U.L Bhat, J.:— In S.T 360 of 1978, the Additional Judicial I Class Magistrate, Trivandrum, convicted the revision petitioners under Section 7(I) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and sentenced each of them to R.I for three months and to pay a fine of Rs. 500/- and in default to undergo R.I for one month. Crl. Appeal No. 95 of 1979 filed by the revision petitioners challenging the conviction and sentence was dismissed by the II additional Sessions Judge, Trivandrum. This order is challenged in Crl. R.P No. 301 of 1979.
2. The same revision petitioners were convicted by the same Court for a similar offence in S.T 356 of 1978 and similarly sentenced. The conviction and sentence were confirmed by the II Additional Sessions Judge, Trivandrum in Crl. Appeal No. 94 of 1979. This order is challenged in Crl. R.P No. 302 of 1979. The second revision petitioner is the licensee of a shop dealing in milk and milk products at Karamana in Trivandrum and the first revision petitioner is the salesman in the shop. On. 30-8-1978 at about 7.30 a.m, the Food Inspector attached to the Corporation of Trivandrum inspected the premises and after observing all the requirements of law took two separate samples of milk from two different chambers of the same freezer kept in the shop for the purpose of sale and dealt with the two samples separately under two different mahazers and with two sets of connected documents. The Public Analyst on examining the two sets of samples, reported that the samples did not conform to the standards prescribed in Kerala for milk under the Prevention Food Adulteration Rules. Thereafter the Local Health Authority (hereinafter referred to as the ‘L.H.A’) sent copies of the Public Analyst's report to the revision petitioners in each of the cases along with the intimations as required under section 13(2) of the Prevention of Food Adulteration Act (hereinafter referred to as the ‘Act’). The revision petitioners did not move the court, in either of the cases, for setting samples kept with the L.H.A analyesd at the Central Food Laboratory (for short the C.F.L). However, they pleaded not guilty to the accusation against them. The Food Inspector as well as the witnesses and the L.H.A were examined in each of the cases and relevant documents were marked. The defence did not tender any evidence. The learned trial Magistrate accepted the prosecution case as proved and the same has been affirmed by the appellate Judge.
3. In the intimation letters sent by L.H.A, revision petitioners' attention was drawn to section 13(2) of the Act. The learned counsel for the revision petitioners argued mainly on the basis of Section 13(2) of the Act. He contended that the provisions of Section 13(2) of the Act require information to be given to the vendor of his right to apply to the court within 10 days from the date of receipt of the information to get the sample kept with the L.H.A analysed by the C.F.L and this is mandatory, that it is not sufficient to send vague information or to draw their attention to Section 13(2) but that it is mandatory to send the information containing the particulars contemplated in Section 13 (2) of the Act, and the same has not been done in these cases and therefore necessarily the prosecution must fail or alternatively prejudice must be assumed and the benefit of doubt, given to the revision petitioners.
4. Learned counsel appearing for the Food Inspector contended that while it is true that the sending of information under Section 13(2) of the Act is mandatory, violation of or failure to observe the mandate need not result in acquittal of the accused or presumption of prejudice to the accused, that the mention of right of the accused to move the court and that too within a particular period of 10 days is not mandatory and that it is sufficient to invite their attention to Section 13(2) of the Act. He further contended that the fact that the revision petitioners did not move the court at any time at all to send sample for a fresh analysis to C.F.L is sufficient to show that they did not desire a second opinion and hence no prejudice is caused.
5. That the provisions of Section 13(2) of the Act are mandatory in nature has been affirmed by this Court repeatedly. The earliest of these decisions is the one reported in State of Kerala v. Johri . 1978 F.A.J 443. where Kader, J. held:
“The right conferred on accused under Section 13(2) of the Act is a very valuable one and the provisions contained therein are mandatory in nature. Admittedly these provisions in Section 13(2) have not been complied with. By flagrantly violating these mandatory provisions; the accused have been deprived of a valuable right conferred on them resulting in serious prejudice to them. In the circumstances, it would be unsafe to enter a conviction on the basis of the report of the Public Analyst.’
