ORDER
D.K. Trivedi, J.
1. This revision petition is directed against the judgment and order dated 15-7-1982 passed by Sri R.S. Pandey IVth Additional Sessions Judge, Rae Bareli whereby he had maintained the conviction and sentence of the petitioner under Sections 7, 16 of the prevention of Food Adulteration Act.
2. The prosecution case is that on 23-2-1981 at about 12 O'Clock Sri Ram Shanker Food Inspector visited the shop of the applicant at Furshatganj, district Rae Bareli and purchased the sample of Jeera for being sent to Public Analyst. After observing necessary formalities, he sent the said Jeera to the Public Analyst to Government of Uttar Pradesh, Lucknow who found the sample of Jeera adulterated. According to report, the said Jeera contains stranuous matter which exceeded the prescribed maximum limit of 7 per cent. After receipt of the report a complaint was filed against the applicant.
3. The complainant in order to prove its case, examined two witnesses, namely, P.W. 1 Ram Shanker Food Inspector and D.W. 2 K.P. Srivastava. The Judicial Magistrate, Special Court, Rae Bareli by his order dated 26-11-1981 convicted the applicant under Sections 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentenced him to 6 months' rigorous imprisonment and further awarded a fine of Rs. 1000/-.
4. Aggrieved by the said order and judgment, the applicant filed an appeal but the same was also dismissed by the IVth, Additional Sessions Judge Rae Bareli on 15-7-1982. Aggrieved by the said judgment and order, the applicant filed the present revision.
5. I have heard the learned counsel for the applicant as well as the learned Government Advocate.
6. The main contention of the revisionist is that there is a violation of provisions of Section 13(2) read with Rule 9-A of the Act and, therefore, the revisionist is entitled to be acquitted. I find force in it. Section 13(2) provides that on receipt of the report of the Public Analyst that the food is adulterated, the local authority shall after institution of the case, forward a copy of the result of the report to the person from whom sample had been taken informing him that if he is so desired then move an application to the Court within 10 days from the date of receipt of the copy to get the sample analysed by the Central Food Laboratory. Section 13(2-A) provides that on application of a person, Court shall require the local authority to send the same sample to Central Food Laboratory for examination within 5 days. Sub-section 2(B) provides that Director of Central Food laboratory shall send his report to Court concerned within one month. Finally Section 13(2) says that certificate issued by the Director of Central Food Laboratory shall be final and conclusive evidence of the fact stated therein. The above mentioned provisions of law itself shows that legislature in order to protect the interest of the person made these provisions and further provides the time on each and every step in order to avoid any delay. No doubt, it can be said that the time provided in these Sections is not mandatory but unnecessary delay will cause prejudice to the person from whose custody sample has been taken. The authority, therefore, must be conscious in prosecuting the person and in complying the provisions of Prevention of Food Adulteration Act. Similarly, Rule 9 provides certain duties of the Food Inspector. Rule 9-A provides that Food Inspector shall send the report of the Public Analyst to the person from who the sample has been taken by registered post. Rule 9-A was inserted in 1977. Before Rule 9-A, there was a Rule 9-J which imposes a duty on the Food Inspector to send the result of report of the Public Analyst by registered post. Originally, under Rule 9-J, a copy of the result of report of the Public Analyst would be sent by registered post or by hand to the person concerned as soon as the case was instituted in the Court. Rule 9-J was amended and after amendment, it was provided that the result of the report of the Public Analyst is to be sent by registered post within 10 days of the receipt of the report by Public Analyst. Rule 9-J was deleted vide G.S.R. 4(e) dated 4-1-1977 and Rule 9-A was inserted by G.S.R. 4(e) published in the Gazette of India extraordinary dated 4-1-1977, Rule 9-A reads as follows:--
'9-A. Local (Health Authority to send report to person concerned. The Local (Health) authority shall (within a period of ten days) after the institution of prosecution forward a copy of the report of the result of 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 article was taken by the Food Inspector and simultaneously also to the person, if any, whose name, address and other particulars has been disclosed under Section 14-A of the Act:Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under Sub-section (2) or no action is intended under Sub-section (2-E) of Section 13 of the Act the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed Under Section 14-A of the Act, within 10 days from the receipt of the report from the Public Analyst).'
