The legislative intent did not exempt the applicant from paying the fee for the second analysis under Section 13(2) of the Prevention of Food Adulteration Act.

JUDGMENT:

RAVEENDRAN, J.

1. This appeal by special leave is by the State of Gujarat against the judgment dated 7.10.1999 passed by the Gujarat High Court in Special Criminal Application No. 803 of 1998.

2. The Food Inspector, Rajkot launched a prosecution against the respondents in respect of offences under Sections 7(i) and (v) of the Prevention of Food Adulteration Act, 1954 ("Act" for short) punishable under Section 16 of the said Act. During the pendency of the said proceedings, the first respondent made an application under Section 13(2) of the Act to get a second analysis of sample of the article of food kept with the Local (Health) Authority, by the Central Food Laboratory. The learned Judicial Magistrate allowed the said application on 8.5.1996 and directed the respondents to deposit the fee prescribed under Rule 4(6) of the Prevention of Food Adulteration Rules, 1955 (Rules for short) for issue of Certificate by the Central Food Laboratory. The respondents neither deposited the said amount nor challenged the said direction for deposit of the fee. Nearly one year later, the respondents raised an objection that having regard to the provisions of the Act and the Rules, they were not required to deposit any fee for the second analysis. The learned Additional Chief Judicial Magistrate, Gondal, rejected the said objection by order dated 18.9.1997. The Sessions Court, in revision, affirmed that order.

3. The revisional order was challenged by the respondents before the Gujarat High Court in Special Criminal Application No. 803 of 1998. The High Court, by its order dated 7.10.1999, allowed the application, set aside the orders of the learned Magistrate and Additional Sessions Judge and held that it is the obligation of the State or Local Authority to subject the sample to analysis under section 13(2) and there was no obligation on the accused to bear or pay the fee for the second analysis. It followed the decision of a learned Single Judge of the Kerala High Court in George Kutty Vs. State of Kerala 1991(1) PFAC 133, and held that the right to have a second analysis was a privilege subject to payment of fee under the old section 13(2) of the Act, and that stood converted to an unconditional legal right of the accused under the new section 13(2), substituted by Act 34 of 1976. As a consequence, the learned Magistrate was directed to take appropriate steps in the matter, without requiring any payment by the accused.

4. The said order of the High Court is challenged by the State in this appeal. It is contended that the amendment to section 13(2) in the year 1976 did not affect the liability of the accused to pay the fee prescribed under Rule 4(6). It is submitted that the decision of the Kerala High Court in George Kutty (supra) relied on by the High Court, was not followed by the other High Courts. Reliance is placed on the decision of the Madhya Pradesh High Court in Rajendra Kumar Vs. State of M.P. [1994 (2) PFAC 56] and decision of the Madras High Court in Mohd. Saif Vs. Local Health Authority, Melur Municipality [1996 (1) PFAC 20]. On the contentions urged, the question that arises for our consideration is : "Where the accused, not being satisfied with correctness/accuracy of the report of the Public Analyst, exercises his right under section 13(2) of the Act to have a second part of the sample analysed by the Central Food Laboratory, whether he is bound to pay the fee prescribed under Rule 4(6) of the Rules ?"

5. When a Food Inspector takes a sample of food for analysis, section 11 requires him to divide the sample into three parts and send one part of the sample to the Public Analyst and the remaining two parts to the Local (Health) Authority. Section 13(1) requires the Public Analyst to deliver a report of the result of the analysis of the said food sample to the Local (Health) Authority. Sub-section (2) of section 13 confers a valuable right on the accused to have another part of the sample of food analysed by the Central Fo