R.N Aggarwal, J.:— By the impugned order the Additional Sessions Judge quashed the order of the Metropolitan Magistrate dated 9th February 1978 framing charge against the accused-petitioner under section 7 read with section 16 of the Prevention of Food Adulteration Act and discharged the accused. Dissatisfied with the order of the Additional Sessions Judge, the State has come in revision.

2. The relevant facts for the decision of the petition are that on 29th March 1977 Food Inspector Balwant Singh took a sample of cow's boiled milk from the petitioner. The Food Inspector divided the sample in three equal parts and poured them into three clean and dry bottles and sealed the bottles in accordance with the rules. The Food Inspector sent one part of the sample to the Public Analyst and the remaining two parts to the Local Health Authority as required by sub-section (C) to section 11 of the Prevention of Food Adulteration Act (hereinafter called ‘the Act’). The Public Analyst found the sample to be adulterated due to 0.5 per cent deficiency in milk fat and 3.11 per cent deficiency in milk solids not fat. On the receipt of the report of the Public Analyst, the Municipal Prosecutor filed a complaint under section 7 read with section 16 of the Act against the accused on 11th July 1977. Within the statutory period of 10 days the accused filed an application under section 13(2) of the Act for sending one of the counter-parts of the sample kept by the Local Health Authority for analysis to the Central Food Laboratory. On the application, the Magistrate gave a direction for the production of the remaining two parts of the sample. In compliance of the order of the Magistrate, the sample were produced before him and the Magistrate after satisfying himself that the mark and the seal and fastening are intact passed an order for sending one out of the two bottles of the sample to the Director of the Central Food Laboratory for examination and report; the other part was returned to the Local Health Authority.

3. The Director vide report dated 2nd November 1977 informed the Magistrate that the sample is decomposed and, therefore, is unfit for analysis. The Director appended a note to the above mentioned report and the said note reads as under:

“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 be sent immediately for analysis and report.”

4. The Magistrate by his order dated 9th November 1977 held that as the sample sent to the Central Food Laboratory, Calcutta, was found decomposed, hence it would be considered to be damaged in terms of the proviso to section 13(13C) of the Act and, therefore, it is incombent on the Court to sent the third counter-part of the sample. The order dated 9th November 1977 shows that the accused had made a request that the contents of the third counter-part may be measured, and on the said request a direction was given by the Magistrate that the Director before analysing the sample shall have the contents of the samples measured. On 17th November, 1977, the third counter-part of the sample was produced before the Magistrate and the Magistrate passed the following order:—

‘Third counter-part sample produced by Local Health Authority through an official which contains intact fastening, marking and sealing and is absolutely fit for being sent to C.F.L Calcutta for analysis.

Sample bottle despatched according to Rules.”

5. The third counter-part of the sample was sent to the Director, Central Food Laboratory, Calcutta. The Director found the sample to be adulterated. The Director also found the seals to be intact.

6. On the receipt of the report, the Magistrate framed the charge against the petitioner.

7. The Additional Sessions Judge quashed the order of the Magistrate on the grounds (i) that the Magistrate had not before exercising the power under the proviso to section 13(2C) satisfied himself that the signatures or the thumb impression of the accused on the sample bottle were intact and thereby violated the mandatory requirement of section 13(2B) of the Act; (ii) that the second sample bottle sent to the Director was found to be decomposed but the third sample bottle was found to be fit for analysis which showed that formation ws not added in the second sample bottle which resulted in the sample getting decomposed; and further that it is possible that the third sample was tempered with.

8. I do not agree in the above views of the Additional Sessions Judge. The order dated 17th November 1977 of the Magistrate which I have reproduced in the earlier part of the judgment clearly shows that the Magistrate had found the sample bottle to be absolutely fit for being sent to the Central Food Laboratory, Calcutta, for analysis. The words “absolutely fit” used in the order would mean that the sample bottle was found in order in all respects.

9. The finding of the Additional Sessions Judge that the third sample bottle may have been tampered with also appears to be conjectural and without any cogent material to support it. In any case, such a finding could not have been reached at an interlocutory stage of framing of the charge and the parties had to be given full opportunities to produce the evidence whether formalin was added or not in the sample bottle.

