observed that only the Central Food Laboratory can say whether the sample is fit for analysis or it has deteriorated, disintigrated or decomposed.
16. In a decision reported in (1975) 1 FAC 186 : (1967 Cri LJ 939) (Municipal Corporation of Delhi v. Ghise Ram), the Supreme Court has observed (at p. 941 of Cri LJ):
“Under Section 13(3) of the Act, the certificate issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst. The proviso to Sub-section (5) of Section 13 further lays down that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. These provisions of the Act are, however, only attacked when, in fact, an analysis of the sample sent to the Director of the Central Food Laboratory is made by him on the basis of which he issues a certificate. If, for any reason, no certificate is issued, the report given by the public Analyst does not cease to be evidence of the facts contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food Laboratory. Further, there being no certificate issued by the Director of the Central Food Laboratory, no question can arise of his certificate becoming final and conclusive evidence of the report contained in it.
There can be no doubt that Sub-section (2) of Section 13 of the Act confers a right on the accused vendor to have the sample given to him examined by the Director of the Central Food Laboratory and to obtain a certificate from him on the basis of the analysis of that sample. It is when the accused exercises this right that a certificate has to be given by the Director of the Central Food Laboratory and that certificate then supersedes the report given by the Public Analyst. If, in any case, the accused does not choose to exercise this right, the case against him can be decided on the basis of the report of the Public Analyst.”
In a decision reported in 1985 Cri. LJ 1270 (Him Pra) (supra), it has been observed (at pp. 1272-73 of Cri LJ):
“Sub-section (2) of Section 13 of the Act does confer a valuable right on the accused. He may make an application to the court within a period of ten days from the receipt of the copy of the report of Public Analyst to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. In case this sample is found by the said Laboratory to be unfit for analysis due to decomposition by passage of time or any other reason attributable to the conduct of the prosecution, the valuable right referred to above would stand denied. This would constitute in itself sufficient prejudice to the accused so as to entitle him to acquittal. The Supreme Court has held so in Municipal Corpn. of Delhi v. Ghisa Ram, (1975) 1 FAC 186 : 1967 Crl. LJ 939. Delay, in such cases, has plainly come to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis in spite of the delay, the accused is certainly not prejudiced on the merits of the case notwithstanding any such delay. In short, an accused in food adulteration cases has an inviolable right to get the sample re-tested by the Central Food Laboratory. The denial of this right would be fatal to the prosecution but then it will have to be shown that the delay has led to the aforesaid denial of right.”
In a decision reported in (1984) 2 FAC 85 (Narinder Singh v. State of Punjab), it has been observed:
“It is manifest that Section 13(2) of the Act provides a safeguard in favour of the accused. If the accused is dissatisfied with the analysis performed by the Public Analyst, he is entitled to get the second part of the sample tested by the Central Food Laboratory. The report of the Central Food Laboratory supersedes the report of the Public Analyst. Should the report of the Central Food Laboratory be in favour of the accused, the prosecution will end because then the earlier report of the Public Analyst would become redundant. In view of the provisions of Section 13 (3) & (5), the report given by the Public Analyst is superseded only when the analysis of the sample sent to the Director, Central Food Laboratory, is actually made by him on the basis of which he issues a certificate. It has been held in Municipal Corporation of Delhi V. Ghisa Ram, (1975) 1 FAC 186 : (1967 Cri LJ 939 (SC), that if for any reason no certificate 16 issued by the Director of the Central Food Laboratory, the report given by the Public Analyst does not cease to be evidence of the facts contained in it and does not become ineffective merely because it could have been superseded by the certificate issued by the Director of the Central Food. Laboratory.”
From the judicial decisions cited above, it is clear that unless the accused makes an application under Section 13(2) of the Act for sending the second part of the sample to the Central Food Laboratory for analysis and the said part is actually sent and the Central Food Laboratory either gives a report or does not give a report on the ground that the article in question is not fit for analysis due to deterioration and decomposition, the accused cannot take advantage by merely expressing that the sample in question is not fir for analysis and his valuable right has been adversely affected.
To be more clear, in the Supreme Court case (supra) the sample of curd was taken and due to delay in launching the prosecution, the second sample was sent to the Central Food Laboratory after long time and at that time the sample was found to be decomposed and deteriorated and hence the Central Food Laboratory could not give a report. In this circumstance, the Supreme Court held that the valuable right of the accused was frustrated and he was highly prejudiced and hence he cannot be convicted.
In Narinder Singh’s case (Supra), sample of Paneer was taken. As there was delay in launching the prosecution, the second sample was sent to the Central Food Laboratory after long time and at the time of analysis it was found that the Paneer had decomposed and unfit for analysis. Hence it was held that serious prejudice was caused to the accused.
In the circumstances discussed above, unless the second and third samples are sent to the Central Food Laboratory for analysis, the accused is debarred to take the advantage of his valuable right and the report of the Public Analyst will remain valid and the case can be decided on the basis of that report without taking into consideration the apprehension of the accused that on account of the delay, the third sample has become unfit for analysis and his valuable right has been adversely affected.
Subject to the above observations, I am of the view that there is no need to send the third sample to the Central Food Laboratory for analysis specially when the accused does not want to exercise his valuable right.
In the result, the criminal revision is allowed and the order dated 24-7-1989 passed by the learned S.D.J.M. directing to send the third sample bottle to the Central Food Laboratory for analysis is set aside.