K. Lahiri, J.
1. Two, questions have been raised in this criminal revision:
1. Whether a Magistrate is legally competent to send 'the second part of the sample' to the Director of Central Food Laboratory when the Director had expressed in his report that 'the first part of the sample sent to him was not found properly sealed, numbered and pasted'? and
2. Whether on the facts and in the circumstances of the case the criminal prosecution against the petitioner should be quashed?
2. The allegation brought against the accused is that he sold adulterated 'Mustard Oil' to the Food Inspector on 23-3-78. On obtaining a report of the Public Analyst dated 27-4-78 the Food Inspector upon obtaining permission from the Chief Medical and Health Officer lodged the complaint against the petitioner and arrayed 4 other persons as accused. The accused appeared in court on 14-8-78 and lodged an application under Section 13(2) of the Prevention of Food Adulteration Act, 1954 (as amended), hereinafter referred to as 'the Act' for sending a part of the sample to the Director, Central Food Laboratory for analysis. The prayer was allowed, the Local (Health) Authority was directed to forward one part of the sample kept by the said authority and on its due production in court the learned Magistrate ascertained that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 of 'the Act' were intact and there was no tampering with the signature and accordingly despatched it to the Director for submission of report and also to express opinion 'whether the sample does or does not conform to the standard of Mustard Oil'. On 3-10-78 the learned Magistrate received the report of the Director dated 15-9-78 setting forth the result of the analysis along with the opinion that the sample of Mustard Oil was not adulterated but the container was suspected to be tampered with. It may be noted that the report clearly shows that the article of food was in a condition fit for analysis and was analysed by the Director.
Thereafter on 3-3-79 the accused claimed that he should be discharged on the basis of the report submitted by the Director. The learned Magistrate heard the parties and by his order dated 31-8-79 decided to send the third part of the sample to the Director for his report as well as opinion. The tenor of the order was an expression of surprise by the learned Magistrate as to the objection regarding the seal, signature and labels. The learned Magistrate was justified in observing that if the article was not in a fit condition for analysis or there was any suspicion as to tampering of the sample the Director ought to have refrained from examining the sample. It is apparent from the impugned order of the learned Magistrate that the question of tampering with the sample could not have arisen as it was in the custody of the Local (Health) Authority and produced before the learned Magistrate and the learned Magistrate having had fully complied with the provisions of Section 13(2-B) had sent the sample in conformity with law. It appears that the learned Magistrate was not satisfied with the so-called objection made by the Director as the learned Magistrate himself saw that there was due compliance with the provisions of Section 13(2-B). In any view of the matter it is apparent that the learned Magistrate did not reject the report of the Director. However, as an abundant caution he called upon the Local (Health) Authority to submit the third part of the sample for despatching it to the Director for analysis. The learned Magistrate overruled the objection of the accused not to send the third part of the sample but his prayer for discharge on the report of the Director was kept in abeyance or at least was not disposed of finally.
3. Being aggrieved and dissatisfied the petitioner preferred this application questioning the jurisdiction of the learned Magistrate to send the third part of the sample and further prayed for quashing the proceedings on the basis of the report of the Director, Central Food Laboratory. A Rule was issued. However, the action of the learned Magistrate to despatch the third part of the sample was not stayed. The learned Chief Judicial Magistrate was directed to send the report of the Director, Central Food Laboratory to the High Court for its perusal. The second report has since been received at this end.
4. Heard Mr. D.K. Bhattacharyya, the learned Counsel for the petitioner at length. The learned Counsel submits that the Magistrate had no jurisdiction vested in him by law to send the third part of the sample to the Director for fresh analysis. The learned Counsel submits that the first report of the Director should be acted upon as the date and the opinion clearly indicate that the food was not adulterated. Pointing out to the second report of the Director, the learned Counsel submits that the opinion of the Director is that the food was not adulterated. The learned Counsel in support of his plea refers to 1977 Cri LJ 1353 (Gau), Tezpur Municipality v. Mohanlal. Mr. S.C. Das, the learned Public Prosecutor counters the submissions.
