ORDER K.L. Sharma, J.
1. This is a petition under Section 482, Cr.P.C. against the order dated 28-1-1994 passed by the Chief Judicial Magistrate. Sitapur whereby, he has been pleased to reject the application of the petitioner-accused for sending the second sample for analysis to the public analyst.
2. A criminal case under Section 7/16 Prevention of Food Adulteration Act is pending against the petitioner in the court of Chief Judicial Magistrate, Sitapur. The petitioner moved an application under Section 13(2) of the Prevention of Food Adulteration Act for sending the second sample of mustard oil to the Director Central Food Laboratory Calcutta for analysis on expenses of the petitioner but the Chief Judicial Magistrate Sitapur has rejected the application on the ground that this application was not made within ten days of the receipt of the copy of the report of the analyst in respect of the first sample and as such, the application was barred by limitation. The petitioner felt aggrieved against this order of refusal and has preferred this petition.
3. I have heard Sri S.C. Jaiswal, the learned counsel for the petitioner and the learned Addl. Public Prosecutor for the State Mr. A. Mateen and perused the record' and the impunged order dated 28-1-1994 passed by the Chief Judicial Magistrate. Sitapur.
4. It has been contended on behalf of the petitioner that Section 13(2) of the Prevention of Food Adulteration Act provides a right to the accused for getting the second sample analysed by the Director Central Food Laboratory Calcutta at his own expense only after he receives a notice of the report of the analyst in respect of the first sample but on account of non-receipt of the report and for some other reasons, the accused-petitioner could not move the application before the court within ten days provided under sub-sction (1) of Section 13 of the aforesaid Act. But the second sample was kept intact and being mustard oil, was capable of being analysed despite the passage of long time. He further submitted that since sub-section (2) of Section 13 of the aforesaid Act gave valuable right to the accused-petitioner to get the second sample analysed at his own expenses in the event of an adverse report of his first sample, the interest of justice enjoined upon the Chief Judicial Magistrate, Sitapur to condone the delay in submission of the application and to send the second sample at the cost of the accused-petitioner for analysis by the Central Food Laboratory, Calcutta, The learned Addl. Public Prosecutor Mr. A. Mateen has stated in reply that there was inordinate delay on the side of the accused to move the application as the accused-petitioner submitted the application for sending the second sample for examination at the stage when the prosecution evidence have been completely recorded and he was required to be examined under Section 313 of the Cr.P.C. and as such, the accused-petitioner, who neglected to avail of his so-called valuable right of defence, he could not be allowed to delay further proceedings in the trial by moving such a belated application. He further submitted that the accused-petitioner appears to have moved the application at such a late stage only after he has satisfied himself of the efficacy of the measures he might have taken in the meantime to hope for a favourable report of the analyst.
5. The learned Addl. Public Prosecutor Mr. A. Mateen has referred to the following decisions in order to indicate that the right conferred by Sub-section (2) of Section 13 of the aforesaid Act, is not an absolute one and cannot be resorted to at the whim and the pleasure of the accused jeopardising the fair process of trial. The first case referred to by Mr. A Mateen is a decision of the single Judge of the Lucknow Bench of this Court in the Criminal revision filed, by Lalit Kishore reported in 1990 Judicial Interpretation on Crimes 251. In this case no application was made by the accused before the court to send the sample to the Director for analysis but after he was convicted he raised the plea of Section 13(2) of the aforesaid Act before the revisional court that he has been deprived of his right under law. This Court held in the facts and circumstances of that case that the accused-revisionist cannot be allowed to complain at that stage if he has failed to make an application to the Magistrate during trial to send the sample to the Director for analysis if it was intact and not tampered with or capable of being despatched and analysed.
