Judgment:
ORDER
A.K. Shrivastava, J.
1. The applicant has been convicted under Section 7/16 of Prevention of Food Adulteration Act, 1954 (in short 'the Act') and has been sentenced to suffer six months' simple imprisonment and fine of Rs. 1000/-, in default, further imprisonment of three months by Trial Court. The judgment of conviction and order of sentence has been affirmed by the Appellate Court by the impugned order.
2. In brief the case of the prosecution is that on 25-11-1989, Food Inspector D.P. Khare along with other Food Inspectors inspected restaurant of applicant and took the sample of 'Besan Ka Laddu'. After following the due procedure as contemplated under the Act and the Rules made thereunder, the sample was sent to Public Analyst, who found the sample to be adulterated.
3. According to Public Analyst, the sample of 'Besan Ka Laddu' was containing 'Kesridal Flour', as a result of which it was opined to be adulterated.
4. The prosecution thereafter served notice under Section 13(2) of the Act to the applicant and filed the charge-sheet.
5. The Trial Court framed charge under Section 7/16 of the Act which was denied by the applicant.
6. In order to prove the charge, the prosecution examined three witnesses and placed Exs. P-1 to P-19 the documents on record. The learned Trial Judge after appreciating the evidence came to hold that the charge against the applicant is proved and, therefore, convicted him and sentenced to suffer six month's simple imprisonment and fine Rs. 1000/-.
7. The appeal which was preferred by the appellant was also dismissed by the Appellate Court. Hence this revision.
8. In this revision, it has been contended by Shri Sanjeev Saxena, learned Counsel for the applicant that the sample was collected by the Food Inspector on 25-11-1989, on that date Rule 44-A of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the Rules') was not applicable to 'Kesari dal' and the same was made applicable only, with effect from 6th April, 2000 vide Notification No. F.10-62-98-Med.-2-XVII, dated 30-3-2000 and the same was published in the official gazette on 14th April, 2000 and therefore, since there was no ban in selling 'Kesari dal', the presence of flour of 'Kesari Dal' in the sample of 'Besan Ka Laddu' would not constitute any offence under the Act. It has been further contended by learned Counsel that the sample was obtained on 25-11-1989 and the report of Public Analyst (Ex. P-16) is dated 21-12-1989, which was received by Food Inspector on 8-1-1990 and the notice under Section 13(2) of the Act was sent to the applicant on 12-11-1990 (Ex. P-1). Thus, after the lapse of more than a year from the date of collecting the sample, the applicant was informed that the sample was adulterated. According to the learned Counsel, there is no explanation on record that why notice under Section 13(2) of the Act was sent on 12-11-1990 and was not sent immediately after the receipt of the report dated 21-12-1989 of the Public Analyst and therefore even if the applicant would have opted to sent the sample for analysis to Central Food Laboratory, it would be of no use on account of long delay of one year. It has been further contended by learned Counsel that the prosecution has failed to prove sanction under Section 20 of the Act against the applicant and the sanction (Ex. P-18) has been given without application of mind. Lastly, it has been submitted by learned Counsel that there is nothing on record to show that Deputy Director, Food & Drugs (Administration) was notified by the State Government as an authority to sanction the prosecution under Section 20 of the Act. To buttress his aforesaid submissions, learned Counsel placed reliance on following decisions :--
(a) State of Madhya Pradesh v. Ghanshyamdas, 1995 (2) Vidhi Bhasvar 98.
(b) Bhairo Singh v. State of M.P., 1998 (II) MPWN 98.
(c) Nand Kishore v. State (Delhi Administration), 1991 FAJ 561.
(d) State of M.P. v. Saifuddin, 1994 (II) MPWN 106.
(e) Apte, A.N., Food Inspector Indore Municipal Corporation v. Mohammad Amir Khajarana, 1977 JLJ 478.
9. Per contra, Shri Prakash Gupta, learned Counsel for the respondent argued in support of the impugned judgment.
10. Having heard learned Counsel for the parties, I am of the opinion that this revision petition deserves to be allowed.
11. Dealing with the first submission raised by learned Counsel for the applicant, it would be appropriate to re-write relevant Rule 44-A of the Rules which reads thus :--
'44-A. No person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale--
(a) *** *** *** *** *** ***
(b) Kesari dal (Lathyrus sativus) and its product,
(c) Kesai dal flour (Lathyrus sativus) and its products,
(D) *** *** *** *** *** ***
(e) *** *** *** *** *** ***
(f) *** *** *** *** *** ***
12. The State of Madhya Pradesh made Rule 44-A of the Rules applicable on 'Kesari Dal' with effect from 6th April, 2000. In this regard notification issued by Lok Swasthya Evam Parivar Kalyan Vibhag, dated 30th March, 2000 is relevant, which was published in the official gazette, dated 14-4-2000. Since the sample of 'Besan Ka Laddu' contending 'Kesari Dal' flour was collected, earlier to 6th April, 2000 and was collected on 25-11-99, according to me, the sample of 'Besan ka Laddu' can not be said to be adulterated.
13. It be seen that the sample of 'Besan Ka Laddu' was collected on 25-11-1989 and the report of the Public Analyst is dated 21-12-1989, which was received by the Food Inspector on 8-1-1990, but, the notice under Section 13(2) of the Act (Ex, P-1) was sent to the applicant on 1241-1990, i.e., after more than a year from the date, when the sample was collected. The Full Bench of this Court in the case of Mohammad Amir Khajarana (supra) while answering question No. (ii) referred to it held as under :--
'Answer to question No. (ii) : Delay alone in prosecuting the accused Vendor under the Prevention of food Adulteration Act can not be fatal to the prosecution unless it is established that because of delay, attributable to the prosecution agency only any right given to the accused under the said Act to get the sample analysed is denied to him. In normal circumstances, the accused vendor should be informed about his prosecution either within three to four months of the taking of the sample or within such period which would enable him to exercise his right under Section 13(2) of the Act to get the sample of food analysed at the earliest possible opportunity.'
14. In the present case, as notice under Section 13(2) of the Act was given to the applicant after near about 11 months, according to me, it would be a bare formality, and thus the provisions of Section 13(2) of the Act has been violated, prejudicing the right of the applicant. The second submission of learned Counsel for the applicant is accordingly upheld.
15. Since on the basis of above said two grounds, I am setting aside the judgment of conviction, the other two grounds raised by learned Counsel for the applicant are not being dealt with.
16. In the result, the revision succeeds and is hereby allowed. The impugned judgment of conviction passed by Trial Court and affirmed by the Appellate Court is hereby set aside. The applicant is on bail. His bail bonds are discharged.