JUDGMENT
A.D. Tated, J.
1. This criminal revision application is directed against the conviction of the petitioner-accused under section 7(i) read with section 2(i-a) (a) & (m) read with section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”), and of the offence under section 7(iii) read with rule 50 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as “the Rules”), read with section 16 of the Act. On the first count he was sentenced to suffer R.I. for three months and to pay a fine of Rs. 1,000/-, or in default, to suffer R.I. for one month. On the second count he was sentenced to pay a fine of Rs. 200/-, or in default, to suffer R.I. for 15 days. The order of conviction and sentence passed by the Chief Judicial Magistrate, Nasik on 31st January, 1984 in Criminal Case No. 139 of 1981 was confirmed by the Additional Sessions Judge, Nasik, In Criminal Appeal No. 44 of 1984 filed by the accused.
2. The petitioner-accused is the proprietor of M/s. Anand Best Kulfi. He manufactures ice-cream, Kulfi, etc. at his shop in Govind Mandir Chawl in Panchavati area of Nasik. One S.S. Malik was then a Food Inspector duly appointed for Nasik District. He visited the shop of the accused on 29th April 1981 at about 11.45 a.m. The accused was then present at the shop. The Food Inspector purchased 900 gms. of ice-cream and after following the necessary formalities the samples of ice-cream were taken. They were sent to the chemical analyser and they were found adulterated, being not conforming to the standards of ice-cream. The Food Inspector therefore, after obtaining necessary sanction, launched prosecution against the accused on 16th December, 1981. He informed the Local (Health) Authority about the prosecution and forwarded a copy of the result of the analysis received from the Public Analyst. The Local (Health) Authority forwarded the said copy and gave the intimation to the accused on 18th December, 1981.
3. At the trial the petitioner-accused pleaded not guilty to the charge levelled against him. His defence was of total denial. The learned Chief Judicial Magistrate found that the prosecution satisfactorily proved the charge levelled against the accused, and, therefore, he convicted the accused and imposed the sentence mentioned above on him. The appeal preferred by the accused to the Sessions Court was heard by the Additional Sessions Judge and he dismissed it. Now the accused has come up in revision against his conviction and the sentences awarded to him.
4. The learned Counsel for the petitioner-accused contends that the only evidence against the accused was that of the Food Inspector, the panch having turned hostile, and, therefore, the learned trial Magistrate should have examined the evidence of the accused thoroughly and should have considered it with due caution. This aspect of the law was present before the learned Chief Judicial Magistrate and also the learned Additional Sessions Judge is evident from their judgments. They have accordingly considered the evidence of the complainant with due caution and care, and there is nothing wrong in their accepting the evidence of the complainant when they found it trustworthy.
5. The learned Counsel for the petitioner-accused next contends that there has not been proper compliance of Rule 9-A of the Rules. He submits that the Local (Health) Authority immediately after receiving the intimation of the incident of prosecution should have forwarded a copy of the report of the result of analysis in Form III to the accused, but in the present case the intimation of prosecution was received by the Local (Health) Authority on 16th December ,1981 and the intimation thereof was forwarded by the Local (Health) Authority to the accused on 18th December, 1981. Thus there has been a delay of two days, and the prosecution did not explain the delay thereof, and as such there is so proper compliance of Rule 9-A. In support of his contention he relied on the decision of the Madras High Court in P. Ponnu Reddiar v. Food Inspector, Madurai Corporation, 1984 Cri.L.J. 1387. In that case there was a delay of five days in forwarding a copy of the report of the result of analysis in Form III to the person from whom the sample of article was taken by the Food Inspector. In that case the Food Inspector filed a complaint on 3rd January 1980. The report of the Public Analyst along with the notice under section 13(2) of the Act was not served on the petitioner immediately as required under section 13(2) of the Act read with Rule 9-A of the rules. The notice was served on the petitioner on 8th January, 1980. Thus there was a delay of five days. The Single Judge of the Madras High Court in that case held that there was no explanation for the delay of five days and such delay was contrary to the provisions of Rule 9-A. In that case the conviction and the sentence awarded to the petitioner was, therefore, set aside. In the present case the prosecution was launched on 16th December, 1981 and the notice thereof was given to the Local (Health) Authority on the same days. After excluding the date on which the Local (Health) Authority received intimation, there is delay of only one day in forwarding a copy of the report of the Public Analyst to the accused. In my opinion, the word ‘immediately’ used in rule 9-A does not mean that the Local (Health) Authority should forward the report to the person concerned on the very day on which intimation of launching the prosecution is received. The word ‘immediately’ only connotes that the report should be forwarded with sufficient dispatch. The delay of one may in sending the report to the person concerned cannot vitiate the trial of the accused for the offences under the Act. Consequently I find that in the present case the delay of one day in sending intimation to the accused under rule 9-A of the rules does not vitiate the trial of the accused for the offence under the Act.
6. The learned Counsel for the petitioner-accused next contends that the forwarding letter sent by the Local (Health) Authority to the accused under rule 9-A of the rules was not signed by the Local (Health) Authority but by its assistant and as such it was infraction of Rule 9-A. Rule 9-A, without the proviso thereto, reads as follows :—
“9-A. Local (Health) Authority to send report to person concerned.—The Local (Health) Authority shall immediately after the institution of prosecution forward copy of the report of the result of analysis is 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 the Article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under section 14-A of the Act.”
The reading of Rule 9-A does not require that the forwarding letter should be signed by the Local (Health) Authority itself, The mere putting of signature by the assistant of the Local (Health) Authority on the forwarding letter cannot b said to be infringement of Rule 9-A. The Local (Health) Authority is only forwarding a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, to the person from whom the sample was obtained, and while doing so it is not necessary that the Local (Health) Authority itself should put its signature on the forwarding letter. In my opinion, the signature of the assistant of the Local (Health) Authority on the forwarding letter does not in any way, contravene the provisions Rule 9-A.
7. The learned Counsel for the petitioner-accused next contends that on the report of the Public Analyst there is no date of analysis and that the Public Analyst was not called and made available to the accused for cross-examination. He submits that in another criminal case the accused had made an application for calling the Public Analyst for cross-examination, but the leaned trial Magistrate had rejected the application. According to him, the evidence of the Public Analyst was necessary in this case to prove on what date the analysis was actually made, and therefore, non-calling of the Public Analysis is fatal to the prosecution. In the present case the sample was taken on 29th April, 1981 and the report of the Public Analyst was prepared and signed on 19th May, 1981. Thus the analysis was made within 20 days of the taking of the sample. In the present case no application was made by the accused to send for the Public Analyst for cross-examination. The mere fact that he had made such application in another case and it was rejected is of no use in this case. Therefore, I am unable to agree with the learned Counsel for the petitioner-accused that the learned trial Magistrate was wrong in relying on the certificate of the Chemical Analyser without affording an opportunity to the accused to cross-examine the Chemical Analyst.
8 Thus on considering all the contentions raised by the learned Counsel for the petitioner-accused. I find that there is no substance in the revision application. Hence it is dismissed and the rule is discharged.