State by Public Prosecutor vs Ragothaman

Sengottuvelan, J.—This Criminal Appeal is filed by the State against the judgment of acquittal passed by the Sub-Divisional Judicial Magistrate, Ariyalur acquitting the respondent of charges under S. 7(1) read with S. 16(i)(a)(i) read with S. 16(2) (ia)(a) and (m) of the Prevention of Food Adulteration Act, 1954.

The facts of the case are briefly as follows: The petitioner is the owner of provisions stores in Bazaar Street at Kallakudi. On 23rd April, 1979 at 4.30 p.m. the Food Inspector (P.W. 1) purchased 750 ml. gingelly oil from the respondent, divided the same into three parts, sent one part to the Food Analyst and deposited the other two parts with the local health authority for safe custody after observing all the formalities. A copy of the complaint and also a copy of the report of the analyst were also served on the respondent as per S. 13(2) of the Act.

On behalf of the prosecution three witnesses were examined. P.W. 1 is the Food Inspector who bought 750 ml. of gingelly oil from the respondent''s shop for the purpose of analysis after serving Form No. 6 and divided the same into three equal parts, sealed the same, sent one part to the Food Analyst by railway parcel accompanied with Form No. 7 and the remaining two parts were deposited with the local health authority at Kallakudi for safe custody. P.W. 1 also sent the copy of Form No. 7 and the railway receipt to the Food Analyst and received the acknowledgment Ex. P4. Ex. P2 is the cash receipt for the purchase of gingelly oil from the respondent. After receiving the report of the Food Analyst Ex. P7, P.W. 2 Local Health Authority served the copy of the same on the respondent and obtained his signature in the local tapal register Ex. P6 as per S. 13(2) read with R.9A. According to the report of the public analyst Ex. P7 the sample sent to him contained free fatty acids in excess of the maximum permitted limit to the extent of 23 per cent.

The respondent-accused did not take steps after receiving the notice of the report of the chemical: analyst to send the sample kept in safe custody for, the second analysts to the Central Food Laboratory, Mysore or appeared before the Co art. Thus, the accused failed to take advantage of the opportunity given to him under law.

In the course of the defence, the accused did not deny the fact that P.W. 1 bought the sample giogelly oil from his shop, but contended that he had not been served with the report of the chemical analyst as contemplated under S. 13(2) of the Prevention of Food Adulteration Act. The lower Court accepted the contention of the accused and came to the conclusion that there is no proof of service of the report of the Chemical analyst as provided by the statute and the signature of the accused appearing in the local tapal register will not conclusively prove the service of the report of the chemical analyst and also found that there is a delay of five days in serving the notice under S. 13(2) of the Act and acquitted the accused. The prosecution has filed the above appeal challenging the order of acquittal passed by the Sub-Divisional Judicial Magistrate, Ariyalur.

On behalf of the State the following contentions are raised in support of the argument that the order of acquittal cannot be sustained: (1) The service of the report of the chemical analyst by P.W. 2, evidenced by the signature of the accused is the local tapal register. Ex. P6 is sufficient compliance of S. 13(2) of the Act and the lower court erred in holding otherwise. (2) The delay of five days cannot be fatal in as much as the respondent has not taken any steps to send the other sample for analysis to the Central Food Laboratory, Mysore.

In so far as the first contention concerned it is the evidence of P W.2 the local health authority, that on receipt of the report of the chemical analyst, he served the same on the accused and obtained the signature of the accused in the local tapal register Ex. P6 in evidence of such service. The accused when questioned did not deny his signature in Ex. P6. Bat at the same time he would state that he did not receive the chemical analyst''s report. For his signature appearing in Ex. P6 the accused did not offer any explanation when he was questioned under S.313, Crl. P.C. But the learned Magistrate in his order observed that P.W. 2 could have obtained the signature of the respondent even without giving the copy of the chemical analyst''s report. There is no basis for the conclusion arrived at by the learned Magistrate in the absence of a specific plea by the accused when questioned about Ex P6. The report may be sent according to S. 13(2) read with R. 9A. S. 13(2) of the Prevention of Food Adulteration Act reads as follows:

On receipt of the report of the result of the analysis under sub-S.(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 persons, if any, whose name, address and particulars have been disclosed under 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 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.

According to S. 13(2) the service of the copy of the report is to be effected as per R.9A which is as follows:

The Health Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub R.3 of R 7, by Registered post or by hand, as may be appropriate, to the person from the 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 under S.14A of the Act:

Provided that where the sample conforms to the provisions of the Act or the rules made thereunder and no prosecution is intended under sub S.(2), or no action is intended under sub-S. (2-E) of S.13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under S.14A of the Act, within 10 days from the receipt of the report from the Public Analyst.