6. The second case referred to by Mr. A. Mateen, the learned Addl. Public Prosecutor, relates to the decision of Hon. Supreme Court in the criminal appeal between Ajit Prasad Ram Kishan Singh v. State of Maharashtra, . This case is also related to prosecution under Section 16(1) of the Prevention of Food Adulteration Act in respect of the sample of milk. The accused was served with the summons and with a copy of the report of the analysis but the accused failed to make any application to the Court for sending sample to the Director Central Food Laboratory. On trial, he was convicted for having committed the offence. The report of the analyst showed that the fat contents out of milk was deficient by 55 per cent. As the whereabouts of the actual owner of the shop could not be traced, the case against him was dropped by the Magistrate who acquitted the appellant. But in the appeal the High Court convicted him under Section 16(1)(a)(i) read with Section 8(i) of the Prevention of Food Adulteration Act and sentencing him to R.I. for six months and pay a fine of Rs. 1000/-. In Special Leave Appeal, the Hon. Supreme Court held that since the appellant never applied under Section 13(2) of the Act he can not complain that he has been deprived of any right. It was further held that unless an application to send the sample to the Director is made the accused cannot complain that he was deprived of his right. However, the Hon. Supreme Court reduced the sentence to three months and fine to Rs. 500/- and partly allowed the appeal to that extent and dismissed it in all other aspects.
7. The third case referred to by Mr. A. Mateen, relates to the criminal revision filed by Sabir Khan in this Court reported in 1988 Criminal Law Journal 1245. This case also related to prosecution of the revisionist under Prevention of Food Adulteration Act. But the accused-revisionist did not move any application before the court for sending of the sample to the Director Central Food Laboratory. He was convicted and sentenced. But in the revision he took the plea and complained that he was deprived of his valuable right under Section 13(2) of the aforesaid Act. This Court after considering the facts and circumstances of that case, held that since the applicant at no stage of proceedings moved the court for sending of the sample to the Director Central Food Laboratory can not be heard to say that there has been breach of provisions of Section 13(2) of the aforesaid Act. Consequently, the revision was dismissed.
8. On behalf of the petitioner, the learned counsel referred to a decision of this Court in the Criminal Revision No. 907 of 1981 filed by Baij Nath reported in All India Prevention of Food Adulteration Journal 1982 on page 630 : (1982 All LJ 691). This case also related to the prosecution of the applicant under the Prevention of Food Adulteration Act in respect of the adulteration of Jeera. An application was made by the applicant beyond ten days for sending the second sample of Jeera for analysis to the Director Central Food Laboratory and the learned Magistrate had allowed the application but subsequently, he found that the bottle containing the sample for Jeera was broken and not in a despatchable condition and consequently, he refused to send it to the Director Central Food Laboratory and proceeded with the case and convicted the applicant. The conviction was maintained by the Sessions Judge on appeal. In the revision, this Court held that the conviction of the applicant is not sustainable as he was denied a valuable right of the sample of Jeera being examined by the Director Central Food Laboratory. This Court while interpreting the period of limitation prescribed by Sub-section (1) of the Section 13 of the aforesaid Act, held that this provision is obviously directory and is not mandatory: very often an application cannot be made within the time of ten days for so many reasons which can be beyond the trial of the accused. It was further held that if an application is made beyond ten days, it cannot be said that the sample need not be sent to the Director Central Food Laboratory. This Court further held that where the sample is not deteriorated and is kept sealed and a belated application is made, the sample can be sent to the Director Central Food Laboratory for re-analysis but it cannot be refused.
9. After considering the decisions cited by the learned counsel for both sides I am of the opinion that the decisions cited by Mr. A. Mateen related to those cases in which the accused himself neglected and omitted to move the application under Section 13(2) of the aforesaid Act for sending the second sample at his expenses to the Director Central Food Labotratory and therefore, he was not subsequently, allowed to complain that a valuable right conferred by Section 13(2) of the Act was denied. But the decision cited by the learned counsel for the petitioner is applicable to the facts of the present case except the quantum of delay in moving the application under Section 13(2) of the aforesaid Act. In this case this court had interpreted that the provision of limitation of 10 days contained in Section 13(1) of the Act is only directory and not mandatory keeping due regard to the expediency of the trial as well as to the valuable right of defence which may be available to the applicant in the cases of offences relating to adulteration of food articles.
