Kandasami vs Food Inspector, Athoor

Natarajan, J.—This revision comes before this Bench on a reference made by one of us (Maheswaran J.) regarding the correctness of the

view taken by Paul J. in Cr.R.C. No. 7 of 1978 in his order dated 18th June 1979.

The revision is directed against the judgment of the learned Sessions Judge of Salem division confirming the conviction of the revision petitioner

u/s 7(1) and Section 16(1)(a)(i) read with Section 2(1)(a)(m) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and

the sentence of rigorous imprisonment for six months and a fine of Rs. 1000/- imposed on him by the Judicial First Class Magistrate No. 2, Salem.

The conviction came to be awarded in the following circumstances. On 29th December 1976 at about 9.15 a.m. the Food Inspector of Attur

found the petitioner to be selling milk and purchased from him 750 milliliters of milk for purpose of analysis. The milk was sealed in three clean

bottles in observance of all formalities and one of the bottles was sent to the Local (Health) Authority for analysis and report. The report

subsequently received disclosed that the milk was deficient in solids-non fat to the extent of at least 17 per cent. On receipt of the report, the Food

Inspector served a copy of the Analyst''s report on the petitioner on 14-2-77. On 15-2-77 and and 16-2-77 respectively the Food Inspector and

the Commissioner signed the complaint and prosecution was instituted against the petitioner on 19-2-1977. One of the contentions raised by the

petitioner in the trial of the case was that the mandatory provisions of S. 13(2) of the Act had been complied with and hence he had been

prejudiced and consequently, the complaint ought not to have ended in conviction. The contention was not accepted by the trial court as well as

the Appellate Court and the result was that the petitioner was awarded conviction and sentence as set out supra.

The only point urged in the revision is that a Bench of this court has held in P.K. Moorthy Vs. Food Inspector, Kumbakonam Municipality, that

non-compliance with the provision contained in S. 13(2), which is mandatory, vitiates the entire proceedings, and on the said ratio, the petitioner

should have been acquitted. On behalf of the State, the Public Prosecutor placed reliance on an unreported judgment of Paul J. in Crl.R.C. No. 7

of 1978. Balu v. State of Tamil Nadu) wherein the learned Judge has observed that though S. 13(2) of the Act and Rule 9(a) of the Prevention of

Food Adulteration Rules required that the report of the Analyst should be served after the prosecution had been launched, the failure to do so will

not vitiate the proceedings, if no prejudice had been caused to the accused. In that case, the facts were that the report of the Analyst had been sent

ten days prior to the laying of the complaint. The referring Judge Judge did not agree with the view expressed by Paul J. because it is in conflict

with the Bench decision in P.K. Moorthy Vs. Food Inspector, Kumbakonam Municipality, . Hence, to resolve the conflict the matter has been

posted before the Bench.

For determining the scope and effect of S. 13(2) of the Act, it is necessary to refer to the relevant provision as it stood before the amendment

and as it now stands after the amendment. The section, as it originally stood read as follows :-

After the institution of a prosecution under this Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an

application to 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 Central Food Laboratory for a certificate; and on receipt of the application, the court shall first 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 the sample, specifying the result of his analysis.

After the amendment in 1976, Section 13 reads as follows :-

Report of Public Analyst :- (1) The public analyst shall deliver, in such form as may be prescribed a report to the Local (Health) Authority of

the result of the analysis on any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis 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 u/s 14A, 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 am 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.

