No prejudice caused to the accused due to wrong mentioning of the date in the notice.

1. Accused who was convicted under Sec.16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter called as the Act) and was sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs.100 in default of payment of fine to suffer simple imprisonment for a further period of one month is the petitioner.

2. The allegations made against the petitioner are as follows: The Food Inspector, Palghat Municipality purchased skimmed milk for the purpose of analysis from the petitioner at 8 a.m. on 28-10-80. The purchase, sampling etc. were conducted in accordance with the provisions of the Act and the Rules framed thereunder. One sample was sent to the Public Analyst for analysis. The Public Analyst reported that the sample did not conform to the standards prescribed for skimmed milk and that it contained not less than 41 per cent of added water. Hence the prosecution.

3. In order to prove the prosecution case P.Ws 1 to 4 were examined and Exts.P1 to P15 were proved.P.W.1 is the Public Analyst, P.W.2, the Food Inspector, P.W.3 attestor to the mahazar and P.W.4, an employee of the Palghat Municipality who was present with the Food Inspector.

4. The Learned counsel appearing for the petitioner challenges the conviction and sentence on the ground of violation of the provisions contained, in Sec.13(2) of the Act and Rule 9A of the Rules. His further contention is the violation of the provisions contained in Rule 21 of the Rules.

5. The argument that provisions contained in Sec.13(2) and Rule 9A are violated is based on the fact that in the said intimation the complaint was stated to have been filed before the Chief Judicial Magistrate's Court, Palghat on 27-11-80. Actually the complaint was filed only on 28-11-80. So the petitioner could not avail of the opportunity to have the second sample sent to the Central Food Laboratory for analysis. The learned counsel would contend that his client ought to have made an enquiry before the Chief Judicial Magistrate's Court only to see whether any complaint was filed against him on 27-11-80. If no complaint was filed on that date his client would not have been in a position to request the court to have the second sample sent to the Central Food Laboratory. The petitioner was not to loiter in the courts to see whether the Food Inspector had filed any complaint on any day so as to avail of the benefit under Sec.13(2). Since it is now established beyond doubt that no complaint was filed in court on 27-11-80 as stated in Ext.P14 intimation under Sec.13(2) it is contended that the provisions of the Act are violated and the petitioner is entitled to an acquittal. In support of this argument the learned counsel relies on the decision of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram Municipal Corporation of Delhi v. Ghisa Ram A.I.R. 1967 S.C. 970. In the said case Their Lordships observed:

“There can be no doubt that Sub-Sec.(2) of Sec.13 of the Act confers a right on the accused vendor to have the sample given to him examined by the Director of the Central Food Laboratory and to obtain a certificate from him on the basis of the analysis of that sample”.

From this observation it is contended that the said valuable right of the petitioner is denied to him in the instant case because he was misled by giving a false date as the date of filing the complaint. Hence the argument is that Sec.13(2) is violated. In that case before the Supreme Court the Food Inspector took the sample on 20.9.61. The Public Analyst carried out the analysis on 3rd October, 1961 and the certificate was issued by him on 23-10-61. The complaint was filed in court on 23-5-62. On the application of the accused the second sample was sent to the Director of Central Food Laboratory on 4-10-63. The Director reported that the sample had become highly docomposed and no analysis was possible. The trial court and the High Court acquitted the accused on the ground that the accused was denied his right of ob