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Madras High Court · body

1979 DIGILAW 530 (MAD)

Panchami, In re. v. .

1979-11-21

M.A.SATHAR SAYEED

body1979
Judgment : The short point that arises in this case is, whether rule 9-A of the Prevention of Food Adulteration Rules, 1977, framed under the Prevention of Food Adulteration Act, 1954 (Central Act XXXVII of 1954) is mandatory or directory. 2. The case of the prosecution is that on 24th January, 1977, at about 7 a.m., P.W. 1 the Food Inspector of Kumbakonam Municipality saw the petitioner, a licensed milk vendor selling milk in Nageswaran Thirumanjanaveedhi in Kumbakonam. P.W. 1 served on him Exhibit P-1, Form VI, expressing his intention of taking sample of milk for the purpose of analysis. Thereafter P.W.1 purchased 660 ml. of milk from the petitioner for Rs.1.32 p. and obtained from him Exhibit P-2, receipt. As required by law he packed the milk in three bottles and sent one of the bottles to the Public Analyst for analysis. Ex. P4 is the report of the Public Analyst to the effect that the sample of milk sent to him was deficient in solids not-fat to the extent of at least 42 per cent. P.W. 1 served a copy of the report of the Public Analyst on the petitioner herein and obtained from him an acknowledgment, Exhibit P-5. Thereafter the petitioner was charged under the aforesaid sections. 3. When the petitioner was questioned under section 313, Criminal Procedure Code, he denied having committed the offence. 4. The trial Court, on the evidence projected by the parties, came to the conclusion that the petitioner was liable to be convicted under sections 7(1) and 16(1)( a)(1), read with section 2 ( ia)( a)( m) of the Prevention of Food Adulteration Act and, therefore the petitioner was convicted thereon and sentenced to undergo R.I. for six months and to pay a fine of Rs. 1,000 in default to undergo simple imprisonment for three months. Against the said conviction and sentence by the trial Court, the petitioner preferred an appeal before the learned Sessions Judge, East Thanjavur Division at Nagapattinam. The learned Sessions Judge, on going through the evidence adduced in the case confirmed the conviction and sentence imposed by the Judicial First Class Magistrate. Mayuram and dismissed the appeal (C.A. No. 269 of 1977) filed by the petitioner. It is as against this the petitioner has filed the present revision. 5. The learned Counsel for the petitioner has raised a point of law. Mayuram and dismissed the appeal (C.A. No. 269 of 1977) filed by the petitioner. It is as against this the petitioner has filed the present revision. 5. The learned Counsel for the petitioner has raised a point of law. According to the petitioner, under section 13(2) of the Act it is enjoined that on receipt of the report of the result of the analysis under sub- section (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 14-A, 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. 6. The learned Counsel for the petitioner contends that under section 13 (2), the Local (Health) Authority “shall” after the institution of the prosecution against the petitioner, forward a copy of the report of the result of the analysis to him, and also to inform him that if he so desired, the petitioner can 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. The emphasis on section 13 (2) is more on “after the institution of prosecution against the person”. Again under rule 9-A, the Prevention of Food Adulteration Rules, 1977, it is enjoined upon the Local (Health) Authority to send a copy of the report received in Form III from the Public Analyst by registered post or by hand, as may be appropriated to the person, from whom the sample of the article was taken by the Food Inspector. Again under rule 9-A, the Prevention of Food Adulteration Rules, 1977, it is enjoined upon the Local (Health) Authority to send a copy of the report received in Form III from the Public Analyst by registered post or by hand, as may be appropriated to the person, from whom the sample of the article was taken by the Food Inspector. The intention of the Legislature is that immediately after the institution of the prosecution against the person, the report of the Public Analyst should be sent to the person concerned informing him that the article that was seized was adulterated and to what extent, it was adulterated as nor the report of the Public Analyst so that if the person is aggrieved by the report of the Analyst, such person can ask the Court to send another sample for testing kept by the Local (Health.) Authority to the Central Food Laboratory. 7. In this case, I find that the report of ‘the Public Analyst was sent to the petitioner herein before the institution of the prosecution and it is not denied by the Public Prosecutor, that the report of the Public Analyst was sent to the petitioner before the institution of the prosecution. The learned Counsel appearing for the petitioner contends that this is contrary to section 13 (2) of the Act and rule 9-A of the Prevention of Food Adulteration Rules, 1977. The learned Public Prosecutor contends that the sending of the Public Analyst's report to the petitioner beforehand or before instituting the prosecution does not in any way affect petitioner's right of asking the Local Health) Authority to get another sample of the article of food analysed by the Central Food Laboratory. 8. The point is, has the prosecution followed the mandatory provisions laid down under section 13(2) of the Act or under Rule 9-A of the Prevention of food Adulteration Rules, 1977? It is clear from section 13 (2) that the report of the Public Analyst be sent to the petitioner “after the institution of prosecution” against the petitioner. But, in this case, we find that the report of the public Analyst has been sent before instituting, the prosecution against the petitioner herein. The rule and the section are such that it is mandatory and the failure to follow the section and the rule vitiates the prosecution. But, in this case, we find that the report of the public Analyst has been sent before instituting, the prosecution against the petitioner herein. The rule and the section are such that it is mandatory and the failure to follow the section and the rule vitiates the prosecution. It is on this ground the learned Counsel for the petitioner contends that the conviction and sentence imposed on the petitioner have to be set aside. 9. I have gone through the judgments of the Courts below and also heard the petitioner's Counsel and the Public Prosecutor. I am of the view that sending of the report of the Public Analyst to the petitioner before instituting the prosecution, against him is fatal to the case and the prosecution has not followed the procedure laid either under section 13 (2) of the Act or under rule 9-A of the Prevention of Food Adulteration Rules, 1977. In these circumstances, the revision petition is allowed and the conviction and sentence imposed on the petitioner are set aside. The fine, if paid by the petitioner, will be refunded to him.