Mandatory provisions not complied.

This revision is directed against the judgment of the learned Additional Sessions. Judge, Madurai, confirming the conviction of the petitioner under sections 7(1) and 16(a)(1) read with S. 2(ia)(g) and (m) of the Prevention of, Food Adulteration Act (hereinafter referred to as the Act) and R. 5 of the Rules framed under the Act, but modifying the sentence of six months' R.I. into one of three months' R.I. while retaining the fine of Rs. 1000/- with default sentence.

2. The brief facts of the case are as follows. The petitioner is running a maligai shop at door No. 46 Tirupparankundram Road, Madurai : On 29-11-1979 at about 9 a.m. the Food Inspector of Madurai Corporation (P.W. 1) went to the malgai shop of the petitioner, purchased 800 ml. of gingelly oil on payment of Rs. 9.60 for the purpose of analysis after serving form VI Notice (Ex. P. 2), and obtained a cash receipt (Ex. P. 1). The gingelly oil purchased by P.W. 1 was divided into three equal parts and poured into three separate, clean and dry bottles equally and they were sealed and packed tightly as per rules. The signature of the petitioner was also obtained in the slip pasted to the sample bottle and P.W. 1 obtained the statement (Ex P. 3) from the petitioner. One of the sample bottles was sent to public analyst along with form VIII notice, which is marked as Ex. P. 6. The public analyst sent his report Ex. P. 11 to the effect that the sample contains free fatty acids in excess of the maximum permitted limit to the extent of 80%. P.W. 1 filed the complaint dt. 25-12-1979 against the petitioner and it was received by the Magistrate on 3-1-1980. After the filing of the complaint, a copy of the public analyst's report along with the intimation under S. 13(2) of the Act was sent to the petitioner and it was acknowledged by him 8-1-1980 and it was marked as Ex. P. 13.

3. The petitioner when examined under S. 313 Cr.P.C. with reference to the prosecution evidence, denied the same and has stated that at the time of taking sample there was rain and the same was also taken outside the premises of the shop and that one of the sample bottles was big in size. He examined, one witness to support his plea as D.W. 1.

4. Though a number of points had been raised before the courts below, Mr. Calvin Jacob, learned counsel for the petitioner, confines his arguments to one point and contended that the complaint dt. 25-12-1979 against the petitioner was launched before the trial court on 3-1-1980, but notice as required under S. 13(2) was served on the petitioner only on 8-1-1980, which is contrary to the provisions of law.

5. S. 13(2) read with R. 9-A of the Rules framed under the Act clearly points out that immediately after the institution of prosecution, the Local (Health) Authority shall forward a copy of the report of the result of the analysis in form III and deliver under sub-rule (3) of R. 7 by registered post or by hand to the person from whom the sample of article was taken by the Food Inspector. According to the learned counsel for the revision petitioner, after launching the complaint on 3-1-1980, the report of the Public Analyst along with the notice under S. 13(2) was not served on the petitioner immediately as required under S. 13(2) of the Act read with R. 9-A of the Rules, but on the other hand, notice was served on the petitioner in person only on 8-1-1980 after a delay of five days which is against the mandatory provision of law. The learned counsel in support of his contention cited before me the decision in Sebestian v. State 1982 Mad LJ (Cri) 194 : 1982 CrLJ 1359), Wherein M. N. Moorthy J. while dealing with the relevant provisions of the Act and the decision reported in Perumal and Ramanarayanan v. Kumbakonam Municipality, 1981 (Mad) LW (Cri) 109 : 1981 CrLJ 1366), observed as follows -

"The word 'immediately' under R. 9-A of the Rules would mean at once or without delay or forthwith. Whatever action is sought to be taken, it should be taken speedily and