G.R. Luthra, J.
(1) The present petition, filed under Section 397 of the Code of Criminal Procedure, is directed against the judgment of Shri K..B. Andley, Additional Sessions Judge, Delhi dismissing an appeal against the judgment dated 21st December, 1984 of Metropolitan Magistrate, Delhi and upholding the conviction of the petitioner under Sections 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act') and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 4,000.00 in default of payment of which, to undergo further simple imprisonment for four months.
(2) The petitioner is running a kiryana shop under the name and style of M/s. Vishnu Kiryana Store at 1435, Ganeshpura, Tri Nagar, Delhi. His godown is located nearby in premises No. 1433/98, where he used to store spices etc. According to the respondent on 26th May 1980 at about 3.30 p.m. P.K. Vats, Food Inspector lifted sample of chillies powder from the shop of the petitioner and the same was sent for analysis. On analysis by the Public Analyst it was found to be adulterated. Notice was sent to the petitioner under Rule 9-A of the Prevention of Food Adulteration Rules (hereinafter referred to as 'the Rules'). The petitioner filed an application on 21st July 1981 praying that he wanted to exercise his right under Section 13(2) of the Act for getting the counter part of the sample analysed from the Director, Central Food Laboratory. That application came up for hearing on 31st July 1981 and on that day, the said sample was produced in the court. The petitioner made statement that he did not want to exercise his right under Section 13(2) of the Act and consequently the application was dismissed and counter part of the sample was not sent to the Director for analysis. On 7th August 1981 the petitioner moved another application praying that the counter part of the sample be got analysed from the Director of Central Food Laboratory. That application was rejected on the ground that previous such application was withdrawn. The rejection order was passed on 4th September 1981.
(3) The case of the petitioner was that he was not present when the sample was taken, that the sample was not taken from his shop but from another shop in occupation of another person and that, thereforee, he was not responsible in respect of the adulteration of the sample so taken.
(4) During arguments before the court of the learned magistrate as well as the learned Additional Sessions Judge it was urged by the counsel for the petitioner that the rights of the petitioner, as guaranteed under Section 13(2) of the Act, were frustrated on account of the fact that the counter part of the sample was not sent for analysis, to the Director of Central Food Laboratory. That contention was found to be having no force on the ground that the petitioner himself had given up such right and, thereforee, he had nothing to complain in that respect. Learned counsel for the petitioner contends that actually it was on account of some misunderstanding that the original application filed on 21st July 1981 for sending the counter part of the sample to the director of Central Food Laboratory was withdrawn. He tells that the misunderstanding was on account of the fact that the petitioner was told by the magistrate that when sample was not lifted from his premises, why he was keen to get the sample analysed and that his attempt to get the second analysis made might recoil on him in as much as it might be thought that he was admitting that the sample was. lifted from his premises. This fact was mentioned in the second application dated 7th August 1981. Learned counsel urges that under the circumstances, the second application was not independent one and was in continuation of the original one and was with a view to withdraw the prayer of the petitioner, not pressing the previous application. Learned counsel concludes that in this way the second application of the petitioner was wrongly dismissed and he was deprived of his valuable rights on account of which he is entitled to acquittal straightaway.
(5) The learned counsel relies upon a very recent judgment of the Division Bench of this court consisting of R.N. Aggarwal and Malik Sharief-ud-din, JJ. delivered in Criminal Appeal No. 255 of 1980 decided on 10th September, 1985. Following observations were made by the Division Bench:
'The question that arises for consideration is whether Section 13(2) of the Act lays down a rule of limitation. In our view Section 13(2) of the Act being procedural in nature should not be strictly construed as it is only meant to test the authenticity of the report of the Public Analyst and also to provide a safeguard to innocent persons. Obviously, if the report of the Director, Central Food Laboratory says that the sample is not adulterated, the prosecution will have to be dropped. Section 13(2) of the Act only says that the accused in the event of receiving intimation regarding the adverse report by the Public Analyst may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by Local Authority analysed by the Central Food Laboratory. The section is silent as to the effect of not making an application within the period of ten days. That by itself clearly goes to show that it does not strictly speaking lay down a rule of limitation and since, in our view, it lays down 3 procedure it ought to be construed liberally and unless there is an inordinate delay the court should not reject the application and should grant the request. That is not to suggest that the mandate of law should not be adhered to. In our view, much will depend upon the facts of each case and if the delay is reasonable the request under Section 13(2) ought not to be rejected. This will also depend upon the food article as certain food articles are subject to speedy decay and decomposition. There may also be cases where for one reason or the other the accused may not be able to apply within ten days for sending the sample to the Central Food Laboratory but later on bona fide wants. this testing to be done. The question that would arise in such situation is whether the court should reject such a request on the mere ground of delay. To us this does not appear to be the object of law. These procedural errors should lead to minimum possible adverse results. There is no specific bar created by Section 13(2) against making an application after 10 days.'
(6) In the present case, I agree with the counsel for the petitioner lo the effect that the second application was only for the purpose of allowing the petitioner to withdraw his giving up the first application. Had the second application been decided from the angle, the courts below must have concluded that the petitioner was entitled to send the counter part of the sample for analysis by the Director of the Central Food Laboratory. By rejecting that application, a very valuable right of the petitioner was taken away.
(7) Further, it appears from the observations made by the Division Bench that a very strict view of the delay in filing such application is not to be taken. In the present case, there was delay of only 7 days even if we take it for granted that the first application stood rightly rejected on account of its withdrawal. thereforee, the second application should have been treated as fresh one and allowed. It is true that the petitioner on 31st July, 1981 gave up his prayer to send the counter part of the sample for second analysis, but he had rightly explained in the second application that was on account of misunderstanding. Hence the second application deserved acceptance and was wrongly rejected as barred by limitation as well as on account of giving up of the first application.
(8) Under these circumstances I accept the petition, set aside the conviction and sentence and acquit the petitioner. The petitioner has been on bail. The bail bonds stand discharged.
(9) The petitioner, as I am told, had paid the fine. If that is so, fine shall be refunded to him.
(10) Criminal Revision No. 113 of 1985 stands disposed of.