From a reading of the section before the amendment as well as after the amendment, it may be seen that originally a duty was not case on the

Local (Health) authority to send a copy of the report of the result of the anlaysis to the person from whom the sample was taken. No time-limit

was also prescribed within which the person, from whom the sample was taken, could apply to the court for one of the unutilised samples being

sent to the Director of the Central Food Laboratory for his opinion in order to see whether the report sent by the Public Analyst was correct or

not. Consequently, a person affected by the report of the Public Analyst could apply to the Court even several months after the institution of the

prosecution for a sample being sent to the Director of the Central Food Laboratory for obtaining his report. The laxity of the provision gave room

for certain unwanted consequences. Firstly, an accused person could delay the trial of the case by applying belatedly for a sample being sent to the

Director of the Central Food Laboratory. Since no time limit has been prescribed for the sample being sent, when an application was made in that

behalf by a accused person the court had no alternative but to send the sample to the Central Food Laboratory and adjourn the trial of the case till

the report was received. Another concomitant was that by reason of delay the sample that was preserved was likely to get decayed and be unfit

for the director of the Central Food Laboratory to examine it and give his report. In such a situation the accused was deprived of a valuable

opportunity available to him under law for contradicting the report of the Public Analyst by obtaining a different report from the Central Food

Laboratory. It is only to overcome these situations, the Legislature must have amended the section and enacted it in its present form. Under the

present provision, a duty has been cast under sub-section (2) on the Local (Health) Authority to send a copy of the result of the analysis to (i) the

person from whom the sample of the article of food was taken and (ii) the person if any, whose name, address and other particulars have been

disclosed u/s 14A informing him that he should make an application if he so desired, to the court within a period of ten days from the date of

receipt of the aforesaid copy, to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food

Laboratory. In such circumstances, if the object underlying the amendment is to be fully ensured it goes without saying that the requirement of

Section 13(2) must be conformed to the letter of the law. As per the section, any adverse report received from the Local (Health) Authority should

firstly be communicated to the affected party after the institution of the prosecution. Secondly, the report should be forwarded in such manner as

may be prescribed. Thirdly, the communication sent to the affected party must inform him that if he so desired, he should 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. It is in this connection, the relevant rule also has to be considered. The relevant rule,

as it originally stood was rule 9(i) of the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules). That Rule was worded as

follows -

Rules 9 :- It shall be the duty of the Food Inspector - ....... (i) to send by hand or registered post a copy of the report received in form III from the

Public Analyst to the person from whom the sample was taken in case it is found to be not conforming to the Act or the Rules made thereunder as

soon as the case is filed in the Court.

The rule was subsequently substituted by S.R.O. No. A. 438/77 with Rule 9-A. The substituted rule reads as follows :

Rules 9-A : The Local (Health) Authority shall, immediately after the institution of the prosecution, forward the copy of the result of analysis in

form III delivered to him under sub-rule (3) or Rule 7, 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 and simultaneously also to the person if any, whose name, address and other particulars have been

disclosed u/s 14A of the Act.

As per the new rule, the report of the result of the analysis in form III could be delivered to the affected party either by registered post or by hand

as may be appropriate. What is of significance in the rule is that the forwarding of the copy of the report has to be done ""immediately after the

institution of prosecution"". Hence it may be seen that both u/s 13(2) as well as under Rule 9-A, the forwarding of the report by the Local (Health)

Authority has to be done after the institution of the prosecution, and not before.

The words ''after the institution of the prosecution'', in the section as well as in the rule must be understood in their proper perspective and also

in conformity with the object underlying the amendment of S. 13(2). As already stated, there must not be an abuse of the right given to the affected

party by his making an application to court at a belated stage of the case for the sample being sent to the Central Food Laboratory. At the same

time, the valuable right given to the affected party must not also be lost to him on account of the decay of the sample due to passage of time.

Therefore we are of the opinion that the forwarding of the copy of the report by the Local (Health) Authority should be done only after the

institution of the prosecution and not earlier. It is, no doubt, true that the words ''after the institution of the prosecution'' should not be construed to

mean that the report should be forwarded on the same day on which the complaint is filed and that even a delay of a day or two would not be

brooked by law. We may only refer, in this connection, to two cases. In Gopal Mondal Vs. State of West Bengal, the meaning of the word

''forthwith'' occurring in S. 3(3) of the Maintenance of Internal Security Act 1971, was considered and it was held as follows :

The word ''forthwith'' has been interpreted to mean ''as soon as possible; without any delay''. If there is some delay which is reasonably explained,

then there is no violation of the mandatory requirement of the law.

