Andhra HC (Pre-Telangana)
The Public Prosecutor, High Court Of ... vs Vijjapu Manikumar on 17 April, 1985
ORDER
1. This revision case is against the Order of discharge passed by the II Additional Munsif Magistrate, Visakhapatnam. The complaint is filed by the Food Inspector, XII Division, Municipal Corporation, Visakhapatnam under sections 16(1) and 7 read with Sections 2(1)(a) and (c), Prevention of Food Adulteration Act, alleging that on or about 26th May, 1982 at about 9.00 a.m., the accused in his Kirana Shop exposed about two kilograms of Chillies powder for sale for human consumption which was found to be adulterated. The signatures of the accused were taken on the sample packets and the mediators' report was drafted. One sample packet was sent to the Public Analyst on the same day. Two sample packets were sent to the Local (Health) Authority. After analysis the public analyst stated that the sample is adulterated, as the total ash is in excess of the prescribed limit and the ash insoluble in dilute hydro chloric acid is in excess containing B. 18% common salt, turmeric and garlic. After receipt of the report of the public analyst, the Food Inspector filed the complaint on 26-7-1982 and issued notice under S. 13(2), Prevention of Food Adulteration Act and the notice is served upon the accused on 31-7-1982.
2. It is contended on behalf of the accused that there is violation of R. 9-A, Prevention of Food Adulteration Rules, as the notice under S. 13(2) enclosing a copy of the report of the public analyst was not served immediately after launching of the prosecution and there is a delay of five days in issuance of notice and as such the accused is entitled for discharge.
3. The learned Magistrate interpreting the word 'immediately' as at once and in view of the delay of five days, discharged the accused under S. 245(1) Cr.P.C.
4. The learned Public Prosecutor contends that the interpretation given by the learned Magistrate to the expression 'immediately' in R. 9-A of the Rules is wholly unwarranted and the expression 'immediately' is not susceptible to rigid connotation of at once or forthwith and five days to be taken in issuance of notice does not vitiate the prosecution proceedings and no prejudice is caused to the accused thereby. The learned counsel for the accused seeking to sustain the order of discharge contended that the expression 'immediately' is amenable to singular connotation of 'at once' or 'forthwith' and five days taken in issuance of notice is in teeth of R. 9-A and thus fatal to prosecution.
5. Section 13(1), Prevention of Food Adulteration Act, provides that the Public Analyst shall deliver a report to the Local (Health) Authority of the result of any analysis submitted to him for analysis. The report has to be forwarded in the manner prescribed after the launching of the prosecution. S. 13(2) provides that the public analyst's report shall be forwarded to the person from whom the sample was taken in the manner prescribed. R. 9-A without proviso, is as follows :-
"The Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of R. 7 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, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under S. 14A of the Act."
The controversy in this case centres round the width of the expression 'immediately'. The consideration is whether the expression should be given rigid and literal connotation of 'at once' or 'forthwith' or admits of efflux of reasonable time provided the prejudice is not caused to the accused. Interpreting the expression 'immediately' occurring in R. 9A the Supreme Court in Tulsiram v. State of Madhya Pradesh :-
"Rule 9A is made in the context of the amended S. 13(2) which provides for the forwarding of the public analyst's report to the person from whom the sample was taken after the institution of prosecution and enables that person to apply to the court to have analysed by the Central Food Laboratory the sample kept with the Local (Health) Authority. In the context the expression 'immediately' is only meant to convey 'reasonable despatch and promptitude' and no more. The idea is to avoid dilatoriness on the part of officialdom and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to provide a technical defence. First to construe 'immediately' as meaning 'at once' or 'forthwith' and next to hold delay to be fatal to the prosecution would perhaps be to make R. 9A ultra vires S. 13(2). We do not think it is permissible to interpret R. 9-A in such a way. The real question is, was the public analyst's report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the Court to send one of the samples to the Central Food Laboratory for analysis ? If after receiving the public analyst's report he never sought to apply to the Court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice. Our conclusions on this question are : The expression 'immediately' in R. 9-A is intended to convey sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under S. 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with R. 9-A is not fatal. It is a question of prejudice. Applying these principles, we find no merit in the submissions based on R. 9A."
The learned counsel for the accused invited (our attention ?) to the decision of the Kerala High Court in K. V. Kunhappa v. Food Inspector, Kannapuram Panchayat 1982 Cri LJ 778 wherein the Kerala High Court held that the provisions of R. 9-A are mandatory and the word 'immediately' in R. 9A indicates that even one day's delay will be hit by the rule. In this case, the prosecution was launched on 4-3-1977 and the copy of the report was sent on 6-4-1977 and it was held that the conviction is unsustainable as even one day's delay contravenes R. 9-A. In Sebastian v. State 1982 Cri LJ 1359 the Madras High Court held that 'immediately' means 'forthwith' and the delay of 25 days is fatal to the prosecution under S. 13(2), Prevention of Food Adulteration Act. In The State of Maharashtra v. Tukaram Baburao Mane 1982 Cri LJ 1462 the Bombay High Court held that the word 'immediately' has to be interpreted as 'forthwith'. In this case, the report was ready on 8-9-77 and was received by the Food Inspector on 3-9-1977 and thereafter the Food Inspector lodged the complaint on 3-11-1977. The copy of the report of the public analyst was handed over to the accused on 9-11-1977. The Bombay High Court held that the expression 'immediately' shows the anxiety of the Legislature that the copy of the report must be made available to the accused forthwith and there is no explanation as to why the copy could not be furnished immediately after the institution of the prosecution. It is evident that the decisions relied upon by the learned counsel proceeded upon an incorrect appreciation of the connotation of the expression 'immediately' and further did not advert to the core of the issue whether prejudice is caused to the accused. The decisions of the Kerala, Madras and Bombay High Courts referred to above no longer hold good law in view of the decision of the Supreme Court in Tulsiram v. State of Madhya Pradesh, (1984 Cri LJ 1731) (supra).
6. In the instant case, the complaint was filed on 26-7-82 after receipt of the report and the notice was served upon the accused on 31-7-1982 and within five days of the launching of the prosecution the report is served upon the accused. The learned Magistrate held that five days time taken in sending the report is in contravention of R. 9A and the proceedings for prosecution are vitiated. The expression 'immediately' in R. 9-A connotes promptitude and efflux of five days is not fatal to the prosecution and no prejudice is caused to the accused. In this view, the order of discharge is set aside. The usual follow up of setting aside the order of discharge would have been the order directing retrial. But, however, in this case the detection of adulteration was on 26-5-1982 and the judgment acquitting the accused was rendered on 14-3-1983 relying upon the preponderance of judicial opinion at the relevant time. The mixture exceeded by 7-25% only above the permissible limit. Taking into consideration the above factors and bearing in mind that the petitioner is a small kirana merchant, this is not a fit case for retrial again.
7. The criminal revision case is disposed of accordingly.
8. Order accordingly.