S.K. Kader, J.
1. In a case coming under the Prevention of Food Adulteration Act, hereinafter called the Act, the first respondent herein, the accused before the trial court, was tried on a complaint filed by the Food Inspector, Corporation of Trivandrum (P. W. 1) against him alleging that he sold 675 ml. of buffalo milk at 5-30 a.m. on March 16, 1978 out of the bulk quantity which he was carrying on a bicycle for sale which, on analysis, was found to be adulterated. Ext. P6 is the report of the Public Analyst, as per which the sample was found to be adulterated as it did not conform to the standard prescribed and also contained 24% of added water. Ext. P4 is the mahazar prepared on the spot, attested by P. W. 2, an independent witness
2. The plea of the accused was one of complete denial and he had no witness to be examined on his side.
3. In pursuance of the summons served on him, the accused appeared before the trial court and put in an application for sending one of the samples kept with the Local (Health) Authority for further analysis to the Central Food Laboratory. As per the certificate of the Director of Central Food Laboratory, the sample sent to him was not in a condition fit for analysis as 'the contents of the sample were found to be curdled thereby rendering the same unhomogeneous for correct estimation of its milk constituents'.
4. In support of the prosecution, P. Ws. 1 and 2 were examined and Ext. P6, the report of the Public Analyst, and Ext. P4, mahazar, and other documents were marked.
5. The trial court acquitted the accused on the only ground that the certificate of the Director of Central Food Laboratory showed that the sample sent to him for analysis was not in a condition fit for analysis and therefore a valuable right given to the accused under Section 13(2) of the Act has been denied to him.
6. This order of acquittal is assailed by Sri Gopinathan, learned Advocate appearing for the appellant on the ground that there has been no violation of Section 13(2) of the Act in this case; that the copy of the report of the Public Analyst and intimation as contemplated under Section 13(2) have been sent to the accused on the very same day the prosecution was instituted before the trial court and the same were received by him on May 10, 1978; that the accused did not apply for sending the sample for analysis to the Central Food Laboratory within the period of 10 days prescribed under Section 13(2) and that it is not now open to him to come forward and plead that the sample sent to the Central Food Laboratory, long afterwards, was found in a condition not fit for analysis and thus a right conferred on him under Section 13(2) of the Act has been deprived of.
7. Sri Achutha Kurup, learned Advocate appearing for the accused, strongly contended that there has been no delay at all, much less unreasonable delay on the part of the accused in approaching the trial court for getting one of the samples kept by the Local (Health) Authority tested by the Central Food Laboratory; that in pursuance of the summons served on him he appeared before the trial court on 7-7-1978 and on the very-same day he put in an application before the trial court for getting one of the samples kept by the Local (Health) Authority analysed by the Central Food Laboratory; that this is not a fit case for interference as a very valuable right conferred on the accused has been deprived of by the considerable delay caused in instituting a complaint against him. This argument of the counsel that there was no delay or laches on the part of the accused is based on the interpretation of the words 'institution of prosecution' appearing in Sub-section (2) of Section 13 of the Act.
8. It was argued on behalf of the accused that mere filing of the complaint by the Food Inspector before the trial court will not tantamount to institution of prosecution; that institution of a complaint is entirely different from institution of prosecution and that a prosecution can be said to be instituted only when a summons has been issued to the accused after taking cognizance of the offence by the court. Admittedly the complaint in this case against the accused alleging commission of offences committed by him punishable under Section 16(1)(a)(i) read with Section 7(i) of the Act was filed by the Food Inspector before the trial court on May 5, 1978 and on the same day a copy of the report of the Public Analyst informing the accused that if it is so desired he may make an application to the court within a period of 10 days from the date of receipt of the copy of the report to get the sample kept with the Local (Health) Authority analysed by the Central Food Laboratory, was sent to him.
