S. J. Hyder, J. - (1.) THE applicant is a dealer in condiments in the town of Hardwar. THE Food Inspector, took samples of Ajwain from his shop in the prescribed manner on 31st December, 1977. One of bis samples was sent for analysis to the Public Analyst who reported that the same contained 7.7% of organic matter as against the prescribed limit of 3%. He also found that it contained 3.2% of inorganic matter as against the prescribed limit of 2%. THE Food Inspector presented the matter for the sanction of the Public Health Authority. THE said authority purports to have sanctioned the prosecution of the applicant. A notice under section 13 (2) of Prevention. of Food Adulteration Act, 1954 hereinafter referred to as 'the Act' was served on the applicant on July 19, 1978. THE Munsif-Magistrate, before whom the complaint had been filed, took cognizance of the case on September 22, 1978 and issued notice against the applicant summoning him to answer the charge under section 7/16 of the Act. THEre is no dispute between the parties in so far as these facts are concerned.
(2.) THE trial Magistrate found the applicant guilty of the offence charged. He accordingly convicted him for the offence punishable under section 7/16 of the Act and sentenced him R. I. for a period of one year and to pay a fine of Rs. 2,000/-. THE usual default was super-added to the order recording conviction. Aggrieved by the said order, the applicant preferred an appeal. The said appeal has been disposed of by the Second Additional District and Sessions Judge, Saharanpur by his judgment and order dated April 5, 1980. The Sessions Judge has maintained the conviction of the applicant but has reduced the sentence recorded against the applicant from one year to six months. He has further reduced the fine imposed on the applicant from Rs. 2, 000/- to Rs. 1, 000/-. In default of payment of fine, the applicant has been ordered to undergo R. I. for a period of three months. The applicant has now come up in revision to this court. Learned counsel appearing for the applicant contended before me that the prosecution of the applicant under section 7/16 of the Act is vitiated by the non-compliance with the provisions of law contained in sub-section (2) of section 13 of the Act. in support of this argument learned counsel has contended that the prosecution against the applicant was actually instituted on September 22, 1978 and not on June 20, 1978 as held by the court of appeal. In the alternative, he submitted that even though the complaint may have been filed by the Food Inspector on June 2o, 1978 the prosecution against the applicant will be deemed to have been instituted on the date on which cognizance of the case was actually taken by the trial Magistrate. He submitted that in either view of the matter the local Health Authority served the applicant with a notice under sub-section (2) of section 13 on July 19, 1978 which was a date anterior to the date of the institution of the prosecution and, as such, the entire proceedings against the applicant culminating in his conviction are vitiated by non-compliance with the mandatory provisions of law contained in sub-section (2) of section 13 of the Act.
(3.) SO far as the first limb of the argument of the learned counsel is concerned, it may be stated that the applicant's own witness K. C. Srivastava who was the concerned Ahlemad in the court of the Munsif-Magistrate, before whom the case was pending, admitted in his cross-examination that he received the complaint from the Health Inspector on June 20, 1978 and signed the register of the said Inspector in token of the receipt of the complaint. This witness was not declared hostile and was not cross-examined by the applicant. His statement, is therefore, binding on the applicant. The two courts below were, therefore, right in coming to the conclusion that the complaint had been received in the court of the Magistrate concerned on June 20, 1978. The finding recorded by the said court on this point is a finding of fact which cannot be called in question in the revisional jurisdiction of this court. Coming to the second limb of the argument of the learned counsel, it has to be conceded that the information referred to in sub-section (2) of section 13 has to be conveyed to the person accused of having committed an offence under the Act, only after the institution of the prosecution. It is well settled that the provisions contained in sub-section (2) of section 13 are of a mandatory nature and must be strictly complied with. A non-compliance with the said provision of law is likely to cause prejudice to a person accused for an offence under the Act.;