IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15835 of 1998 SHYAM SUNDER SARAF SON OF SHRI SHEO BHAGWAN DAS JEE, RESIDENT OF HOMALLA- TOOTBARI NAI GODOWN, P.S.- KOTWALI, DISTRICT- GAYA…………… PETITIONER Versus 1. STATE OF BIHAR 2. FOOD INSPECTOR UNDER PREVENTION OF FOOD ADULTERATION ACT, GAYA………. RESPONDENTS ----------- FOR THE PETITIONER :- MR. RAY SHIVAJI NATH SENIOR ADVOCATE FOR THE RESPONDENT: MR. LALA KAILASH BIHARI, SENIOR ADVOCATE ---------- 5 12-3-2010 Heard Mr. Ray Shivaji Nath, Senior Advocate for the petitioner and Mr. Lala Kailash Bihari, Sr. Advocate for the respondents. 2. Petitioner has prayed for quashing of the entire proceeding against the petitioner arising out of G.O. case no. 13 of 1995, Trial No. 516 of 1996 under section 16(1) A of the Prevention of Food Adulteration Act ( hereinafter referred to as the `Act’) pending before the court of S.D.J.M. Gaya and also for quashing of order refusing his prayer for discharge from the case. 3. The main point urged on behalf of petitioner is that when the petitioner came to know about the report by the Public Analyst dated 27th July, 1994 to the effect that sample of Chana Besan ( Bengal Gram) was found adulterated for the reason that ash insoluble percentage in diluted H.C.L. was 0.75 % whereas the permissible percentage was only up to 0.5%, the petitioner challenged the said report by filing a petition 2 before the S.D.J.M. Gaya under section 13(2) of the Act on 13-6-1995. It is not in dispute that petitioner was given a notice of the case on 27-5- 1995 and the case had been lodged on 26-5-1995. On the prayer made by the petitioner the court below ordered for deposit of requisite amount for sending second sample for re-analysis. The learned S.D.J.M. directed for obtaining the second sample for its examination by the Central Laboratory through an order dated 20th June, 1995 and the requisition was sent to Chief Medical Officer, Gaya but the second sample was not sent within a period of five days from the date of receipt of such requisition as provided under section 13(2)-A) of the Act and instead it was sent in Court only in December, 1995. Thereafter the sample was sent and received by Central Food Laboratory on 27-12- 1995 and the analysis report dated 22-1-1996 contained in annexure-5 shows that ash insoluble in diluted HCL was found only 0.03% i.e. within the permissible limit but physical examination of the sample showed that it was lumped, insect infested and 10 gram of the sample contained 25 living and 12 dead insects. Such physical characteristic led to the opinion that the sample of Chana Besan was adulterated. 4. Learned counsel for the petitioner has highlighted the fact that there was un-usual delay in making available the second sample to the court and such delay of about six months led to deterioration in physical condition of the sample leading to lump formation and growth of insects whereas as per the first report by the public analyst dated 27th July, 1994 the physical characteristics showed the sample to be free 3 from insect infestation and lump formation. 5. The right of an accused to challenge the report of public analyst and to pray for examination of second sample by Central Food Laboratory is a valuable right guranteed by law as provided in section 7 of the Act. It was the responsibility and duty of the local (Health) authority to forward the second sample to the concerned court as soon as requisition was made for the same so that the sample could reach the court within a period of five days from the date of receipt of the requisition 6. On behalf of the State it has been submitted that mere delay cannot be sufficient reason to interfere with the prosecution unless it can be shown that the accused has been prejudiced and has suffered some injuries on account of such delay. There is no dispute with aforesaid submission but in the present case the prejudice or injury to the petitioner/accused is manifest as appears from the difference in the physical characteristic of the two samples. Whereas at the time of analysis by the public analyst for the first time in July, 1994 the sample was free from insects infestation and lump formation, in January, 1996 it had developed lumps and insects. In such circumstances it must be held that the petitioner/accused was prejudiced on account of delay in sending the second sample to the Court much beyond the permissible time of five days. On that account, in the facts of the case it is in the interest of justice to interfere with the prosecution of the petitioner. The prosecution on the basis of earlier report of public analyst can not be 4 permitted because of the delay in sending the second sample for analysis and report by the Central Food Laboratory. Hence, the prayer is allowed. The prosecution of the petitioner vide G.O. Case No. 13/95, Trial No. 516/96 pending in the court of S.D.J.M. Gaya is quashed. Naresh ( Shiva Kirti Singh, J.)