Service of notice on accused after delay of 25 days cannot be termed as compliance of the provisions of Section 13(2) of the Act.

The petitioner Sebastian was found guilty by the learned Sub-Divisional Judicial Magistrate, Thanjavur in CC No. 1417 of 1977 for an offence under Sections 7(i) and 16(1)(a)(i) read with S. 2(ia)(a)(n) of the Prevention of Food Adulteration Act, 1954. He was convicted and sentenced to suffer rigorous imprinsonment for six months and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for six months

2. An appeal against the aforesaid order was filed before the learned Sessions Judge, West Thanjavur in C.A. No. 85 of 1978. The learned Sessions Judge dismissed the appeal, confirming the conviction and sentence. The instant revision case is filed by the petitioner challenging the correctness of the conviction and sentence passed by the lower appellate court

3. The prosecution case in a nutshell is as follows - P.W. 1 is the Food Inspector of Thanjavur municipality. On 27-9-1977 at about 10-15 a.m., he intercepted the petitioner who was carrying 1-1/2 liters of milk in a tin can for the purpose of sale. He served Form No. 6 notice to the petitioner, copy of which is Ex. P.1, and purchased 660 ml. of milk on payment of Re. 1. He obtained cash receipt Ex. P.2. After following the usual procedure, one bottle was sent for analysis to the Public Analyst with Form No. 7 notice, copy of which is Ex. P.3. Another Form No. 7 notice along with sample seal was sent by separate post. The remaining two bottles were sent to the Local (Health) Authority. Ex. P.4. is the report of the Analyst to the effect that the sample was deficient in solids-not-fat to the extent of 12 per cent. A copy of Ex. P.4 was served on the petitioner under Ex. P.5. The notice under S. 13(2) of the Act copy of which is Ex. P.6, was served on the petitioner under Ex. P.7 after the case was filed against the petitioner under the aforesaid sections

4. When the petitioner was examined with regard to the circumstances appearing against him he denied having committed any offence. He examined one witness to show that he sent milk to the petitioner's house in an eversilver vessel and the sample had been taken from that milk

5. Through a number of points have been raised in the lower court, the learned counsel for the petitioner appearing before me confined his arguments to one point. He contended that the complaint against the petitioner was lodged under the aforesaid sections on 24-12-1977, but the notice as required under S. 13 (2) was served on him only on 19-1-1978 which is contrary to the provisions of law. S. 13(2) read with Rule 9-A of the Prevention of Food Adulteration Rules, 1955, 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 delivered under sub-rule (3) of Rule 7 by registered post or by hand 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 S. 14-A of the Act. According to the counsel, after lodging the complaint on 24-12-1977, the report of the Analyst along with the notice was not served on the petitioner 'immediately', as required under Section 13(2) read with rule 9-A of the Act. On the other hand, the report of the Analyst and the notice were served on the petitioner only on 19-1-1978, after a delay of 25 days, which is against the mandatory provisions of law. The learned counsel, in support of his contention, cited before me the decision in Perumal and Ramanarayanan v. Kumbakonam Municipality, 1981 Mad. L.W. (Cri.) 109 : 1981 CrLJ 1366), wherein M. A. Sathar Sayeed J. dealing with the relevant provisions of the Act observed (at p. 1368 of Cri LJ) -

"Section 13(2) of the Act contemplates that on receipt of the report of the result of the analysis under sub-section (2) of S. 13, to the effect that the food article is adulterated, the Local (Health) Authority