J.B. Koshy, J.
1. Justice Mr. Abdul Gafoor referred this appeal to the Division Bench to consider the question regarding the nature of compliance of Section 13(2) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'), disagreeing with the views expressed by another learned Single Judge of this Court in Crl.A.No. 288/1985. The sample of milk taken from the first respondent was found to be not according to the prescribed standards. Ext.C-1 analysis report from the Central Food Laboratory, Pune, shows that the sample contained 3.1% of milk fat and 5.2% of milk solids other than fat. As per Entry A.11.01.11, of Appendix B of the Prevention of Food Adulteration Rules, 1955, (for short the Rules') cow milk should contain a minimum of 3.5% of milk fat and 8.5% of milk solids other than fat. Therefore, admittedly, the milk sold by the accused was not upto the standards prescribed.
2. The learned Magistrate convicted the accused and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs. 500, in default, to undergo simple imprisonment for one month, under Section 16(1)(a)(i) read with Section 7(i) of the Act and Rule 44(b) of the Rules. The learned Sessions Judge, in appeal, acquitted the accused on three grounds. The learned Single Judge has found that the acquittal of the accused on two grounds was incorrect and not justified. Those findings have become final and are not challenged before us. To under stand the controversy, we quote Section 13(1)&(2)as follows;
"13. Report of public analyst.--
(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him . for analysis.
(2) On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory."
3. We quote below the order of reference:
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4. The third reason for reversal of conviction was that there was violation of the mandatory provisions under Section 13(2) of the Act in so far as P.W.3, the Commissioner of the Municipality concerned, was not the Local Health Authority. Only the Health Officer in the Municipality was the Local Health Authority. Only in his absence the Commissioner will be the Local Health Authority. P.W.3 the Commissioner cannot, therefore, cannot be the Health Authority in this case. Therefore on that ground the conviction cannot be sustained.
5. The Local Health Authority in terms of Section 2(viii a) is the;
Local (Health) Authority, in relation to the local area, means the officer appointed by the Central Government or the State Government, by notification in the Official Gazette, to be in charge of Health Administration in such area with such designation as may be specified therein.
Thus the Local Health Authority is an authority in charge of Health Administration of a particular area. Its functions in terms of Section 11 (1 )(c)(ii) is to receive the remaining two parts of the samples collected by the Food Inspector 'for the purposes of Sub-section (2) of this section and Sub-sections (2A)and (2E) of Section 13'.
6. In terms of Sub-section (2) of Section 11 the function enjoined on Local Health Authority is on a requisition made to it by the public analyst or the Food Inspector to despatch one of the said two parts of the sample to the public analyst in case the one sent to him had been lost.
7. In terms of Sub-section (2A) of Section 13 the function enjoined on the Local Health Authority is when an application is made by the accused concerned to the Court to forward the parts of samples kept by him, when the Court require him to send the same.
8. In terms of Sub-section (2B) of Section 13 the function enjoined on the Local Health Authority is to intimate the Court with regard to the mark and seal or fastening on the sample received by him.
9. His function has, therefore, nothing but do with the prosecution of the case in the Court at the instance of Food Inspector upon his complaint. Even in a case where a superior authority of the Local Health Authority had acted as a Local Health Authority to keep the samples, which has been sealed by the Food Inspector, to be sent to the Court as and when requisition is obtained from the Court, it cannot be said that there will be any prejudice to the accused. So on that ground also I feel that the acquittal cannot be sustained.
10. It was at that time counsellor the respondent/accused had pointed out to me a decision of this Court in Crl.A.No. 288/1983, which reads as follows:
P.W. 1, the Food Inspector, has stated in the examination in chief that he entrusted two parts of the sample together with the other documents to the Municipal Commissioner of Thodupuzha Municipality who was the Local Health Authority. This shows that there was a Commissioner for Thodupuzha Municipality during the relevant time. P.W.2 has no case that he was ever appointed as a Commissioner of that Municipality. In the light of the aforesaid evidence, I find considerable force in the contention of the learned counsel for the first respondent that the steps taken by P. W. 1 under Section 11(1)(c)(ii) of the Act are not in accordance with law. It follows that all the further steps taken by P.W.2 pursuant to such entrustment were also not in his capacity as a validly appointed Local Health Authority.'
11. When there is no prejudice at all for the accused, merely because a superior officer to the Local Health Authority was keeping the sample duly sealed, it cannot be stated that the conviction is vitiated or the entire proceedings taken by the Food Inspector are vitiated. Therefore. I am of the view that the aforesaid decision requires reconsideration."
