JUDGMENT
K.N. Mudaliyar, J.
1 This is an appeal filed by the State against the order, of the Court of the Additional First Class Magistrate, No. II. Madurai acquitting the three accused-respondents of the offence of contravening Sections 2 (i) (a) and (1). 7 (i) and 16 a) (a) (i) of the Prevention of Food Adulteration Act read with clause A in Appendix B to Rule 5 of the Prevention of Food Adulteration Rules
2. Briefly the facts are: P. W. 1 is a Municipal Sanitary Inspector cum Food Inspector. On 11-9-1969, at 11 A.M. he along with his maistry went for taking samples of food articles. They found the Ice Cream push cart before No. 1. Bhagavan Chetti Lane when they proceeded along the workshop road. The push cart Ice Cream belongs to the Ice Cream Company. 60 Munichalai Road. P. W. 1 enquired the 3rd accused who was the salesman. The 3rd accused represented that he was taking the ice cream for sale. P. W. 1 thereafter purchased 600 grams of ice cream sold by the 3rd accused; P. W. 1 paid Rupees 4.50. He also obtained a receipt from the 3rd accused. He divided the ice cream and put them in three clean bottles. He added 16 drops of Formalin in each of the bottles and sealed them. He gave one bottle to the 3rd accused under acknowledgment. One bottle was sent to the Public Analyst. Ex. P. 8 is the report of the Analyst which showed that the ice cream was deficient in fat to the extent of 59 per cent, and was therefore adulterated.
3. The Plea of the first accused is that she is the proprietor of the Company, She stated that the second accused is not the Manager of the Company. The 3rd accused was the salesman. The second accused’s plea is one of denial. The 3rd accused admitted the sample being taken by P. W. 1.
4. It emerges from the evidence on record that the sample produced by the accused was sent to the Central Food Laboratory on 10-4-1970 through Court. Ex. D. 1 dated 24-4-1970 shows that the sample was decomposed and unfit for analysis.
5. The learned trial Magistrate found that delay occurred in the matter of sample from the accused being sent through Court to the Central Food Laboratory. The learned trial Magistrate found that the time limit prescribed in Rule 7 (3) is exceeded by 25 days by the prosecution.
6. The learned Public Prosecutor argued that there are really no laches on the Part of the prosecution in prosecuting this complaint and therefore there is no effective denial of the right of the accused under Section 13 (21 of the Act. In this case, the sample was taken on 11-9-1969. It was sent for analysis on the same day. The sample was received by the Analyst on 12-9-1969. It was analysed on 15-10-1969, There is undoubtedly a long period of 33 days elapsing between the receipt of the sample and the analysis of the sample. The Analyst’s report. Ex. P. 8. was sent on 5-12-1969. It was received by the Municipality on 8-12-1969. The complaint was filed on 20-12-1969. But strangely P. W. 1 was examined only on 10-4-1970. The prosecution is unable to show that this delay in the examination of P. W. 1 has been solely due to the acts of the accused. At any rate, there is not even a particle of evidence to show any laches on the part of the accused in facing the trial. The ultimate result of such a delayed prosecution of the case is that when the accused sent the bottle for analysis on 10-4-1970. it was inordinately after a long time. The sample sent by the accused was analysed on 24-4-1970. Little wonder there is that the sample sent by the accused deteriorated so much that it was unfit for analysis.
7. Firstly there is the contravention of Rule 7 (3) of the Food Adulteration Rules by the prosecution when Ex. P. 8 was received by the Municipality as late as 8-12-1969. There is clearly a delay of 24 days in violation of Rule 7 (3) of the Prevention of Food Adulteration Rules 1955. In my view, this rule is mandatory. If this rule is to be considered as directory, this would constitute as a complete negation of the valuable right embodied in Section 13 (21 of the Act. In my view, the outer limit for sending the result of the analysis to the Municipality is 60 days from the receipt of the sample. Undoubtedly the terms of Rule 7 are mandatory in every sense of the term. In no event and under no circumstances that full rigour of Rule 7 should be permitted to be relaxed, otherwise this would even result in the effective deprivation of the valuable right under Section 13 (2) conferred on the accused by the Parliament.
8. The learned Public Prosecutor drew my attention to the ruling of the Supreme Court in Municipal Corporation, Delhi v. Ghisa Ram 1967 Mad LJ Cri. 746 : 1967 Cri LJ 9391 (SC stating that in the instant case the prosecution was launched as early as 22-12-1969 whereas in the Supreme Court case, the sample was taken on 20tb September 1961. the analysis of the sample was on 3rd October 1961. the report was sent on 23rd October 1961 and the complaint was filed on 23rd May 1962. On the basis of these factual data the learned Public Prosecutor argued that the prosecution has not committed any inordinate delay in launching the prosecution when they complained in this case on 22-12-1969 unlike the proved facts in the Supreme Court case showing a delay of four months. But what matters is that initially, unlike in the Supreme Court case, there has been a contravention of Rule 7 (3) by exceeding the time limit embodied in that rule by 24 days. Secondly. P, W. 1 was examined only on 10-4-1970. The prosecution has not explained the inordinate delay as to why the examination of P. W. 1 occurred only on 10-4-1970. There is practically a delay of nearly 3 months and 20 days. The prosecution does not explain as to why P. W. 1 was examined so late as on 10-4-1970. Had he been examined earlier, the accused would have exercised their valuable right in more favourable conditions regarding the analysis of the sample sent by the accused. In my view, this case, therefore, is clearly one where the accused-respondents were deprived of the opportunity of exercising their right to have the sample examined by the Director of Central Food Laboratory by the conduct of the prosecution. I am unable to hold that the right of the accused has got frustrated for reasons for which the prosecution is not responsible on the Proved facts of this case. There are no merits in this appeal. The judgment of the trial Magistrate is correct and proper There are no grounds to interfere with the order of the trial Court acquitting the three accused respondents. The criminal appeal is dismissed.
