PRABHU

STATE OF RAJASTHAN

FEBRUARY 21, 1994

[K. RAMASWAMY AND B.L. HANSARIA, JJ.]

Prevelltion of Food Adulteration Ac4 1954: Section 13(2')-Sending sample to Central Food Laboratory for analysis-Opportunity to make application-Accused not availing of the opportunity-Delay in sending the

:: sample for analysis-Whether accused suffered prejudice is required to be

found-Held no prejudice caused.

The appellant was a milk vendor. The Foool Inspector took samples of milk from the custody of the appellant and sent the same for analysis.

The analyst opined that it was adulterated. Pro! ecution was laid against ) the appellant and he was convicted and sentenced to undergo imprison ment for six months and to pay a line of Rs.1,000, which was confirmed on appeal. On revision, the High Court confirmed the conviction but reduced the sentence to three months' imprisonment and a line of Rs.500. Hence this appeal.

It was contended on behalf of the appellant that there was Inordinate delay in forwarding the sample for analysis, whith violated Section 13(2) of the aforesaid Act and hence his conviction was not sustainable.

Dismissing the appeal, this Court

HELD: It is settled law that the appellant his a right under Section 13(2) of the Prevention or Food Adulteration Act, 1954 to avail the opportunity of sending the sample in the custody of the Court for analysis by the Central Food Laboratory after the prosecution was laid or Immediately arternotlce was received by him in the case, by making an application to the Court. The duty or the prosecution to send tbe report Is governed by Rule 9A of the Rules. After January 4, 1977, the word 'immediately' was used replacing the words 'witbkt ten days' in this Rule. The section bas confe!Ted a right on the accused to require sending of the sample to the Central Food Laboratory. If this right is not availed or at all, conviction cannot be set aside, as no prejudice can be inferred lo such a case, which 62

PRABHU v. STA1EOFRAJAS1HAN 63

req, lrement has to be satisfied.[6SDFJ

Babula/ Hatgavindas v. State of Gujarat, A.I.R. (1971) S.C. 1277; Ajit Prasad Ramkishan Singh v. State of Maharashtra, AJ.R. (1972) S.C. 1631 and Tulsi Ram v. State of M.P., [1984] 4 S.C.C. 487, relied on.

Municipal Corporatic 1 of Delhi v. Ghisa Ram, [1967] S.C.R. 116 and B Ahmed Dadabhai Advani 'State of Maharashtra, J.T. (1991) S S.C. 178; distinguished.

CRIMINAL APPELLATE JURISDICTION : Criminal ppeal No. 210of1994.

From the Judgment and Order dated 22.7.'13 of the Rajashtan High Court in S.B.Crl. Revision Petition No.61 of 1991.

S.K. Jain for the Appellant.

Sasiprabhu and Jayaram for the Respondent.

The following Order of the Court was delivered

Special leave granted.

The appellant is a milk vendor. On March 19, 1983, the Food E Inspector took samples of milk from the custody of the appellant under Section 10(7) of the Prevention of Food Adulteration Act, 1954 (for short the 'Act'). He sent the sample for analysis on March 21, 1983. The Analyst in his report dated March 30, 1983 found that the milk fat was 4.8% and milk solids non-fat was 6.36% whereas the prescribed standard for milk fat is d.5% and milk solids non-fat 8.5%. Thereby, he opined that the milk F purchased from the appellant was an adulterated milk. On the basis of the said report, the prosecution was laid against the appellant. The Magistrate in his judgment dated March 11, 1987 found that the appellant had adul terated milk and convicted him under Section 7 read with Section 16 of the Act and sentenced him to a minimum period of 6 months and a fine of G Rs.1,00Q. On appeal, it was confirmed and in Revision No. 61/19, the Single Judge by judgment dated March 30, 1991 confirmed the conviction but the sentence was reduced to a period of 3 months and a fine of Rs. 500. Thus this appeal by special leave.

Mr. S.K. Jain, learned counsel for the appellant, contended that from H

A the date of taking the sample till the date of laying the prosecution, there was considerable delay. There is an inordinate delay to forward the sample for analysis by the Directorate of Central Food Laboratory which caused considerable prejudice to the appellant. The High Court did not consider this aspect of the matter from this perspective. Therefore, the iyipellant is B entitled to the acquittal. We find no force in the contention.

