The accused was presented with an amended charge in the magistrates court at Banting on 23 October 1992 for an offence under s 13(1) of the Food Act 1983 (the Act). The amended charge read as follows:

Kamu sebagai pengilang pada 20 Mei 1992 lebih kurang pukul 7.50 petang

di Kelab Sultan Abdul Samad Telok Datok di Daerah Kuala Langat dalam

Negeri Selangor telah menjual satu botol besar Carlsberg Beer

kandungannya 660ml dan apabila dianalisa di jabatan kimia Petaling Jaya

didapati mengandungi satu bungkusan kosong berjenis polypropylene

(plastik) seberat 4.1g sebagai bahan asing. Oleh yang demikian kamu

telah melakukan satu kesalahan di bawah s 13(1)(b) dibaca bersama s 28

Akta Makanan 1983 dan sekiranya disabitkan kesalahan, boleh dihukum di

bawah s 13(1) Akta yang sama.

The amended charge translates in the English language as follows:

That you as a manufacturer on 20 May 1992 at approximately 7.50pm at

the Kelab Sultan Abdul Samad Telok Datok in the district of Kuala

Langat, Selangor sold one large bottle of Carlsberg beer containing

660ml which upon analysis by the chemist department, Petaling Jaya, was

found to contain one empty polypropylene (plastic) packet weighing 4.1g

being a foreign matter. Accordingly, you have committed an offence

under s 13(1)(b) read together with s 28 of the Food Act 1983 and if

convicted, will be liable to punishment under s 13(1) of the said Act.

Immediately after the accused pleaded not guilty to the amended charge, its counsel took a preliminary objection that the proceedings were time-barred by virtue of s 19(2) of the Act on the following grounds:

(a) section 19(2) provided that no proceedings in respect of the

sale of any food or of any offence against the Act shall be

instituted after the expiration of 90 days from the time of

purchasing or procuring that food;

(b) that per the summons, the offending bottle of beer was sold on 20

May 1992 and the charge was entered on the summons by the

magistrates court on 21 August 1992 which was 93 days after the

sale of the bottle of beer;and

(c) in view of the mandatory nature of s 19 and in view of the

offence being a strict liability offence, it was submitted that

the magistrate had no jurisdiction to enlarge time and that it

was incumbent on him to dismiss the amended charge and acquit the

accused.

The prosecuting officer submitted that the charge was filed in the magistrates court on 19 August 1992.

Defence submitted that notwithstanding that the charge may have been filed on 19 August 1992, even using that date as being the cut-off date, the charge was still filed on the 92nd day of the date of the sale and was therefore time-barred by s 19 of the Act.

After a short deliberation, the learned magistrate overruled the preliminary objection and held that the proceedings were brought within time and fixed the matter for trial. He gave the following oral reasons:

(a) that s 19(2) speaks of 90 days from the time of purchasing or

procuring the offending food;

(b) a distinction was drawn between purchasing and procuring and it

was held that time accrued from the date of procurement being

the date on which the offending food was delivered by the

Ministry of Health, Kuala Langat district;

(c) the learned magistrate then held after a perusal of documents in

his file which were not tendered in evidence and which were not

available to the accused that the health inspector only received

the offending bottle of beer after 4pm on 21 May 1992 and that as

it was the evening the proper date from which time began to run

was the 22 May 1992; and

(d)