Judgment :- 1. This appeal has been filed by the Food Inspector, Karumallur Panchayat, against the judgment of acquittal of the three accused in S. T. No. 40 of 1979 on the file of the Sub Divisional Judicial Magistrate, Alwaye, of offences punishable under S.2(ia) (a) & (m) and 7(i) and (v) read with S.16 (1) (a) (i) and (ii) and Appendix B. A. 20 of R.5 of the P.F.A. Rules and R.50(i)(K) read with R.10 of the Prevention of Food Adulteration Rules. 2. The first respondent is a service Co-operative bank, represented by its Secretary; the second respondent is the secretary of the bank and the third respondent is the Salesman of the Consumer Store, run by the bank near U. C. College, Alwaye. It has been urged that the Food Inspector, the petitioner herein, visited the consumer store of the first respondent-bank, at which the third respondent was the salesman, at about 11.00 A.M. on 19-1-1979. He purchased from the third respondent a sealed bottle containing 750 ml. of coconut vinegar, which was exhibited for sale. It is further alleged that the vinegar was divided into three equal parts and sampled as per the Rules, and one part of the sample was forwarded to the Public Analyst for analysis and it was found to be adulterated. It was further KLT. food inspector v. kodungallur s.s. bank ltd. (Sivaraman Nair J.) 29 alleged that the accused had not taken out a P.F.A. Licence for selling food articles from the Panchayat for the relevant period. The prosecution was based on these allegations. 3. On receipt of the report dated 28-2-79 of the Public Analyst the complainant launched the prosecution on 7-8-79 and the Local. (Health) Authority viz., the District Food Inspector, Ernakulam, forwarded a copy of the report of the Public Analyst to the 3rd accused, as required under S.13(2). of the Act. This communication, Ext. P15 is dated 17-8-1979 and is seen served on 21-8-79 4. The accused pleaded not guilty of the charges. The prosecution examined the complainant as prosecution witness and marked Exts. P1 to P16. The trial Magistrate found that there was non-compliance with R.22-A of the Prevention of Food Adulteration Rules, that on the basis of Ext. This communication, Ext. P15 is dated 17-8-1979 and is seen served on 21-8-79 4. The accused pleaded not guilty of the charges. The prosecution examined the complainant as prosecution witness and marked Exts. P1 to P16. The trial Magistrate found that there was non-compliance with R.22-A of the Prevention of Food Adulteration Rules, that on the basis of Ext. D1 the second respondent was not liable to be proceeded against and that in any case a person convicted for selling adulterated food article cannot be further convicted and sentenced for sale of the food article without a licence. In the result, he acquitted the accused. 5. The State has come up in appeal under S.378(4) of the Code of Criminal Procedure. It was urged on behalf of the State that the interpretation of R.22A of the Rules is not correct, that the Secretary of the Bank Could be proceeded against since he is the custodian of all stock under Ext. P16 bye-laws of the Society and is responsible for all transactions in the Society and that conducting business in food articles without a licence from, the appropriate authority was an independent offence which can be subject matter of a separate charge. In the nature of the contentions, the documents which are material are Ext. P5 mahazar, Ext. P10 copy of memorandum in Form No. VII, Ext. P11 report of the Public Analyst, Ext. P15 letter of the District Food Inspector to the 3rd accused and Ext.P16 Bye-laws of the Bank. On the side of defence Ext. D1; which is a certified copy of judgement in C. C. No. 470 of 1976 on the files of the same court was marked. 6. There has been considerable controversy on the purport of R.22A of the Rules. It was contended on behalf of the State that what the rule enables is that in cases where a food article is sold in sealed containers containing less than the standard quantity of food as prescribed for purposes of sampling under R.22 of the Rules, the Food Inspector can treat one or more containers to constitute the sample. The learned Magistrate proceeded on the basis that what R.22A requires is to treat each of the containers as a representative sample, in all cases of food articles being sold in sealed containers. What Mr. The learned Magistrate proceeded on the basis that what R.22A requires is to treat each of the containers as a representative sample, in all cases of food articles being sold in sealed containers. What Mr. Shenoi, who appeared for the respondents, urges is that each of the sealed containers of articles may be treated as part of the sample, making it obligatory that in cases where the sealed container contains only less than the standard quantity prescribed under R.22, each one of the three parts of the sample can be made up only with as many number of containers as is necessary to approximate the prescribed quantity fixed under R.22. In other words, in a case where the prescribed standard under R.22 for purposes of analysis is 200 ml. and each of the sealed container contains only 120 ml., it is Mr. Shenoy's contention that the two unopened containers will form a part of the sample. To constitute the sample, there must be three parts. Therefore, the Food Inspector is obliged to purchase six containers to comply with the requirements of S.11 and the relevant rules relating to sampling. What has appealed to the trial Magistrate is a