ORDER
L.P.N. Shahdeo, J.
1. This is an application, in revision, under Sections 397 and 401 of the Criminal P. C. directed against the judgment passed by Smt. Rekha Kumari, Sub-divisional Judicial Magistrate, Patna convicting the petitioners under Section 16(1) of the Prevention of Food Adulteration Act and sentencing them to undergo R.I. for six months and also to pay a fine of Rs. 1,000/- (one thousand), in default, to undergo R.I. for three months. This order of conviction and sentence were affirmed in Cr. Appeal No. 144/68 of 1982 by the judgment dt. 8-2-83 passed by the 6th Addl. Sessions Judge, Patna, Shri T. L. Verma, who dismissed the appeal of the petitioners.
2. It appears that the Food Inspector had taken sample of atta and suji measuring 600 grams each from the shop of the petitioners running in the name and style of J. N. Stores on 28-12-77 situated at Daldali Road, Patna. The purchased sample was divided into three equal parts and was packed and sealed in the prescribed manner. Out of the three parts, one was despatched for analysis to the public analyst and the other two parts were retained in the office of the Food Inspector. It appears that the public analyst reported that the atta purchased from the shop of the petitioners was adulterated and, thereafter, necessary sanction was obtained and the case against the petitioners was instituted. The petitioners were served with a copy of the report of the public analyst on 19-4-78.
3. On 29-4-78 the petitioner filed a petition in the court for getting that sample analysed by the Central Food Laboratory. The court ordered for sending the third sample to the Central Food Laboratory on the same day. But, it appears that the third sample was received from the Civil Surgeon office on 29-8-80 and, thereafter, the Central Food . Laboratory analysed that atta on 24-6-81 and sent its report on the same day which indicated that the atta was adulterated.
4. The petitioner were put on trial and, thereafter, they were convicted by the trial court which was affirmed by the lower appellate court. These two judgments are being challenged in this revision application.
5. Mr. N. K. Agrawal, learned Counsel appearing on behalf of the petitioners, submitted that there was inordinate delay in getting the atta analysed by the Central Food Laboratory. The sample was sent after two years of the filing of the petition by the petitioners. The atta was found mixed with ants and that was not fit for analysis. It was also submitted that the first report of the public analyst is dt. 13-2-78 and the report was submitted after 47 days and, therefore, that report was also bad under law under the provisions of Rule 7(3) of the Prevention of Food Adulteration Rules. He has further argued that the learned Magistrate has not put in that report of the public analyst to the accused while they were examined under Section 313 of the Cr. P.C. The last argument of Mr. Agrawal is that the Magistrate had no jurisdiction to try the offence as he was not duly empowered to try such offences summarily, under Section 16A of Food Adulteration Act as the power was not vested by a notification by the State Government, rather, the power was vested by the High Court which is contrary to Act.
6. It is the admitted position in this case that the petitioner No. 2 was present at the time when the sample of atta was taken from the shop of the petitioners. It is also the admitted position that petitioner No. 1 is the father of petitioner 2. It is also the admitted position that the sample was taken for analysis on 28-12-77 and the public analyst report was served on the petitioners on 19-4-78. It is also the admitted position that the petitioners had right under the provisions of Section 13 of the Food Adulteration Act to get the sample analysed by the Central Food Laboratory.
7. It appears that the petitioners had exercised their right under Section 13 of the Act by filing a petition on 29-4-78 to send the third sample of atta kept in sealed and signed packet to the Central Food Laboratory for analysis. It is also the admitted position in this case that the court had ordered for sending the same and had directed the Civil Surgeon to send that sample to the Central Food Laboratory. It is also the admitted position that the sample was received in the court on 29-8-80 i.e. after more than two years. This inordinate delay in sending the sample is unexplained and this itself is a fatal for proper and scientific analysis of a perishable goods like atta. If the sample of the atta is kept in a sealed packet or bottle for a considerable period, it is, no doubt, likely to affect its potentiality and utility because of lapse of time and it may deteriorate. Therefore, sending the sample to the public analyst after such an inordinate delay of more than two years in spite of the courts order passed, deprives the petitioners of their valuable right to get the sample analysed in a scientific and proper manner specially, goods of this perishable nature. In the absence of any evidence that any preservative was added in the packet for its proper and longer preservation of the potentiality and quality of the goods, this inordinate delay in sending the sample of atta to the Central Food Laboratory for analysis, in my view, is a fatal defect of incurable nature which entitles the petitioners to claim an acquittal.
