ORDER K. Ramaswamy, J. - Special leave granted. The appellant is a milk vendor. On March 19, 1983, the Food Inspector took samples of milk from the custody of the appellant under section 10(7) of the Prevention of Food Adulteration Act, 1954 (for short the Act). He sent the sample for analysis on March 21, 1983. The Analyst in his report dated March 30, 1983 found that the milk fat was 4.8% and milk solids non-fat was 6.36% whereas the prescribed standard for milk fat is 4.5% and milk solids non-fat 8.5%. Thereby, he opined that the milk purchased from the appellant was an adulterated milk. On the basis of the said report, the prosecution was laid against the appellant. The Magistrate in his judgment dated March 11, 1987 found that the appellant had adulterated milk and convicted him under Section 7 read with Section 16 of the Act and sentenced him to a minimum period of 6 months and a fine of Rs. 1,000/-. On appeal, it was confirmed and in Revision No. 61/91, the Single judge by judgment dated March 30, 1991 confirmed the conviction but the sentence was reduced to a period of 3 months and a fine of Rs. 500/-. Thus this appeal by special leave. s2. Mr. S.K. Jain, learned counsel for the appellant, contended that from the date of taking the sample till the date of laying the prosecution, there was considerable delay. There is an inordinate delay to forward the sample for analysis by the Directorate of Central Food Laboratory which caused considerable prejudice to the appellant. The High Court did not consider this aspect of the matter from this perspective. Therefore, the appellant is entitled to the acquittal. We find no force in the contention. 3. There is an inordinate delay to forward the sample for analysis by the Directorate of Central Food Laboratory which caused considerable prejudice to the appellant. The High Court did not consider this aspect of the matter from this perspective. Therefore, the appellant is entitled to the acquittal. We find no force in the contention. 3. Section 13 of the Act provide that (1) the Public Analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis, and (2) 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 14A, forward in such manner as may be prescribed, 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 10 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. 4. Rule 9A provides that the local authority shall within a period of 10 days, after the institution of the prosecution, forward a copy of the report of the result of the analysis in Form III 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 the article was taken by the Food Inspector and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Section 14(a) of the Act. 5. This Court considering the language of section 13(2) in Babulal Hargovindas v. State of Gujarat1 held that the accused had an opportunity to make an application to the Court for sending the sample to the Central Food Laboratory for analysis. He did not avail the same. 5. This Court considering the language of section 13(2) in Babulal Hargovindas v. State of Gujarat1 held that the accused had an opportunity to make an application to the Court for sending the sample to the Central Food Laboratory for analysis. He did not avail the same. Therefore, it was no longer open to him to contend that he had no opportunity to send the sample in his custody to the Director, Central Food Laboratory under Section 13(2), since he did not make any application to the Court for sending it. This view was followed in Ajit Pd. Ramkishan Singh v. State of Maharashtra2. In Tulsi Ram v. State of M.P.3, this Court held that Rule 9A is directory and if after receiving the Public Analysts report, the accused does not apply to the court to have the sample sent to the Central Food Laboratory, he may not be heard to complain about delay in receipt of the report by him, lipless he-is able to establish some other prejudice to him. The decision of this Court in Municipal Corporation of Delhi v. Ghisa Ram4 was based on the fact that the sample had, in fact, been sent to the Director who returned the same saying that the sample had become highly decomposed and could not be analysed; as the Food Inspector had not taken the precaution of adding the preservatory. This decision was distinguished in Babulal Hargvindas (supra). 6. Thus, it is settled law that the appellant has a right under Section 13(2) to avail of sending the sample in the custody of the Court for analysis by the Central Food Laboratory after the prosecution was laid or immediately after notice was received by him in the case, by making an application to the court. The duty of the prosecution to send the report is governed by Rule 9A of the Rules. After January 4, 1977, the word immediately was used replacing the words "within ten days" in this Rule. The decision of this Court in Ahmad Dadabhai Advani v. Stale of Maharashlra5 relied on by the appellant does not held him. Therein, the report was stated to have been dispatched on June 13, 1974. But, in fact it was despatched on July 11, 1977. The report was of September 1, 1978. The decision of this Court in Ahmad Dadabhai Advani v. Stale of Maharashlra5 relied on by the appellant does not held him. Therein, the report was stated to have been dispatched on June 13, 1974. But, in fact it was despatched on July 11, 1977. The report was of September 1, 1978. The Magistrate on the basis of those facts held that it must have been received in due course and there was delay in launching prosecution. Since the acquittal ordered by the Magistrate was interfered with by the High Court, this Court stated that the High Court was not justified in interfering with the same. The fact of non-availing of the remedy under section 13(2) had not been considered by this Court. Therefore, the ratio in Ahmad Dadabhai Advanis case (supra) does not run counter to the consistent law laid by this Court in the above cases that despite non availment of the remedy under Section 13(2), prejudice could be inferred. 7. Under these circumstances and following the consistent law laid by this court, we are of the considered view that since admittedly the appellant had not availed of the remedy under Section 13(2) to send the sample of the article of food for analysis by the Central Food Laboratory, it cannot be held that the appellant suffered prejudice on account of delay in laying the prosecution. It is also seen from the record that within 10 days from the date of the filing of the prosecution, the report was sent to the appellant, though Sh. S.K. Jain seeks to contend that there is no proof of service. Since it being a question of fact and not disputed in the courts below, we cannot go into that question. In that view, we hold that no prejudice has been caused to the appellant and the conviction of the appellant under Section 7 read with Section 16 of the Act and sentence of 3 months imprisonment imposed by the High Court does not warrant interference. The appeal is accordingly dismissed. Appeal dismissed. 1. A.I.R. 1971 S.C. 1277. 2. A.I.R. 1972 S.C. 1631. 3. (1984) 4 S.C.C. 487 . 4. 1967 S.C.R. 116. 5. JT(1991) 5 S.C. 178. For Citation : 1994 Supp. (2) SCC 177 = 1994 SCC (Crl.) 895