P.S. Safeer, J.
(1) This appeal is directed against acquittal of the respondent by Judicial Magistrate 1st Class, Delhi in terms of the order made on 6th November, 1970 in respect of the alleged commission of an offence under section 7/16 of the Prevention of Food Adulteration Act (hereinafter called the Act). The case against the accused was that 1500 grams of Bundi prepared from person were purchased by Public Witness . 1 on the 27th of December, 1967 after giving the notice prescribed by the Act at a price of Rs. 7.50P. The Bundi purchased was made into three parts and the samples so prepared were sealed in separate bottles. One of the bottles was given to the respondent at the spot. The sample which was sent to the Public Analyst brought in the result Ex. P.E. which stated that the Bundi was found adulterated and on receiving the report, a complaint under Section 20 of the Act was filed by Public Witness . 2. Apart from Public Witness . 1 the prosecution examined Saroop Singh, an independent witness who supported the version given by P. W. 1 which pertained to the giving of the notice and the purchase of Bundi and making it into three samples which were sealed at the premises of the respondent to whom one of the samples was delivered.
(2) In the course of the trial the respondent made an application on 16th July, 1968 invoking Section 13(2) of the Act which reads as follows :-(---)
(3) The trial court found that the bottle which was offered for being dispatched to the Director of the Central Food Laboratory, Calcutta was not in such a condition that it could be dispatched under the seal of the Court. The application of the respondent was rejected on the 27th July, 1968. Against the order rejecting his application for sending the sample to the Director of the Central Food Laboratory, Calcutta, the respondent came up in revision to this Court and by the judgment made on the 5th March, 1970 this Court directed that the sample produced by the respondent should be dispatched. The trial Court complied with the direction but the report received from the Director of the Central Food Laboratory, Calcutta was that the Bundi was found decomposed and could not be subjected to any examination for giving the report whether it was adulterated or not. After the report was received from the Director of the Central Food Laboratory, Calcutta, the argument came up before the trial court that the accused had been in substance denied the right of getting his sample tested by the Director of the Central Food Laboratory, Calcutta in as much as his application for getting it tested had been wrongly rejected on the 27th July, 1968. We find it stated in para 12 of the judgment of the trial Court that the accused was called upon on 10th August, 1970 as to whether he would agree to the sending of the counter sample in possession of the Food Inspector but that the accused had refused. If anything the court below did not apply its mind to S. 13(2) of the Act. Neither the Court nor Public Witness . 2 who had filed the complaint on the 3rd April, 1968 were at the mercy of the respondent. It is provided by the fore quoted provision that the complainant is at par with the accused and can independently invoke the provision for obtaining an order that the sample in his possession may be sent to the Director of the Central Food Laboratory, Calcutta for obtaining a certificate which would be conclusive evidence of the report contained in it. It is to be appreciated that where the court dealing with an application by the accused finds that sample offered to be sent to the Director of the Central Food Laboratory, Calcutta is not in a fit condition and cannot be dispatched, a stage is reached where the complainant still has with him the third sample. It is for the complainant then to decide whether he is to invoke or not Section 13(2) in the Act and get his sample dispatched to the Director of the Central Food Laboratory, Calcutta. That raised a significant aspect which would arise in every case where the trial court finds that the sample offered by the accused is not in a fit condition and for that reason it cannot be dispatched to the Director of the Central Food Laboratory. An intriguing situation is created in the course of trial. As in the present case every accused person can invoke the revisionary jurisdiction for setting aside the order of the court rejecting the application made under Section 13(2) of the Act. As we have noticed in this case there can be a lapse of considerable time. The exercise of the revisionary jurisdiction by this court and the ultimate dispatch which may or may not be made to the Director of the Central Food Laboratory, Calcutta in consequence of the decision made on accepting a revision petition or rejecting it would take time. In any event at the timer when the trial court dismisses the application of the accused on coming to the conclusion that the sample purchased by him is not in a fit condition and cannot be dispatched, it remains with the complainant to come forward with his part of the sample so that complete justice may be done by the court after taking into consideration the condition of the sample which may be produced by the Food Inspector and deciding whether that part of the sample is to be dispatched to the Director of the Central Food Laboratory, Calcutta or not. Be that as it may, we find that in this case the right course would have been for the complainant to have offered his part of the sample to the court when the court found that the report of the Director of the Central Food Laboratory, Calcutta was that the Bundi dispatched had been found decomposed was no one to come into the picture and stand between the court and the complaint if the complainant wanted his sample to be tested.
(4) We must, however, notice that by the 10th August, 1970 the date mentioned in para 12 of the judgment made by the court below, the sample must have deteriorated and decomposed and there may have been no point in sending any sample whatsoever for obtaining any certificate from the Director of the Central Food Laboratory, Calcutta. That. however, could not be said to have been the situation on the 27th July, 1968 when the application by the accused made under Section 13(2) was rejected by the trial court. In this case the accused was denied the protection which Section 13(2) in the Act provides and indeed its scope is to be appreciated in the light of the scheme of the Act. Under Sections 10 and 11 of the Act the Food Inspector has to comply with the statutory requirements when he makes the purchase. Under Section 10 of the Act the Food Inspector has the power to take samples of any article of food from any person selling such article or from any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee. He can take sample of any articles of food from a consignee after delivery of any such article to him. Section 11 provides that the Food Inspector is to give notice in writing to the vendor that he is going to make the purchase of the food stuff for getting it analysed in order to get it established whether it is adulterated or not. The samples after purchase of the article are made into three parts and each one of them is similarly sealed. One of them is delivered to the accused. The scheme of the Act leading up to Section 13(2) discloses that the provision gives the protection to the accused that in case some other sample than the concerned one is tested by the Public Analyst or the sample sent to the Public Analyst is interfered with then he may produce the sample which is delivered to him at the very time when the purchase is made and approach the Court invoking the jurisdiction for sending that sample to the Director of the Central Food Laboratory, Calcutta. The sample is given for the purpose of getting an examination performed by the Director of the Central Food Laboratory, Calcutta which in terms of the statute is to supersede the report of the Public Analyst. The breach of this provision would certainly cause grave prejudice to the accused. That prejudice is obvious on the record of the case before us. As the accused/ respondent could not, for no fault of his in the peculiar circumstances appearing on the record of this case, get his sample tested in good time by the Director of the Central Food Laboratory, Calcutta, we are of the view that having been denied the right which he had in terms of Section 13(2) of the Act he deserved the acquittal. Appeal dismissed.