Non-compliance with the mandatory provision of S. 13 (2) of the Prevention of Food Adulteration Act, which requires a copy of the Public Analyst's report to be served on the accused, is fatal to the prosecution.

K. P. MOHAPATRA, J.

( 1 ) THE petitioner has challenged his conviction and sentence under S. 16 (1) (a) (i) of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act' ).

( 2 ) THE petitioner was a dealer of grocery articles of Dharamsala Market of Keonjhar town. On 23-1-1980 at 12-30 P. M. the Food Inspector (P. W. 2) inspected the grocery shop and suspected that turmeric whole kept inside the shop was moth-eaten and unfit for human consumption. Accordingly, he purchased 600 grams of turmeric whole and after compliance with the rules, the samples were kept in clean and dry bottles in equal parts and subsequently one of them was sent to the Public Analyst for opinion. The Public Analyst reported in his report (Ext. 4) to the effect that the sample of turmeric whole was damaged by insects and was adulterated in view of the provision of S. 2 (ia) (m) of the Act. After receipt of the report, it was found that there was a prima facie case of food adulteration against the petitioner and after obtaining the sanction for prosecution Ext. 5 from the Authorised Officer, the Chief District Medical Officer, prosecution report was submitted in court.

( 3 ) THE petitioner took the defence that turmeric whole which had been purchased by the Food Inspector (P. W. 2) was kept in the store room of the grocery shop and was not exposed for sale for human consumption. Therefore, even if it might have been found by the Public Analyst that the same was adulterated, he did not commit the offence he was charged with.

( 4 ) THE learned Judicial Magistrate, First Class, Keonjhar, accepted the prosecution case and found that the petitioner had exposed the turmeric whole for human consumption in the grocery shop and as the same was found to be adulterated and moth-eaten, he committed an offence under S. 16 (1) (a) (i) of the Act. He sentenced the petitioner to undergo simple imprisonment for three months and to pay a fine of Rs. 500/- in default, to undergo simple imprisonment for one month more.

( 5 ) THE petitioner carried an appeal to the learned Sessions Judge, Keonjhar, who in the impugned judgement upheld the conviction and sentence.

( 6 ) MR. P. K. Dhal, learned counsel appearing for the petitioner, raised many important points challenging the conviction. But the most important point was non-compliance of mandatory provision of S. 13 (2) of the Act resulting in grave prejudice to the petitioner for his defence. Without touching any other point raised by him, the revision can be decided on this important point alone.

( 7 ) IT is the settled position of law that the provision of S. 13 (2) of the Act is mandatory in nature which means, the copy of the report of the Public Analyst must have to be served on the shop owner from whose shop samples have been collected in accordance with R. 9a of the Prevention of Food Adulteration Rules (hereinafter referred to as 'the Rules') so that he will get opportunity of getting one of the samples re-examined in the Central Food Laboratory. Contravention of S. 13 (2) of the Act, therefore, is fatal to the prosecution. In support of the above view, I will refer to only three decisions of this Court in which several decisions of the Supreme Court and other High Courts have been discussed. They are, (1986) 1 Orissa LR 421, State of Orissa v. Jeebanlal, Criminal Revision No. 14 of 1983. Ram Chandra Sahu v. State, disposed of on 10-12-1986 (reported in 1987 Cri LJ 2025), and a Bench decision reported in (1985) 59 Cut LT 35, Nagendra Nath Roy v. Hariram Singhania. In order to find out if the mandatory provision of S. 13 (2) of the Act has been complied with or not, it is necessary to have a glance at oral and documentary evidence adduced by the prosecution. P. W. 2, the Food Inspector obviously did not send the copy of the report of the Public Analyst (Ext. 4) to the petitioner. In his chief examination he generally stated,"the copy of the analyst's report of the sample of turmeric whole had be