Krishnaswamy Reddy, J.
1. The appellants are accused 1 and 2 in M. P. No. 979 of 1966 on the file of the IV Presidency Magistrate, George Town, Madras. The appellants were convicted Under Sections 2, 7 and 16 of the Prevention of Food Adulteration Act (hereinafter called 'the Act') read with B. 5 of the Prevention of Food Adulteration Rules. The first appellant was released after due admonition Under Section 3 of the Probation of Offenders Act and the second appellant was sentenced to imprisonment till the rising of the Court and to pay a fine of Ra. 100.
2. The prosecution case is briefly this: The first appellant is the servant of the second appellant. The second appellant was a milk vendor. At about 4.10 p.m. on 27-6-1966, in front of premises No, 101 Perumal Mudali St. Sowcarpet, P.W. 1 Jeremiah, Food Inspector, saw the first appellant carrying milk in a can on a cycle. P.W. 1 stopped him and told him that he intended to take a sample from the milk. P. W- 1 purchased 650 milli-litres of cow's milk from the first appellant and paid him 80 paise and got a receipt Ex. P. 1, for the same. He added formalin to the milk, divided it into three equal parts, poured it into three empty clean dried bottles and sealed them. Then he prepared labels, pasted and sealed in the presence of P.W. 2 Munuswami Naidu and Babulal. He wrapped the bottles with brown pipers and sealed them again, gave one bottle with a copy of the order Under Section 11 (1) (a) of the Act and got an acknowledgment for the same. The second bottle was sent to the Public Analyst with a memorandum, copy of which is Ex. P. 3. The third one was retained in the office by him. P.W. 3, 8. Sundaram, the Public Analyst, for the Corporation of Madras, received the sample sent by P.W. 1 on 28-6.1966 and after analysis, he sent his report (Ex. P. 4) under dated 27.7-1966. He found that the sample waa deficient in its content of milk solids to the extent of 11 per cent and that, therefore, it was adulterated.
3. After receiving the report from the Analyst, P.W. 1 filed a complaint against the appellants before the Second Presidency Magistrate on 27.9.1966. The Second Presidency Magistrate took the complaint on file and issued summons to the appellants on 14-10-1966. After several adjournments, the trial started on 16-6.1967, about one year after the taking of the sample by P.W. 1. P.W. 1, the Food Inspector, and P, W. 2 Munuswami Naidu, the witness who attested the mahazar for taking sample of milk from the first appellant were examined on 16-6.1967. P.W. 3 the Public Analyst waa examined on 14.7-1967. On the game day, after the examination of the Public Analyst, the appellants filed an application before the learned Magistrate requesting him to send the sample of milk retained by the Food Inspector to the Director of the Central Food Laboratory for a certificate after receiving payment of the prescribed fee. The learned Magistrate passed the order on the application as follows-
I find from the registers that the bottle has been already destroyed by mistake of the clerk, who wrongly informed about the order. Petition is hence dismissed.
4. It is now contended by the learned Counsel for the appellants that the right given to the accused Under Section 13 (2) of the Act is a valuable right and that once the accused challenges the report of the Public Analyst and requires the sample to be sent to the Director of Central Food Laboratory, it will supersede the opinion of the Public Analyst and, therefore, it was further contended that the deprivation of such a valuable right, for whatever reasons it might be, goes to the root o the matter affecting the very opinion of the Public Analyst. There is force in this contention. The relevant clauses Under Section 13 of the Act read thus-
13. Report of Public Analyst;-(1)....
(2) After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court foe sending the part of the sample mentioned in Sub-clause (i) or Sub-clause (iii) of Clause (c) of Sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the court shall first ascertain that the mark and seal or fastening as pro. vided in Clause (b) of Sub-section (l) of Section 11 are intact and may then dispatch the part of the sample under its own seal to the Director of Central food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis.
(3) The certificate issued by the Director of the Central Food Laboratory under Sub-section (2) Shall supersede the report given by the Public Analyst under Sub-section (1).
(5) ......any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facta stated therein in any proceeding under this Act or Under Sections 272 to 276 of the Indian Penal Code:Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory Shall be final and conclusive of the facts stated therein.
It is, therefore, clear from these provisions that a valuable right was conferred on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory and that the; right could not be denied to him under any circumstances. It is unfortunate that in this case, the sample sent to the court was destroyed even before the close of the trial.
5. In Municipal Corporation of Delhi v. Ghisa Ram : 1967CriLJ939 , it has been observed as follows at page 972: -
It appears to us that when a valuable right is conferred by Section 18 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. 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 ease 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.
I am bound by the above observations. The learned Counsel for the Corporation contended that there was no fault on the part of the prosecution and as the sample was destroyed by the court, it cannot be' said that that right was denied by the prosecution and further contended that there was a long delay on the part of the appellants in filing the application for sending the sample to the Director of the Central Food Laboratory and it was not open to the appellants to contend after a long time that the sample was not made available to be sent to the Director of the Central Food Laboratory. There is no point in these contentions.
6. Of the three parts of the sample, one was retained by the Food Inspector which is kept in the custody of the court. Either that part of the sample given to the vendor or the part retained by the Food Inspector and kept in the custody: of the court can be sent to the Director of the Central Food Laboratory at the instance of (he accused. The discretion is left to the accused. He may request the court to send the sample entrusted to him or he may even ask the court to send the sample retained by the Food Inspector and kept in the custody of the court to avoid any comment about tampering of the sample left with him. When the accused chooses to Bend for the sample retained by the Food Inspector, it cannot be refused. It is the duty of the court to comply with the request of the accused. The order has to be made by the court. If for some reason, the sample retained by the Food Inspector is not made available and hence the court cannot comply with the request of the accused, it must be deemed that the valuable right conferred on the accused was deprived of, by the prosecution.
7. As regards the second contention, no limitation is placed in Section 13 (2) of the Act as to when the accused can exercise the right conferred on him. Section 13 (2) merely states that after the institution of a prosecution under the Act, the accused can exercise such right. Before the close of the trial, at any stage, depending upon the circumstances of each case, the accused can exercise his right. It is not alway3 necessary that immediately after the prosecution is instituted, the accused should take steps for sending the sample to the Director of the Central Food Laboratory. It is left to the accused to wait till the examination of the Public Analyst in court and if the evidence of the Public Analyst is not unfavorable to him, he may even decide not to exercise the right conferred on him. No time limit can be prescribed for the accused to exercise his right save that he should exercise such a right before the close of the trial.
8. In this case, there wa3 no delay on the part of the appellants; On the very day of the examination of the Public Analyst, they filed their application to send the sample to the Director of the Central Food Laboratory.
9. I am, therefore, of the view that the appellants were denied the valuable right given to them which resulted in vi bating the conviction. Accordingly, the conviction and order are quashed and the appellants are ac-quitted. Fine, if paid, will be refunded to the appellant.
10. The appeal is allowed.