ORDER
K. Sreedharan, J.
1. Accused who was convicted Under Section 16(1)(a)(i) Prevention of Food Adulteration Act (hereinafter called as the Act) and was sentenced to undergo simple imprisonment for 6 months and to pay a fine of Rs. 100/-, in default of payment of fine to suffer simple imprisonment for a further period of one month is the petitioner.
2. The allegations made against the petitioner are as follows: The Food Inspector, Palghat Municipality purchased skimmed milk for the purpose of analysis from the petitioner at 8 a.m. on 28-10-80. The purchase, sampling, etc. were conducted in accordance with the provisions of the Act and the Rules framed thereunder. One sample was sent to the public analyst for analysis. The public analyst reported that the sample did not conform to the standards prescribed for skimmed milk and that it contained not less than 41% of added water. Hence the prosecution.
3. In order to prove the prosecution case P.Ws. 1 to 4 were examined and Exts. PI to P15 were proved. P.W. 1 is the public analyst, P.W. 2, the Food Inspector,’P.W. 3 attestor to the mahazar and P.W. 4, an employee of the Palghat Municipality who was present with the Food Inspector.
4. The learned Counsel appearing for the petitioner challenges the conviction and sentence on the ground of violation of the provisions contained in Section 13(2) of the Act and Rule 9A of the Rules. His further contention is the violation of the provisions contained in Rule 21 of the Rules.
5. The argument that provisions contained in Section 13(2) and Rule 9A are violated is based on the fact that in the said intimation the complaint was stated to have been filed before the Chief Judicial Magistrate’s Court, Palghat, on 27-11-80. Actually the complaint was filed only on 28-11-80. So the petitioner could not avail of the opportunity to have the second sample sent to the Central Food Laboratory for analysis. The learned Counsel would contend that his client ought to have made an enquiry before the Chief Judicial Magistrate’s Court only to see whether any complaint was filed against him on 27-11-80. If no complaint was filed on that date his client would not have been in a position to request the court to have the second sample sent to the Central Food Laboratory. The petitioner was not to loiter in the courts to see whether the Food Inspector had filed any complaint on any day so as to avail of the benefit Under Section 13(2). Since it is now established beyond doubt that no complaint was filed in court on 27-11-80 as stated in Ext. P14 intimation Under Section 13(2) it is contended that the provisions of the Act are violated and the petitioner is entitled to an acquittal. In support of this argument the learned Counsel relies on the decision of the Supreme Court in Municipal Corpn. of Delhi v. Ghisa Ram . In the said case their Lordships observed:
There can be no doubt that Sub-section (2) of Section 13A of the Act confers a right on the accused vendor to have the sample given to him examined by the Director of the Central Food Laboratory and to obtain a certificate from him on the basis of the analysis of the sample.
From this observation it is contended that the said valuable right of the petitioner is denied to him in the instant case because he was misled by giving a false date as the date of filing the complaint. Hence the argument Is that Section 13(2) is violated. In that case before the Supreme Court the Food Inspector took the sample on 20-9-61. The public analyst carried out the analysis on 3rd October, 1961 and the certificate was issued by him on 23-10-61. The complaint was filed in court on 23-5-62. On the application of the accused the second sample was sent to the Director of Central Food Laboratory on 4-10-63. The Director reported that the sample had become highly decomposed and no analysis was possible. The trial court and the High Court acquitted the accused on the ground that the accused was denied his right of obtaining the report of the Director of Central Food Laboratory because of the delay in launching prosecution. That decision was under challenge before the Supreme Court. Under the said situation their Lordships observed:
It appears to us that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory. It is to be expected that the prosecution will proceed in such a manner that, that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.
We are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.
In the instant case the intimation Under Section 13(2) was received by the petitioner on 3-12-80. He has to apply to the court within 10 days from 3-12-80 to send the second sample to the Central Food Laboratory for analysis. If the petitioner had made any enquiry in the court after 3-12-80, he would have come to know of the complaint filed by the Food Inspector on 28-11-80, The intimation Under Section 13(2) is also dated 28-11-1980.
