PRABHUversusSTATE OF RAJASTHAN

A                                 PRABHU
                                     v.                                            (
                            STATE OF RAJASTHAN

                              FEBRUARY 21, 1994
lB              [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

           Prevelltion of Food Adulteration Ac4 1954: Section 13(2')-Sending
     sample to Central Food Laboratory for analysis-Opportunity to make ap-
     plication-Accused not availing of the opportunity-Delay in sending the
'.:: sample for analysis-Whether accused suffered prejudice is required to be
     found-Held no prejudice caused.

           The appellant was a milk vendor. The Foool Inspector took samples
     of milk from the custody of the appellant and sent the same for analysis.
     The analyst opined that it was adulterated. Pro! ecution was laid against
 )   the appellant and he was convicted and sentenced to undergo imprison·
     ment for six months and to pay a line of Rs.1,000, which was confirmed on
     appeal. On revision, the High Court confirmed the conviction but reduced
     the sentence to three months' imprisonment and a line of Rs.500. Hence
     this appeal.

           It was contended on behalf of the appellant that there was Inordinate
     delay in forwarding the sample for analysis, whith violated Section 13(2)
     of the aforesaid Act and hence his conviction was not sustainable.

           Dismissing the appeal, this Court

           HELD: It is settled law that the appellant his a right under Section
     13(2) of the Prevention or Food Adulteration Act, 1954 to avail the oppor-
     tunity of sending the sample in the custody of the Court for analysis by
     the Central Food Laboratory after the prosecution was laid or Immediately
     arternotlce was received by him in the case, by making an application to
     the Court. The duty or the prosecution to send tbe report Is governed by
     Rule 9A of the Rules. After January 4, 1977, the word 'immediately' was
     used replacing the words 'witbkt ten days' in this Rule. The section bas
     confe!Ted a right on the accused to require sending of the sample to the
     Central Food Laboratory. If this right is not availed or at all, conviction
     cannot be set aside, as no prejudice can be inferred lo such a case, which
                                         62
                       PRABHU v. STA1EOFRAJAS1HAN                            63

.,   req, lrement has to be satisfied.[6S·D·FJ                                     A
•
          Babula/ Hatgavindas v. State of Gujarat, A.I.R. (1971) S.C. 1277; Ajit
     Prasad Ramkishan Singh v. State of Maharashtra, AJ.R. (1972) S.C. 1631
     and Tulsi Ram v. State of M.P., [1984] 4 S.C.C. 487, relied on.

         Municipal Corporatic 1 of Delhi v. Ghisa Ram, [1967] S.C.R. 116 and B
     Ahmed Dadabhai Advani '·State of Maharashtra, J.T. (1991) S S.C. 178;
     distinguished.

          CRIMINAL APPELLATE JURISDICTION : Criminal ~ppeal No.
     210of1994.
                                                                                   c
          From the Judgment and Order dated 22.7.'13 of the Rajashtan High
     Court in S.B.Crl. Revision Petition No.61 of 1991.

           S.K. Jain for the Appellant.

           Sasiprabhu and Jayaram for the Respondent.                              D
           The following Order of the Court was delivered

           Special leave granted.

           The appellant is a milk vendor. On March 19, 1983, the Food             E
     Inspector took samples of milk from the custody of the appellant under
     Section 10(7) of the Prevention of Food Adulteration Act, 1954 (for short
     the 'Act'). He sent the sample for analysis on March 21, 1983. The Analyst
     in his report dated March 30, 1983 found that the milk fat was 4.8% and
     milk solids non-fat was 6.36% whereas the prescribed standard for milk fat
     is d.5% and milk solids non-fat 8.5%. Thereby, he opined that the milk        F
     purchased from the appellant was an adulterated milk. On the basis of the
     said report, the prosecution was laid against the appellant. The Magistrate
     in his judgment dated March 11, 1987 found that the appellant had adul·
     terated milk and convicted him under Section 7 read with Section 16 of the
     Act and sentenced him to a minimum period of 6 months and a fine of           G
     Rs.1,00Q. On appeal, it was confirmed and in Revision No. 61/19, the Single
     Judge by judgment dated March 30, 1991 confirmed the conviction but the
     sentence was reduced to a period of 3 months and a fine of Rs. 500. Thus
     this appeal by special leave.

           Mr. S.K. Jain, learned counsel for the appellant, contended that from H
    64                     SUPREME COURT REPORTS                   (1994]2 S.C.R.
                                                                                     (
A the date of taking the sample till the date of laying the prosecution, there
  was considerable delay. There is an inordinate delay to forward the sample
  for analysis by the Directorate of Central Food Laboratory which caused
  considerable prejudice to the appellant. The High Court did not consider
  this aspect of the matter from this perspective. Therefore, the iyipellant is
B entitled to the acquittal. We find no force in the contention.