5. Let me consider the first point. On perusal of the provisions of Section 13 of 'the Act' it appears that a person against whom report has been submitted by the Public Analyst, has a statutory right to apply to the court to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. The learned Magistrate has not refused the prayer. He allowed the prayer and caused production of the sample from the Local (Health) Authority and despatched it for analysis by the Central Food Laboratory after complying with the provisions of Section 13(2-B) of 'the Act'. Despite due compliance of the provisions by the learned Magistrate which was undoubtedly a judicial act, the Director, Central Food Laboratory found fault with the sample on some technical grounds, namely, that the paper slip on the container did not bear serial number, it was not pasted and there was no seal on the container or on its stopper. The learned Magistrate was not satisfied with the objections raised by the Director as he had himself complied with the obligations enjoined upon the Magistrate to scrutinize the sample to find out whether the container and the stopper were tampered with or not. The learned Magistrate had justifiable grounds to express his dissatisfaction at the report of the Director as, (i) the sample had been kept in the custody of an officer of the' Local (Health) Authority; (ii) the sample had been examined by the learned Magistrate in presence of the parties and none detected any defect or sign of tampering; (iii) the sample was all along in the custody of the prosecution; the report shows that the food was not found to be adulterated and the food was found to be fit for analysis. It was too much to allege that the prosecution would go out of the way to tamper with the sample to assist the accused, and, (iv) the food was found fit for analysis and on analysis found to be 'not adulterated', the objections raised in the report were too technical. The counsel for the petitioner as well supports the findings of the learned Magistrate up to this point.
6. However, the learned Counsel for the petitioner objects that there is no provision empowering the learned Magistrate to send the second part of the sample for analysis afresh, as has been done in the instant case, Mr. S.C. Das, the learned Public Prosecutor has rightly contended that the act of the learned Magistrate was to provide opportunity to the accused to have the sample examined and there is no provision prohibiting the learned Magistrate to send the second part of the sample. On perusal of Section 13 of 'the Act' I do not find that there is any bar or prohibition imposed on the court not to send the second part of the sample for analysis. Nothing could be pointed out by the petitioner to this effect. As such, the impugned order cannot be said to have been passed in violation of any of the provisions contained in 'the Act'. Even assuming that it was an irregular act, though I find none, in the absence of any prejudice the order cannot be interfered with. When a sample of food is sought to be analysed by the Central Food Laboratory the learned Magistrate has jurisdiction to send either of the two samples kept in the custody of the Local (Health) Authority. The learned Magistrate has undoubtedly sent genuine sample for due examination by the Central Food Laboratory. I fail to understand how any objection can be raised by the accused? In my opinion, there is no bar imposed on the court to send any of the two samples kept by the Local (Health) Authority or to send both the samples or to send them consecutively to get the exact standard of quality. In the result, I find no merits in the first contention.
7. The learned Counsel for the petitioner submits that the first report of the Director is that the food 'is not adulterated' and on the basis thereof the proceedings against the accused should be quashed. The learned Counsel further submits that the opinion expressed in the second report also shows that the food 'is not adulterated'. Counsel points out to Tezpur Municipality 1977 Cri LJ 1353 (Gau) (supra) in support of his contention as to the increase in saponification value in the second report.
8. I am constrained to observe that the learned Magistrate has not disposed! of the prayer of the accused to discharge them and the same is still pending. While such an application is pending for disposal before the court below ordinarily it is highly undesirable to usurp the power of learned Magistrate by this Court in its extraordinary jurisdiction. The learned Magistrate has not rejected the first report of the Director. He has not found any fault as to the result of the analysis. It is a piece of evidence and has undoubtedly superseded the Public Analyst's report. It will be the duty of the learned Magistrate to consider it as a piece of evidence appearing in favour of the accused unless he finds the same to be inadmissible or unreliable. The learned Magistrate shall undoubtedly bear in mind that the part of the sample was in the custody of the prosecution and sent by the learned Magistrate on due compliance with the provisions of Section 13(2-B). It will be entirely for the learned Magistrate to decide whether he shall act on the first report or he shall altogether leave out of consideration the subsequent report. The learned Magistrate shall undoubtedly give due weight and consideration on the ratio of the decision in Tezpur Municipality 1977 Cri LJ 1353 (Gau) (supra). If the learned Magistrate considers that the second report should also be taken into consideration he shall consider the binding observations of this Court in Tezpur Municipality (supra) that the delay in examination of sample of Mustard Oil may occasion an increase in saponification value. In the result, I find that in view of the pendency of an application before the learned Magistrate to discharge the accused and when the question of quashing the proceedings depends entirely on appreciation of evidence, this Court should not exercise its power of quashing the proceedings at this stage.
9. As a result of the foregoing discussions I reject the contentions and dismiss the petition. The petitioner shall however, be entitled to press his application for discharge before the learned Magistrate who shall dispose of the same in accordance with law.