Rajeshwar Singh, J. - (1.) THIS revision is directed against the dismissal of revisionist's appeal against his conviction and sentence under section 7 read with section 16 of the Prevention of Food Adulteration Act. The facts are that sample of 'Zeera' was taken from the revisionist and on analysis it was found that it contained extraneous matter 1.2 % in excess of the prescribed standard. So the Trial Court convicted the revisionist and sentenced to 1 year's R.I. and a fine of Rs. 2000/- and in default of payment of fine to undergo 3 months' further rigorous imprisonment. In appeal the findings of the learned Trial Court were maintained and sentence was reduced to 6 month's R. I. and a fine of Rs. 1000/- and in default of payment of fine, three month's further R. I.
(2.) NOW in revision it is being argued that the sample of 'Zeera' that was taken was not homogenous. In this respect no specific provision in Prevention of Food Adulteration Act has been pointed out In case of milk and milk preparations, it is distinctly possible that the fat settles on the top and in order to find out whether the milk has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. But there is no such thing in case of article like 'Zeera' which was sold by the revisionist himself and he would not sell it to any other person after every time mixing up the contents of the container. So irregularity appears to have been committed and the sample of 'Zeera' taken by the revisionist himself from the container and sold by him must be taken to be representative. In the case of Food Inspector, Municipal Corporation, Baroda v. Madan Lal Ram Lal, 1983 AWC 126=1983 ACrR 76 it was said that there has to be a finding that churning of milk done by hand was not adequate. In the case before me, there is no such finding that sample of 'Zeera' was not homogeneous. So this ground appears to have no force. Then it is argued that notice under section 13 (2) of the Prevention of Food Adulteration Act was sent a day earlier than the date of launching the prosecution. The provision says that after institution of the prosecution such notice shall be sent and the rule 9-A says that the notice be sent within a period of 10 days after the institution of the prosecution. The insistence is on sending notice early so that if the accused desires he may make an application to the Court to get the sample examined by the Central Food Laboratory before the sample deteriorates. This object was not frustrated if notice was sent a day before the launching of the prosecution, Hence this alleged irregularity can not be a reason for interference. The rule 7 (3) provides that the Public Analyst shall send his report within a period of 40 days from the receipt of sample. The argument is that this rule has not been complied with. But there does not appear any basis for this argument The sample was taken on 21-8-86 and the report of the Public Analyst is dated 22-8-86 that is report was ready within 32 days and there is no evidence of the fact that the report was not delivered within a period of 40 days in the office of C.M.O. The date on which the CM.O. saw the report and signed it cannot be taken to be the date of its receipt by C.M.O. as held by the Courts below, when there is no other specific evidence on this point.
(3.) LASTLY it was argued that the Food Inspector did not himself send the sample to the Public Analyst for analysis as required by section 11 (1) (c). On this there is finding of the Court below that it was sent through special messenger by the Food Inspector. The messenger was of the C.M.O. office, but it will not mean that the sample was not sent to Public Analyst by the Food Inspector. The result is that there is no force in this revision.;