6. This decision was followed by Kader, J. in Crl. Appeal No. 196 of 1978. In Crl. R.P No. 276 of 1979, I have followed the same view. Of course, that was in the context of differentiating between the failure to fulfil the duties imposed on the Food Inspector in the matter of observing certain safeguards and the mandatory nature of the provisions in Section 13(2) of the Act. Comparing Section 11(1)(b) of the Act and Rule 16(c) of the Rules with Section 13(2) 1 observed as follows;
“In one sense these provisions can be regarded as mandatory. It is the duty of the Food Inspector to follow the procedure prescribed under these provisions. At the same time, though these procedural safeguards can be regarded as mandatory in one sense, they cannot be equated with certain other mandatory provisions like Section 13(2) of the Act which requires a copy of the report of the Public Analyst to be sent to the vendor that is, the accused with intimation informing him that he may make an application to the court within 10 days to get the sample kept by the local health authority to be analysed by the Central Food Laboratory. The mandatory provision in Section 13(2) is not in the nature of a procedural safeguard. Section 13(2) burdens the local health authority with this duty for the purpose of enabling the accused to exercise his very valuable right of requiring one sample to be sent to the Central Food Laboratory. The distinction is that while the duty of Local Health Authority under Section 13(2) of the Act is with reference to this valuable right of the accused, no such right can be said to be vesting with the vendor corresponding to the procedural safeguards contained either in Section 11(1)(b) of the Act or in Rule 16 of the Rules. A. failure to follow the provisions of Section 13(2) of the Act will necessarily vitiate the proceedings; and the Court would be bound to presume prejudice to the accused and acquit the accused………….”
7. What Section 13(2) of the Act requires the L.H.A to do is to inform the vendor etc. that “If it is so desired……..(he) 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. Clause (-2. A) provides that When such an application is made to the Court, the Court shall, require the Local Health Authority, to forward the sample and on such requisition, the L.H.A shall forward the sample to the Court within five days. Clause (2-B) states that on receipt of the sample from the L.H.A, the court shall, after observing certain formalities, send the sample to the Director of C.F.L who is to send a certificate to the court in the prescribed form within one month specifying the result of the analysis. Section 13(3) of the Act states that the certificate issued by the Director of the C.F.L under sub-section (2-B) shall supersede the report given by the Public Analyst sub Section (1).
8. There is no specific provision in Section 13 of the Act conferring on the vendor or other accused the right to move the court to send a sample to C.F.L But such a right is implicit in section 13(2) read with Section 13(2-A) of the Act. Under the Act as it originally stood the Food Inspector was required to give one sample to the vendor and send the third sample to court and the vendor had a right subsequently to move the court to send either of the samples to C.F.L for analysis. These provisions led to a lot of controversies, particularly when complaint was filed after some delay or when the accused belatedly moved the court to send one of the samples to the C.F.L and the sample was found to be unfit for analysis. The Act as it originally stood, did not provide for any time-limit to the accused to so move the court. Question whether accused moved the court within reasonable time had to be decided by courts on the basis of circumstances of each case and depending on the view of the court regarding the probabilises and the negligence of the complainant in delaying the complaint or negligence of the accused in making the motion to send the sample to C.F.L, the result was that the law in that behalf was regarded as rather uncertain. It was evidently with a view to avoid these uncertainties that the Legislature stepped in and fixed a definite period of 10 days from the date of receipt of intimation or information for the accused to move the court under Section 13(2) of the Act. It has to be remembered that by the Amending Act 34 of 1976 the provision requiring the Food Inspector hand over one sample to the vendor and send another to the court was taken away and instead, a provision was incorporated requiring the Food Inspector to send both the samples to the L.H.A; thereby the vendor was deprived of the custody of one sample bottle which he could have utilised at a later stage for the purpose of getting fresh expert opinion. The possibility of the vendor himself tampering with the sample bottle in his custody or the possibility of the vendor and the Food Inspector colluding and tampering with the sample given to the vendor are sought to be precluded by chaging the entire procedure and amending Section 13 of the Act in such a way that the vendor is deprived of the custody of the sample.
9. This would clearly indicate that the Right implicit in Section 13 of the Act of the accused to move the court to send the sample to the C.F.L is a very valuable right conferred on him in substitution of other rights he had under the Act as it originally stood. Accused is given such a valuable right obviously because he has no sort of control over sample taken by the Food Inspector or the despatch Of the sample to the Public Analyst by the Food Inspector. Once the sampling is done accused remains only a spectator of the further developments. It is this state of affairs which is sought to be remedied by conferring this right on the accused under Section 13 of the Act. In the nature of this right conferred on him, it is clear that the provision is mandatory. Exercise by the accused of this right is wholly dependant on the duty to be performed by the L.H.A in sending a copy of the Public Analyst's report and also requisite information as contemplated in Section 13(2) to the vendor, etc. The right conferred on him is so valuable in nature that any failure on the part of the L.H.A in discharging his corresponding duty, must necessarily he held to lead to prejudice to the defence.