         Sectioo 13 of the Act provides that (1) the Public Analyst shaJ
  deliver, in such form as may be prescribed, a report to the Local (Health)
  Authority of the result of the analysis of any article of food submitted to
  him for analysis, and (2) on reciept of the report of the result of th~ analysis
C under sub-section (1) to the effect that the article of food is adulterated,
  the Local (Health) authority, shall, after the institution of prosecution
  against the person from whom the sample of the article of food was taken
  and the person, if any, whose name, address and other particulars have
  been disclosed under Section 14A, forward in such manner as may be
D prescribed, as the case may be, informing such person or persons that if it
  is so desired, either of both of them may make an application to the court
  within a period of 10 day5 from the·date of receipt of the copy of the report
  to get the sample of the article of food kept by the Local (Health)
  Authority analysed by the Central Food Laboratory.

E         Rule 9A provides that the local authority shall within a period of 10
    days, after the institution of the prosecution, forward a copy of the report
    of the result of the analysis in Form III under sub-rule (3) of Rule 7 by
    registered post or by hand as may be appropriate to the peR>on from whom
    the sample of the article was taken by the Food Inspector and simul-
F   taneously also to the person, if any, whose name, address and other
    particulars ba•e hr.en disclosed under Section 14(a) of the Act.

        This court considering the language of Section 13(2) in Babula/
  Hargovinddasv. State of Gujarat, AIR (1971) SC 1277 held that the accused
  bad an bpportunity to make an application to the court for sending the
G sample te the Central Food Laboratory for analysis. He did not avail the
  same. Therefore, it was no longer open to him to contend that he had no
  opportunity to send the sample in his custody to the Director, Central Food        "
  Laboratory under Section 13(2), since be did not make any application to
  the Court for sending it. This view was followed in Ajit Prasad Ramkishan
H Singh v. State of Maharashtra, AIR (1972) SC 1631. In Tulsi Ram v. State
                          PRABHU v.STATEOFRAJASIBAN                             65
·'1
        of M.P., (1984) 4 SCC 487, this Court held that Rule 9A is directory and if A
        after receiving the Public Analyst's report, the accused does not apply to
        the Court to have the sample sent to the Central Food Laboratory, he may
        not be heard to complain about delay in receipt of the report by him,
        unlesss he is able to establish some other prejudice to him.

              The deci.ion of this Court in Municipal Corporation of Delhi v. Ghisa B
        Ram, (1%7) SCR 116, was b~ed on the fact that the sample had, in fact,
        been sent to the Director who returned the same saying that the sample ·
        had become highly decomposed and could not be analysed; as the food
        Inspector had not taken the precaution of adding the preservatory. This
        decision was distinguished in Babula/ Hargovinddas (supra).                  c
                Thus, it is settled law that .the appellant has a right under Section
         13(2) to avail of sending the sample in the custody of the the Court for
         analysis by the Central Food Laboratory after the prosecution was laid or
    ~
         immediately after notice was received by him in the case, by making an
~                                                                                     D
        application to the Court. The duty of the prosecution to send the report is
        governed by Rule 9A of -the Rules. After January 4, 1977, the word
        'immediately' was used replacing the words 'within ten days" in this Rule.
        The decision of this Court in Ahmed Dadabhai Advimi v. State of
        Maharashtra, IT (1991) 5 SC 178 relied on by the appellant does not help
        him. Therein, the report was stated to have·been despatched on June 13, E
        1974. But, in fact it was despatched on July 11, 1979, The report was of
        September 1, 1978. The Magistrate on the basis of those facts held that it
~       must have been received in due course and there was delay in launching
        prosecution. Since the acquittal ordered by the Magistrate was interferred
        with by the High Court, this Court stated that the High Court was not F
        justified in interferring with the same. The fact of non-availing of the
        remedy under Section 13(2) had not been considered by this Court. There-
        fore, the ratio in Ahmed D. Adva11i's case does not run counter to the
        consistent law laid by this court in the above cases that despite non
        availment of the remedy under Section 13(2), prejudice could be inferred.
                                                                                     G
~             Under these circumstances and following the consistent law laid by
        this Court, we are of the considered view that since admittedly the appel-
        lant had not availed of the remedy under Section 13(2) to send the sample
        of the article of food for analysis by the Central Food Laboratory, it cannot
        be held that the appellant suffered prejudice on account of delay in laying H
    66                    SUPREME COURT REPORTS                 [1994] 2 S.C.R.
                                                                                  I
A the prosecution. It is also seen from the record that within 10 days from
    the date of the filing of the prosecution, the report was sent to the
     appellant, though Sb. S.K. jain seeks to contend that there is no proof of
    service Since it being a question of fact and not disputed in the courts
    bhow, we cannot go into that question. In that view, we hold that no
B   prejudice bas been caused to the appellant and the conviction of the
    appellant u11der Section 7 read with Section 16 of the Act and sentence of
    3 months imprisonment imposed by the High Court does not warrant              1
    interference.

           The appeal is accordingly dismissed.

    G.N.                                                    Appeal dismissed.