Virendra Saran - (1.) IQBAL Uddin has preferred this revision against the judgment and order dated June 8, 1983 of Sri V. K. Agarwal, IIIrd Additional Sessions Judge, Pratapgarh dismissing criminal appeal No. 92 of 1981 and affirming the judgment and order dated April 28, 1981 of Sri Rama Kant Singh. Judicial Magistrate, Pratapgarh convicting the applicant under Section 7/16 of the Prevention of Food Adulteration Act (for short, the Act) and sentencing him to 6 months' R.I. and a fine of Rs. 1,000 and in default of payment of fine to suffer further 2 month's R.I.
(2.) THE prosecution case is that a sample of milk was collected from the applicant on December 6, 1975 and according to the report of the Public Analyst dated January 19, 1976 the sample was below the prescribed standard in fat and non-fatty solids. Copy of the report of the Public Analyst was sent to the applicant informing him that if he wanted to get the sample analysed by the Central Food Laboratory, he may make an application under Section 13 (2) of the Act. THE prosecution witnesses have preferred to remain silent regarding the date when the intimation was sent to the applicant, but the postal acknowledgement shows that the intimation was served upon him on March 29, 1976. Prosecution was initiated by filing complaint in Court against the applicant on December 12, 1976. I have heard Sri M. Naseerullah, learned counsel for the applicant and the learned State counsel at length. One of the contentions of the applicant at the trial was that there had been undue delay in instituting the complaint against the applicant as the sample of milk was collected on December 6, 1975 but the complaint was filed after more than one year on December 20, 1976. Learned counsel for the applicant has submitted that with such long lapse of time the other part of the milk sample preserved by the Local (Health) Authority must have become rotten and unfit for any analysis and the applicant was deprived of his valuable right under Section 13 (2) to get analysis done by the Central Food Laboratory. The point was again taken in appeal before the Court of Session, but the learned Sessions Judge repelled the contention on the ground that the applicant did not make any application for analysis of the milk by the Central Food Laboratory and, therefore, it was not open to him to avail of the plea that the prosecution was initiated with undue delay. Learned counsel for the applicant has further submitted that there has been yet another fatal lapse on the part of the prosecution In not complying with the mandatory provision of Section 13 (2) of the Act. He urged that the intimation that the milk was below standard along with report of the Public Analyst was served upon the applicant on March 29, 1976, but no complaint had been filed In any Court by then. The complaint was filed on December 12, 1976, i.e., nearly nine months later.
(3.) LEARNED counsel for the State has submitted that the sending of intimation under Section 13 (2) of the Act prior to the launching of prosecution is a mere irregularity and does not in any way affect the prosecution case. After giving my anxious consideration to the points raised in this revision, I am of the view that the latter submission of the learned counsel for the applicant has substance. Section 13 (2) of the Act states : "13 (2). On receipt of the report of the result of the analysis under subsection (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 person. If any, whose name, address and other particulars have been disclosed under Section 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 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." (Emphasis supplied by me.) ;