Holding

The accused is liable to pay the fee prescribed under Rule 4(6) for the second analysis of the food sample.

Summary

The State of Gujarat prosecuted Shaileshbhai Mansukhlal Shah and another under Sections 7(i) and (v) of the Prevention of Food Adulteration Act, 1954. The accused, dissatisfied with the public analyst's report, invoked Section 13(2) to obtain a second analysis of the food sample by the Central Food Laboratory. The trial magistrate directed the accused to deposit the fee prescribed in Rule 4(6) of the 1955 Rules, which the accused refused, arguing that the statute did not obligate them to pay. The High Court, relying on the Kerala High Court decision in George Kutty v. State of Kerala, held that the fee was not payable by the accused. On appeal, the Supreme Court examined the statutory scheme, read Section 13(2) in conjunction with Section 4(2)(b) and Rule 4(6), and concluded that the second analysis is not free of cost and the fee must be borne by the person requesting it – i.e., the accused. Consequently, the Court allowed the State’s appeal, set aside the High Court order, and held that the accused is liable to pay the fee.

Issues considered

The accused, exercising the right under Section 13(2) of the Prevention of Food Adulteration Act, 1954, is required to pay the fee prescribed under Rule 4(6) of the Prevention of Food Adulteration Rules, 1955 for a second analysis by the Central Food Laboratory.

Legislation cited

Prevention of Food Adulteration Act, 1954s. 11, s. 13(2), s. 14A, s. 16, s. 4(2)(b), s. 7(i), s. 7(v)
Prevention of Food Adulteration Rules, 1955s. Rule 4(6)

Subjects

Food adulterationSecond analysisFee liabilityStatutory interpretationCentral Food LaboratoryPrevention of Food Adulteration Act

Judgment

A STATE OF GUJARA TAND ANR.
v.
SHAILESHBHAI MANSUKHLAL SHAH AND ANR.

MAY 30,2007

B [R.V. RA VEENDRAN AND LOKESHWAR SINGH PANTA, JJ.]

Prevention of Food Adulteration Act, 1954/Rules, 1955-ss. 13 (2)/r. I
4(6)-liability to pay fee for analysis of second sample by Central Food
c"' Laboratory-Held, is on the accused

Interpretation of Statutes:

Substitution of Statutory provision-Held: New Provision to b·e read
and construed with reference to its wording and not with reference to wording
D of old provision.

The question which has arisen for consideration in the present appeal
is that if the accused is not satisfied with the correctness/accuracy of the
report of public analyst and seeks analysis of second part of the sample by
the Central Food Laboratory by exercising his right under s, 13(2) of the
E Prevention of Food Adulteration Act, 1954, then whether he is bound to pay
the fee prescribed under Ru.le 4(6) of Prevention of Food Adulteration Rules,
1955.

Allowing the appeal, the Court

F HELD: 1.1. S. 13 of the prevention of Food Adulteration Act, 1954 does
not require payment of any fee to the Central Food Laboratory for the second
analysis. Nor does it say that the complainant/State or local (Health) Authority
should bear the cost of second analysis. Nor does it say that when an accused
makes an application for a second analysis by the Central Food Laboratory,
such analysis shall be done free of cost. In facts. 13 does not deal with the
G fee part. Other provisions deal with the fee to be paid S. 4 requires the Centr:al
Government to es~blish one or more Central Food Laboratories to carry out
the functions entrusted to the Central Food Laboratory by the Act or the Rules
made under the Act. Sub-section (2) of s. 4 empowers the Central Government
to make rules prescribing the procedure for submission of samples for

H 850
STA TEOF GUJARAT v. SHAILESHBHAI MANSUKHLAL SHAH 85 l

.- . analysis/tests to the Central Food Laboratory, the forms of the Laboratory's A
Reports and the fees payable in respect of such reports. Rule 496) of the
Prevention of Food Adulteration Rules provides that a fee of Rs. 200 (now Rs.
1000) should be paid to the Central Food Laboratory for a certificate under s.
13(2) of the Act. Form-I of Appendix-A to the Rules makes it clear that when
the Court sends a requisition to the Director, Central Food Laboratory for
analysis of the sample under s. 13(2) the Court is required to enclose a demand .B
draft for the amount of fee for analysis !Para 711857-E, F, G; 858-AI
\ George Kutty v. State of Kera/a, (1991) 1 PEFC 133, overruled.
...
Rajendra Kumar v. State of MP., (1994) 2 PFAC 56; Mohd Saifv. Local C
Helath Authority, Melur Municipality, (1996) 1 PF AC 20, approved.

