The petitioners are the accused in C.C.No.59 of 2008 on the file of the Judicial Magistrate of First Class, Srikakulam. They allegedly committed the offences under the provisions of the Prevention of Food Adulteration Act, 1954 (‘the Act’ for short) and the Rules, 1955 therein. The second petitioner is the Proprietor of a Hotel styled as ‘Teja Tiffins Parlour and Family Restaurant’ at Srikakulam. The first petitioner is the vendor and agent of the second petitioner.

2. On 27.04.2005, when the Food Inspector along with his staff visited the premises of the Restaurant of the second petitioner, the first petitioner was found to be transacting business. The Food Inspector found green gram in the hotel premises. Suspecting the same to be adulterated, the Food Inspector purchased 1500 grams of green gram from the first accused by paying Rs.42/- to the first petitioner.

3. Samples were drawn therefrom. The report of the Analyst disclosed that the sample was adulterated foodstuff. Consequently, prosecution was launched against the petitioners.

4. The learned counsel for the petitioners contended that no case is made out against the petitioners. His contentions are three-fold. He contended that the report of the analyst did not give any reasons how the sample was adulterated food. He also contended that there was a delay of nearly two years between the date of the report of the analyst and the date on which the complaint was laid before the Court and that notice u/s.13 (2) of the Act was not issued. He finally contended that the sample lifted by the Food Inspector was not meant for sale and that the very provisions of the Act do not apply.

5. The inspection was conducted by the Food Inspector on 27.04.2005. The sample would appear to have been sent for analysis on 30.04.2005. The report of the analyst was signed on 30.05.2005. The analyst referred to five items in the report. Column No.4 of the report would show that the variation was within reasonable limit. Nevertheless, the analyst opined that the sample was adulterated foodstuff on the ground that the sample contained synthetic colour tartrazine. I am afraid that where the analyst considered that the foodstuff is adulterated on account of the presence of tartrazine, it cannot be said that the foodstuff was not adulterated and that the report should not be accepted. Prima facie the report of the public analyst is liable to be taken into consideration. I, therefore, reject the contention of the learned counsel for the petitioners that the report of the public analyst did not give reasons for concluding that the sample was adulterated and that the report of the analyst, therefore, cannot tag liability to the petitioners.

6. The learned counsel for the petitioners contended that there was abnormal delay in filing the complaint. While the inspection was held on 27.04.2005 and while public analyst gave the report on 30.05.2005, the complaint was laid on 26.04.2007. Nearly two years elapsed between the date of the inspection and the report of the analyst and the complaint. However, mere delay in filing the complaint per se is not a ground to quash the proceedings. The contention of the learned counsel for the petitioners that the proceedings are liable to be quashed on the ground that the complaint was filed about two years after the inspection, therefore, is not sustainable and is rejected.

7. However, there is a vital link between the filing of the complaint and the date of the report of the analyst. The learned counsel for the petitioners pointed out that notice u/s. 13(2) the Act was not issued. Section 13 (2) notice is mandatory. Further, Section 13 (2) notice is expected to be issued within 10 days from the date of the report of the analyst.

The purpose of notice is to enable the petitioners to seek to send another sample for analysis and report, if necessary, from a different analyst. While so, whereas the analyst analyzed the sample on 30.05.2005, the complaint was