KANDASAMI Vs. FOOD INSPECTOR ATHOOR

JUDGEMENT

(1.) THIS revision comes before this Bench on a reference made by one of us (Maheswaran J.) regarding the correctness of the view taken by Paul J. in Cr. R. C. No. 7 of 1978 in his order dated 18th June 1979.

(2.) THE revision is directed against the judgment of the learned Sessions Judge of Salem division confirming the conviction of the revision petitioner under Section 7 (1) and Section 16 (1) (a) (i) read with Section 2 (1) (a) (m) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the sentence of rigorous imprisonment for six months and a fine of Rs. 1000/- imposed on him by the Judicial First Class Magistrate No. 2, Salem. The conviction came to be awarded in the following circumstances. On 29th December 1976 at about 9. 15 a. m. the Food Inspector of Attur found the petitioner to be selling milk and purchased from him 750 milliliters of milk for purpose of analysis. The milk was sealed in three clean bottles in observance of all formalities and one of the bottles was sent to the Local (Health) Authority for analysis and report. The report subsequently received disclosed that the milk was deficient in solids-non fat to the extent of at least 17 per cent. On receipt of the report, the Food Inspector served a copy of the Analyst's report on the petitioner on 14-2-77. On 15-2-77 and and 16-2-77 respectively the Food Inspector and the Commissioner signed the complaint and prosecution was instituted against the petitioner on 19-2-1977. One of the contentions raised by the petitioner in the trial of the case was that the mandatory provisions of S. 13 (2) of the Act had been complied with and hence he had been prejudiced and consequently, the complaint ought not to have ended in conviction. The contention was not accepted by the trial court as well as the Appellate Court and the result was that the petitioner was awarded conviction and sentence as set out supra.

(3.) THE only point urged in the revision is that a Bench of this court has held in P. K. Moorthy v. Food Inspector, Kumbakonam Municipality, 1979 Mad LW (Cri) 139 : 1980 Cri LJ 51 : 1980 FAJ 198 that noncompliance with the provision contained in S. 13 (2), which is mandatory, vitiates the entire proceedings, and on the said ratio, the petitioner should have been acquitted. On behalf of the State, the Public Prosecutor placed reliance on an unreported judgment of Paul J. in Crl. R. C. No. 7 of 1978. Balu v. State of Tamil Nadu) wherein the learned Judge has observed that though S. 13 (2) of the Act and Rule 9 (a) of the Prevention of Food Adulteration Rules required that the report of the Analyst should be served after the prosecution had been launched, the failure to do so will not vitiate the proceedings, if no prejudice had been caused to the accused. In that case, the facts were that the report of the Analyst had been sent ten days prior to the laying of the complaint. The referring Judge Judge did not agree with the view expressed by Paul J. because it is in conflict with the Bench decision in P. K. Moorthy v. Food Inspector, Kumbakonam Municipality, 1979 Mad LW (Cri) 139 : 1980 Cri LJ 51 : 1980 FAJ 198. Hence, to resolve the conflict the matter has been posted before the Bench.