1.2. S. 13(2) when rea<t with s.4(2)(b) and Rule 4, makes it clear that
the analysis by the Central Food Laboratory is not free of cost, but subject to
·payment of the prescribed fee and that such fee should be paid in advance The
non-mention of fee ins. 13 does not mean that the provision for payment of D
fee under s. 4(2) read with Rule 4(6) is negated or rendered obsolete.
!Para 7) (858-BJ

2.1. The payment to Central Food Laboratory due under Rule 4(6) has '
to come from someone. Logically the choices are (a) the complainant (Food
Inspector/State); (b) the Local (Health) Authority; (c) the Court; (d) the person E
who requires the second analysis by the Central Food Laboratory.
!Para 811858-CI

2.2. The Food Inspector (who is the complainant), when he takes a sample
of food for analysis is required to divide the sample into three parts and send
one part for analysis to the Public Analyst and the remaining two parts to the F
local health authority. The fee/cost of analysis by the public analyst is
•. prescribed under the relevant state rules and is paid by the local authority
concerned. The Food Inspector cannot require a second analysis by the Central
Food Laboratory under section 13(2). He does not require a second analysis ,
to prove the charge. The provision for second analysis is an option given to G
the accused and not the complainant. A request by the accused for second
analysis is not a request by the complainant. The Act does not require tbe
complainant to pay the fees for the second analysis. Therefore, the question
of complainant paying the fee for the second analysis does not arise.
1858-D, E, Fl (Para 8.11
H
STATE OF GUJARAT v. SHAILESHBHAI MANSUKHLAL SHAH [RA VEENDRAN, J.] 853
such right, but on the other hand, the right is given only to the person from A
whom the sample was taken as also his vendor, if any. Secondly, under the
new section an obligation is cast on the Local (Health) Authority to inform
the person from whom the sample has been taken that they can make an
application to the court, within. IO days of receipt of the Public Analyst's
report, for getting a second part of the sample analysed by the Central Food
Laboratory. Olds. 13(2) did not contain such a provision. Lastly, the provision B
that "the accused or the complainant may on payment of the prescribed fee,
make an application" in olds. 13(2) meant that payment of the prescribed fee
was a condition precedent for making an application to the court for second
analysis. The omission of the words 'on payment of the prescribed fee 'in the
new s. 13(2), in context, only means that payment is nci longer a condition C
precedent for making an application for second analysis. Under the news.
13(2) the applicant can make the payment, after the application is allowed by
the court. The sample however will be sent by the court to the Central Food
Laboratory only on deposit of the prescribed fee. The omission to refer to the
fee in s. 13(2) is obviously because it was provided in Rule 4(6) made in
exercise of power conferred under s. 4(2)(b). If the legislative intent was to D
exempt the applicant for second analysis from any payment, the section would
have stated that such analysis was free. (Para 1 l I (861-E, F, G, H; 862-A-Bl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 38 of
2001.
E
From the Judgment & Order dated 07. l 0.1999 of the High Court of
Gujarat at Ahmedabad in Special Criminal Application No. 803 of 1998.

WITH

·-
'
Crl. A. No. 39 of2001.

Hemantika Wahi and Shivangi for the Appellants.
F

The Judgment of the Court was delivered by

RAVEENDRAN, J. l. This appeal by special leave is by the State of G
Gujarat against the judgment dated 7. l 0.1999 passed bv 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
H
854 SUPREME COURT REPORTS (2007) 7 S.C.R.

A 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
B 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
C 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, affinned that order.

