M.M. Punchhi, J. - (1.) THIS appeal by special leave is against the judgment and order of the Indore Bench of the Madhya Pradesh High Court rendered in Criminal Appeal No - 102 of 1984.
(2.) THE facts are few and simple. The first Appellant Rajendra, on 30th June, 1982, while running a shop under the name and style of M/s. Kumarvad Bros, in Khargaon Municipality, was found exhibiting and offering for sale tea dust, the quantity of which was about 1 1/2 kgs. D. P. Nath, P. W. 1. the Food Inspector for Khargaon purchased tea dust in the requisite quantity for test The purchased tea was dealt with in the prescribed manner as per rules on the subject. The purchase and other attendant documents were witnessed by Madan P. W. 2 and another. The Public Analyst, Bhopal, to whom one of the three samples was sent for analysts opined that the food article fell below the prescribed as its contents were present in quantities not within the prescribed limits of variability. The report of the Public Analyst was communicated to the first Appellant as well as to his two brothers, the second and third Appellants, because it appears that at the time of the sale of the tea to the Food Inspector, he was told by the first Appellant that the shop being run by him was a partnership concern of three brother's. The accompanying covering letter suggested to the Appellants that the Court's intervention could be sought to have one of the samples kept by the Local Health Authority examined one more time. The Appellants did not avail of the opportunity and faced the prosecution launched Under Section 7 read with Section 16 of The Prevention of Food Adulteration Act, 1954 before the Chief Judicial Magistrate, Khar gaon.
(3.) BEFORE the Trial Magistrate the facts as alleged by the prosecution regarding sale by the first Appellant to the Food Inspector and of the article of food being adulterated as per report of the Public Analyst were not disputed. Shelter, however, was taken behind the provisions of Rules 7(3) and 9A of The Prevention of Food Adulteration Rules, 1955, as then standing, whereunder the Public Analyst was required to send his report to the Local Health Authority within 45 days, which he had not done, and the Local Health Authority was required to immediately after the institution of prosecution forward a copy of the report of the result of the analysis to the Appellants. Since there was a delay of nearly a month on that count the Trial Magistrate viewed this lapse as fatal to the prosecution Furthermore, the Trial Magistrate took the view that in the covering letter while sending the report, nowhere and the Appellants been told that they had a right to have the second sample with the Local Health Authority analysed by the Central Food Laboratory in terms of Section 13 (2) of the Act. The Trial Magistrate perhaps had in mind that had this been mentioned, the Appellants may have chosen to avail of the opportunity of the analysis by the Central Food Laboratory and such report would have superseded the report of the Public Analyst, whether for of against the Appellants. On these two grounds the learned Trial Magistrate recorded acquittal of the Appellants. The High Court on appeal by the State of Madhya Pradesh, reversed the Order of acquittal and recorded conviction of the Appellants and sentenced each one of them to six months rigorous imprisonment and to pay a fine of Rs. 5000/ - each. This has occasioned the appeal before us.;