Non-mention of case number in the intimation not fatal.

Balakrishnan, J.

1. Crl. Appeal No.235 of 1983 and 243 of 1983 have been filed challenging the acquittal of the accused in S.T.C. 76 of 1982 and 32 of 1982 respectively on the file of the Chief Judicial Magistrate, Palghat. Common grounds have been urged in both these appeals and hence they were heard together.

2. In S.T.C.76 of 1982 the complainant, Food Inspector, Palghat Municipality, purchased 600 grams of coffee-chicory blend from the accused on 6-10-1982. The accused had been conducting ‘Metro Coffee Works’ in the building bearing door No.1/418 within the Palghat Municipality. The Food Inspector after complying with the necessary formalities sent the sample to the Public Analyst. Ext.P13 report of the Public Analyst dated 16-11-1982 showed that the sample did not conform to the standard prescribed for coffee chicory blend and was therefore adulterated. Ext.P15 intimation under S.13(2) of Prevention of Food Adulteration Act was sent to the accused on 2-12-1982 itself and the same is seen acknowledged by Ext.P16 document on 4-12-1982. The complaint against the accused was filed on 2-12-1982.

3. In S.T.C.32 of 1982 the Food Inspector, Palghat purchased 750 ml. of cow's milk from the accused on 8-6-1982. The sample was forwarded to the Public Analyst for analysis and the Public Analyst reported that the sample did not conform to the standard prescribed for cows’ milk under the Prevention of Food Adulteration Rules, 1955 and therefore it was adulterated. The complainant received the report of the Public Analyst and filed the complaint in court against the accused on 9-7-1982. Ext.P14 is the intimation issued to the accused under S.13 (2) of the P.F.A. Act. Ext.P14 intimation dated 7-7-1982 is seen to have been received by the accused on 10-7-1982 as per Ext. P16 acknowledgement.

4. The Chief Judicial Magistrate, Palghat acquitted the accused in both cases mainly on three grounds: (1) Intimation under S.13(2) of the P.F.A. Act did not contain the case number filed against the accused and therefore there was infraction of S.13(2) of the Act and the accused was seriously prejudiced, (2) There was no valid appointment of Local Health Authority and therefore the prosecution was not maintainable and, (3) The Food Inspector had not complied with the formalities prescribed in Rule 17 of the P.F.A. Rules.

5. Both these cases have been referred to the Division Bench by the learned Single Judge to resolve the apparent conflict between the two decisions of this Court reported in V.J. Paul & another v. Ibrahim and others Paul & another v. Ibrahim and others 1982 Crl.L.J. (NOC)30, and State of Kerala v. Soman State of Kerala v. Soman 1983 KLT.297. In 1982 FAJ 91 the single Judge of this Court held:

“The person from whom the sample is taken will be in a position to exercise the right to have the sample analyzed only on receipt of the information regarding the fact of filing the complaint and the particulars like the court, when it is filed and the number of the case. Therefore the supply of the information mentioned in S.13 (2) of the Act is not an empty formality. It is a mandatory provision the noncompliance of which may lead to serious consequences.

In the case reported in State of Kerala v. Soman State of Kerala v. Soman 1983 KJLT.297 this court held that the failure to state the number of the case in the intimation does not amount to the infraction of S.13(2) of the Act. A similar question came up for consideration before the Division Bench of this Court in Food Inspector v. Karingarappully Coop. M.S. Society Ltd. Food Inspector v. Karingarappully Coop. M.S. Society Ltd. 1986 KLT. 174. The Division Bench held:

“S.13(2) and R.9A are only directory. Of course this provision of law must be obeyed; it is not left to the sweet will and pleasure of the statutory authority to obey the provision or not. The statuary authority has to discharge its functions as contemplated by law. Where there is a total denial of the right on account of the d