3. The revisional order was challenged by the respondents before the
D 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 aild 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
E learned Single Judge of the Kerala High Court in George Kutty v. State of
Kera/a (1991) I 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,
F the learned Magistrate was directed to take appropriate steps in the matter,
..... '
without requiring any payment by the accused. ;-

r
1
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
G 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 v. State of MP. (1994) 2 PFAC 56 and decision of the
Madras High Court in Mohd. Saif v. Local Health Authority, Melur'
Municipality, (1996) I PFAC 20. On the contentions urged, the question that
H arises for our consideration is :
ST ATE OF GUJARATv. SHAILESHBHAI MANSUKHLAL SHAH [RA VEENDRAN. J.] 855
"Where the accused, not being satisfied with correctness/accuracy of A
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 B
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
c
Central Food Laboratory, for a second opinion. Sub-sections (2), (2A), (28),
and (3) of section 13 which are relevant are extracted below:

"13. Report ofPublic Analyst: (I): xxxxx ·:
...
· (2) On receipt of the report of the result of the analysis under sub- D
~
section (I) to the effect that the article of food is adulterated, the
Local (Health) Authority shall, after the institution of prosecution
against the persons fro.,, whom the sample of the article of food was
taken and the person, if any, whose name, address and other particulars
have been disclosed under Section l 4A, forward, in such manner as
E
may be prescribed, a copy of the report of the result of the analysis
to such person or persons, as the case may be, informing such person
or persons that if it is so desired, either or both of them may make
an application to the court within a period of ten days from the date
of receipt of the copy of the report to get the sample of the article of
food kept by the Local (Health) Authority analysed by the Central F
Food Laboratory.

(2A) When an application is made to the court under sub-section (2),
the court shall require the Local (Health) Authority to forward the part
or parts of the sample kept by the said Authority and upon such
requisitior. being made, the said Authority shall forward the part or G
parts of the sample to the court within a period of five days from the
date of receipt of such requisition.
·"'-.,

(2B) On receipt of the part or parts of the sample from the Local
(Health) Authority under sub-section (2A), the court shall first ascertain
H
856 SUPREME COURT REPORTS (2007] 7 S.C.R.

A that the mark and seal or fastening as provided in clause (b} of sub-
section (I) of Section 11 are intact and the signature or thumb
impression, as the case may be, is not tampered with, and despatch
the part or, as the case may be, one of the parts of the sample under
its own seal to the Director of the Central Food Laboratory who shall
thereupon send a certificate to the court in the prescribed form within
B one month from the date of receipt of the part of the sample specifying
the result of the analysis.

(3) The certificate issued by the Director of the Central Food Laboratory
under sub-section (28) shall supersede the report given by the public ..
analyst under sub-section (I).
c
6. Rule 4 of the Rules relates to the analysis of food samples. The
relevant portion of the said rule (as it stood at the relevanttime) is extracted
below:

"Analysis offood samples - (I) (a) Samples of food for analysis under
sub-section (2) of Section 13 of the Act shall be sent either through
a Messenger or by registered post in a sealed packet; enclosed together
with a memorandum in Form I in an outer cover addressed to the
Director.

E
(5) After test or analysis the certificatl! thereof shall be supplied
forthwith to the sender in Fonn II.

(6) The fees payable in respect of such a certificate shall be Rs.200
per sample of food analysed. .
F
xxxxxxxxx''

Clause (6) of Rule 4 of the Rules as it originally stood prescribed a fee of
Rs.40/-. The rule was amended twice, first with effect from 24.8.1995 substituting
the figure of Rs. 200/- for Rs. 40/- and again with with effect from 20.5.1999
G substituting the figure of Rs. I 000/- for Rs. 200/-.

7. The procedure for getting a second analysis by the Central Food
Laboratory, as laid down in sub-section (2), (2A) and 2(8) of section 13 can
be summarised thus :

H (i) On receipt of the report of the result of the analysis from the
STATEOF GUJARAT v. SHAILESHBHAI MANSUKHLAL SHAH [RA VEENDRAN,J.] 85 7
Public Analyst, the Local (Health) Authority is required to A
forward a copy of the result of the analysis by the Public
Analyst to the person from whom the sample of article of food
was taken (as also the vendor, if any, from whom such perso,n
purchased the article of food).

(ii) While so forwarding the report, the Local (Health) Authority is B
also required to inform the said persons (the accused) that if
they so desire, either or both of them may make an application
to the court within ten days from the date of receipt of the copy
of the report, to get the second portion of the sample (kept by
the Local (Health) Authority) analysed by the Central Food
Laboratory. c
(iii) When an application is made by such persons (accused), the
court shall require the Local (Health) Authority to forward the
parts of the sampl~ kept by it; and the Local (Health) Authority
shall forward the. parts of the sample to the Court within five
days from the date of receipt of requisition from the court. D
(iv) On receipt of the sample from the Local (Health) Authority, the
Court shall despatch one part of the sample to the Director of
Central Food Laboratory.
(v) The Central Food Laboratory has to analyse the sample and
E
send a report (certificate) in respect of the result of the analysis
of such sample to the court.

