Kumari P. Janaki Amma, J.
1. The appellant is the Food Inspector, Palghat Municipality. A complaint was filed by him against the accused-respondents for offences punishable Under Sections 16(1)(a)(i) and 16(X)(g) read with Section 7(1) and Section 2(la)(a) and (m) of the Prevention of Food Adulteration Act.
2. P.W. 1, Food Inspector, visited the shop of the second respondent in Big Bazaar, Palghat, at about 11.15 a. m. on 19-6-1978. He purchased 600 grams of 'Raja Brand' Sambar Powder for the purpose of analysis. This powder was in 12 packets of 50 grams each. After following the formalities prescribed under the prevention of Food Adulteration Act P.W, 1 broke the packets and mixed them in a paper. The powder was then divided into three equal parts and each part was put in a clean and dry bottle. The bottles were packed and sealed as directed in the rules framed under the Prevention of Food Adulteration Act, A mahazar was prepared in the presence of witnesses and attested by them. One of the samples was sent for analysis. The Public Analyst in his report Ext. P7 stated that the sample did not conform to the standard prescribed for curry powder under the rules framed under the Prevention of Food Adulteration Act and therefore was adulterated. The second accused pleaded that he purchased the article under a warranty from the first accused. The complaint was filed against both the accused.
3. The first accused contended that he did not get the report of the public analyst, that the name of his firm is 'Raja Products' and that he was not doing the trade in the name of 'Raja Brand' and that the bill, under which the second accused claimed to have purchased the articles, was not from anybody representing his firm. He therefore claimed that he was not liable for any offence, The second accused admitted having sold sambar powder and having issued the bill and signed on the sample bottles. He however contended that no standard has been fixed for sambar powder and that the article is something different from the curry powder, for which the standard has been fixed, A contention was also raised that there was contravention of Rule 7 (3) of the Rules framed under the Prevention of Food Adulteration Act, and also of Rule 22A and as such the prosecution was not maintainable.
4. The trial Court overruled the plea that the sample did not come under curry powder for which a standard has been fixed under the Act and the Rules. The trial Court however upheld the contentions of the second accused that there was contravention of Rule 7 (3) framed under the Act and also that he was entitled to rely on the warranty. The Court held that the provisions of Rule 7 (3) framed under the Act are mandatory and therefore the complaint filed in contravention of the said rule was liable to be dismissed. The Court, accordingly, acquitted both the accused. The order of acquittal is challenged in the present appeal,
5. It is common case that no standard has been fixed specifically for 'sambar powder'. The contention of the appellant is that 'sambar powder' comes under the head 'curry powder'' in cl. A. 05.21 of Appendix B of the prevention of Food Adulteration Rules. Under the said provision curry powder means, the 'powder obtained from grinding clean, dried and sound spices belonging to the group of aromatic herbs and seeds such as black pepper, cinnamon, cloves, coriander, cardamom, chillies, cumin seeds, fenugreek, garlic, ginger, mustard, poppy seeds, turmeric, mace, nutmeg, curry leaves, white pepper, saffron and aniseeds. The material may contain added starch and edible common salt. The proportion of spices used in the preparation of curry powder shall be not less than 85.0 per cent by weight. The powder shall be free from dirt, mould growth and insect infestation. It shall be free from any added colouring matter and preservatives other than edible common salt.' After mentioning the standard for the several ingredients cl. A. 05.21 proceeds to say that whenever adible common salt is added its percentage by weight should be declared on the label and that the names of spices contained in the curry powder should be given on the label in descending order of composition on wt/wt basis.
6. In the instant case, the microscopic examination of the sample sent for analysis showed that it consisted of a mixture of coriander, turmeric and chillies powder and Bengalgram starch. The argument put forward is that inasmuch as it contained Bengalgram the article was different from the one mentioned as curry powder. In other words, according to the respondent, the mention of Bengalgram in Ext, P-7 is an indication to show that the 'sambar powder' purchased by the Food Inspector is different from the 'curry powder', and that standard fixed for 'curry powder' is not applicable for 'sambar powder'. I am however unable to accept the argument. No doubt, Bengalgram as such is not mentioned in cl. A. 05.21. But it is seen therefrom that the material may contain starch. There is no restriction as to the kind of starch that could be added. Therefore the preRajan v. Food Inspector, Paighat Municipality sence of Bengalgram starch in the 'sam-bar powder' does not take away the article from the head 'curry powder' in cl. A. 05.21.
7. I shall next deal with the objection based on Rule 7 (3). The said rule reads: 'The public analyst shall, within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form III:
Provided that where any such sample does not conform to the provisions of the Act or these rules, the public analyst shall deliver four copies of such report to the said authority:
Provided further that the public analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis Under Section 12 of the Act
In the instant case, Ext. P7 shows that the article was received by the public analyst on 21st of June, 1978. The certificate bears the date, 2nd of August, 1978. The certificate also contains a receipt seal of the Municipal Health Officer, who is the Public Health Authority, and that 'seal bears the date 25-8-1978. Thus, the interval between the date of receipt of the article by the Public Analyst and the date of delivery of the report was more than forty-five days. There was therefore contravention of Rule 7 (3). The contention put forward on behalf of the appellant is that since the respondents have not taken any steps to have the articles analysed by the Central Food Laboratory no prejudice has been caused to him by the delay. The argument is that it is incumbent that the person who sets up a case of delay should make out that he has been prejudiced by the delay. In other j words, the stand taken is that violation o Rule 7 (3) vitiates the proceedings only if prejudice is made out. I am unable to agree to the above interpretation. No I doubt, in the present case the respondent I did not choose to send the article for analysis to the Central Food Laboratory. I But the omission need not be a ground for exonerating the Public Analyst from the consequences of the violation of his duty under Rule 7 (3). Ext. P7 on the face of it shows that there was non-compiIiance of Rule 7 (3) and it was up to the accused to avail of such non-compliance. It could as well be that the second respon-,dent did not move for an analysis of the 1 article by the Central Food Laboratory on the .firm belief that the defence based on Rule 7 (3) would be available to him. When a rule prescribes that certain act should be done within a certain period it is the responsibility of the officer concerned to comply with its provision. To hold that violation of the rule would not entail serious consequences would amount to saying that the officer need comply it only at his sweet will and pleasure. The purpose of the rule is to see that official entrusted with the work of analysis and despatch of certificate does his work promptly and expeditiously, so that the accused concerned may get the full benefit of Section 13(2) of the Act. To hold that Rule 7 (3) is only directory is to encourage slackness and lethargy on the part of the public analyst to the detriment of the accused. Rule 7 (3) when it was originally framed prescribed a period of sixty days. It was as per an amendment of 1974 that the period was refixed as forty-five days. The very fact that the period stands reduced to forty-five days shows that the framers of the Rule were keen that the public analyst should discharge his duties within the period prescribed. I hold that Rule 7 (3) is mandatory and that violation of the rule vitiates the prosecution. On this sole ground the acquittal has to be upheld.
8. As already mentioned the respondents have put forward a case that there is contravention of Rule 22A. The first respondent has also a case that Section 19(2) of the prevention of Food Adulteration Act has no application to the case. I am not expressing any opinion on the above matters as it is unnecessary for the disposal of the case in view of the findings already entered.
For reasons mentioned in the foregoing paragraphs I confirm the order of acquittal and dismiss the appeal.