Accused held entitled to acquittal.

This appeal by the State is directed against the Judgment of the learned Judicial First Class Magistrate, Tiruvannamalaj, acquitting the accused who has been charged for an offence under section 7(i) and 16 (1-a) (a) (i) read with section 2 (1-a) (a) and (m) of the Prevention of Food Adulteration Act.

2. On 31st July, 1978, P.W-1, Food Inspector, Kilpennathur, purchased 700 ml. of Cow's milk kept for sale by the accused at Tiruvannamalai — Tindivanam Road. He delivered the milk so purchased into three equal parts and sealed them in three clean dry bottles, and sent one such bottle to the Public Analyst and the other two to the Local (Health) Authority. The report of the Analyst, Exhibit P-4, showed that the sample is deficient in solids-not, fat to the extent of at least 49 per cent. The Food Inspector then laid the complaint.

3. The defence was one of denial. The learned Magistrate acquitted the accused on the ground that the provisions of section 13 (2) of the Act and rule 18 of the Rules have not been followed. The State challenges that order of acquittal.

4. A reference to the complaint filed by the Food Inspector shows that it was filed on 12th April, 1978 before the Additional Judicial First Class Magistrate, Tiruvannamalai. A notice under section 13 (2) which is mandatory, has been served on the accused on 3rd April, 1978, as evidenced by the endorsement in Exhibit P-6. Section 13 (2) runs thus:

“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 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, 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 often 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.”

A reading of this section makes it clear that notice under that section 13(2) should be served only after the institution of the proceedings against the person from whom the sample of the article of food was taken. P.K. Moorthy v. Food Inspector, Kumbakonam Municipality1, a Division Bench of this Court of which I was a member took the view that the provisions of section. 13 (2) are mandatory and non-compliance with those pro. visions will vitiate the entire proceedings. as the notice under section 13 (2) was served earlier to the institution of proceedings the proceedings in this case are vitiated. The acquittal on the ground that section 13 (2) has not been complied with is correct.

5. But as regards the non-compliance of rule 18 I must point out that the order of acquittal on that ground is wrong. Rule 18 says that a copy of the memorandum and the specimen impression of the seal used to seal the packet should be sent separately by registered post or delivered to the Public Analyst or to any person authorised by him. Exhibit P-3, the copy of Form VII shows that the copy of the memorandum and the specimen impression of the seal are being sent separately by registered post. Exhibit P-3, also shows the specimen impression of seal. The report of the Analyst also shows that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. The evidence of the Food Inspector is also to the effect that he sent the memorandum along with the specimen seal by registered post. Section 13 (5) of the Act is to the effect that a document purporting to be a report signed by Public Analyst may be used as evidence of the fact