10. But I find another insurmountable legal infirmity in the way of the prosecution. The contingency of sending the third part for analysis to the Director of the Central Food Laboratory under the proviso to section 13(2C) only arises if the sample earlier sent to the Central Food Laboratory is lost or damaged. The question arises what meaning is to be given to the word “damage” in the proviso to sub-section (2C). The learned Magistrate appears to be of the view that since the second sample bottle sent to the Director was found to have decomposed, it would mean that the sample was damaged and, therefore, it became obligatory on the court under the proviso to section (2C) to send the third part of the sample to the Director. I regret I am unable to agree in the above view of the learned Magistrate.

11. In the Chambers Twentieth Century Dictionary the word “damage” has been defined to mean hurt, injury, loss; the value of what is lost: the pecuniary reparation due for loss or injury sustained by one person through the fault or negligence of another,—to harm, to taken injury.

12. Before sending a sample the Central Food Laboratory, the Magistrate has to ascertain that the mark and the seal and the fastening are intact. This would mean that in case the Magistrate finds that the seal has been tampered with or that the sample has leaked, he would not send that part of the sample to the Central Food Laboratory under sub-section (2B). From the above it would follow that the loss or damage contemplated in the proviso to sub-section (2C) must occur after the sample is despatched for analysis to the Central Food Laboratory. A sample can get damaged for a number of reasons including breakage, leakage and decomposition. The possibility of a sample getting decomposed because of delay in transit cannot be ruled out. In my view the “damage” used in sub-section (2C) has to be given a wider meaning and it would include damage of any nature including decomposition but the damage must occur after the sample is despatched.

13. The language of section 11(2) is in terms similar to section 13(2C) of the Act; sub-section (2) of section 11 provides that in case a sample sent to the Public Analyst under sub-clause (i) of clause (c) of sub-section (1) is lost or damaged then the Local Health Authority shall, on a requisition made to it by the Public Analyst or the Food Inspector, despatch one of the parts of the sample sent to it under sub-clause (ii) of the said clause (c) to the Public Analyst for analysis. The words “lost” and “damaged” employed in sub-section (2) of section 11 and sub-section (2C) of section 13 are to be given the same meaning. In both the cases the loss or damage must occur after the sample has been despatched to the Public Analyst or the Director, Central Food Laboratory, as the case may be. In case the decomposition or leakage is found to have occurred due to want of proper sealing and fastening then the proviso to sub-section (2C) will not be applicable.

14. From the above discussion it emerges that it is not possible to specify the circumstances in which the proviso to sub-section (2C) will be attracted but it would depend on the facts and circumstances of each case whether the proviso is applicable or not.

15. In the case in hand, there is no material on the record indicating that the sample had decomposed in transit and, therefore, sub-section (2C) will not be applicable.

16. The point under discussion came up for consideration in Ram Parkash v. State of H.P 1979 Criminal Law Journal 750, wherein the learned Judge held as under:

“Where the sample sent to the Central Food Laboratory is reported as decomposed, the sample cannot be said to be “lost or damaged” within the meaning of the Proviso to Section 13(2)(c) of the Act and the Magistrate would be exercising his jurisdiction illegally in ordering the sending of to the Central Food Laboratory a second sample which had been retained by the Local Authority. The ordinary dictionary meaning of the word “damaged” cannot be applied to the interpretation of the word in Section 13(2)(c) Proviso in the light of the context.”

17. The facts in the cited case are very near to the facts of the case in hand. The second sample sent was found by the Director to be sent to the Central Food Laboratory for examination. The above order was opposed by the accused therein but the court rejected the application of the accused. The accused challenged the order of the Magistrate under section 397, 399 and 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India. I do not wholly subscribe to the view expressed by Mr. Justice Thakur in the cited case that in case of decomposition of a sample, the proviso to section 13(2C) will not apply, for the reasons that the sample could have decomposed only because of improper sealing and fastening of the sample bottle. My view is that the word “damage” used in the proviso to section 13(2C) has to be given a wider meaning and if decomposition or leakage has occurred after the sample was despatched then the proviso will be applicable but if the decomposition or leakage has occurred prior to the despatched of the sample then the proviso will not be applicable. In other words, the Magistrate, before exercising the jurisdiction under the proviso to section 13(2C), must satisfy himself that the second sample was damaged after it was despatched to the Central Food Laboratory.

18. In the above view, I decline to interfere with the impugned order. In the result, the petition is dismissed.

S.N.C Petition dismissed.