S.M.Sikri, J. - (1.) This appeal by certificate granted by the High Court of Calcutta under Art. 134(l)(c) of the Constitution is directed against its judgment affirming the judgment of the Presidency and Municipal Magistrate. Third Court, Calcutta, convicting the appellants under section 16(l)(a)(i), 7(i) of the Prevention of Food Adulteration Act, 1954 - hereinafter referred to as the Act. The High Court by maintaining the conviction reducted the fine. In the order granting the certificate the High Court observed that two substantial questions of law arose from its judgment, namely, (1) 'that to make public analyst's report a report under section 13 of the Prevention of Food Adulteration Act and admissible as such, it is the imperative obligation of the analyst to carry on all the tests'; and (2) that where the accused is not informed of a prosecution under this Act within a reasonable time, it deprives him of his right to avail of the provisions of section 13(2) of the Act and consequently renders the conviction bad.
(2.) The learned Counsel for the appellants has raised six points before us and in order to appreciate his contentions it is necessary to give the relevant facts. On January 29, 1959, Dr. H. S. Mondal, Food Inspector, visited the shop, known as Mahabodhi Tea House, inspected the stock of tea in the shop and took samples from the tea which he suspected to be adulterated. He took 12 oz. of tea and paid Rs. 1.50. He served a notice in form 6 on the appellant, Sukamal Gupta. He divided the sample into three equal parts and put the tea into three dry, clean glass phials. The phials were then corked, fastened up, marked, sealed and labelled according to the Prevention of Food Adulteration Rules, hereinafter called the Rules. He kept one phial himself, one sealed phial was given to the appellant and the third phial was sent with a memorandum to the Public Analyst for analysis. The Public Analyst received the sealed phial on January 30, 1959. On March 16, 1959, the report, Ex. 2, was signed by the Public Analyst and made available to the Food Inspector. This report reads as follows : "Report No. T/410 I hereby certify that I Madan Mohan Saha Public Analyst for the area under Corporation of Calcutta duly appointed under the provision of the Prevention of Food Adulteration Act, 1954, received on the 30th day of January, 1959, from Dr. H. S. Mondal, Food Inspector, Calcutta Corporation, a sample of tea bearing serial No. 9625 and Lab. No. 3035 for analysis, properly sealed and fastened and that I found the seal intact and unbroken. I further certify that I have analysed the aforementioned sample and declare the result of my analysis to be as follows : JUDGEMENT_18_LAWS(SC)5_1968.jpg and am of the opinion that the sample of tea does not conform to the prescribed standards. The sample is adulterated. Signed this 16th day of March, 1959. Sd. M. Saha Public Analyst." Complaint was lodged on May 5, 1959, and summons received by the appellant on January 30, 1960. The Presidency Magistrate convicted the appellant on April 30, 1960.
(3.) The learned Counsel for the appellant contends : (1) That the report of the Public Analyst not being based on six tests was not in accordance with the Rules, and, therefore, illegal; ' (2) That the Public Analyst was not examined in spite of the prayer of the appellant, which has caused prejudice to the appellant; (3) That the delay in instituting the prosecution has deprived the appellant of the right under section 13(2) of the Act and therefore rendered the conviction illegal; (4) That the delay in examination of the sample by the Public Analyst has caused prejudice to the appellant inasmuch as the sample sent to the Public Analyst might have deteriorated; (5) That it was the duty of the Food Inspector to have seized the entire quantity of the chest under section 10(4); and (6) That the report and the evidence do not establish that the tests (a), (b) and (c) mentioned in A-14 of Appendix B to the Rules were carried out.;