8. My aforesaid view is further confirmed when I examine the report of the public analyst. The report of the Central Public Analyst shows that the sample of atta was received by him containing many dead and living ants. This itself shows that the atta had deteriorated in quality because it was eaten up by the ants and was rendered unfit for scientific analysis. The analysis of such sample by the Central Food Laboratory, in my opinion, is not scientific and it cannot be used against the petitioners for the purpose of conviction.
9. Rule 7 appears to be mandatory. In no event its mandates and direction should be relaxed so as to result in deprivation of a valuable right of the accused to get the sample analysed. In this case the first report of the public analyst was received after 45 days which is against Rule 7(3). This follows that direction of the rule has not been followed nor complied with and, therefore, that report is vitiated and lost its value.
10. In this circumstance, the Central Analyst report cannot be used against the petitioners for the purpose of conviction which itself appears to be unscientific and unfit to be accepted. It can be noted in this connection that the report of the Central public analyst supersede the State Govt. public analyst report under Section 13(3) of the Food Adulteration Act. In this case, therefore, the Central public analyst report is the only document which can be taken into consideration which was unfit for acceptance for the reasons stated above. If this public analyst report is rejected or found unfit for acceptance, then, there is no evidence to hold the petitioners guilty for selling adulterated atta and, as such, they are liable to be acquitted.
11. It is the admitted position that the petitioners were not put to explain the public analyst report while they were examined under Section 313, Cr. P.C. This is not an idle formality. This circumstance to be relied against the accused must be put to them. They could not get any opportunity to explain about it. The non-examination of the petitioners on this point under Section 313, Cr. P.C. is a fatal defect and on this defect alone the petitioners can claim acquittal.
12. In this connection the petitioners have relied upon a ruling reported in 1982 EFR 479 : (1982 Cri LJ NOC 207) (All) Ghanshyam v. State of U.P. in which it was held that the report of the Central Food Laboratory has to be put to the accused under Section 313, Cr. P.C. and if this report is not put to the accused, the accused is deprived of an opportunity to explain the evidence likely to be used against him. In this circumstance, this defect becomes a fatal one and conviction of the accused cannot be upheld. In this case, the accused was convicted but his conviction was set aside in revision by the Allahabad High Court. Similar is the situation here. Therefore, in my view, if the important piece of evidence is not put to the accused and he is not given an opportunity to explain the same, its omission is a fatal defect committed by the trial court and for that reason, the conviction of the petitioners under Section 16 of the Food Adulteration Act cannot sustain.
13. Under the provisions of Food Adulteration Act all the offences under the amended Section 16A of the Prevention of Food Adulteration Act are to be tried summarily by a Magistrate empowered by the State Govt. In this case, admittedly, the Magistrate was not empowered by the State Govt. to try cases arising out of the Food Adulteration Act summarily and the mandate of law has not been complied with. The High Court has vested necessary powers for trying cases summarily arising out of Food Adulteration Act by issuing a notification but the Act says:
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under Sub-section (1) of Section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Govt. or by a Metropolitan Magistrate and the provisions of Sections 262-265 (both inclusive) of the said Code shall, as far as may be, apply to such trial.
This excludes the vesting of the power by the High Court and confers power on the State Government. The offences committed under the provisions of Food Adulteration Act shall be tried by a Magistrate and for which the powers shall be vested in him by the State Government. This mandate of law has not been done in this case. This is a far reaching omission and it is not curable irregularity. It is an illegality. If the law directs that a particular act should be done in a particular manner, that act must be done accordingly and omission to do so, goes at the very root of the trial and, as such, the trial held by an incompetent Magistrate must be held to be ab initio illegal and void. The conviction of the petitioners by such an incompetent Magistrate who was not vested with lawful powers as the mandate of law provides must be held to be illegal and void ab initio. On this account also, the petitioners are entitled to be acquitted straightway.
14. In the result, this application succeeds. The order of conviction and sentence imposed against the petitioners by the trial court and affirmed by the appellate court are set aside.