Malik Sharief-ud-Din, J.
(1) A sample of Haldi powder was lifted from the respondent under the provisions of Prevention of Food Adulteration Act on 8-6-78 by Shri R.K. Ahuja, Food Inspector and on analysis by the Public Analyst it was found to be adulterated due to the presence of artificial coal tar dye and extraneous matter of starches to the extent of 80% and excess of 3.82 in ash insoluble in dil. Hcl by wt. The respondent accused was convicted under Section 7/16 of the Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2000.00 in default of which he was to undergo further rigorous imprisonment for six months.
(2) In first appeal he was acquitted on the ground that by erroneous act of trial court the respondent has been denied a very valuable statutory right granted to him under Section 13(2) of Pfa Act and that provisions of Rules 7 and 17 have not been complied with. It is against this acquittal that the present appeal has been filed.
(3) We have heard Mr. 0.P. Soni, counsel for the respondent-accused, as also Mr. R.P. Lao. counsel for the appellants. Mr. Soni has urged before us that due to a marginal delay of three days the respondent was refused the exercise of valuable right conferred upon him under Section 13(2) of the Act. Mr. Lao on the other hand stated that since no grievance was made by the respondent against the said order it shall be taken to mean that he has accepted the position and that he cannot now turn back and assail the said order.
(4) We are not impressed with the above contention of Mr. Lao. The fact that the respondent-accused did not challenge the legality of the order dated 20th October 1978 by a petition for revision before a superior court did not estop the accused to assail the legality and validity of the order in appeal filed against his conviction and sentence. The doctrine of estoppel in the circumstances of this case is not attracted.
(5) The relevant facts are : a sample of Haldi powder was taken on 8-6-1978 and the complaint was instituted on 23-9-78. Intimation regarding Public Analyst report was received by the respondent on 29-9-1978 and he was intimated that he has a right to get the sample tested by the Director Central Food Laboratory and that if he so desires he may make an application to the court within ten days. In this manner he was expected to move an application by 10-10-78. The respondent however, actually made an application on 13-10-78 with an affidavit requesting for condensation of delay on the ground that he was having pain in his chest and was examined by a Doctor in Safdarjang Hospital on 4-10-78 and advised rest for 8 days. The learned Magistrate rejected this application on 20-10-78.
(6) The proposition of Mr. Soni, learned counsel for the respondent as canvassed before us, is that by rejecting the application of the respondent under Section 13(2) of the Act the accused/respondent was prejudiced in his defense and was deprived of a valuable right which he was entitled to exercise under statute. It will be seen that delay in making the application is marginal that is to say there is only three days' delay. The question that arises for consideration is whether Section 13(2) of the Act lays down a rule of limitation. In our view Section 13(2) of the Act being procedural in nature should not be strictly construed as it is only meant to test the authenticity of the report of the Public Analyst and also to provide a safeguard to innocent persons. Obviously, if the report of the Director, Central Food Laboratory says that the sample is not adulterated, the prosecution will have to be drop' ped. Section 13(2) of the Act only says that the accused in the event of receiving intimation regarding the adverse report by the Public Analyst 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 Local Authority analysed by the Central Food Laboratory. The section is silent as to the effect of not making an application within the period of ten days. That by itself clearly goes to show that it does not strictly speaking lay down a rule of limitation and since, in our view, it lays down a procedure it ought to be construed liberally and unless there is an inordinate delay the court should not reject the application and should grant the request. That is not to suggest that the mandate of law should not be adhered to. In our view, much will depend upon the facts on each case and if the delay is reasonable the request under Section 13(2) ought not to be rejected. This will also depend upon the food article as certain food articles are subject to speedy decay and decomposition. There may also be cases where for one reason or the other the accused may not be able to apply within ten days for sending the sample to the Central Food Laboratory but later on bonafide wants this testing to be done. The question that would arise in such situation is whether the court should reject such a request on the mere ground of delay. To us this does not appear to be the object of the law. These procedural errors should lead to minimum possible adverse results. There is no specific bar created by Section 13(2) against making an application after 10 days. In out view, thereforee, the Magistrate having taken a strict view of the matter fell into an error as a result of which the accused was deprived of a valuable right to get the counter-part sample tested by the Director Central Food Laboratory. In such circumstances there is hardly any room for the argument that the accused has not been prejudiced. Similar views have been expressed in the case of MurariLal v. State, 1981 (2) Fac 157 by Allahabad High Court and in Food Inspector, Palghat Municipality v. The Pirayiri Co-operative Milk Supply Society Ltd. Mothers, (1984) (1) Fac p 235 by Kerala High Court.
(7) We are, thereforee, of the opinion that the learned Addl. Sessions Judge has rightly tinder the circumstances of this case held that the accused has been prejudiced. We as such find no compelling reason to interfere with the order of acquittal. The appeal is dismissed.