In Ramakrishnan Vs. V.S. Kuttan Pillai and Another, . on complaint the filing and 14-2-1977 report forwarding viz. case, instant in done been has

as earlier not prosecution of institution after be must However, sense. pragmatic a understood to have prosecution? ?after words Hence rule. with

compliance substantial amount would it forwarded, is Analyst copy delay, unreasonable any without if, instituted which day very forwarded should

Public that mean construed however, word character, mandatory imperative 9-A Rule though held was>

Now, let us examine in matter from another angle. Assume a case where a report of the Local (Health) authority is sent (Public Analyst ?) to an

accused person even before the prosecution is instituted. u/s 13(2), the person from whom the sample is taken or the person whose name, address

and other particulars have been disclosed u/s 14A, has a period of ten days from the date of receipt of the copy of the report to move the Court to

get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. If the report is received before

the institution of prosecution, to which court is the affected person to make his application ? There may be stations where there may be more than

one Magistrate to deal with cases filed under the Act. The affected person may not be in a position to know to which court he must make the

application. Secondly, from which day is the person concerned to reckon the period of limitation of ten days ? Is it a period of ten days from the

date of receipt of the report or is it ten days from the date on which he comes to know that prosecution has been instituted ? If prosecution has not

been instituted within a period of ten days after there receipt of the copy of the report, the court to which an application is made for the sample

being sent to the Central Food Laboratory cannot entertain the application made by the affected person and have been sample sent to the Central

Food Laboratory. If the application is made within a period of ten days after the institution of prosecution but beyond a period of ten days from the

date of receipt of the report, the court may refuse to act on the application on the ground that it had been made beyond a period of ten days from

the date of receipt of the report by the applicant. Thus, viewed from this angle also we think that the only view that could be taken of S. 13(2) is

that the copy of the Analyst''s report should be sent only after the institution of prosecution, and not earlier. The view of Paul J. in Cr.R.C. 7 of

1978 that the forwarding of the Analysts report even before the institution of prosecution will not cause any prejudice to the accused, cannot be

accepted for two reasons. Firstly, the communication of the report in that manner will not be in conformity with the requirements of the section.

Secondly, as we have already pointed out, the accused is also likely to be prejudiced by the sending of the Report before the institution of

prosecution.

We may now refer to the case law on the subject. In Chattarpal v. State of U.P., 1982 FAJ 140 : 1980 All LJ 348, it was found that though the

report of the Public Analyst had been sent to the affected party by registered post one day after the filing of the complaint, information was not sent

to him that within ten days of the receipt of the report he could move the court for getting the sample of food analysed by the Central Food

Laboratory. In P.K. Moorthy Vs. Food Inspector, Kumbakonam Municipality, , it was found that the Food Inspector had followed the old

procedure as it stood prior to the amendment of S. 13(2). In Bhaskara Krishna Shetty v. State of Maharashtra, 1980 FAJ 258 the contravention

complained of was that a copy of the report of the Public Analyst was not forwarded to the accused immediately after the institution of the

prosecution and there had been a breach of Rule 9-A and deprivation of the right conferred by S. 13(2) on the accused. In Sri Ram Gopal v.

State, 1980 (1) FAC Amarchand v. The State 1981 (1) FAC 230 (Punj & Har) and P. A. Jose v. The Food Inspector, (1981) 1 FAC 287

(Ker), the prosecution had failed to forward a copy of the report of the Public Analyst to the accused and also to give intimation to him u/s 13(2)

about his right to have one of the samples sent to the Central Food Laboratory for analysis and report. In State Vs. C. Sambandam, there was no

evidence to show that information was sent to the accused after the prosecution was launched that he could move the court for having the sample

analysed by the Central Food Laboratory. In all these cases it has been held that the terms of S. 13(2) and Rule 9-A are mandatory in character

and a contravention or non-observance of the provisions had prejudicially affected the interests of the accused and as such, the convictions ought

not to have been awarded in such cases. In Chakravarthi v. State Food Inspector, Kumbakonam Municipality, 1980 MLW (Cri) 55 an identical

question as the one before us came to be considered by one of us (Maheswaran J.). In that case the report of the Local (Health) Authority (public

analyst ?) was served on the accused on 23-2-1977, whereas the complaint was forwarded to court by the Municipal Health Officer only on 25-