6. The learned Counsel appearing for the petitioner contends that the supply of information mentioned in Section 13(2) is not to be an empty formality. The information afforded should be such that, it must help the accused to take effective steps to avail of the chance afforded by Section 13(2). If the information is vague, the court must presume that the accused was denied the benefit and that denial must be fatal to the prosecution. Reliance was placed on Paul v. Ibrahim 1981 Ker LT (SN) 81 : 1982 Cri LJ NOC 30 and the unreported decision in Criminal Appeal No. 338/79. These two decisions were considered by my learned brother Bhat, J. in State of Kerala v. Soman 1983 Ker LT 297 : 1984 Cri LJ 567. His Lordship observed:
As already pointed out. neither Section 13(2) of the Act nor Rule 9A of thtyRules require the number of the case to be mentioned. I have already indicated that it may not always be possible to mention the number of the case. In contingencies where the courts delay the numbering case, L.H.A. may not be in a position to wait till the number of the case is made available. Law also does not require mention of the date of the filing of the complaint, though perhaps, if that date is mentioned it will be easier for the accused to find out the number of the case from the court. In this judgment also it has not been indicated that it is mandatory to mention the number of the case in the intimation to be given to the accused. In these circumstances, the two decisions relied on by the learned Counsel for the accused cannot be taken to have laid down that it is mandatory to mention the case number in the intimation.
This statement of the law was approved by a Division Bench of this Court in Food Inspector v. Karingarappully Co-op. M.S. Society Ltd 1986 Ker LT 174 : 1986 Cri LJ 719.
7. The petitioner was intimated about the complaint filed by the Food Inspector by sending Ext. P14. If he had made any enquiry before the Chief Judicial Magistrate’s Court, Palghat, he would have come to know of the complaint filed against him. By the time he received Ext. P14 on 3-12-80 the complaint was already before court. The petitioner did not apply for sending the second sample for analysis. In such a situation the question that arises for consideration is whether any prejudice has been caused to the petitioner. From the facts of this case, it can safely be found that no prejudice has been caused to the petitioner. At this juncture 1 consider it worth while to quote the following passage from Tulsiram v. State of Madhya Pradesh :
The real question is, was the Public Analyst’s report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the court to send one of the samples to the Central Food Laboratory for analysis. If after receiving the Public Analyst’s report he never sought to apply to the Court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice.
The petitioner has no case that ho suffered any prejudice other than the one dealt with earlier on account of the wrong date of the complaint filed before the court. Under these circumstances, 1 find no merit in the contention raised by the learned Counsel based on Section 13(2) of the Act and I overrule the same.
8. Under Rule 21, Prevention of Food Adulteration Rules, the Food Inspector has to note the nature and quantity of the preservative added to the article of food sampled. In this case in Form VII Memoranda the Food Inspector had noted that he had added 20 drops of formalin. He had not given the strength of formalin. Under Rule 20 formalin must be liquid containing about 40% of formaldehyde in aqueous solution in the proportion of 0.1 ml. (two drops! for (25 ml. dr 25 grams). Since the strength was not mentioned in Form VII memoranda it is argued that the milk was not properly preserved for analysis and so the report sent by the public analyst must be found to be defective. I find no way to accept this argument. P.W. 1 is the Public Analyst. He was not questioned regarding the strength of formalin added or regarding the nature of the sample at the time of analysis. In Ext. PI report sent by him it was noted that no decomposition had taken place in the sample that would interfere with the analysis. The Food Inspector as P.W. 2 stated before court that he added 20 drops of formalin in each bottle. No question was put to him regarding the strength of formalin added. So without any factual basis it cannot be held that the Food Inspector violated the provisions contained in either Rule 20 or 21 of the Rules. The Food Inspector was discharging his official duties. Those official duties must be presumed to have been performed regularly. Therefore I find no merit in the second contention raised by the learned Counsel either.
In view of what has been stated above, I find no merit in this petition. It is accordingly dismissed.