The proviso to Section 13(2-C) of the Prevention of Food Adulteration Act only allows the second sample to be sent for analysis if the first sample is lost or damaged.

1. This petition under Section 482 of the Code of Criminal Procedure (shortly called the Code) read with Article 227 of the Constitution of India for quashing the order of the Chief Judicial Magistrate, dated 17-1-1978 and the proceedings before him, has been filed by Shri Ram Parkash, who opposed the sending of the second sample retained by the local authority to the Director of Central Food Laboratory, Calcutta, for purposes of analysis in view of the fact that the sample earlier sent to the Director under the provisions of subsection (2) of Section 13 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) was found to be unfit for analysis because the same had decomposed.

2. The short facts of the case are that on 21-7-1977 at about 10-45 A.M., the Food Inspector purchased a sample of cows milk from the shop of the present petitioner. The same after having been divided into three parts was bottled and sealed as required under the rules. One of the parts of the sample was sent to the Public Analyst, and the other two parts were sent to the local (Health) authority for purposes of sub-section (2) of Section 11 and sub-sections (2-A) and (2-E) of Section 13 of the Act.

3. The sample sent to the Public Analyst was found to be adulterated and, therefore, the Food Inspector, who is authorised under Section 20 of the Act, lodged a complaint in the court of the Chief Judicial Magistrate, Simla under the provisions of Section 16(i)(a) of the Act. Thereafter the petitioner moved an application as required under sub-section (2) of Section 13 of the Act and the court directed the authority concerned to forward one of the two samples to be sent to the Director of the Central Food Laboratory. The Directors report is as under: "The parcel containing the sample of cows milk bearing No. 56/YL/77 has been received in this office on 8-12-77. Item No. (i) below may also be noted in this connection. (i) The sample is decomposed. It is unfit for analysis, hence rejected. Note:- The above-mentioned sample has been received by this Laboratory in a decomposed condition. It is unfit for analysis and hence rejected. Counterpart of the sample may therefore, please be sent to this Lab. immediately for analysis and report."

4. Thereafter it appears that the Chief Judicial Magistrate ordered that the third sample kept by the Food Inspector be sent for examination. Against this order, the petitioner moved an application that since the Director, Central Food Laboratory, had certified that the sample sent to him had decomposed and was unfit for examination, the third sample cannot be sent a second time to the Director as his report was final and conclusive and that under Section 13(2-C) of the Act the sample can be sent a second time only in two contingencies, viz. either the first sample was lost or damaged in transit. Since the sample of milk had decomposed as certified by the Director, Central Food Laboratory, Calcutta, the third sample cannot be found to be fit and hence could not be got re-examined particularly when the petitioner did not want the same to be examined. However, the learned Chief Judicial Magistrate by his order, dated 17-1-1978 rejected the application and ordered the second part of the sample which had been produced in the court on 17-1-78 to be sent to the Director, Central Food Laboratory, Calcutta, for analysis. It is this order which has been challenged by the petitioner.

5. The learned Advocate-General has first of all taken an objection with regard to the maintainability of the petition contending that it being an interlocutory order a revision under the provisions of sub-section (2) of Section 397 of the Code is barred. No doubt under the provisions of sub-section (2) of Section 397 no revision lies against an interlocutory order, but this is not a revision filed under Section 397 (2). The petitioner has invoked the inherent powers as contained in Section 482 of the Code as also has invoked the powers u