2-1977. The sending of the report was held to be not in conformity with the provisions of S. 13(2) and as such, the conviction and sentence

awarded to the accused should be set aside. In Bhola Nath Nayek Vs. The State and Another, , it was held that Rule 9(j) as amended conferred a

right on an accused, independent of the right conferred u/s 13(2) of the Act and hence a delay of more than ten and a half months in supplying the

copy of the report of the Public Analyst caused prejudice to the defence and therefore the conviction should be set aside.

In the following cases there was delay in the filing of the complaint after the receipt of the report of the Local (Health) Authority. The concerned

accused person in each of the cases contended that his right to have one of the samples sent to the Central Food Laboratory had been deprived

and hence the conviction should be quashed. Vide Babu Lal Hargovindas Vs. The State of Gujarat, In all these cases the court did not go into the

question whether S. 13(2) of the Act was mandatory or not but instead, rejected the contention of the accused on the ground that they had not

made applications at any time to the trial court for having the sample sent to the Central Food Laboratory and that the plea of non-conformity with

the provisions of S. 13(2) had been raised for the first time before the High Court in the revision proceedings. Hence these decisions are

distinguishable on facts and they cannot be taken to mean that in these decisions a view has been taken that S. 13(2) was not mandatory in

character, but was only directory.

In The Public Prosecutor Vs. J. Murlidhar, a Division Bench of the Andhra Pradesh High Court construed the terms of Rule 9(i) and held as

follows :-

Of course, if there is, some delay in sending the report, the complaint''s case cannot be thrown out unless the accused shows that even this slight

delay has caused prejudice to him. It is not possible to lay down any hard and fast rule regarding the delay in sending the report of the Public

Analyst to the person from whom the sample was taken. Every case will have to depend on its circumstances. But, when the report of the Public

Analyst was not sent to the accused even until the filing of the complaint, then to out mind, in such a case, the accused could be acquitted without

his pleading prejudice.

The Bench did not consider the terms of S. 13(2), but confined its scrutiny only to Rule 9(i).

Thus, a review of judicial authority also leaves no room for doubt that the preponderance of opinion is in favour of holding that S. 13(2) in

mandatory is its terms. We have discussed above the twin-fold object sought to be achieved by the amendment of the Section, viz. protecting the

interests of society by ensuring that the trial of cases filed under the Act are not protracted by the accused by making applications at a belated

stage for the sample being sent to the Central Food Laboratory for further report, and at the same time, ensuring that due opportunity is given to

the accused to set right any mistake contained in the report of the Local (Health) Authority (Public Analyst ?) by having a sample sent to the

Central Food Laboratory and obtaining a report from that institution. Since the opportunity afforded to an accused to have one of the samples sent

to the Central Food Laboratory is restricted to a period of ten days and time will begin to run from the date of service of a copy of the report

together with the requisite information contemplated u/s 13(2), it necessarily follows that the sending of a copy of the report as well as the

information contemplated in S. 13(2) must be done after the institution of the prosecution. Sending the report and information earlier and instituting

the prosecution later will not amount to full and proper compliance with the terms of S. 13(2) and, furthermore, the accused will be left wondering

in which court he should make application and as to when he should make the application. We are, therefore, of opinion that the view taken by

Paul J. in Cr.R.C. No. 7 of 1978 is not correct view and instead, the view taken by one of us (Maheswaran J.) in Chakravarthi v. State, Food

Inspector, Kumbakonam Municipality, 1980 Mad LW (Cri) 55 is the proper one.

In the light of the above conclusion, the revision will stand allowed and the conviction and sentence awarded to the petitioner will stand set

aside.

Revision allowed.