PRABHU versus STATE OF RAJASTHAN

Special leave granted.

p. 63, margin D

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 d.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 adul· terated 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.1,00Q. On appeal, it was confirmed and in Revision No. 61/19, 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.

p. 63, margin E

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, was considerable delay. There is an inordinate delay to forward for analysis by the Directorate of Central Food Laboratory considerable prejudice to the appellant. The High Court this aspect of the matter from this perspective. Therefore, entitled to the acquittal. We find no force in the contention.

pp. 63–64, margin H

Sectioo 13 of the Act provides that (1) the Public deliver, in such form as may be prescribed, a report to the Authority of the result of the analysis of any article of food him for analysis, and (2) on reciept of the report of the result under sub-section (1) to the effect that the article of food the Local (Health) authority, shall, after the institution of against the person from whom the sample of the article of and the person, if any, whose name, address and other particulars been disclosed under Section 14A, forward in such manner prescribed, as the case may be, informing such person or is so desired, either of both of them may make an application within a period of 10 day5 from the·date of receipt of the copy to get the sample of the article of food kept by the Authority analysed by the Central Food Laboratory.

p. 64, margin B

Rule 9A provides that the local authority shall within days, after the institution of the prosecution, forward a copy of the result of the analysis in Form III under sub-rule (3) registered post or by hand as may be appropriate to the peR>on the sample of the article was taken by the Food Inspector taneously also to the person, if any, whose name, address particulars ba•e hr.en disclosed under Section 14(a) of the

p. 64, margin E

This court considering the language of Section 13(2) Hargovinddasv. State of Gujarat, AIR (1971) SC 1277 held bad an bpportunity to make an application to the court sample te the Central Food Laboratory for analysis. He did same. Therefore, it was no longer open to him to contend that opportunity to send the sample in his custody to the Director, Central Laboratory under Section 13(2), since be did not make any the Court for sending it. This view was followed in Ajit Prasad Singh v. State of Maharashtra, AIR (1972) SC 1631. In Tulsi of M.P., (1984) 4 SCC 487, this Court held that Rule 9A is directory and if after receiving the Public Analyst's 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, unlesss he is able to establish some other prejudice to him.

pp. 64–65, margin F

The deci.ion of this Court in Municipal Corporation of Delhi v. Ghisa Ram, (1%7) SCR 116, was b~ed 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 Babula/ Hargovinddas (supra).

p. 65, margin B

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 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 Ahmed Dadabhai Advimi v. State of Maharashtra, IT (1991) 5 SC 178 relied on by the appellant does not help him. Therein, the report was stated to have·been despatched on June 13, 1974. But, in fact it was despatched on July 11, 1979, 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 interferred with by the High Court, this Court stated that the High Court was not justified in interferring 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 Ahmed D. Adva11i's case 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.

p. 65, margin C

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 Sb. 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 bhow, we cannot go into that question. In that view, we hold that no prejudice bas been caused to the appellant and the conviction of the appellant u11der Section 7 read with Section 16 of the Act and sentence of 3 months imprisonment imposed by the High Court does not warrant interference.

pp. 65–66, margin G

The appeal is accordingly dismissed. G.N. Appeal dismissed.

p. 66, margin B