Section l3 does not require payment of any fee to the Central Food Laboratory
for the second analysis. Nor does it say that the complainant/State or Local
(Health) Authority should bear the cost of second analysis. Nor does it say F
that when an accused makes an application for a second analysis by the
Central Food Laboratory, such analysis shall be done free of cost. In fact
section 13 does not deal with the fee part. Other provisions deal with the fee
to be paid. Section 4 requires the Central Government to establish one or more
Ceiitral Food Labo1atories (or specify any Laboratory or Institute as a Central
Food Laboratory) to carry out the functions entrusted to the Central Food G
Laboratory by the Act or the Rules made under the Act. Sub-section (2) of
section 4 empowers the Central Government to make rules prescribing the
c procedure for submission of samples for analysis/tests to the Central Food
.. Laboratory, the fonns of the Laboratory's Reports and the fees payable in
respect of such reports. Rule 4(6j of the Rules pr,wides that a foe of Rs.200 H
858 SUPREME COURT REPORTS [2007] 7 S.C.R.·

A (now Rs. I 000) should be paid to the Central Food Laboratory for a certificate
under Section 13(2) of the Act. Form-I of Appendix-A to the Rules makes it
clear that when the court sends a requisition to the Director, Central Food
Laborator~ for analysis of the sample under sub-section 13(2) of the Act, the
court is required to enclose a demand draft for the amount of fee for analysis.
B Section 13(2) when read with section 4(2)(b) and Rule 4, makes it clear that
the analysis by the Central Food Laboratory is not free of cost, but subject
to payment of the prescribed fee and that such fee should be paid in advance.
The non-mention of fee in section I 3 does not mean that the provision for
payment offee under section 4(2)(b) read with Rule 4(6) is negated or rendered
obsolete. The question is who should bear and pay the prescribed fee?
c 8. The payment to Central Food Laboratory due under Rule 4(6) has to
come from someone. Logically the choices are (a) the complainant (Food
Inspector/State); (b) the Local (Health) Authority; (c) the Court; (d) the
person who requires the second analysis by the Central Food Laboratory.

D (8.1) The Food Inspector (who is the complainant), when he takes a
sample of food for analysis is required to divide the sample into three parts
and sent one part for analysis to the Public Analyst and the remaining two
parts to the local health authority. The fee/cost of analysis by the public
analyst is prescribed under the relevant state rules and is paid by the local
authority concerned. The Food Inspector cannot require a second analysis
E by the Central Food Laboratory under section 13(2). He does not require a
second analysis to prove the charge. The provision for second analysis is an
option given to the accused and not the complair.:mt. A request by the
accused for se..:ond analysis is not a request by the complainant. The Act
does not require the complainant to pay the fees for the second analysis.
F Therefore, the question of complainant paying the fee for the second analysis
does not arise.

(8.2) The Local (Health) Authority has three obligations with reference
to the sample : (i) to keep two parts of the sai;nple received from the Food
Inspector; (ii) to inform the person from whom the sample was taken (and his
G vendor, if any, disclosed under section 14A) that if it is so desired, either or
both of them may make an application to the court to get the sample of the
article of food (kept by it) analysed by the Central Food Laboratory; (iii) to
send the parts of the sample to the court, if so directed by the court under
section I 3(2A). The obligation of the Locat (Health) Authority is only that
H of safe keeping of the samples and not to get the samples analysed. Therefore
STATE OF GUJARATv. SHA! LESHBHAI MANSUKHLAL SHAH [RA VEENDRAN, J.] 859
Local (Health) Authority cannot be required to pay the fees for the second A
analysis of the samples.

(8.3) The court cannot obviously be asked to bear .the cost of the
second analysis or for that matter, any analysis. Its functions are adjudicatory.
If the court is required to render some assistance of service free, it should
be specifically provided in law. (For example section 363 of Cr.PC provides B
that when an accused is sentenced to imprisonment, a copy of the judgment
shall be given to him free of cost).

