IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42394 of 2007 VIJAY KUMAR SON OF LATE CHULHAI SAO, RESIDENT OF SUDHAR LANE JAWAHARLAL MARG, ANDI GOLA, P.S. TOWN, DISTRICT- MUZAFFARPUAR Versus STATE OF BIHAR ----------- 3 07/05/2010 Heard Mr. N. K. Aggrawal learned Senior Counsel for the petitioner and learned APP for the State. The petitioner has challenged the order dated 18.5.2007 passed by the learned 5th Additional Sessions Judge, Muzaffarpur in Criminal Revision No. 190 of 2004 confirming the order dated 4.12.2004 passed in Trial No. 64 of 2004 arising out of Complaint Case No. 75 of 1993 whereby the learned Sub-Divisional Judicial Magistrate (East), Muzaffarpur has rejected the petition dated 5.1.2004 filed on behalf of the petitioner for discharging him. The brief facts, leading to disposal of this case, relates to an occurrence dated 19.8.1992 when the Food Inspector, Patna visited the business premises of the petitioner running in the name and style of M/s Bajrang Khadyan Bhandar, Andi Gola Road, Muzaffarpur and he has purchased Chana Dal 600 Grams for which form no. VI was given by the Food Inspector to the petitioner. The sample collected 2 from the business premises of the petitioner was not sent to the Public Analyst and it appears that the sample of Arahar Dal was sent to Public Analyst who came to the conclusion that sample of Arhar Dal was found adulterated due to presence of Khesari Dal. The petitioner denied the presence of Khesari Dal along with Arhar Dal. His grievance is that the Dal was never adulterated so it should be examined by the Central Food Laboratory for which he was entitled to make an application. The petitioner on receipt of the notice filed a petition before the learned Chief Judicial Magistrate for sending the sample to the Central Food Laboratory as provided under the Prevention of Food Adulteration Act. The second sample was ordered to be sent to the Central Food Laboratory and further proceeding was stayed in view of the provision of Section 13 (2D) of the Prevention of Adulteration Act till the receipt of the report of Central Food Laboratory. On 9.9.1993 the learned Subdivisional Judicial Magistrate ordered and directed the local health authority to send one part of the sample to the Court so that the same could be sent to the Central Food Laboratory. The sample was received in the Court and the same was sent to the Central Food 3 Laboratory, Kolkata but the Court found that the seized sample was like a Besan not Arhar Dal and sought for clarification from the Civil Surgeon who reported that the sample is of Arhar Dal and may be sent for examination. The sample sent was returned undelivered because address of the Central Food Laboratory was not complete. Thereafter, on correct address the sample was sent. Later on the order for sending the Dal was recalled on 22.12.2009 because the report of the Central Food Laboratory was not received and without receipt of the report the learned Subdivisional Judicial Magistrate ordered for issuance of summons to the accused. Against the said order the petitioner preferred criminal revision No. 57 of 1999 before the learned Sessions Judge and the said revision was allowed and the order of the learned Magistrate was set aside and the learned Magistrate was directed to obtain a certificate from the Central Food Laboratory, Kolkata and specifically ordered not to proceed till the report of the Central Food Laboratory is received and further proceeding was stayed. On 16.3.2002 the Director, Central Food Laboratory requested for sending the counter part of the sample to expedite the analysis because the 4 sample sent was of a powder blackish mass with insect. Accordingly, the learned Magistrate directed the Civil Surgeon for sending the third part of the sample but the Civil Surgeon reported that the third sample was destroyed because it was an old sample and appears to have been eaten by the insects which is apparent from the order dated 8.7.2003 of the learned Subdivisional Judicial Magistrate. On 4.12.2004 the learned S.D.J.M. rejected the petition of the petitioner for discharging him and on revision the petition was dismissed. Grievance of the petitioner is that no sample of Arhar Dal was ever collected from his shop which is apparent from the form no. VI which was given to the petitioner. Even if it is accepted that the sample of Arhar Dal was collected from the shop of the petitioner but neither the second nor the third sample could be reexamined by the Central Food Laboratory which is prescribed under the Prevention of Adulteration act and Rules because the samples were destroyed by the insects. In that view of the matter the only course available to the court below is that the proceeding against the petitioner should have been dropped but the proceeding has not been dropped and the prayer for discharging the petitioner has been 5 refused. Now it is on the record that second and third samples were not available. The petitioner has challenged that the sample seized from his shop was not that which can be said to be adulterated which was allegedly sent to the Central Food Laboratory. There is provision that without receipt of the report of the Central Food Laboratory, no proceeding can be initiated and in the present case, prayer for discharge has been refused though which should not have been done because from the records, it is clear that second and third samples were not available. The order of the court below regarding procuring of the report from the Central Food Laboratory was not complied and in absence of such report, the prosecution of the petitioner was not justified and there was no use of continuation of the proceeding and it will be only an abuse of the process of the Court. From the analysis of the facts, it is apparent that the second and third samples which were/was to be sent to the Central Food Laboratory were not available. Therefore, there is no possibility of receiving the report from the Central Food Laboratory and in absence of any report to that extent, the prosecution of the petitioner was completely an abuse of the 6 process of the Court, Therefore, the order refusing the prayer for discharging the petitioner is not correct and the petitioner is entitled to be discharged. Accordingly, the order dated 18.5.2007 passed by the learned 5th Additional Sessions Judge, Muzaffarpur in Criminal Revision No. 190 of 2004 confirming the order dated 4.12.2004 passed by the Subdivisional Judicial Magistrate in Trial No. 64 of 2004 arising out of Complaint Case No. 75 of 1993 are set aside and this application is allowed. Avin (Shyam Kishore Sharma, J.)