By filing this appeal under section 378 of the Criminal Procedure Code, 1973 the appellant original complainant has challenged judgment and order of acquittal passed by learned Metropolitan Magistrate, Ahmedabad on 18/10/2002 in criminal case no. 29/95 acquitting the respondent accused for the offence under section 7(1) and 16(1) of Prevention of Food Adulteration Act (for short, “the Act”). According to the complainant, the accused was selling milk on 17/1/1995 at about 7.30 in the morning. While the accused was moving on cycle with milk can near Shivnarayan society, Kubernagar, Ahmedabad, the sample of cow milk was taken. After following require procedure, one part of the sample was sent to Public Analyst for analysis. On receipt of the report, after obtaining sanction from the authority complaint was filed. The Trial Court tried the case as warrant triable case. The accused gave application Ex. 18 for framing the charge. Therefore, the Trial Court framed charge against the accused for the offence punishable under section 7, 16(a)(1) of the Act. The accused pleaded not guilty and claimed to be tried. Therefore, the prosecution adduced evidence. On completion of recording of evidence, incriminating circumstances appearing in the evidence against the accused were explained to him. The accused, in his further statement explained that false case is filed against him. After hearing learned advocate for the parties, Trial Court by impugned judgment acquitted the accused. Being aggrieved by the said decision, complainant has preferred this appeal.
I have heard learned advocates for the parties at length and in great detail. I have also perused the impugned judgment and record and proceeding of the Trial Court.
It appears from the impugned judgment that the Trial Court acquitted the accused on the ground that the accused was not able to exercise his right to get the sample of food examined by Central Food Laboratory under section 13(2) of the Act.
It appears from the evidence that the sample was taken on 17/1/1995 and was sent for analysis to Public Analyst and the report was received on 2/2/1995. Thereafter, sanction for prosecution was obtained on 29/3/1995 and the complaint was filed on 10/4/1995. Under section 13(2) of the Act, on receipt of the report of analysis that the article of food is adulterated, the Local Health Authority after institution of prosecution is required to send copy of report of the result of the analysis to the person from whom, the sample of article of food is taken informing him that if it is so desired, he may make an application to the Court within ten days from the date of receipt of the copy of the report to get the sample kept by Local Health Authority analysed by the Central Food Laboratory. It appears that the sample of milk was collected on 17/1/1995 and the report of Public Analyst was received on 2/2/1995. Thereafter, the complaint was lodged on 10/4/1995. The impugned judgment indicates that preservative was added into the milk sample collected by the complainant but the food article did not remain fit for analysis as it was kept at room temperature for long time and the prosecution failed to prove that food article was kept in a refrigerator at the office of Local Health Authority. Therefore, this lapse has caused serious prejudice to the accused to get the sample examined by the Central Food Laboratory. Learned Trial Magistrate, in para 20 of his judgment, has in detail discussed the evidence and relied upon various decisions of High Court and Supreme Court in recording his finding that valuable right of the accused under section 13(2) of the Act was refused. Learned advocate for the appellant failed to point out that the observation is erroneous. Therefore, no interference is warrant in the impugned judgment.
In the result, the appeal fails and stands dismissed.
(BANKIM.N.MEHTA, J) asma