The failure to comply with the mandatory provision of Section 13(2) of the Prevention of Food Adulteration Act does not automatically result in acquittal if the accused did not apply for the second sample analysis and did not suffer prejudice.

Satish Kumar Mittal, J.

1. Petitioner-Ramesh Chand has filed this criminal revision against the judgments, passed by both the Courts below, vide which he has been convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000.00

2. Facts :

On 27-9-1988, a sample of Tata salt was drawn from the shop of the petitioner by the Food Inspector. As per the report of the Public Analyst, Haryana, Karnal, dated 5-10-1988 (Ex. PF), the said sample was not containing the minimum prescribed limit of Iodine. Vide notification dated 9-12-1987, issued by the Govt. of Haryana, the sale of common salt other than iodised salt was prohibited by the Food (Health) Authority, Haryana. In view of the said notification, the sample of Tata salt taken from the premises of the petitioner was found to be adulterated.

3. Subsequently, on 15-11-1988. Local Health Authority sent a letter (Ex. P.W. 3/A) to the petitioner along with report of the Public Analyst, intimating him that a complaint has been instituted by the Food Inspector in the Court of Chief Judicial Magistrate, Hisar on 7-11-1988, in which the next date is 11-1-1989. The said intimation was issued in compliance of Section 13(2) of the Act and Rule 9-A of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) which requires that the Local Health Authority, within a period of ten days of institution of the prosecution, shall forward a copy of the result of the analysis in Form III delivered to him under Sub-rule (3) of Rule 7 by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector.

4. Actually, in this case, no complaint was instituted on 7-11-1988. Rather, it was instituted on 12-1-1989, as is evident from the order sheet of the Court, and the petitioner was summoned for 9-2-1989. Before that date, on 30-1-1989, the petitioner appeared before the trial Court and sought his exemption from appearance on 9-2-1989 on the ground that he had to go out of station on the said date for attending the marriage of his close relative. Vide order dated 30-1-1989, the petitioner was granted exemption from personal appearance for 9-3-1989. It is also apparent from the record that neither on 30-1-1989 nor on the date subsequent thereto, throughout the course of trial, the petitioner did make any application to the Court for sending the second sample for analysis to the Director, Central Food Laboratory in exercise of his right provided to him under Section 13(2) of the Act.

5. After conclusion of the evidence, the petitioner was found guilty for the offence under Section 7 read with Section 16 of the Act and was accordingly convicted and sentenced, which has been upheld in appeal by the appellate Court. Hence, this revision-petition.

6. Arguments on behalf of petitioner :

Counsel for the petitioner submitted that in this case, the mandatory provision of Section 13(2) of the Act has not been complied with. As per requirement of this provision and Rule 9-A of the Rules, the Local Health Authority is required to send notice along with report of the analysis in Form III delivered to him under Sub-rule (3) of Rule 7 to the person from whom the sample of article was taken, within a period of ten days after institution of the prosecution informing such person that he may make an application to the Court within a period of ten days from the date of receipt of the copy of report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. Counsel for the petitioner further submitted that the aforesaid notice and report of the Public Analyst has to be sent to the accused only after institution of the prosecution and not prior to that. He submitted that in the instant case, noti