N.S. Ramaswami, J.
1. This is a revision against the discharge of the accused under Section 253 (1), Criminal Procedure Code by the learned Sub-Divisional Magistrate, Usilampatti, in C.C. No. 30 of 1971 on his file. The case was taken on file on the complaint of the Food Inspector of Periyakulam Municipality under Sections 7 and 16 (1) read with Section 2 (ix) (j) and Rule 23 of the Prevention of Food Adulteration Act, 1954. The case is that P. W. 1, the Food Inspector, went to the eatables shop of the accused on 30-10-1970 and purchased 600 grams of the sweet called Burfi for a sum of Rs. 3/-frora the accused. The burfi so purchased Was divided into three equal parts and put in three different bottles and properly sealed. One such sample was given to the accused. The second was sent to the Public Analyst and the third was retained by P. W. 1 the Food Inspector. It appears that during transit, the sample bottle sent to the Public Analyst broke and, therefore, the Food Inspector had to send the third sample bottle retained by him for the purpose of analysis. When the complaint was taken up the accused filed an application before the learned Sub-Divisional Magistrate praying that the third sample retained by the Food Inspector which ought to be produced in Court, may be sent to the Central Food Laboratory, Calcutta, for analysis. It was reported by the complainant namely, the Food Inspector, Periyakulam, Municipality that the sample was not available, inasmuch as the same has been sent to the Public Analyst, the earlier sample bottle having broken during transit. It was contended by the accused before the learned Sub-Divisional Magistrate that no sample bottle was ever given by the Food Inspector to the accused at the time of purchasing the burfi, that the accused himself does not have any sample bottle with him and that as the food inspector reported that the third sample was not available for sending to the Central Food Laboratory for analysis, the accused is highly prejudiced. This contention was upheld by the learned Sub-Divisional Magistrate and on that ground the accused was discharged under Section 253 (1), Criminal Procedure Code. This order is questioned by the learned Public Prosecutor in this revision.
2. It is contended that under Section 13 (2) the accused can request the Court for sending either the sample bottle given to the accused or the sample bottle retained by the Food Inspector and that as the sample bottle retained by the Food Inspector is really not available, the accused should produce the sample bottle given to him, if he wants the Court to have the sample analysed by the Central Food Laborartory. It is also contended by the learned Public Prosecutor that in the face of Ex. P-3, the acknowledgment signed by the accused for having received not only the price of the burfi but also one sample bottle he cannot be heard to say that no sample bottle was given to him at the time of sampling. It appears to me that the version of the accused before the learned Sub-Divisional Magistrate that no sample bottle had been given to him at the time of the sampling cannot be accepted. But at the same time, the question is whether the order of discharge can be interfered with. As pointed out by Krishna-swamy Reddy J. in Jayavelu v. Food Inspector, Corporation of Madras, the accused has got a discretion to ask the Court to send either that part of the sample given to him or -the part retained by the Food Inspector and it is the duty of the Court to comply with the request of the accused. When the section itself gives a discretion to the accused regarding which sample has to be sent to the Central Food Laboratory for analysis, it cannot be said that the accused should retain the sample bottle given to him and if he does not retain the same for being sent to the Central Food Laboratory, he loses the right conferred on him by Section 13 (2). Even though, in this case, one part of the sample ought to have been given to the accused, it is quite possible that the accused might have mislaid it. Even otherwise, that is, even if the accused is deliberately withholding the sample bottle given to him, he cannot be denied the right conferred on him under Section 13 (2) referred to above. It cannot be said that as he is not producing the sample bottle given to him, he cannot have the other sample tested by the Central Food Laboratory. Therefore, as the third sample is not available for being sent to the Central Food Laboratory for analysis, it must be held that the accused had been denied a valuable right. Under such circumstances, he cannot be successfully prosecuted for having sold adulterated food stuff. The ordei of discharge is correct. The revision petition has got to be dismissed. But before parting with the case, I have to point out that this revision petition ought to have been filed before the Sessions Judge of Ma-durai, for the Sessions Judge has jurisdiction to entertain and dispose of a revision petition against the discharge under Section 253 (1), Criminal Procedure Code. Any way the revision petition having been entertained here, I am disposing it of on merits. For the reasons stated earlier, the revision petition is dismissed.