Sudhindra Mohan Guha, J.
1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 in the matter of an order dated 30th April, 1979 passed by Sri S. Seal, learned Metropolitan Magistrate and the Judicial Magistrate, 1st Class in Case No. 122D of 1978 asking the Local (Health) Authority for forwarding the third part of sample kept by them in Court and for sending the same to the Central Food Laboratory for further examination and analysis under the provisions of Section 13(2-C) of the Prevention of Food Adulteration Act and in the matter of the order dated 1st June, 1979 passed by Sri S.K. Dasgupta, learned Metropolitan Magistrate, Calcutta and Judicial Magistrate, 1st Class, rejecting the petition of the petitioner praying that the learned Magistrate had no jurisdiction to exercise power under the proviso to Sub-section (2-C) of Section 13 of the Prevention of Food Adulteration Act, 1954.
2. The impugned orders are passed in a case started by the Enforcement Branch of the Jorabagan Police Station under Section 7 of the Essential Commodities Act against the petitioner for allegedly packing and sealing mustard oil and rape-seed oil without mentioning the date of manufacture, price and addresses of manufacturers in contravention of the Government order and also for selling 100 tins of rape-seed oil. But subseqently Jorabagan Police reported that the seized oil was suspected to be adulterated and a Food Inspector was called for drawing sample and in fact samples were taken.
3. Thereafter the learned Additional Chief Metropolitan Magistrate called for the report of the analysis of the mustard oil and thereupon the Public Analyst sent a report on 25-10-1978 that the mustard oil was adulterated, but the present petitioner challenged the correctness of the report of the Public Analyst. The petitioner also applied for having the samples analysed by the Central Food Laboratory as provided in Section 13(2) of the Prevention of Food Adulteration Act, 1954. Thus on petitioner's prayer the second sample was sent to the Central Food Laboratory for examination and report.
4. On 23rd April, 1979 a certificate on testing or analysis by the Central Food Laboratory was sent to the learned Magistrate, stating that the sample was in a condition fit for analysis and had been tested/analysed and on such analysis, the opinion was to the effect that 'the sample of mustard oil is not adulterated but it is suspected to be tampered with.'
5. In support of such suspicion it was further: stated that the condition of the seals on the container and the outer covering on receipt was as follows:- The seals on the outer covering were found in order but the paper slip on the container as provided under Rule 16(c) was not found pasted on the wrapper. Thus on this certificate, the learned Magistrate was not prepared to accept the report and accepted the suggestion of the Central Food Laboratory that the third part of sample should be sent for further analysis.
6. Mr. Arun Kishore Dasgupta, learned Advocate on behalf of the petitioner contends that the learned Magistrate has no jurisdiction to pass an order for sending the third part for further examination under Section 13(2-C) of the Prevention of Food Adulteration Act. According to him the sample was found neither to be lost nor damaged. The certificate sent by the Central Food Laboratory was to be regarded as final and conclusive. In support of such contention he refers to the decisions reported in (1968) 72 Cal WN 621 and 1967 Cri LJ 939 (SC). The impugned certificate cannot be considered to be final and conclusive because it was with a rider. Mr. Amal Chandra Chatterjee, learned Advocate for the Corporation pointed out that the provision under Section 13(2-C) should not be interpreted in a narrow sense excluding any other ground, as mentioned therein, namely, 'lost and damaged' as mentioned in proviso to Sub-section (2-C). Mr. Amalendu Kumar Paul, learned Advocate for the State contends that the report to the effect that the sample was found to be tampered with may also be considered as 'damaged' within the meaning of proviso to Section 13(2-C) of the Act.
7. Having heard the arguments of both the parties, we do not consider that the learned Magistrate was restricted to send the third part of sample for re-examination only if the sample had been found to be lost or damaged. The certificate itself in this case can be regarded to be a good ground for sending the third part of sample for further examination.
8. Last of all, in agreement with Mr. Chatterjee and Mr. Paul, we are of the view that this Court would be reluctant to interfere with such an interlocutory order in revision. In any view of the matter, we do not propose to make any order interfering with the impugned orders at this stage.
9. In the result, the Rule is discharged. Ad interim order is vacated. Records shall go down at once.
10. Prayer for stay is made and is refused.
N.C. Mukherji, J.
11. I agree.