IMPORTANT POINT
When the appellant/accused did not avail of the remedy u/s. 13(2) of the Prevention of Food Adulteration Act to send the second sample for analysis he cannot be held suffered prejudice on account of delay in launching the prosecution.

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. 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. 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