S.K. Kar, J.
1. This is a petition under Section 397/401 of the Cr.P.C. intended to challenge the Judgment and Order dated 20.5.1995 passed by the Addl. Session Judge, Sonitpur in Criminal Appeal No. 7(S-2)/91 dismissing the appeal and the judgment and the order dated 27.3.91 passed by the Sub-Divisional Magistrate, Biswanath Chariali in C.R. case No. 2/ 89.
2. By the impugned judgement the learned Sub-Divisional Magistrate, Biswanath Chariali convicted the accused/petitioner under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter in short 'the Act') and sentenced him to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 1000 in default of fine to further S.I. for two months.
3. The quanit-essence of the allegation is that on 11.11.88 the Food Inspector concerned along with the office Peon of S.D.M. & M.O. visited the premises of the petitioner who is a Milk vendor collected sample of 'Buffalo Milk' after observing the formalities as prescribed in the Act. One part of the sample so collected was forwarded to Public Analyst in the Govt. of Assam, with a memorandum and after analysing the public analyst submitted his report with his finding that the Milk is adulterated. The prosecution was lodged after obtaining necessary sanction from the Local Health authority.
4. The Food Inspector and his peon are the only witnesses examined in support of the prosecution.
5. Defence plea is that the sample of the Milk was pure and he committed no offence.
6. I have heard learned counsel from the petitioner. None appears for the other side.
7. The report of the Public Analyst Assam was superseded by the report of the Director Central Food Laboratory. But the said report was not made formal Exht. in the case. The relevant portion of the aforesaid Director Central Food Laboratory report is reproduced below :
'Milk fat = 4.9%
Milk solids not fat = 7.0%
Canesugar = Absent
Starch = Absent
Formalin = Present'
8. As per appendix B containing definitions and standard of quality, buffalo milk comes under A.11.01.11 as follows :
Buffalo milk Minimum percentage
Milk fat, Milk solids not-fat
6.0 9.0
Thus, the report when compared with standard of quality will clearly show that the sample in question was adulterated.
9. Further learned counsel for the petitioner without entering into the detail discussion and without challenging each and every aspect of the finding of the trial court has restricted his submission on the question that the report of Central Food Laboratory has not been made an Exht. thereby the trial is vitiated. Accordingly, submitted that the petitioner is entitled to relief of acquittal on this count alone.
10. In view of the restricted submission, the scope of argumentation has been narrowed down. In this context, we may referred to provision of section 13 of the Act. Sub-clause (5) of the same goes as follows :
'(5) Any document purporting to be a report signed by a Public Analyst, unless it has been superseded under Sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the Indian Penal Code (45 of 1860):
Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory (not being a certificate with respect of the Analysis of the part of the sample of any articles of food referred to in the proviso to Sub-sections (1A) of Section 16 shall be final and conclusive evidence of the facts stated therein.'
11. Learned counsel has also referred me to law pronounced by the Hon'ble Apex Court in N. Sukumaran Nair v. Food Inspector, Mavelikara reported in (1997) 9 SCC 101 which has been followed in subsequent decision of the same Court reported as (2000) 9 SCC 151, It was held in paragraph-2 of the said judgment as follows :
'Such report by the Public Analyst is ex facie evidence. There are methods to challenge the same which were not restored to.'
12. In the context of evidentiary value of the Public Analyst report/ Central Food Laboratory report, therefore, it requires no further discussion that report of the Central Food Laboratory being not contested seriously is ex facie admissible in evidence and cannot be challenged by a revision petition.
13. Now coming to the 2nd submission of the learned counsel appearing for the petitioner that he may be given relief in so far the sentence is concerned in due regard and obedience to the law as pronounced by the Hon'ble Apex Court and reported in the citation quoted above Hon'ble Apex Court held in (1997) 9 SCC 101 (supra) as follows :
'Under Clause (d) of Section 433 of the Code of Criminal Procedure, 'the appropriate government' is empowered to commute the sentence of simple imprisonment for fine. We think that this would be an appropriate case for commutation of sentence where almost a decade has gone by.'
14. In the present case also the collection of the sample was on 11.11.1988, i.e., above 14 years back and hence by analogy in the present case also similar relief may be granted. I, therefore, direct the petitioner to deposit in the trial court a sum of Rs. 5000 as fine in commutation of the entire sentence of 6 months simple imprisonment within a period of 6 weeks from today and intimate to the appropriate Government that such fine has been deposited. On deposit of such fine, the State Government may formalise the matter by passing appropriate order under Clause (d) of Section 433 of the Code of Criminal Procedure.
15. In the result, petition stands disposed of accordingly.