The statutory provision should prevail over the procedure prescribed by the rules, and the omission to comply with the direction in R.90) will not affect the prosecution.

1. The petitioner is the accused in S. T. Case No. 283 of 1976 on the file of the Chief Judicial Magistrate, Kozhikode. He was convicted by the Court for an offence punishable under S.16(1)(a)(i) read with S.7(1) of the Prevention of Food Adulteration Act (for short, 'the Act') and sentenced to undergo rigorous imprisonment for three months and a fine of Rs. 500/-. In default of payment of fine, he is to undergo rigorous imprisonment for one month. The conviction and sentence were confirmed in Crl. A. 69 of 1977 of the Sessions Court, Kozhikode.

2. The case against the petitioner is as follows. The petitioner is a milk vendor. On 10-8-76 at about 8-20 A. M., pw. I approached the petitioner and purchased 675 milli-litres of buffalo milk, following the formalities prescribed under the Act. Out of the three bottles containing the sample, one bottle was sent to the Public Analyst and the two remaining bottles were entrusted with the Local Health Authority. On 18-9-1976 after receipt of report from the Public Analyst, a complaint was presented in Court against the petitioner for the offences already mentioned. On the same day, the Food Inspector despatched a copy of the certificate of analysis to the petitioner along with an intimation as provided in S.13 (2) of the Act as amended by Act 34 of 1976 informing the petitioner that if he desired to have the sample further analysed, he might make an application to the Court of the Chief Judicial Magistrate where the complaint had been presented within 10 days of the date of receipt of the intimation. The petitioner, however, did not proceed to get the sample analysed by the Central Food Laboratory. He was in due course tried and convicted for the offence. He admitted the sale; but contended that he was carrying the milk at the instance of some other person. He denied knowledge that the milk was adulterated. The Chief Judicial Magistrate relied upon the evidence of pw. 1, the Food Inspector and pw. 2, one of the attestors to the mahazar and convicted the petitioner. It is against the above conviction that the revision petition has been filed.

3. The main contention put forward on behalf of the revision petitioner is that there has been non-compliance of the provisions contained in R.90) of the Act. R.90) as it stood on the date of sampling imposed a duty on the Food Inspector to send by registered post, a copy of the report received from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report in all cases where the sample did not conform to the provisions of the Act or Rules. It is the admitted case that no copy was sent to the petitioner within 10 days of the receipt of the report by the Food Inspector and, therefore, there has been non-compliance of the above rule. But the stand taken by the complainant is that R.90) need not be followed after the amendment of the Act in 1976 since S.13(2) of the amended Act prescribes a different procedure. The purchase of the sample was after the amended Act came into force. Ext. P10, the intimation issued to the petitioner is in conformity with, the provisions contained in in S.13(2). The argument put forward on behalf of the petitioner is that eventhough the amended Act had come into force, R.90) stood intact on the date of the purchase and, therefore, the Food Inspector should have complied with the provision. The learned Sessions Judge before whom the above contention was raised did not accept it and observed that R.90) stood deleted and the procedure followed by the Food Inspector was in conformity with R.9 A framed after the amendment of the Act The learned judge also held that no prejudice had been caused to the petitioner. The appeal against the conviction and sentence was dismissed.

4. In this Court, reference was made by the revision petitioner to the decision in Crl. A. 286/ 77 disposed of by Subramonian Poti, J. The appeal in that case was against the order of acquittal pa