1. The point which arises in this revision is as to what is the interpretation of the phrase 'after the institution of prosecution'. In order to appreciate this point, it is necessary to state some facts:
2. The second accused, who is the petitioner before, me is, a retail vendor of food articles and he purchased from the wholesale dealer, A-1, under Bill No. 2, dt. 28-6-83 and the said bill was warranty. The Food Inspector visited the shop of the petitioner and after complying with all the formalities mentioned in the Prevention of Food Adulteration Act and the Rules, took 3 samples in 3 dry, clean and empty bottles, sent one bottle to the Public Analyst for the purpose of analysis and the other two bottles to the local (Health) Authority. On receipt of the report of the public analyst, complaint was filed against the petitioner and A-l on 27-8-83. It was returned on 8-9-83 for complying with certain requisitions. It was re-presented again on 12-9-1983 and was taken on file by the Magistrate on 15-9-83. The public analyst's report was served on the petitioner on 29-8-83. After the Magistrate took the complaint on file, summons was served on the petitioner on 17-9-83. He then filed a petition Under Section 13(2) of the Prevention of Food Adulteration Act, 1954 on 23-9-1983 to send one of the sample bottles, which were kept with the Local (Health) Authority, to the Director of Central Food Laboratory, Mysore. The lower court dismissed this petition holding that it was filed beyond the period prescribed under the Rules. Hence, this revision.
3. Mr. Bali Reddy, the learned advocate appearing on behalf of the petitioner (A-2 in the case) submits that no doubt the complaint was filed on 27-8-63, but it was returned on 8-9-83, from which it should be concluded that there was no complaint at all until it was taken on file by the Magistrate on 15-9-83. In other words, what the learned advocate submits is that the 'institution of prosecution' means that the Magistrate should apply his mind and then take on file the complaint; then it will mean that the proceedings have been instituted against the accused person, in the instant case on 15-9-83 and the petitioner filed the petition on 23-9-83 to send the sample to the Director of Central Food Laboratory, Mysore and it was within the time as contemplated under the Rules. Rule 9-A of the Rules framed under the Prevention of Food Adulteration Act provided '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 (8) of Rule 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'. Section 13(2) of the Prevention of Food Adulteration Act, 1954 provides:
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 person from whom the sample of the article of food was taken, 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 person or 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.
A close reading of this section would go to show that it is only after the institution of prosecution, the Local (Health) Authority will be in a position to send the report of the result of the analysis which the Local Food Authority has received before the institution of prosecution and this report will be sent to the accused after the institution of prosecution and the accused will file a petition in the court, if he so desired, 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 (Helath) Authority, analysed by the Central Food Laboratory. In other words, so far as Section 13(2) of the Act is concerned, the following steps have got to be noted:
1. The receipt of the result of the analysis:
2. After the institution of prosecution.
3. The Local (Health) Authority must send the report of the analyst to the accused person as prescribed, either by registered post or by hand:
4. In such circumstances, the accused has got an opportunity to file a petition to send the sample which is kept with the Local (Health) Authority to be analysed by the Central Food Laboratory, within a period of ten days from the date of receipt of the copy of the report.
4. Mr. Bali Reddy, the learned Counsel for the petitioner has brought to my notice a ruling of the Supreme Court reported in Devarapalli Lakshminarayana Reddy v. Narayana Reddy : 1976CriLJ1361 , wherein the Supreme Court had an opportunity of interpreting the meaning of the words 'taking cognizance of an offence' by the Magistrate within the contemplation of Section 190 of the Criminal Procedure Code. In doing so, their Lordships have pointed out that whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding Under Section 200. and the -succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a) of the Criminal Procedure Code.
5. The other ruling relied upon by the learned advocate for the petitioner is Rasulbaksh v. Emperor AIR 1944 Sind 103 : 1944-45 Cri LJ 510 wherein it was held that the word 'proceedings' in Sees. 29, 30 & 33 Arms Act, means legal proceedings in a criminal Court. Such proceedings are 'instituted' within the meaning of Section 29 only whenUnder Section 190, Criminal Procedure Code, a Magistrate takes cognizance of the offence there being no distinction between the words 'initiation of proceedings' and 'institution of proceedings.' 'Taking cognizance' does not involve any formal action or indeed action of any kind, but occurs as soon as the Magistrate applies his mind to the suspected commission of an offence. The mere presentation of a challan by the police Under Section 173 of the Criminal Procedure Code in a Magistrate's Court, or the mere presentation of a complaint by a private individual, cannot be said to constitute the institution of criminal proceedings. The learned Public Prosecutor, on the other hand, contends that it is not necessary for the Magistrate to apply his mind to a complaint filed under the Prevention of Food Adulteration Act from which it could be gathered that the Magistrate has taken the complaint on file. Submits the learned Public Prosecutor that the date on which the complaint was filed, should be considered as the date on which the proceedings have been instituted. I regret, I cannot accede to this contention of the learned Public Prosecutor, on the basis of the rulings cited hereinabove. The Magistrate has to apply his mind in one way or the other and it will only then be considered that the proceedings have been instituted. Keeping this principle in mind, it is to be noted that the complaint was filed on 27-8-83, it was returned on 8-9-83 and re-presented on 12-9-83, from which it could easily be concluded that there was no complaint or any 'institution of proceedings' in the court against the accused person, but only when the Magistrate took the case on file on 15-9-83 it could safely be said that the proceedings were instituted on that day and the application of the petitioner Under Section 13(2) of the Act, was filed on 23-9-83. As such, it is within time. 1 regret, I cannot agree with the contention advanced by the lower court that the petition of the petitioner, who is A-2, was beyond limitation as provided Under Section 13(2) of the said Act.
6. Hence this revision is-allowed. The lower court is directed to send the sample which is kept with the Local (Health) Authority, for analysis, to the Director of Central Food Laboratory, Mysore.