- (1.) M. M. Gupta, J. This appeal has been filed by one Thakur Prasad against his conviction under Section 7 read with Section 16 of the Prevention of Food Adulteration Act and sentence of one year's rigorous imprisonment and a fine of Rs. 1000/ -.
(2.) ACCORDING to the prosecution case, on 7th February 1976 Sri Niroti Lal Food Inspector, Circle Mirzapur, district Azamgarh purchased 375 grams of mustard oil after paying its price, Rs. 2. 25, at the rate of Rs. 6. 00 per Kg. to the appellant, whose shop is situate in Lahidih Bazar. Before purchasing the sample the usual notice under rule 12 in Form no 6 was given. The sample was divided into three separate parts and one of those sealed phials was handed over to the appellant; one of them was sent to the public Analyst and the third was retained in the office of the District Medical Officer of Health. The public Analyst in his report dated 20ih March, 1976 reported that the sample of mustard oil sent to him contained 7. 87% of linseed oil. The sample was thus adulterated in accordance with the provisions of the Prevention of Food Adulteration Act and its Rules. The report of the Public Analyst was dispatched by registered post to the appellant on 17th April, 1976. Thereafter it appears that on the report of the Food Inspector to the District Medical Officer of Health sanction was accorded for the prosecution of the appellant on 30th March, 1976. A complaint was then filed. On 25-6-1976 the case was committed to the Court of Session. The learned Sessions Judge framed charges under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. The appellant pleaded not guilty to the charge. The appellant in the course of his statement under Section 313 Cr, P. C. denied the allegations of the sample being taken from him or the sample being sealed in separate phials. He claimed that he did not receive any report of the public Analyst. His case was that the Food Inspector had come to his shop and had demanded licence from him. He had agreed to get a licence for him on receiving payment of Rs. 20/ -. He, therefore, signed papers. Since he had demanded from the Food Inspector the licence and the money he was falsely implicated. At the trial the prosecution examined the Food Inspector Niroti Lal P. W. 1, P. W. 2 Sita Ram and P. W. 3 Shyam Sunder. Out of these witnesses PW 2 Sita Ram did not support the prosecution case. PW 3 Shyam Sunder Lal is a formal witness who had proved that the report of the Public Analyst was sent by Niroti Lal Food Inspector by registered post to the appellant. The appellant did not examine any witness in his defence.
(3.) THE learned Sessions Judge held that the provisions of Rule 9 (j) and the provisions of Section 13 (2) to the Prevention of Food Adulteration. Act were not complied with. However, in his view these provisions were not mandatory. He convicted and sentenced the appellant as stated above. I have heard the learned counsel for the appellant as well as the learned counsel for the State 7. On the report of the Public Analyst dated 20th March, 1976 there is an order passed by the District Medical Officer of Health, dated 30th March, 1976 which directs the Food Inspector to launch the prosecution against the appellant. This means that on 30th March, 1976 the report was received in the office of the District Medical Officer of Health. Under Rule 9 (j) of the Prevention of Food Adulteration Act the requirement is that the report received in Form III from the Public Analyst should be sent by registered post to the person from whom the sample was taken within 10 days of the receipt of the said report. The postal receipt shows that the copy of the report was sent by registered post to the appellant on the 17th April 1976. It is, therefore, obvious that there was no compliance within 10 days as required by rule 9 (j ). However, it appears from the judgment of the learned Sessions Judge that the report of the Public Analyst was not dispatched at the right address to the appellant. Therefore, no presumption can be made that this report was received by the appellant. It does not appear from the record that after the complaint was filed the copy of the report of the Public Analyst was despatched to the appellant. In fact, it is not disputed that the report of the Public Analyst was ever sent to the appellant after the complaint was filed. Section 13 (2) of the Prevention of Food Adulteration Act runs as below :- " On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated, 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 person, if any, whose, name, address and other particulars have been disclosed under Section 14-A forward in any such manner as may be prescribed, a copy of the report 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 or 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. " From the words of this sub-section it is obvious that the provision is mandatory and after the complaint was instituted the copy of the report of the Public Analyst should have been sent to the appellant and also the requirement was that the prosecution should have informed him that if he so desired within 10 days of the receipt of the copy of the report by him he should make an application to the Court that the sample be sent by the Local (Health) Authority for analysis of the Central Food Laboratory. This gives a valuable right to the vendor from whom the sample is taken and the provisions by their very nature are mandatory. They have been held to be mandatory in a number of cases. I need cite only one authority Chhatar Pal v. State of U. P. (1980 ALJ 348), where it was observed that the report of the Public Analyst would merely give the result of the analysis but the intimation which is sent to him along with it would, obviously, convey to him information of the fact that the prosecution has been launched against him, as also the Court where he can make an application within a period of ten days, for re-analysis of his sample. The period of ten days prescribed is a limitation period within which he must exercise his right provided under Section 13 (2 ). If the details of the information as required under this sub-section are not supplied to him it may in several cases lead to unavoidable delay, with the result that the applicant shall be deprived of his valuable right provided under the Act of getting his sample of food reanalyzed by the highest authority, namely the Central Food Laboratory. It was also held that Section 13 (2) was mandatory and that it was incumbent upon the Local (Health) Authority to forward a copy of the report along with the detailed information mentioned therein to the accused so that he may exercise his valuable right guaranteed to him under the Statute. 8. In this view of the matter the appellant is entitled to acquittal on account of failure of the prosecution to comply with the mandatory provisions of Section 13 (2) of the Prevention of Food Adulteration Act. 9. The appeal is allowed. The conviction and sentence imposed against the appellant are hereby set aside. The appellant is on bail. He need not surrender. His bail bonds are cancelled and sureties stand discharged. .;