view that what R.22A provides is that in cases where the food is sold or offered for sale in sealed containers each such container shall be a sample, irrespective of the quantity each sealed container contains. Sustenance for this proposition was drawn from the decision reported in Jyoti Swaroop v. State of U.P. (1978 Prevention of Food Adulteration Journal 342). It was stated in a passage from that judgment extracted by the trial Magistrate, that "the sealed container bearing the same label should be treated as sample and the article be sent in the same condition to the public analyst." I do not think that on the terminology of the rule, this broad proposition is correct. What R.22A provides is "Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in R.22 shall be treated to be a part of the sample." This rule does not in any way support the decision reported in 1978 Prevention of Food Adulteration journal 342. According to me, the trial Magistrate went wrong in following the above decision and acquitting the accused. It is not necessary for me to pronounce finally on the interpretation of R.22A canvassed by the State on the one hand and Mr. Shenoy on the other in this particular case, since I am satisfied that the acquittal of the accused is liable to be sustained on other grounds. A detailed consideration of the nature and the effect of R.22A can therefore, wait for another occasion. 7. Three important sets of facts which are evident from the records in this case, are the following: (1) The Secretary of the Bank, the second accused, was prosecuted on a previous occasion for a similar offence under the Prevention of Food Adulteration Act, and he was acquitted by Ext. Dl judgment, for the reason that, according to the bye-laws of the Bank, copy of which has been produced as Ext. P16 in this case, only the Salesman of the concerned sales depot can be proceeded against; (2) notice under S.13(2) of the Act was served only on the third accused, the salesman, and not on the other accused, and (3) there was considerable delay between the sampling, institution of the prosecution and the service of notice under S.13(2). 8. As far as the first set of facts is concerned, it is evident from a perusal of the bye-laws of the Bank, Ext. P16, that the acquittal of the 2nd accused cannot be sustained, even on the basis of Ext. D1. The person who is exclusively responsible for the conduct of the sales depot, according to Ext. P16 bye-laws, appears to be the Salesman, the third accused. If that be the position, the prosecution of the second accused in his individual capacity may be proper or justified, and therefore, the second accused may not be entitled to acquittal. But this plea can be successfully urged only if the provisions of S.17(2) and (3) have been duly complied with. There is no evidence on this point at all. I am therefore not in a position to sustain the acquittal of the second accused for this reason. Even accepting the respondent's submission, the second accused can be acquitted only in his individual capacity and not as representing the first accused bank. 9. There is no evidence on this point at all. I am therefore not in a position to sustain the acquittal of the second accused for this reason. Even accepting the respondent's submission, the second accused can be acquitted only in his individual capacity and not as representing the first accused bank. 9. Coming to the second set of facts, it is evident that a copy of the notice under S.13(2) was served only on the third accused. Any person who is sought to be proceeded against for violation of the provisions of Prevention of Food Adulteration Act is entitled to have the sample of the offending food article examined again by the Central Food Laboratory. It has therefore to be held that any person who is arrayed as an accused in a prosecution under the Prevention of Food Adulteration Act should be enabled to make use of this opportunity statutorily given to him under S.13(2) of the Act to file an application for such examination by the Central Food Laboratory within the time prescribed. Refusal of such an opportunity, on the assumption that if the other accused who is an employee was given the opportunity, the opportunity so given to that accused should do duty for the employer accused as well, does not seem to me to be legally tenable. In a case of loss of the cordial relations between the employer and the employee, both of whom are arrayed as accused, and the employee accused, who alone is served with the notice under S.13(2) it may so chance that the latter does not take necessary steps either by design or by default.to have the sample examined by the Central Food Laboratory. It is hard to visit the employer, to whom such an opportunity was not given, with the consequences of the default of the recalcitrant employee for the only reason that at the time of the commission of the offence that person was an employee of the other accused. According to me, in all cases where there is multiplicity of accused, the employer and employee or principal and agent etc., the prosecution should see that notice under S.13(2) of the Act is served on each of them so that there may not be any complaint of denial of the statutory opportunity by any of them. According to me, in all cases where there is multiplicity of accused, the employer and employee or principal and agent etc., the prosecution should see that notice under S.13(2) of the Act is served on each of them so that there may not be any complaint of denial of the statutory opportunity by any of them. In the present case, admittedly notice under S.13(2) of the Act had not been given to the first and second accused; nor is there any evidence that on their appearance in Court, they were served with copies of the report of the Public Analyst. In this state of the facts, I cannot but uphold the acquittal of the first and second accused by the trial Magistrate. 