C.S. Tiwana, J. - (1.) In this revision filed by Fateh Singh against his conviction under section 16(1) (a) (i) of the Prevention of Food Adulteration Act, hereinafter referred to as the Act, only two legal points have been raised. One of them is that there has been non-compliance of section 13(2) and rule 9(j) of the Prevention of Food Adulteration Rules, hereinafter referred to as the Rules. The other point is that on the basis of such report as given by the Public Analyst the conviction of the petitioner could not be recorded without obtaining a further amplification of the report.
(2.) The petitioner was convicted by the Sub-Divisional Judicial Magistrate, Bahadurgarh, by his judgment dated Oct. 19,1978, and was sentenced to undergo rigorous imprisonment for six months and to the payment of a fine of Rs. 2000.00. The appeal was heard by the additional Sessions Judge, Rohtak, who only made a slight variation in the sentence. The substantive sentence of imprisonment was maintained but the sentence in relation of fine was reduced to Rs. 1000.00.
(3.) It was Nov. 8, 1977, that 600 grams of laddus were purchased from the shop of the petitioner where he worked as a halwai. In his report dated Dec. 5, 1977, the Public Analyst expressed this opinion that the sample sent to him was coloured with prohibited coal tar dye and as such was not suitable for human consumption. A complaint was then presented by the Food Inspector on Dec. 15, 1977, and an order for summoning the petitioner was passed by the Magistrate on the next day. The petitioner made his appearance in Court on Feb. 22, 1978. On the date the complaint was presented in Court the Food Inspector, as stated by him in his examination-in-chief on May 16, 1978, had sent a copy of the report of the Public Analyst by registered post to the petitioner. The requirement of section 13(2) of the Act is that a copy of the report of the result of the analysis has to be sent in such manner as may be prescribed informing the accused that, if it is so desired, he may make an application to the Court within a period of ten days from the receipt of the copy of the report to get the sample of the article of food kept by the local (Heath) Authority analysed by the Central Food Laboratory. Rule 9(j) of the Rules depended upon by the learned counsel for the petitioner was ommited on Jan. 4, 1977, and in its place rule 9-A came into force. Even though it prescribed the mode of delivery of the copy of the report yet it failed to mention that any further information to an accused was required to be sent making him conscious of his right to get another sample tested from the Central Food Laboratory. The rule is in these terms that the Local (Health) Authority shall, immediately after the institution of the prosecution, forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of article was taken by the Food Inspector. The point for the determination, therefore, is whether the requirement of sending the intimation is mandatory and failing which an accused has necessarily to be acquitted of the offence charged. Before the lower appellate Court The Food Inspector, Gram Panchayat, Vuyur Vs. P. Samudriah, 1979 (II) FAC 356 (Andhra Pradesh), was cited but the Court refused to rely upon the same, as the detailed facts of the reported case were not known. The holding in this authority is that it is necessary that at the time when the report of the Public Analyst is being sent to the accused a notice to the effect that he has got a right to ask the Court to send one of the sample bottle retained with the Local (Health) Authority to the Central Food Laboratory be served upon the accused under Sec. 13(2) of the Act. This was said to be a mandatory provision and non-compliance with it prejudiced the case of the accused. I do not agree with this holding. It would be a question of fact to be determined in each case by taking in consideration all the relevant facts whether the non-compliance of a certain provision of the Act would cause prejudice to the accused or not. In a case relating to the non-compliance of the previous rule 9(j) the following observations were made by a Division Bench of this Court in State of Haryana Vs. Jantar Singh, 1979 P.L.R. 553 : "In my considered opinion as the intention of the law is clearly to safeguard the right of the accused to get the second sample analysed so long this right is not frustrated and the accused is in a position to avail of this right, it cannot be held that any prejudice will be caused to the accused by non-compliance of this provision of the rule though it may be quite minor and technical in nature. However, if he is supplied a copy of the report and at such a stage when the second sample is likely to have become decomposed on account of lapse of time and the same will not be in a fit condition to be properly analysed, by the laboratory, or the copy of the report is not supplied to him at all, it has to be held that the defence of the accused was prejudiced." This ruling was subsequently quoted with approval in a Single Bench judgment rendered in Criminal Revision No. 323 of 1978 (Balak Ram Vs. The State of Haryana) decided on May 30, 1980. In another criminal Revision No. 720 of 1977 (Mahipal Vs. The State of Haryana 1980(11) FAC 30) decided by myself on Feb. 26, 1980 , the following were the observations which were made and which are relevant for deciding the case in hand:- "There are several rules relating to the taking, keeping and sending of the samples obtained from different persons. The rules are so elaborate that the Food Inspectors are likely not to comply with one rule or the other and it would lead to failure of justice in different cases if strict view of the rules were to be taken by the judicial Courts.";