State by Public Prosecutor vs Meenakshi Achi and Others

K.N. Mudaliyar, J.—This is an appeal filed by the State against the order of the Court of the Additional First Class Magistrate. No. II,

Madurai acquitting the three accused-Respondents of the offence of contravening See. 2 (1) (a) (1) and (1), 7 (i) and 16 (1) (a) (1) of the

Pretention of Food Adulteration Act read with clause A in appendix B to Rule 5 of the Prevention of Food Adulteration Rules.

Briefly the facts are: P. W. 1 is a Municipal Sanitary Inspector cum Food Inspector. On 11th September 1969. at 11 A.M. he along with his

maistry went for taking samples Of food articles. They found the Ice Cream push cart before No. 1, Bhagavan Chetti Lane when they proceeded

along the workshop road. The push cart Ice Cream belongs to the Ice Cream Company, 60 Munichalai Road. P.W. 1 enquired the 3rd accused

who was the salesman. The 3rd accused represented that he was taking the ice cream for sale. P.W. 1 thereafter purchased 600 grams of ice

cream sold by the 3rd accused. P. W. 1 paid Rs. 4-50. He also obtained a receipt from the 3rd accused. He divided the ice cream and put them-

to three clean bottles. He added 16 dropa of Formalin in each of the bottles and sealed them. He gave one bottle to the 3rd accused under

acknowledgment. One bottle was sent to the Public Analyst. Ex. P. 8 is the report of the Analyst which showed that the ice cream was deficient in

fat to the extent of 59% and was therefore adulterated.

The plea of the first accused is that she is the proprietor of the Company. She stated that the second accused is not the Manager of the

Company. The 3rd accused was the salesman. The second accused''s plea is one of denial. The 3rd accused admitted the sample being taken by

P, W. 1.

It emerges from the evidence on record that the sample produced by the accused was sent to the Central Food Laboratory on 10th April 1970

through Court. Ex. D-1 dated 24th April 1970 shows that the sample was decomposed and unfit for analysis.

The learned trial trial Magistrate found that delay occurred in the matter of sample from the accused being sent through Court to the Central

Food Laboratory. The learned trial Magistrate found that the time limit prescribed in Rule 7 (3) is exceeded by 25 days by the prosecution.

The learned Public Prosecutor argued that there are really no laches on the part of the prosecution in prosecuting this complaint and therefore

there is no effective denial of the right of the accused u/s 13 (2) of the Act. In this case, the sample was taken on 11th September 1959. It was

sent for analysis on the same day. The sample was received by the Analyst on 12th September 1969. It was analysed on 15th October 1969.

There is undoubtedly a long period of 33 days elapsing between the receipt of the sample and the analysis of the sample. The Analyst''s report, Ex.

P.8, was sent on 5th December 1969. It was. received by the Municipality on 8th December 1969. The complaint was filed on 20th December

1969. But strangely P.W. 1 was examined only on 10th April 1970. The prosecution is unable to show that this delay in the examination of P. W.

1 has been solely due to the acts of the accused. At any rate, there is not even a particle of evidence to how any laches on the part of the accused

in facing the trial. The ultimate result of such a delayed prosecution of the case is that when the accused sent the bottle for analysis on 10th April

1970, it was inordinately after a long time. The sample sent by the accused was analysed on 24th April 1970. Little wonder there is, that the

sample sent by the accused deteriorated so much that it was unfit for analysis.

Firstly, there is the contravention of R. 7 (3) of the Food Adulteration Rules by the prosecution when Ex. P. 8 was received by the Municipality

as late as 8th December 1969. There it clearly a delay of 24 days in violation of R.7(3) of the Prevention of Food Adulteration Rules, 1953. In my

view, this rule is mandatory. If this rule is to be considered as directory, this would constitute as a complete negation of the valuable right embodied

in S. 13 (2) of the Act. In my view, the outer limit for tending the result of the analysis to the Municipality is 60 days from the receipt of the sample.

Undoubtedly the terms of R. 7 are mandatory in every sense of the term. In no event and under no circumstances that full rigour of R. 7 should be

permitted to be relaxed, otherwise this would even result in the effective deprivation of the valuable right u/s 13 (2) conferred on the accused by

the Parliament.

The learned Public Prosecutor drew my attention to the ruling of the Supreme Court in Municipal Corporation, Delhi v. Ghisa Ram (1967)

M.L.J. (Crl.) 746 stating that in the instant case the prosecution was launched as early at 22nd December 1969 whereas in the Supreme Court

case, the sample was taken on 20th September 1961, the analysis of the sample was on 3rd October 1961, the report was tent on 23rd October

1961 and the complaint was filed on 23rd May 1962. On the basis of these factual data, the learned Public Prosecutor argued that the prosecution

has not committed any inordinate delay in launching the prosecution when they complained in this case on 22nd December 1969 unlike the proved

facts in the Supreme Court case showing a delay of four months. But what matters is that initially, unlike in the Supreme Court case, there has been

a contravention of R. 7 (3) by exceeding the time limit embodied in that rule by 24 days. Secondly, P.W. 1 was examined only on 10th April

1970. The prosecution has not explained the inordinate delay as to why the examination of P.W. 1 occurred only on 10th April 1970. There is

practically a delay of nearly 3 months and 20 days. The prosecution does not explain as to why P.W. 1 was examined so late as on 10th April

1970. Had he been examined earlier, the accused would have exercised their valuable right in more favourable conditions regarding the analysis of

the sample sent by the accused. In my view, this case, therefore, is clearly one where the accused-Respondents were deprived of the opportunity

of exercising their right to have4 the sample examined by the Director of 14-+ 0Central Food Laboratory by the conduct of the prosecution. I am

unable to hold that the right of the accused has got frustrated for reasons for which the prosecution is not responsible on the proved facts of this

case. There are no merits in this appeal. The judgment of the trial Magistrate is correct and proper. There are no grounds to interfere with the

order of the trial court acquitting the three accused-Respondents. The criminal appeal is dismissed.