At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE M.L. PENDSE
For the Petitioner: K.H. Chopda, P.P., For the Respondent: A.G. Joshi with N.L. Alimchandani, Advocate.
M.L. PENDSE, J.
This is an appeal preferred by the State of Maharashtra against the judgment dated January 15, 1979 recorded by the Judicial Magistrate, First Class, Vaduj, acquitting the accused of the offence under section 7(i) read with section 2(ia)(c)(j) and section 7(v) read with Rule 44(b) and section 16 of the Prevention of Food Adulteration Act.
2. The Food Inspector accosted the accused on August 19, 1977 at about 9.30 a.m. wh
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ile the accused was proceeding on a bicycle with milkcan at Khatav. The Food Inspector purchased some quantity of milk and after dividing it into three parts, sent one sample to the office of the Public Analyst for a report. The report became ready on September 8, 1977 and was received by the Food Inspector on September 13, 1977. Thereafter, the Food Inspector secured the consent of the Chief Officer to file the prosecution and accordingly, the complaint was lodged before the Judicial Magistrate on November 3, 1977. The copy of the report of the Public Analyst was handed over to the accused only on November 9, 1977.
3. The trial Magistrate acquitted the accused on the ground that there was no compliance with Rule 9(j) of the Prevention of Food Adulteration Rules (hereinafter referred to as the "Rules"). Shri Chopda, the learned Public Prosecutor, submitted that the trial Magistrate was clearly in error in holding that there was no compliance with Rule 9(j) when the said rule was not in existence on the Statute Book on the day when the samples were taken by the Food Inspector. The submission of the learned Counsel is correct. Rule 9(j) as it was in existence prior to February 13, 1974 was at the Food Inspector should give a copy of the report of the Public Analyst to the accused as soon as possible after the receipt from the office of the public Analyst. On February 13,1974, Rule 9 (j) was amended and the amended Rule provided that it was duty of the Food Inspector to send registered post a copy of the report received from the Public Analyst to the person from whom the sample was taken within 10 days of the receipt of the said report. The trial Magistrate overlooked that Rule 9(j) of the rules was deleted with effect from January 4, 1977 by a Notification No. GSR 4(E) dated January 4, 1977. On the same day Rule 9(A) was inserted in the Statute Book and this rule provides that the local authority shall immediately after the institution of the prosecution forward a copy of the report by registered post or by hand as may be appropriate to the person from whom the sample of the article was taken by the Food Inspector. Rule 9(A) came into operation with effect from January 4, 1977 and in the present case, the sample was taken by the Food Inspector on August 19, 1977 and, therefore, obviously the trial Magistrate was in error in applying Rule 9(j) which was deleted with effect from January 4, 1977. It is obvious that the Food Inspector was not required to send the copy of the report to the accused within 10 days of its receipt from the office of the Public Analyst.
4. Though the trial Magistrate was in error in applying the provisions of Rule 9(j) of the Rules which was deleted, still in my judgment, on the facts and circumstances of the present case, it is not necessary to disturb the order of acquittal recorded by the trial Magistrate. Rule 9(A) as in force from January 4, 1977 prescribes that the local authority shall immediately after the institution of the prosecution forward a copy of the report to the accused and the expression "immediately" shows the anxiety of the Legislature that the copy of the report must be made available to the accused forthwith. In the present case, the copy of the report was made available to the accused 6 days after the institution of the prosecution and there is no explanation worth the name as to why the copy could not be furnished immediately after the institution of the prosecution. Taking into consideration the fact that the accused was a small agriculturist selling his milk in the market at Khatav and the fact that the offence has taken place on August 19, 1977 and almost five years have elapsed from that day, in my judgment the cause of justice would not be advanced by interfering with the order of acquittal and sending the accused behind the bars. In these circumstances though the Magistrate was clearly in error in applying the provisions of Rule 9(j) which was deleted along before the date of occurrence of the crime, still holding that there was no proper compliance with Rule 9(A) the order of acquittal can be sustained.
5. Accordingly, the appeal fails and is dismissed.