Procedural non-compliance does not warrant acquittal unless it results in demonstrable prejudice; the evidence confirmed the adulteration of food.

1 Complainant is the appellant. Appeal is by special leave against the order of acquittal in a Food Adulteration Case. Complainant is the Food Inspector, Tellicherry. Complaint was filed against the respondent, a grocery dealer in Tellicherry Municipal Town, for having sold edible common sault on 28-9-1979 which was found by Ext. PI3 report of the Public Analyst to be adulterated. The Judicial First Class Magistrate, Tellicherry who tried the case as S T. 167 of 1979 found the respondent not guilty and acquitted him.

2According to the standards prescribed by the Prevention of Food Adulteration Rules, the standards for edible common sault relevant for our purpose are (!) moisture contents should not exceed 6 per cent and (2) sodium chloride contents should not be below 96 per cent. Ext. PI3 showed that moisture was 12.4 per cent and sodium chloride contents was only 85.25 per cent.

3The findings which resulted in the acquittal are:
(1) "Rule 7(3) of the Prevention of Food Adulteration Rules was not sufficiently complied with."
(2) "The mahzar prepared in printed form without the necessary details being written in hand cannot be accepted for corroboration of the evidence of the complainant in the box and
(3) R.17 of the Prevention of Food Adulteration Rules was proved to have been complied with."

4At the time of arguments the counsel for the respondent, (accused) basing on Para.9 of the judgment of the Trial Court, argued that in addition to R.7 (3), the Trial Court must also be taken to have found that S.10(7), R.14, 16 (a) to (d) as well as R.17 (a), (b) and 18 were not complied with. Though there was not such specific finding as seen from the judgment, T am considering those violations also while dealing with the judgment on the merits.

5Before going further into the merits of the case, I may deal with two grounds taken up by the respondent. The first ground is that even if this court considers that acquittal was only on the three grounds mentioned above, the respondent is entitled to support the judgment on other grounds also. That position of law was not disputed. Second contention is that since the alleged commission of offence was at Tellicherry which is on the sea coast and since sampling was in September when moisture contents in the atmosphere will be high on account of humidity, the presence of moisture beyond the prescribed limit cannot be taken as an item of adulteration. That is an argument unsupported by any evidence or scientific data to support. No such contentions seems to have been taken in the Trial Court. This argument has only to be ignored. Further excessive moisture is not the only item of adulteration.

6R.7(3) provides that the public analyst shall, within a period of 45 days from the date of receipt of the sample for analysis, deliver the report of analysis in Form III to the Local Health-Authority. The sample was taken on 28-9-1979 and it was received by the public analyst on 29-9-1979. Ext. P13 report is dated 2-11-1979. The date on which the sample was analysed is not in evidence. The date of analysis is not relevant also. At any rate it cannot be later than 2-11-1979, if not earlier. The analysis was within 35 days of the receipt of the sample. Actual date on which the report was delivered to the Local Health Authority is also unfortunately not in evidence. Anyhow from Ext. PI4 it is seen that the report was received by the Local Health Authority atleast on 15-11-1979, if not earlier. Even if it is taken as 15-11-1979 it will only be after 48 or 49 days of the receipt of the sample by the public analyst. The delay is only 3 or 4 days. It is this delay that was found by the Trial Court and contended by the respondent to have fatally affected the prosecution because R.7(3) is mandatory. I do not think that the Rule is mandatory in order to make a slight violation fatal to the prosecution.

7Any how the objects behind the Rule could only be to have the analysis within a reasonable time in order to avoid the chan