Prosecution is deemed instituted upon filing a complaint, distinct from court cognizance; thus, failure to apply for sample analysis timely negates reliance on sample condition.

1In a case coming under the Prevention of Food Adulteration Act, hereinafter called the Act, the first respondent herein, the accused before the Trial Court, was tried on a complaint filed by the Food Inspector. Corporation of Trivandrum (Pw.1) against him alleging that he sold 675 ml. of buffalo milk at 5.30 a.m. on March 16, 1978 out of the bulk quantity which he was carrying on a bicycle for sale which, on analysis, was found to be adulterated. Ext. P6 is the report of the Public Analyst, as per which the sample was found to be adulterated as it did not conform to the standard prescribed and also contained 24% of added water. Ext. P4 is the mahazar prepared on the spot, attested by pw. 2, an independent witness.

2The plea of the accused was one of complete denial and he had no witness to be examined on his side

3In pursuance of the summons served on him, the accused appeared before the Trial Court and put in an application for sending one of the samples kept with the Local (Health) Authority for further analysis to the Central Food Laboratory. As per the certificate of the Director of Central Food Laboratory, the sample sent to him was not in a condition fit for analysis 'as the contents of the sample were found to be curdled thereby rendering the same unhomogeneous for correct estimation of its milk constituents'

4In support of the prosecution, pws. 1 and 2 were examined and Ext. P6, the report of the Public Analyst, and Ext. P4, mahazar, and other documents were marked.

5The Trial Court acquitted the accused on the only ground that the certificate of the Director of Central Food Laboratory showed that the sample sent to him for analysis was not in a condition fit (or analysis and therefore a valuable right given to the accused under S.13(2) of the Act has been denied to him.

6This order of acquittal is assailed by Sri Gopinathan, learned advocate appearing for the appellant on the ground that there has been no violation of S.13(2) of the Act in this case; that the copy of the report of the Public Analyst and intimation as contemplated under S.13(2) have been sent to the accused on the very same day the prosecution was instituted before the Trial Court and the same were received by him on May 10, 1978; that the accused did not apply for sending the sample for analysis to the Central Food Laboratory within the period of 10 days prescribed under S.13(2) and that it is not now open to him to come forward and plead that the sample sent to the Central Food Laboratory, long afterwards, was found in a condition not fit for analysis and thus a right conferred on him under S.13(2) of the Act has been deprived of.

7Sri Achutha Kurup, learned advocate appearing for the accused, strongly contended that there has been no delay at all, much less unreasonable delay on the part of the accused in approaching the Trial Court for getting one of the accused in approaching the Trial Court for getting one of the samples kept by the Local (Health) Authority tested by the Central Food Laboratory; that in pursuance of the summons served on him he appeared before the Trial Court on 7-7-1978 and on the very same day he put in an application before the Trial Court for getting one of the samples kept by the Local (Health) Authority analysed by the Central Food Laboratory; that this is not a fit case for interference as a very valuable right conferred on the accused has been deprived of by the considerable delay caused in instituting a complaint against him. This argument of the counsel that there was no delay or laches on the part of the accused is based on the interpretation of the words "institution of prosecution" appearing in sub-s.(2) of S.13 of the Act.

8It was argued on behalf of the accused that mere filing of the complaint by the Food Inspector before the Trial Court will not tantamount to institution of prosecution; that institution of a complaint is entirely different from institution of prosecution and that a prosecution can be said to be institu