RAMAIAH Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The petitioner is found guilty under Section 16 (1) (a) read with Sec. 7 (1) and Section 2 (1-a) of the Prevention of Food Adulteration Act. The case of the prosecution is that A-2 is the father of A-1, who was a owner of the Kirana general stores, that while A-2 was sitting in the shop, the Food Inspector (P.W.I) visited the shop and took a sample of gingelly oil from him and that the sample was found to be adulterat d by mixing palmolein oil. Relying on the report of the Analyst and the other evidence of the Food Inspector, both the Courts below convicted the accused and awarded him a minimum sentence of 6 months R.I. and a fine of Rs. 1000/- and in default R.I. for 6 months.

(2.) In this revision it is submitted that there was a delay of 32 days in sending the Analyst report to the accused and therefore there is a contravention of Section 13 (2) of the Act and hence the convictions are to be set aside. Relying on a judgment of Muktadar, J., reported in Public Prosecutor in Re (1978-2 A. L. T. 546) the learned counsel for the petitioner submits that the violation of Section 13 (2) is fatal to the prosecution. In that case a revision was filed by the State against the order of the trial Court discharging the accused on the ground that notices as contemplated under Section 13 (2) of the Prevention of Food Adulteration Act has not been served immediately as prescribed under Rule 9 of the Rules. The learned single Judge affirmed the view taken by the trial Coutt. But in Dalchand v. Municipal Corporation, Bhopal (AIR 1983 SC 303) it is held that Rule 9 (j) is only directory, Recently Rule 9-A is introduced which also took effect that the report should be sent immediately. The Supreme Court in holding that the rule was only directory held that where no prejudice was baused there could be no cause for complaint.

(3.) It must be mentioned here that a Division Bench of the A.P. High Court in Public Prosecutor V. K.J. Muralidhar also consiered the scope of S.13 (2) and Rule 9 (j). Under the said rule the sample has to be sent within 10 days. The Division Beach held that the rule is mandatory and theaccused is entitled to acquittal where there is no compliance. The Division Bench however added that if there is some delay or if the delay is so slight i.e. one day, unless prejudice is shown, the complainant's case should not be thrown out. The judgment of the Division Bench was also delivered by Muktadar, J. The Supreme Court in Dalchand v. Municipal Corporation, Bhopal over rueld this judgment to the extent it lays down that Rule 9 (j) wat mandatory. The Supreme Court further laid down that.