Sectioo 13 of the Act provides that (1) the Public Analyst shaJ deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis, and (2) on reciept of the report of the result of th~ analysis C under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) authority, shall, after the institution of prosecution against the person from 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 14A, forward in such manner as may be D prescribed, as the case may be, informing such person or persons that if it is so desired, either of both of them may make an application to the court within a period of 10 day5 from thedate 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 Food Laboratory.

E Rule 9A provides that the local authority shall within a period of 10 days, after the institution of the prosecution, forward a copy of the report of the result of the analysis in Form III under sub-rule (3) of Rule 7 by registered post or by hand as may be appropriate to the peR>on from whom the sample of the article was taken by the Food Inspector and simul- F taneously also to the person, if any, whose name, address and other particulars ba•e hr.en disclosed under Section 14(a) of the Act.

This court considering the language of Section 13(2) in Babula/ Hargovinddasv. State of Gujarat, AIR (1971) SC 1277 held that the accused bad an bpportunity to make an application to the court for sending the G sample te the Central Food Laboratory for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no

opportunity to send the sample in his custody to the Director, Central Food " Laboratory under Section 13(2), since be did not make any application to the Court for sending it. This view was followed in Ajit Prasad Ramkishan H Singh v. State of Maharashtra, AIR (1972) SC 1631. In Tulsi Ram v. State

PRABHU v.STATEOFRAJASIBAN 65

' 1 of M.P., (1984) 4 SCC 487, this Court held that Rule 9A is directory and if A after receiving the Public Analyst's report, the accused does not apply to the Court to have the sample sent to the Central Food Laboratory, he may not be heard to complain about delay in receipt of the report by him, unlesss he is able to establish some other prejudice to him.

The deci.ion of this Court in Municipal Corporation of Delhi v. Ghisa B

Ram, (1%7) SCR 116, was bed on the fact that the sample had, in fact, been sent to the Director who returned the same saying that the sample had become highly decomposed and could not be analysed; as the food Inspector had not taken the precaution of adding the preservatory. This decision was distinguished in Babula/ Hargovinddas (supra). c

Thus, it is settled law that . the appellant has a right under Section 13(2) to avail of sending the sample in the custody of the the Court for analysis by the Central Food Laboratory after the prosecution was laid or

~ immediately after notice was received by him in the case, by making an D application to the Court. The duty of the prosecution to send the report is governed by Rule 9A of -the Rules. After January 4, 1977, the word 'immediately' was used replacing the words 'within ten days" in this Rule.

The decision of this Court in Ahmed Dadabhai Advimi v. State of Maharashtra, IT (1991) 5 SC 178 relied on by the appellant does not help him. Therein, the report was stated to havebeen despatched on June 13, E

1974. But, in fact it was despatched on July 11, 1979, The report was of September 1, 1978. The Magistrate on the basis of those facts held that it

~ must have been received in due course and there was delay in launching prosecution. Since the acquittal ordered by the Magistrate was interferred with by the High Court, this Court stated that the High Court was not F justified in interferring with the same. The fact of non-availing of the remedy under Section 13(2) had not been considered by this Court. Therefore, the ratio in Ahmed D. Adva11i's case does not run counter to the consistent law laid by this court in the above cases that despite non availment of the remedy under Section 13(2), prejudice could be inferred.

~ Under these circumstances and following the consistent law laid by this Court, we are of the considered view that since admittedly the appellant had not availed of the remedy under Section 13(2) to send the sample of the article of food for analysis by the Central Food Laboratory, it cannot be held that the appellant suffered prejudice on account of delay in laying H

A the prosecution. It is also seen from the record that within 10 days from the date of the filing of the prosecution, the report was sent to the appellant, though Sb. S.K. jain seeks to contend that there is no proof of service Since it being a question of fact and not disputed in the courts

bhow, we cannot go into that question. In that view, we hold that no

B prejudice bas been caused to the appellant and the conviction of the appellant u11der Section 7 read with Section 16 of the Act and sentence of 3 months imprisonment imposed by the High Court does not warrant 1 interference.

The appeal is accordingly dismissed.

G.N.

Appeal dismissed.