Rule 9-A further amended in July, 1984 and word 'immediately' was substituted by the words 'within a period of 10 days'. It appears that there was a conflict of opinion of different High Courts on the question of word 'immediately'. Therefore, in order to clarify the ambuguity, the legislature by amendment, provided that the result of report be sent within 10 days. The history of Rule 9-A as mentioned above shows that legislature wants that the result of the report of Public Analyst be given to the accused within an early date so that he may be able to move an application before the Court concerned for sending of sample to Director of Public Analyst. The object of Section 13(2) read with Rule 9-A is that accused should have a fair chance of defence and also to meet the case instituted against him. The above mentioned provisions are safeguards and they protect the persons against any improper action on the part of the prosecuting agency. It provides an opportunity to the accused to send the sample to the Director of Central Food Laboratory for a certificate Under Section 13(2) of the Act.
7. From the perusal of the abovementioned provisions of law, there is no dispute that provisions of Section 13(2) and Rule 9-A must have been complied with so far as the furnishing of a copy of the report to the accused is concerned and non sending of result of the report to the person from whom the sample had been taken vitiated the trial. As regards the delay is concerned, the said delay may not be fatal unless and until it is proved that by this delay, accused was prejudiced. The violation of time limit of 10 days as laid down by Rule 9-A does not necessarily vitiate the proceedings unless and until accused who proves that he was prejudiced by this delay. No-doubt, delay of some days may not vitiate the trial but if the accused from the circumstances of the case proves that he could not take action for sending the report to the Director of Central Food Laboratory due to delay of receipt of the result of the Public Analyst then also, in my opinion, trial vitiates and accused will be entitled to be acquitted.
8. The provision of Food Adulteration Act provides penalties of imprisonment for not less than 6 months and a fine not less than Rs. 1000/-. Keeping the severity of the sentence, in my opinion, the legislature intended that the right of liberty of person should also be safeguarded. With this view, the legislature had imposed several duties on the Food Inspector as well as on the concerned department so that the accused should have a fair chance in defending the case and further to defend his case against any improper action on the part of the complainant. On the question of delay, it is not possible to lay down any hard and fast rule and every case will have to be decided on its own circumstances.
9. In the instant case, admittedly, the result of the report of Public Analyst was not sent to the accused at the time or after the institution of the case. The complaint was filed in Court on 14-7-1981 and thereafter accused was summoned for 2-9-1981. The report of Public Analyst is dated 24-3-1981. On 2-9-1981, copy of complaint was given to accused and thereafter case was adjourned on the ground that witnesses were not present. On 15-10-1981, statement of P.W.1 was recorded Under Section 244; Cr. P.C. and thereafter on 16-10-1981 charges were framed against the accused. After framing of charges, 3 dates were fixed and statement of one witness was also recorded. On 17-11-1981, statement of P.W. 2 was recorded and on the said date, it was alleged that result of report of Public Analyst was sent to the accused by registered post. P.W. 2 admits that he sent the result of the report of the Public Analyst to the accused on 17-11-1981 by registered post. His statement was recorded on 17-11-1981. It appears that when he was coming to Court then he sent the result of report to the accused by registered post and thereafter deposited the receipt in Court on the same day. The conduct of the P.W. 2 K.P. Srivastava, Food Clerk, C.M.O. office is on the face of it improper. If result of the report of Public Analyst has not been sent to the accused earlier, then, he should not have sent the same on 17-11-1981 by registered post as he knew that the accused will be present in Court. However, in no circumstances it can be said compliance of Section 13(2) or rule 9-A. The learned Magistrate while considering this question observed that accused did not move any application for sending the sample to the Director of Central Food Laboratory on 17-11-1981 or thereafter. In my opinion, the reasoning given by the learned Court below is not correct. Firstly on 17-11-1981, registry itself was sent to the accused and secondly, there was no question of moving an application in Court after the statement of both the witnesses had been recorded. Rule 9-A provides that local authority shall after the institution of prosecution send a copy of the report of the result of Public Analyst by registered post or by hand to the person concerned. The legislature has provided that the report be sent within 10 days. Delay of some days may not vitiate the case but it does not mean that the result of report of Public Analyst be sent to the accused by registered post after recording of the prosecution evidence. In my opinion, the present case comes within the first category i.e. not sending of the result of the report of Public Analyst shall vitiate the trial, it is not the case where result of the report was sent after the lime prescribed under the Act. As pointed out above, the result of report of Public Analyst was sent on the date when the statement of P.W. 2 was recorded in the Court. As the result of the report of the Public Analyst was sent at a very belated stage and, therefore, in my opinion, case of accused deemed to be prejudiced in this case and he is entitled to be acquitted.
10. In the result, the revision is allowed. The conviction and sentence awarded against the applicant is set aside. The applicant is on bail. He need not surrender and his bail-bonds are discharged.