10. The Legislature fixed a limit of 10 days only with a view, to avoid uncertainties. If that be so, the right conferred on the accused to move the court is circumscribed by this important limitation, viz., that he moves the court within a particular time-limit, i.e ten days from the date on which the information under Section 13(2) of the Act is conveyed to him. Section 13(2) does not contemplate the information being given to the vendor at any time of the choosing of L.H.A The Section specifically states that the information must be given to him after the complaint is laid by the Food Inspector before the appropriate court. In other words, when an accused receives a copy of the Public Analyst's report and also the information contemplated under Section 13(2) of the Act, he must necessarily know that a complaint has already been filed. He must also be able to know that he must move the court within 10 days from the date of receipt of the copy of the report. Clause (2-A) which empowers the court to send for the sample specifically states that it can send for the sample only “when application is made to the court under sub-section (2)”, In other words, sub-section 2-A provides for steps which must be taken after the steps contemplated in Section 13(2) of the Act are taken. Legislature has fixed the time limit as 10 days. This right of the accused to move the court and the corresponding power in the court to take appropriate steps, are conferred by the statute. The right and the power must necessarily be subject to limitations imposed in Section 13(2) of the Act. Reading Section 13(2) and Section 13(2-A) of the Act together, I am of the opinion that when accused files an application before the court for sending the sample to the C.F.I and that application is filed after the expiry of 10 days from the date on which he receives the information, the court will have no power to take further steps as contemplated in clause (2-A) of Section 13 of the Act.
11. In the present cases the intimations sent by the L.H.A to the revision petitioners read thus:
“I am forwarding herewith copy of the report received, from the Public Analyst, Trivandrum for your information.
Your attention is invited to Section 13(2) of the Prevention, of Food Adulteration Act 1954 (as amended by Act 34 of 1976) for further action if so desires.”
12. The L.H.A did not inform the revision petitioners of their right to move the court to send a sample to the Central Food Laboratory ‘within 10 days from the date of receipt of the information. He only invited their attention to Section 13(2) of the Act. “To invite their attention to Section 13(2) of the Act” does not amount to informing them about the right which they have under Section 13(2) of the Act. It may be that when an accused received such an information, he may go to a lawyer and consult him and take appropriate steps. It is also possible that he may not seek legal advice at all or may not seek legal advice within 10 days. As I read the provisions of Section 13(2) of the Act, on reading the information given by the L.H.A the vendor without anything more and without legal assistance, must be able to realise that he has a valuable right vested in him of moving the court in an appropriate way. The fact that the Legislature has cast such a burden or duty on the L.H.A of giving information to the vendor necessarily reveals the concern which the Legislature has in this matter. Of course generally speaking every person is expected to know the law. But even in the face of such a general principle of law, the Legislature has directed that the L.H.A must give such specific information to the vendor. Hence it is not open to the Prosecution to rely on the general principle that every person is expected to know the law. Failure to inform the vendor of his right to move the court within ten days would amount to non observance of Section 13(2) of the Act. A statement inviting vendor's attenion to Section 13(2) of the Act is no compliance at all, substantially or otherwise, of the provisions of Section 13(2) of the Act. Such a statement does not have the effect of informing him of his right to move the Court in ten days. Unless he is so informed, he may not be aware of his right and consequently he loses the opportunity of exercising the right.
13. In one of these cases, the information was sent on 1.11.1970 and received by the revision petitioners on 2.11.1978 and the complaint was laid on 7.11.1978 The revision petitioners had every right to go to the court even dated 3.11.41978 that is, one day after they received the information and move the court under Section 13(2-A) of the Act; but on that day there was no complaint before the Court, Hence their request could only be rejected. Having once exercised their right of moving the court, I do not think the law expects them to wait at the doors of the court every day to know when a complaint is being filed and when they can apply once again. The position in the other case is much more worse. The information was sent on 1-11-1978, received on 2-11-1978 and the complaint was filed on 24-11-1978 long after the period of 10 days was over. Revision Petitioners could not have exercised their right within 10 days. In the light of these circumstances, the violation of the mandatory provisions of Section 13(2) of the Act in these cases must necessarily lead to an acquittal. There can be no doubt that the revision petitioners have been seriously prejudiced in their defence, even if it be that the element of prejudice is necessary in order to render the prosecution unsuccessful. In this view, I do not propose to consider the other arguments addressed by the learned counsel for the revision petitioners. The convictions and sentences entered against the revision petitioners in the two cases are set aside. They are acquitted of the charges against them. Fine, paid, if any will be refunded to time. The revisions are allowed.
14. Petitions allowed