10. After considering these provisions, I am also of the opinion that this provision in ten days limitation for moving the application is only directory and not mandatory so as to foreclose the right of defence but the exercise of this right would definitely depend on the facts and circumstances of each case. The accused is also expected to act immediately on receipt of the report of the analyst so that the second sample may not deteriorate by undue delay and the defence allowed by law to the accused, could not be jeopardised, even if the exercise of re-analysis of the second sample is undertaken. However, in the circumstances wherein it cannot be possible for the accused to act with expediency, even though he receives the report of the analyst of the first sample but in any case, the application should be moved as far as practicable possible within ten days of the receipt of the report and not later than the stage adducing the evidence for defence and definitely before the conclusion of the evidence. It also depends on the condition that the second sample remains intact, its seals and the container have not been tampered with/or broken and the contents of the sample have not deteriorated due to efflux of time by natural decay and composition of the chemicals and the sample is in a despatchable condition. Only then the request of the accused for sending the sample for re-analysis to the Director Food Laboratory can be granted on his application ignoring the delay in filing of the application. If the Director Central Food Laboratory on examination of the second sample, finds that the contents of the sample have since deteriorated or the sample's contents have been found tampered with and he returns the sample without re-analysis, the accused cannot be allowed to take advantage of such a report for the simple reason that the delay has been occasioned by his inaction, lethargy, negligence and omission. No one can be allowed to take advantage of his own faults, omissions or delayed action. The right of defence conferred by Section 13 of the aforesaid Act has therefore, to be exercised by the accused with utmost expediency and efficiency so that he may be in a position to avail of this valuable right. If therefore, the accused himself delays the submission of the application to get the second sample re-analysed, he will be doing so at his own risk against his own interest and no one can help him for his faults and inaction. However, it is desirable keeping due regard to the spirit of the provision contained in Section 13(2) of the Act that the Magistrate should in all cases allow such an application and give an opportunity to the accused to get the second sample analysed at his expenses but if the accused again neglects to deposit the expense for re-analysis, no blame can be thrown on anyone except the accused himself.
11. Considering the facts and circumstances of the present case I find that the sample contains mustard oil which is not likely to deteriorate by efflux of time or inordinate delay. As regards the condition of the container of the sample, there is nothing on record to understand. However, it can be seen by the Magistrate concerned before sending the sample for re-analysis to the Director Central Food Laboratory and if the condition of the container is not intact and or its seal is broken or the container itself is damaged, the Magistrate may record the position and refuse the despatch of the sample for reanalysis. But if the Magistrate finds sample in order, then he will allow the application and send the sample for reanalysis to the Director Central Food Laboratory. Similarly, the analyst may examine the sample and see whether the contents of the sample have not undergone any chemical change and it is in a fit position to be analysed, he can do so and if he finds the sample otherwise incapable of being analysed, he can submit the report to the Magistrate recording his specific finding about the nature of the contents and the reason for the non-examination of the sample. It is also made clear that in these circumstances where the sample cannot be despatched for re-analysis or the contents thereof cannot be analysed by the analyst, the accused-applicant will alone be responsible for such a situation on account of belated action on his part.
12. In the result, the application is hereby allowed and the impugned order dated 28-1-1994 passed by the CJ M, Sitapur in Case No. 1237E/92, is hereby set aside with the direction that the CJM shall reconsider the application of the accused-petitioner for sending the second sample to the Director Central Food Laboratory and dispose it of in accordance with the observations made hereinabove within fifteen days from the date of receipt of the certified copy of this judgment. The applicant-accused is directed to appear before the court of CJM Sitapur on 2-5-1994.