4. The same issue was considered by this Court earlier also in Kunhamu v. Food Inspector, 1989 (1) KLT 707, wherein, following the Full Bench decision of this Court in Food Inspector v. Prabhakaran, 1982 KLT 809, Division Bench decision in and Food Inspector v. Velayudhan, 1987 (1) KLT 722 (D.B.), and the Apex Court decision in Dalchand v. Municipal Corporation, Bhopal, AIR 1983 SC 303, the Court observed as follows:
"11. Regarding intimation to be sent under Section 13(2) of the Act, this Court has indicated that substantial compliance is sufficient and the prosecution can fail only if prejudice is shown to have been caused to the accused. See Prabhakaran's case, 1982 KLT 809, Food Inspector v. Naringarappully Co-op. Milk Supply Society Ltd., 1986 KLT 174 (D.B.), Food Inspector v. Varghese, 1986 KLT 852 and Food Inspector v. Velayudhan, 1987(1)KLT722(D.B.).
12. The Supreme Court in Dalchand v. Municipal Corporation, Bhopal (AIR 1983 SC 303) held that the period of ten days mentioned in old Rule 9(i) of the Rules was only directory. The Rule required Food Inspector to send by registered post copy of the Public Analyst's Report to the person concerned within ten days of the receipt of the report. The Court held that the period often days is not a period of limitation and" was prescribed merely with a view to expedition and with the object of giving him sufficient time to make arrangements to challenge the report of the public analyst by making request to send the other sample to the Central Food Laboratory. The Court also observed that where the effect of non-compliance with the Rule was such as to wholly deprive the right of the person to challenge the Public Analyst's Report by obtaining the report of the Director of Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. (Underlining supplied by us for emphasis)
5. In Food Inspector v. Velayudhan, 1987 (1) KLT 722 (D.B.), the same view was taken by a Division Bench of this Court, wherein Balakrishnan, J. (as he then was), observed for the Bench as follows:
"7. Under Section 13(2) of the Act it is not contemplated that the name of the case should be mentioned therein. Section 13(2) of the Act only mandates to send a copy of the report of the result of the analysis to such person or persons as the case may be and also to inform them that they may make application within 10 days from the date of receipt of copy of the report to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory. As soon as the accused gets the intimation he can very well go to the concerned Court and collect the details regarding the case from the court. Even if there was only defective compliance of Section 13(2) of the Act, it cannot be said to vitiate the whole prosecution proceedings unless it is proved that prejudice has been to the accused. The accused can raise the plea of prejudice only where there is a total non-compliance of the Section 13(2) intimation. If there was total absence of the intimation under Section 13(2) of the Act it can be presumed that prejudice had been caused to the accused. In Dalchand v. Municipal Corporation, Bhopal, AIR 1983 SC 303 this has been explained by the Supreme Court. The Supreme Court held:
Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large."
6. According to the appellant, there was a Health Officer in the Municipality during the relevant time and hence the Commissioner was not the Health Officer. Therefore, it is contended that there is violation of Section 13(2) of the Act. However, he has no case that any prejudice is caused to him because instead of the Health Officer, the Commissioner himself actually acted under Section 13(2) of the Act. In this case, we also note that P.W.3 categorically stated in chief examination that he was the authorised Local Health Authority during the relevant period. He was not cross-examined on that aspect. Apart from the above, when he got the report under Section 13(1) of the Act, he forwarded a copy of the report to the accused in the manner prescribed and in time the accused for a second analysis of the sample by the Central Food Laboratory. Even in the second analysis, it was found that the milk was not upto the standards. Therefore, absolutely no prejudice is caused to the accused in this case in the Commissioner receiving the report under Section 13 of the Act. Therefore, we agree with the learned Single Judge, Justice Gafoor, that the conviction and sentence cannot be interfered with in a case, merely because compliance of Section 13(2) is defective as no prejudice is caused to the accused and there is substantial compliance with the provision of the section. At the same time, Section 13(2) gives a valuable right to the accused and substantial compliance of the same is mandatory. Defect, if any, in the compliance of that section shall not be of the nature, which may cause prejudice to the accused. We note that in Crl.A.No. 288 of 1985 the learned Single Judge did not consider the question whether any prejudice was caused to the accused or not, due to the defective compliance of Section 13(2) of the Act in this case. The Act itself is enacted to check the antisocial evil of adulterating food articles, and hence, punishment for offences under the Act cannot be interfered with lightly.
7. Learned counsel for the accused submitted that the acquittal of the accused could be maintained on another ground, not mentioned by the Sessions Judge, and that the milk was not mixed properly before sampling. However, such a contention also is not possible, because P. W. 1 has stated the milk was mixed properly. He stated as follows:
(Editor: The text of the vernacular matter has not been reproduced.
P.W.1 was not cross-examined on this aspect at all.
In the above circumstances, the Judgment of the Sessions Judge, Palakkad in Crl.A.No. 20 of 1995, acquitting the accused, is set aside and the conviction of the first respondent/accused and the sentence imposed on him by the Judicial First Class Magistrate Court, Chittur in S.T.No. 3877 of 1988 is restored. This Criminal Appeal is allowed and the reference is answered accordingly.