In Re: Panchami

Sathar Sayeed, J.—The short point that arises in this case is, whether R. 9A of the Prevention of Food Adulteration Rules, 1977, framed

under the Prevention of Food Adulteration Act, 1954, (Central Act XXXVII of 1954) is mandatory or directory.

The case of the prosecution is that on 24th January, 1977, at about 7 A. M., P.W.I the Food Inspector of Kumbakonam Municipality saw the

petitioner, a licensed milk vendor selling milk in Nageswaran Thirumanjanaveedhi in Kumbakonam. P.W. 1 served on him Ex. PI, Form VI,

expressing his intention of taking sample of milk for the purpose of analysis. Thereafter P. W. 1 purchased 660 ml. of milk from the petitioner for

Rs. 1.32 p. and obtained from him Ex. P2, receipt. As required by law he packed the milk in three bottles and sent one of the bottles to the Public

Analyst for analysis. Ex. P4 is the report of the Public Analyst to the effect that the sample of milk sent to him was deficient in solids not-fat to the

extent of at least 42 per cent. P.W. 1 served a copy of the report of the Public Analyst on the petitioner herein and obtained from him an

acknowledgment, Ex. P5. Thereafter the petitioner was charged under the aforesaid sections.

When the petitioner was questioned under S. 313. Crl. P.C. he denied having committed the offence.

The Trial Court, on the evidence projected by the parties, came to the conclusion that the petitioner was liable to be convicted under SS. 7(1)

and 16(1)(a)(1), read with S. 2(ia)(a)(m) of the Prevention of Food Adulteration Act and, therefore the petitioner was convicted thereon and

sentenced to undergo R.I for six months and to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for three months. Against the

said conviction and sentence by the trial Court, the petitioner preferred an appeal before the learned Sessions Judge, East Thanjavur Division at

Nsagapattinam. The learned Sessions Judge, on going through the evidence adduced in the case confirmed the conviction and sentence imposed

by the Judicial First Class Magistrate, Mayuram and dismissed the appeal (C.A. 269/77) filed by the petitioner. It is as against this the petitioner

has filed the present revision.

The learned counsel for the petitioner has raised a point of law. According to the petitioner, under S. 13(2) of the Act, it is enjoined that on

receipt of the report of the result of the analysis under Sub-s.(l) 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 S. 14-A, forward, in such manner as 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 Food Laboratory.

The learned counsel for the petitioner contends that under S. 13(2), the Local (Health) Authority ""shall"" after the institution of the prosecution

against the petitioner, forward a copy of the report of the result of the analysis to him, and also to inform him that if he so desired, the petitioner can

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 Food Laboratory. The emphasis on S. 13(2) is more on ""after the institution of

prosecution against the person"". Again, under R. 9-A of the Prevention of Food Adulteration Rules 1977, it is enjoined upon the Local (Health)

Authority to send a copy of the report received in Form III from the Public Analyst by registered post or by hand, as may be appropriate, to the

person, from whom the sample of the article was taken by the Food Inspector. The intention of the Legislature is that immediately after the

institution of the prosecution against the person, the report of the Public Analyst should be sent to the person concerned informing him that the

article that was seized was adulterated and to what extent, it was adulterated as per the report of the Public Analyst so that if the person is

aggrieved by the report of the Analyst, such person can ask the Court to send another sample for testing kept by the Local (Health) Authority to

the Central Food Laboratory.

In this case, I find that the report of the Public Analyst was sent to the petitioner herein before the institution of the prosecution land it is not

denied by the Public Prosecutor that the report of the Public Analyst was sent to the petitioner before the institution of the prosecution. The learned

counsel appearing for the petitioner contends that this is contrary to S. 13(2) of the Act and R. 9-A of the Prevention of Food Adulteration Rules,

1977. The learned Public Prosecutor contends that the sending of the Public Analyst''s report to the petitioner beforehand or before instituting the

prosecution does not in any way affect petitioner''s right of asking the Local (Health) Authority to get another sample of the article of food analysed

by the Central Food Laboratory.

The point is, has the prosecution followed the mandatory provisions laid down under S. 13(2) of the Act or under R. 9-A of the Prevention of

Food Adulteration Rules, 1977? It is clear from S. 13(2) that the report of the Public Analyst be sent to the petitioner ""after the institution of

prosecution"" against the petitioner. But, in this case, we find that the report of the Public Analyst has been sent before instituting the prosecution

against the petitioner herein. The rule and the section are such that it is mandatory and the failure to follow the section and the rule vitiates the

prosecution. It is on this ground the learned counsel for the petitioner contends that the conviction and sentence imposed on the petitioner have to

be set aside.

I have gone through the judgments of the Courts below and also heard the petitioner''s counsel and the Public Prosecutor. I am of the view that

sending of the report of the Public Analyst to the petitioner before instituting the prosecution against him is fatal to the case and the prosecution has

not followed the procedure laid either under S. 13(2) of the Act or under R. 9-A of the Prevention of Food Adulteration Rules, 1977. In these

circumstances, the revision petition is allowed and the conviction and sentence imposed on the petitioner are set aside. The fine, if paid by the

petitioner, will be refunded to him.