B.L. Hansaria, J.
1. Feeling aggrieved at the framing of charge against the petitioner under Section 16(l)(a) of the Prevention of Food Adulteration Act, hereinafter 'the Act', this Court has been approached in revision to quash the proceeding. The point urged is that in view of the denial of the right to the petitioner Under Section 13(2) of the Act, the continuance of the proceedings is an abuse of the process of the Court inasmuch as the trial is bound to end in acquittal in view of the aforesaid denial.
2. What happened was that some samples of wheat were collected on 27-11-75 as would appear from the offence report. On receipt of the report of the Public Analyst that the sample did not conform to the standard, a complaint was lodged on 25-3-76, when an order of summoning the accused was passed fixing 22-4-76. The order sheet shows that the summonses were not taken out for that date and so another date was fixed for appearance of the accused. The date so fixed was 14-6-76 on which date he did appear. Thereafter on 30-7-76, he filed a petition Under Section 13 of the Act with a prayer to send a part of the sample to the Central Food Laboratory. This was allowed. On the next date, however, the Director of the Laboratory informed that the sample was decomposed and as such was unfit for analysis. The report further shows that Director asked for sending the counterpart of the sample for analysis and report. The Court accordingly directed the Food Inspector to produce the sample on 10-9-76, and on such production the sample was sent to the Central Food Laboratory after finding the seal etc. in tact. It was reported subsequently on 8-12-76 by the Director that that sample too was received in a decomposed condition and as such was not fit for analysis. It was further stated that defect in packing appeared to be responsible for earlier decomposition of the sample. On these facts, it was urged before the learned trial Court that the case was not fit for framing of charge and the accused merited discharge in view of the denial of right under Section 13(2) of the Act. This was not accepted and the charge as aforesaid was framed.
3. Shri Barua for the petitioner has principally relied in this connection on the decision of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram : 1967CriLJ939 . In that case, it was held that the right conferred by Section 13(2) of the Act is a valuable right because the certificate issued by the Director supersedes the report of the Public Analyst and the same gives the accused a right to have the sample analysed by greater expert for the satisfaction and proper defence. It was then observed that where there is denial of this right on account of the deliberate conduct of the prosecution, say, delay in prosecution, as a result of which the sample is highly decomposed and could not be analysed, the vendor is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst even though that report continues to be in evidence in the case. It was, however, observed that different considerations may arise if the right gets frustrated for which the prosecution is not responsible.
4. The decision in Ghisa Ram was explained and distinguished in Babulal v. State of Gujarat : 1971CriLJ1075 . In that case, the contention of the accused that he was deprived of his right under Section 13(2) due to delay in launching the prosecution was not accepted when the accused had not filed any application during the trial to get the sample analysed. Ajit Prasad v. State of Maharashtra : 1972CriLJ1026 was also a case where the vendor had not applied to get the sample analysed by the Director and so it was held that he could not complain of deprivation of the right under Section 13(2) of the Act.
5. The present is apparently a case where the ratio of Ghisa Ram would apply inasmuch as the accused had applied for analysing the sample by the Director, and that too soon after his appearance; and the sample was sent to the Director not once but twice, and on each of the occasions the report was that the sample was decomposed to which a rider was added in the second report (Ext. 11) that defective packing appeared to be responsible for early decomposition of the sample.
6. On these facts it cannot but be held that a valuable right under Section 13(2) of the Act was denied to the petitioner. The question is whether this is sufficient to quash the proceeding, or to put it differently, to discharge the accused-petitioner. The learned Public Prosecutor contends that he should face the trial where during the course of evidence some more facts may come to light. In making this submission, reliance is placed on Charanji Lal v. State of Punjab AIR 1984 SC 80 : 1984 Cri LJ 15. In that case the matter was remitted to the High Court for fresh decision because there were certain aspects of the case which were 'disturbing' as stated in para 9. It was not clear to the Apex Court as to how the fat content of the article which was found to be 25% by the Public Analyst went up to 33.12% at the hand of the Director. It was also not clear that when the fat content of the sample was 33.12% and the R.M. value of the extracted fat was 20.37%, still the Director on analysis found the sample to be adulterated. The Court wanted to be assured about these facts and therefore desired further investigation in this regard. It may be stated that in that case the main point for consideration was the meaning of the word 'damaged' appearing in the proviso to Sub-section (2C) of Section 13 of the Act. The proviso requires that where the part of the sample sent to the Director is lost or damaged, the Court shall require the local authority to forward the part of the sample, if any, retained by it to the Court and on receipt thereof the Court shall proceed in the manner provided in Sub-section (2B). As the report of the Director was that the sample sent to him was decomposed, the question was whether the proviso was at all attracted. The Supreme Court opined that the word 'damaged' must be given a wider meaning to include damage due to any cause, including decomposition. It may be stated that after the aforesaid report of the Director, another sample kept with the local authority was sent to the Director and the Director had given a report that the sample was adulterated. The question, however, was whether further report could at all be called for. The Court came to the conclusion that this could be. It however required further investigation to clear some doubts referred above.
7. The aforesaid decision, therefore, has not said that in cases where the denial of right under Section 13(2) is otherwise apparent on the face of the record, the accused has to face the whole-hog of the trial knowing that he would be acquitted in the end. Such a course would be definitely not in the interest of justice as it would be a mere harassment of an accused.
8. As in the present case, from what has been stated above it has to be held that the petitioner was denied the valuable right conferred by Section 13(2) for which he was not responsible in any way as decomposition had occurred due to defective packing, it would be highly unjust to ask the petitioner to face the trial to enable the State to find out as to why the defective packing had appeared and who was responsible for the same, for which purpose, according to the learned Public Prosecutor, the case should go back. I have come to this conclusion as the sample sent subsequently to the Director has come from the custody of the Food Inspector, and as the petitioner could not have reasonably had any hand in its defective packing. I am therefore satisfied that it is a fit case where the proceeding may not be allowed to be continued inasmuch as the same will only harass the petitioner without any benefit to the State in so far as the punishment for the alleged commission of crime is concerned, as the petitioner is bound to be acquitted at the end of the day on the ground of denial of right under Section 13(2) of the Act. A similar view of the matter has been taken in Nandkishore v. State of Punjab, (1983) 2 FAC 320. It may be pointed out that the case at hand was taken as covered by this section as it had existed prior to its amendment in 1976.
9. In the result, the petition is allowed. The charge as well as the proceedings stand quashed.