(8.4) In the absence of any specific provision, the cost of an analysis
has to be borne by the person requesting for such analysis. The accused C
need not apply to have the sample analysed by Central Food Laboratory, as
- ~he report of the public analyst is already on the file. The accused has been
given an option under section 13(2) to get a second analysis of the sample
(that is analysis of second part of the sample by a Central laboratory) only
if he so desires. This option will obviously be exercised, only when the
accused is not satisfied with the Report of the Public Analyst and wants to D
assail it. As the second analysis by Central Food Laboratory is at the option
of the accused, it necessarily follows that he should bear and pay the fee fixed
for such analysis under the Rules, if he wants the second analysis.

9. We may now consider t!ie decision of the Kerala High Court which E
takes a different view. The Kerala High Court has held that there is no
liability on the part of the accused to pay the fee for the second analysis, by
comparing the wording of Section 13(2) with the old Section 13(2). Section
13(2) before its amendment, by Act 34 of 1976 read as follows:

"13(2). After the institution of a prosecution under this Act the accused F
vendor or the complainant may, on payment of the prescribed fee,
make an application to the court for sending the part of the sample
mentioned in sub-clause (i) or sub-clause (iii) of clause (c) of sub-
section (1) of Section 11 to the Director of the Central Food Labt>ratory
for a certificate; and on receipt of the application the court shall first G
ascertain that the mark and seal or fastening as provided in clause (b)
of sub-section ( 1) of Section 11 are intact and may then despatch the
part of the sample under its own seal to the Director of the Central
Food Laboratory who shall thereupon send a certificate to the Court
in the prescribed form within one month from the date of receipt of
H
860 SUPREME COURT REPORTS [2007] 7 S.C.R.

A the sample, specifying the result of his analysis."

(Emphasis supplied)

The Kerala High Court was of the view that the specific provision for payment
of prescribed fee by the person making the application for analysis, in the old
B section 13(2) having been omitted in the new Section 13(2 ), the legislative
intent was that the person requiring the second analysis need not pay the
fee for such analysis. We extract below the reasoning of the Kerala High
Court:

"After 1976 amendment the Local (Health) Authority has the obligation,
c under section 13(2), to forward a copy of the report of the Public
Analyst to the accused and to inform him that he may make an
application to the court to get the other sample analysed by the
Director of Central Food Laboratory. Before 1976 amendment, either
the complainant or the accused could have applied for sending the
D other part of the sampl!! to the Central Food Laboratory. Neither the
food inspector nor the local authority had any obligation, before 1976
amendment, to inform the accused that he could exercise his option
under section 13(2) after 1973 amendment would thus show that it is
the obligation of the State or IC)cal authority to subject the sample to
analysis. Such analysis would be made by the Public Analyst first,
E and if the accused needs, such analysis must be arranged to be made
at the Central food Laborator/. The only difference is that in the
analysis to be made by the Public Analyst the accused has no part
to play, whereas the Director of Central Food Laboratory cannot be
asked to analyse the sample if the accused does not want it. In other
F words, if the accused expresses his desire to have the sample analysed
by a superior expert, law provides that it must be got done. This
right or option is not conditional on the accused remitting the
expenses needed for analysing the sample. The result of such analysis
by the Director of Central Food Laboratory is binding on the
prosecution in the same way as it is binding on the accused because
G
the certificate of the Director of Central Food Laboratory will supersede
the report of the Public Analyst. Such certificate is not an item of
defence evidence, as it takes the place of the report of the Public
Analyst. In the absence of any clear statutory insistence an accused
cannot be asked to bear the expenses to bring in· a document having
H greater probative value and a substitution for the earlier document of
STATEOFGUJARATv.SHAILESHBHAIMANSUKllL\LSHAHlRAVUNDRAN.J.J 861
the prosecution. Hence, the deletion of the words "on payment of the A
prescribed fee• from section /J(lJ coupled with the other changes.
., .
· conveys the message that it is no longer obligatory for the accused
to bear the,expemes for such analysis.• .

