A.D. Koshal, J.
1. This is a petition for revision of the order of Shri Harbans Singh. Additional Sessions Judge. Jullundur, dated the 13th of October, 1970, dismissing the appeal of the petitioner against the judgment of the Chief Judicial Magistrate, Jullundur, dated the 4th of February, 1970, convicting the petitioner under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (hereinafter referred to is the Act) and sentencing him to rigorous imprisonment for six months and a fine of Rs. 1,000/-, the sentence in default of payment of fine being rigorous imprisonment for four months.
2. According to the prosecution case, the petitioner was found carrying 15 kilograms of cow's milk for sale near Masand Chowk. Model Town. Jullundur, on the 23rd of May, 1967. when Dwarka Nath. Food Inspector. Municipal Committee. Jullundur (P. W. 1) purchased from him 20 ounces of milk which was divided into three parts. Each of these parts was sealed into a separate bottle in the presence of W.G. Masand (P. W. 3). One of the bottles was handed over to the petitioner while another was sent to the Public Analyst who certified on the 27th of May, 1967. (vide his report Exhibit P.E.) that the sample of milk contained in the bottle sent to him was sub-standard inasmuch as the fat and the non-fatty solids therein were deficient by 12.5 and 28 per cent, respectively when judged in the light of the minimum prescribed standard.
3. The contention which failed before the learned Additional Sessions Judge and has been reiterated before me on behalf of the petitioner is that the institution of the proceedings against the petitioner was so delayed as to deprive him of his right to have the sample contained in the bottle given to him analyzed by the Director. Central Food Laboratory. Calcutta (hereinafter called the Director) under Section 13(2) of the Act. I find a lot of force in this contention and am unable to agree with the finding of the learned Additional Sessions Judge on the point. As already stated the sample was secured on the 23rd of May, 1967. The complaint was filed three months and 9 days thereafter, i.e., on the 1st of September, 1967, when the case was adjourned to the 4th of October, 1967, for the appearance of the petitioner. No process-fee appears to have been put in nor any summons issued to the petitioner till the date last mentioned on which the case was adjourned to the 4th of November. 1967. by when also no process-fee was put in so that no summons was issued to the petitioner for that date. The documents on the record prepared by the trial Magistrate show that the summons was issued to the petitioner for the first time on the 4th of November, 1967, when the case was adjourned for his appearance to the 2nd of December, 1967. The petitioner was sought to be served with this summons on the 14th of November, 1967. but without success inasmuch as the petitioner was absent from his village for the reason that he had taken milk for sale to Jullundur City. Thereafter numerous attempts were made to have the petitioner served but all of them proved abortive till the 5th of February, 1969, when he appeared in Court.
In October 1969. he made to the trial Magistrate an application in pursuance of which the sealed bottle handed over to him (the petitioner) by the Food Inspector on the 23rd of May, 1967. was sent to the Director whose report dated the 8th of December, 1969, which forms part of the trial Court's record, states that the sample sent to him was highly decomposed and unfit for analysis. The learned Additional Sessions Judge refused to hold the prosecution responsible for the delay with which the dispatch of the sample to the Director was attended, observing that in between the taking of the sample and the initiation of proceedings the time-gap was only about, three months and that the prosecution could not be held responsible for the petitioner not being served till as late as the 5th of February, 1969. That in my opinion is not a correct view to take. Upto the 4th of November, 1967, the prosecution had not done anything to have the petitioner apprised of the proceedings against whom so much so that in spite of the Court's orders no process fee was put in to have the petitioner served for the first two hearings, i.e., those fixed for the 4th of October, 1967, and the 4th of November, 1967. and by the date last mentioned six months had already passed since the sample was taken so that the milk contained in the bottle delivered by the Food Inspector to the petitioner on the 23rd of May, 1967, must have become so decomposed as to have been rendered unfit for analysis. In this connection the following observations made by their Lordships of the Supreme Court in Municipal Corp. of Delhi v. Ghisa Ram : 1967CriLJ939 , may be noted with advantage:
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 non-fatty 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 non-fatty solid 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 expected to keep it in a refrigerator. Consequently, without any preservative, the sample kept with him could have been analyzed successfully during the next 17 days, whereas, if a preservative had been added it could have been analyzed successfully during the next four months.
In so far as the process of decomposition is concerned, it would be safe to put milk and curd practically on the same footing so that if a sample of milk with the preservative added is allowed to remain as room temperature, it cannot be expected to remain fit for analysis after the lapse of a period of four months. In the present case a Period of more than six months had elapsed between the securing of the sample and the first attempt to have the petitioner served with a summons. The petitioner was. therefore, deprived of the valuable right conferred on 'him by Section 13(2) of the Act to have the sample given to him analyzed by the Director. As observed by their Lordships of the Supreme Court in : 1967CriLJ939 (supra):
The right is a valuable one because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, 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 evidence in the case of the facts contained therein.
These observations are fully attracted to the facts of the present case. The report of the Public Analyst was made on the 27th of May, 1967 i.e., within four days of the securing of the sample and it is reasonable to presume that the report would have been made available shortly afterwards to the Food Inspector who however, chose to take more than three months to file the complaint and then did not put in the process-fee for service of summons on the petitioner for a further period of more than two months. For all this delay he cannot be absolved of responsibility. The prejudice caused to the petitioner in consequence is the direct result of the conduct of the prosecution and it would not be proper to uphold his conviction on the basis of the report of the Public Analyst.
4. In the result the petition is accepted, the conviction recorded against and the sentence imposed upon the petitioner are set aside and he is acquitted of the charge.