S.13(2), R.9A enjoins the prosecution to forward a copy of the report either by registered post or by hand, as may be appropriate to the accused. In this case, the accused being a local resident, the local health authority chose to deliver the copy of the report of the Chemical Analyst by hand and in token of delivering the same, had obtained the signature of the accused in the local tapal register Ex. P6. The signature of the accused appearing in Ex. P6 is not disputed and that the accused when questioned did not also explain as to how his signature appears in Ex. P6. Under the circumstances in the absence of proper explanation for the signature of the accused appearing in Ex. P6 we will have to take it that it bears testimony to the fact of delivering the copy of the report on the accused. The observation of the learned Magistrate that the copy of the report must be served on the accused and in proof of such service the signature of the accused must be taken on another cjpy of the report, is not warranted by any of (he provisions of the Act or the Rules made thereunder. Under the circumstances, the conclusion of the learned Magistrate that there is no proper delivery of the copy of the report of the Chemical Analyst on the accused is not correct The production of the local tapal register (Ex. P6) containing the signature of the accused will have to be taken as sufficient proof for the service of the copy of the report of the Chemical Analyst in the absence of an acceptable explanation by the accused.

The second contention of the appellant is that the observation made by the learned Magistrate that the delay of five days in serving the copy of the chemical analyst''s report after filing the charge-sheet is fatal to the prosecution is not correct. In this case the charge sheet was laid on 23rd May, 1979 and the copy of the Chemical Analyst''s report was served on the accused on 28th May, 1979 and there is an interval of five days between filing the charge-sheet and serving of the notice. According to the respondent, as per R. 9A, the local health authority must deliver the report immediately and the non compliance with the same is fatal to the prosecution. The Supreme Court in the case reported in Tulsiram Vs. State of Madhya Pradesh, , had occasion to construe the expression "immediately" occurring in R. 9A. The Supreme Court has interpreted the expression "immediately as follows:

The expression �immediately" in R. 9A is intended to convey a sense of continuity rather than urgency. What must be done is to forward the report to the person from whom the sample was taken at the earliest opportunity so as to facilitate the exercise of the statutory right under S. 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with R.9A is not fatal. It is a question of prejudice. R. 9A as amended carefully refrains from mentioning any definite limit of time such as that found in old R. 9(j) which gave rise to the controversy whether the Rule was mandatory or directory, and instead uses the general expression. "immediately". The local (Health) Authority is now required to forward to the person from whom the sample was taken in the manner prescribed, a copy of the report of the Public Analyst immediately after the institution of the prosecution. While prescribing the manner in which the report may be forwarded the opening words of R. 9A. "The local (Health) Authority shall (immediately) after the institution of the prosecution forward" are borrowed verbatim from S. 13(2) with the word "immediately" inserted in between. The Rulemaking authority could never have intended to amend the statute by superseding the word ''immediately'''' as indeed it was not competent to do. R. 9A has to be interpreted so as to keep it in tune with and within the bounds of S. 13(2). The departure from the previous rule by refraining from mentioning a definite period of time as was done in the old rule makes, it evident that the expression "immediately'''' is used to convoy a sense of continuity rather than a sense of urgency. It is not to be understood to mean the very next instant, the very next hour, that very day or the very next day. It must be construed in its setting. It is no use turning to dictionaries. Dictionaries give variegated meanings to words. What meaning is to be adopted depends on the context R. 9A is made in the context of the amended S. 13(2) which provides for the forwarding of the Public Analyst''s Report to the person from whom the sample was taken after the institution of the prosecution and enables that person to apply to the Court to have the sample kept in the safe custody analysed by the Central Food Laboratory. In the context the expression "immediately" is only meant to convey reasonable despatch and promptitude and no more. The idea is to avoid dilatoriness on the part of officialdom and prevention of unnecessary harasment to the accused. But the idea is not to penalise the prosecution and to provide a technical defence. First to construe �immediately" as meaning "at once" or �forthwith" and next to hold delay to be fatal to the prosecution would perhaps be to make R. 9A ultra, vires S. 13(2). It is not permissible to interpret R. 9A in such a way. The real question is, was the Public Analyst''s report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the Court to send one of the samples to the Central Food Laboratory for analysis. If after receiving the public Analyst''s report he never sought to apply to the Court to have the sample sent to the Central Food Laboratory, as in the instant case, he may not be heard to complain of the delay in the receipt of the report by him* unless, of course, he is able to establish some other prejudice.

In view of the above interpretation of the word "immediately" by the Supreme Court and also because of the fact that the accused had not chosen to forward the sample kept in the safe custody with the Public Health Authority for analysis to the Central Food Research Laboratory, I have no hesitation in coming to the conclusion that the delay of five days in serving the copy of the report of the Analyst on the accused is not fatal to the prosecution. According to the Chemical Analyst''s report Ex. P7, free fatty acids contents is found to be 3.7 per cent whereas in unadulterated gingerly oil it should not exceed more than 3 per cent. In view of the evidence of P.W. 1 and Ex. P7, I find the accused is guilty of the offence charged. It is seen that nearly six years had elapsed from the date of commission of the offence. Supreme Court as well as our Court have held that after such a long delay a lenient sentence only should be imposed on the accused. Taking this aspect into consideration, I sentience the accused to pay a fine of Rs. 200 (Rupees two hundred only) and in default to undergo rigorous imprisonment for three months. Time for payment, three months from the date of receipt of records by the lower Court.