, , (emphasis ~~pplied).
B
The Kerala High Court got over Rule' 4(6) by' siating. that the said rule was
made when the original Section 13(2)was in force arid after Section 13(2) was
substituted in 1976, the s~id sub-rule became obs~iete. · ·

· 10. On a careful reading of section 13(2) as_ it exists now, and the old
section 13(2), we are of the view that the old provision is of no assistance C
to inteipret the new provision. If section 13(2) as it originally stood had been
retained, by merely omitting the words "on payment of prescribed fee•, with
a consequential change in Rule 4 by deleting clause (6) thereof, it might have
been possible to take the view that no fee was payable by the applicant for
second analysis. But that is not the position. Section 13(2) has undergone a
complete change, by substitution in entirety, by se~tion I 3(2)(2A) to 2(E). · D ·
Further, Rule 4(6) has continued in the statute book. Not only Rule 4(6) has
continued, but it has been consciously amended r.· 1995 and again in 1998
increasing the fee. There is a clear provision in tHe Act for payment of fee,
. when section 4(2)(b) is read with Rule 4(6). Rule 4(6) cannot be ignored as
obsolete, as has been done by the Kerala High Court, in the absence of clear E
'\ . irreconciliability with section 13(2) or any other provision of the Act.

\. . 11. When a statutory provision is substituted, the new provision has
'\' to be read and construed wit_h reference to its wording and not with reference
he ":ording of the old provision. Old section.13(2) and new section 13(2) p·
{2F) are different. Old section 13(2) enabled th.e accused as also the
mplair'1r.t to make an application to the court for sending a second part of
'sample to the Central Food Laboratory: Under the new section 13(2), a
. . . . .
complainant does not have such right, but on the other hand, the right is
.

given~ to the person from whom the sample was taken as. also his vendor,.
if any. Seqmdly', under the new section an_ obligation is cast on the Local G .
(Health) Auihority to inform the person from whom the sample has been taken
(and his vendor, if any) that they can make an application to the court, within
I 0 days of receipt of the Public Analyst's· report, ·for getting a second part·
of the sample analysed by the Central Food Laboratory. Old section 13(2) did
not contain such a provision. Lastly, the provision that "the accused or the
complainant may on payment of the prescribed fee, make an application" in· H
862 SUPREME
., COURT REPORTS l2007J 7 S.C.R.

A old section 13(2) meant that payment of the prescribed fee was a condition
precedent for making an application to the court for second analysis. The
omission of the words 'on payment of the prescribed fee' in the new section
13(2), in context, only means that payment is no longer a condition precedent
for making an application for second analysis. Under the new section 13(2),
B the applicant can make the payment, after the application is allowed by the
court. The sample however will be sent by the court to the Central Food
Laboratory only on deposit of the prescribed fee. The omission to refer to the
fee in section 13(2) is obviously because it was provided in Rule 4(6) made
in exercise of power conferred under section 4(2)(b ). If the legislative intent J
was to exempt the applicant for second analysis from any payment, the
C section would have stated that such analysis was free. The decision of the
Kerala High Court is clearly erroneous. The view of the High Courts of
Madhya Pradesh and Madras that the applicant has to pay the fee for the
second ana!ysis, in view of R_ule 4(6) providing for such fee and the absence
of any provision exempting the applicant from paying the fee, is correct.

D 12. We, therefore, allow this appeal and set-aside the impugned
judgement of the High Court and restore the order· of the Revisional Court,
affirming the order of the learned Magistrate directing the respondents to
remit the fee for the second an~lysis under section 13(2) of the Act.

D.G. Appeal allowed.
E
ORDER

l. The issue involved in this appeal has been considered by us in Crl.
Appeal No.38/2001. The Addi. Chief Judicial Magistrate, Gundal, following
the decision of the Gujarat High Court in Special Crl. Appeal No.803/1998
F (which is the subject matter ofCrl.A. No.38/2001 decided today), has directt!d
the complainant (Food Inspector/State) by order dated 30.12.1997 to PCJY the
fee for second analysis of the sample under section 13(2) of the Prevention
of Food Adulteration Act, 1954 ('Act' for short). The said order was confirmed
by the High Court by order dated 9.5.2000 in Crl. Revi~ion No. 21/2000.

G 2. Following the decision rendered by us today in Crl. Appeal No. 38/
200 I, this appeal is allowed and the order of the High Court and the learned
Magistrate directing the complainant to pay the fee are set aside, and it is
declared that the accused-respondent is liable to pay the fee for the second
analysis under section 13(2) of the Act.
I
H D.G. Appeal allowed. ·