The second count on which the defence equally must succeed is also a formidable ground. It is apparent, as is clarified from the narration of the prosecution case, that one sample was sent to the Public Analyst at Bombay, while the second sample was sent to the Public Analyst at Pune by the Local Health Authority on the request of the complainant, because the first Report was defective. Thus, the Local Health Authority had in their possession left with only one out of the three samples. The purpose always is that one sample, if demanded, is to be given to the accused, while the second sample is to be retained in the Court where the complaint is filed so that if an occasion arises, that sample can be sent to the Central Food Laboratory at Calcutta, as is permissible under the various provisions of Act and the Rules, including section 13. However, in the instant case only one sample was sent to the Court. It is true that the accused did not exercise his option of moving the Court within ten days from the receipt of the Report for sending the sample to the Central Food Laboratory at Calcutta. However, two things are annexed to this situation. Under sub-section (2) of section 13 of the Act, the accused has a right to move the trial Court within 10 days from the receipt of the Report from the Local Health Authority for sending the sample to the Central Food Laboratory, and under sub-clause (2-A) of section 13 of the Act, the Court had to call upon the Local Health Authority, if such an application is made by the accused, to send one sample to the Court. Under sub-clause (2-B) it is after the receipt of such sample within five days from the Local Health Authority that the Court has to satisfy itself that the sample is received in a sealed condition and there is no tampering or no leakage. This has nexus with the provisions of Rule 14 under which it is prescribed as to how the packing of the sample is to be made by the Food Inspector when the sample is taken from the accused. If the Court is satisfied that the fastening is intact, then it has to forward that sample to the Central Food Laboratory and that Report or Certificate would prevail over the Report of the Public Analyst and would have a conclusive tendency about the evidentiary value. Now, in the instant case it is fully established on evidence that the sample that was with the Local Health Authority was ultimately sent to the Court, though it is not clarified under what circumstances and even though the accused had not applied for the same. Nonetheless it is an accepted position that when that sample was received by the Court, there was apparent leakage which is accepted by the Clerk of the Court examined at the trial and it is conceded by the prosecution that the leakage was on account of the defect in the process of packing and thereby not complying with the provisions of Rule 14. This would also give an additional ground about the prejudice that is being caused to the accused, because in the instant case even if the accused had asked for sending the sample to the Central Food Laboratory at some stage, the purpose would have been frustrated, because the only sample available was in a tampered condition. The prejudice would be, therefore, apparent. This third point has also been correctly dealt with by the learned Magistrate.
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Bombay High Court
State Of Maharashtra vs Padmashi Velji Chheda And Ors. on 8 October, 1986
Equivalent citations: 1986 (3) BomCR 534
Bench: V Kotwal