10. As far as the third accused is concerned, admittedly he was served with a notice under S.13(2) but no application was made within time requesting the court to send the sample for further analysis and examination by the Central Food Laboratory. The 3rd accused cannot therefore claim the benefit of this defence. 11. The third ground urged by Mr. Shenoy requires examination in delation the facts involved, and they are the following: The sampling was on 19-1-1979 and the report of the public analyst Ext. P11 was on 20-2-1979. The prosecution was initiated only about six months thereafter on 7-8-1979. Ext. P15 letter by the Local (Health) Authority to the third accused was dated 17-8-1979; it appears to have been sent only on 18-8-1979 and received by the 3rd accused on 21-8-1979 as is evident from Ext. P14 postal acknowledgment. No attempt has been made to explain why there was considerable delay between the date of offence, the date of institution of the proceedings and the date of forwarding a copy of Ext. P11 report to the third accused under S.13(2) of the Act. On a perusal of the evidence, it appears, that eventhough the report Ext. P11 was dated 20-2-1979, Ext. P12 memo of the Local (Health) Authority to the complainant was dated 12-5-1979. This may probably explain part of the delay in instituting the prosecution. But it is not discernible why even after the receipt of Ext. P12, pw 1 took about three more months to institute the complaint on 7-8-1979. P11 was dated 20-2-1979, Ext. P12 memo of the Local (Health) Authority to the complainant was dated 12-5-1979. This may probably explain part of the delay in instituting the prosecution. But it is not discernible why even after the receipt of Ext. P12, pw 1 took about three more months to institute the complaint on 7-8-1979. Thereafter, there is a delay of ten days upto 17-8-1979 for the Local (Health) Authority to be alerted to its duty under S.13(2) of the Act read with R.9A of the Rules to forward "immediately" a copy of the report of the Public Analyst to the accused. In the context of this statutory provision, that a copy of the report shall be sent "immediately" to the accused, there should be a plausible explanation as to why the Local (Health) Authority delayed the communication of a copy of the report to the accused. No such explanation has been offered in this case. The Local (Health) Authority, the District Health Inspector, has not been examined. No documentary materials are forthcoming to explain the delay. But this delay can justify the acquittal of the accused only if it is shown that such delay has prejudiced the accused. Mr. Shenoy referred me to "Chemical Analysis of Foods and Food Products" (3rd Edn.) by Jacobs (page 615) to support his submission that vinegar which contains volatile acids is likely to undergo serious chemical transformation due to delay and such transformation would be to the prejudice of the accused. I see the force of this submission. But I am unable to agree that it is impossible for the accused to have this characteristic demonstrated and made use of in his defence, only due to delay. I am of the view that in all cases of such delay, it is open for the accused to prove that, such delay has prejudiced him, and only on proof of such prejudice can the accused be entitled to acquittal. In the present case, the 3rd accused had not availed of that opportunity and cannot therefore claim acquittal on the ground that prejudice was likely to him on the ground of delay. This is a matter requiring evidence even irrespective of the report of the Public Analyst or the Central Food Laboratory and none had been adduced. In the present case, the 3rd accused had not availed of that opportunity and cannot therefore claim acquittal on the ground that prejudice was likely to him on the ground of delay. This is a matter requiring evidence even irrespective of the report of the Public Analyst or the Central Food Laboratory and none had been adduced. No useful purpose will now be served by remitting the matter for reconsideration; and for that reason and that reason alone, I am inclined not to interfere with the acquittal of the third accused. 12. I should also advert to the other ground stated by the trial Magistrate in support of the acquittal, and that ground is, that a person who has been proceeded against for violation of the provisions of the Prevention of Food Adulteration Act is not liable to be proceeded against for non-possession of a licence to vend the food articles at all. This seems to be far too wide a proposition to merit acceptance. A person who vends adulterated food articles can also be a person who does so without the licence and in other food articles as well. The only fact that he has been proceeded against for adulteration does not automatically mean that he is not liable to be proceeded against for non-possession of a licence. The result therefore is that the acquittal of the accused is confirmed, though for reasons different from those found by the trial Magistrate. The appeal is accordingly dismissed. Dismissed.