9. In pursuance of the summons, the accused appeared before the trial court on July 7, 1978 and on that day he put in an application for sending one of the samples kept with the Local (Health) Authority to the Central Food Laboratory for further analysis. The prayer of the accused was opposed by the Assistant Public Prosecutor appearing for the prosecution on the ground of delay in sending the samples. But the learned Magistrate after hearing both sides passed an order on July 17, 1978 allowing the prayer of the accused. The sample was received by the Central Food Laboratory on August 29, 1978 and the analysis was conducted on Sept. 8, 1978. If the filing of the complaint before the trial court can be treated as institution of prosecution, admittedly the accused has failed to apply within ten days of the receipt of the copy of the report of the Public Analyst for getting the sample kept with the Local (Health) Authority analysed by the Central Food Laboratory, as prescribed under Section 13(2) of the Act. If there has been unreasonable delay on the part of the accused and on account of that the sample got deteriorated, the prosecution cannot be found fault with for that. On the evidence there has been no laches or default on the part of the prosecution. On the other hand, it is seen that the accused although received copy of the report of the Public Analyst and intimation as contemplated under Section 13(2) of the Act on May 10, 1978 chose to file an application for getting the sample analysed by the Central Food Laboratory only on July 7, 1978, after two months.
10. Now the point for decision is whether filing of a complaint by the Food Inspector before the trial court is 'institution of prosecution' as contemplated under Section 13(2) of the Act. In other words on the mere filing of a complaint, as contemplated under Section 20 of the Act can it be said that prosecution has been instituted? The word 'institution' has not been defined under the Act. 'Complaint' has been defined under Section 2(d) of the Cr. P.C. 1973 as meaning any allegation made orally or in writing to a Magis-strate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but not including a police report. The complaint filed by the Food Inspector in this case is not a police report but it satisfies the definition of 'complaint' under the Cr. P.C. and also the requirements of Section 20 of the Act. There are specific allegations in the complaint that the accused committed an offence punishable under Section 16(1)(a)(i) read with Section 7(1) of the Act and there is a prayer for taking action against him. Section 20 of the Act deals with cognizance and trial of offences. Under that section, no prosecution for an offence under the Act, not being an offence under Section 14 or Section 14A, shall be instituted except by, or with the written consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government. This clearly indicates that by filing a written complaint as provided under this section, a prosecution for offences mentioned therein can be instituted. In all other cases, mere filing of a complaint alleging commission of offences therein and praying for necessary action before a Magistrate amounts to institution of prosecution against that person. The contention of the counsel for the accused, the first respondent, that a prosecution can be said to be instituted only when a summons is issued against the accused is untenable and does not stand to reason. The institution of prosecution is an act done by the prosecuting agency and the court has nothing to do with that. Taking cognizance of an offence is to be done by the court before which the complaint has been filed. This is, therefore, an act done by the court after the institution of a complaint or prosecution. Taking cognizance of an offence by a Magistrate and institution of a complaint or prosecution in that court are quite different, distinct and separate acts, the former done by the Magistrate and the latter by the prosecuting agency. After having duly received a complaint alleging commission of an offence against a particular person, a Magistrate may at once take cognizance of the offence or may keep it pending with him due to various reasons. Suppose after receiving a complaint disclosing commission of an offence against a particular person a Magistrate by oversight keeps it on his file for days and takes cognizance only thereafter, it cannot then be said that the complaint or prosecution was instituted only on the date on which the Magistrate took cognizance of the offence or summons was issued to the accused. An identical question, whether a prosecution can be said to be instituted on the filing of a complaint came up for consideration before the High Court of the Punjab and Haryana in Bikkar Singh v. State of Punjab ILR (1971) 2 Punj 369. That was a case where the accused was convicted for an offence punishable under Section 61(1)(a) of the Punjab Excise Act and sentenced to rigorous imprisonment for four months as well as a fine of Rs. 100 or in default of payment of fine to suffer rigorous imprisonment for two months. Having not succeeded in the appeal filed against this conviction and sentence, a revision was filed before the High Court of Punjab and Haryana. Under Section 75(2) of the Punjab Excise Act, if the prosecution was not instituted within a year after the date on which the offence was alleged to have been committed that offence can be taken cognizance of only with the special sanction of the State Government. In Bikkar Singh v. State of Punjab while construing the expression 'institution' of the prosecution, it was held that 'the stage of the institution of a prosecution is reached certainly before cognizance of the offence involved is taken by the Magistrate and the taking of such cognizance is no part of the institution of the prosecution' and that the 'institution of the prosecution is an act attributable to the prosecuting agency and the Court has to take no part therein'. The word 'institute' has been defined in Ramanatha Aiyar's Law Lexicon as follows:
'instituted': Sat on foot; commence, 'Instituted' in respect of legal proceedings means, commenced x x x to begin an action x x criminal proceedings cannot be said to be 'instituted' until a formal charge is openly made against the accused by complaint before a Magistrate.' It is therefore clear from the above that as soon as a complaint as defined in the Code of Criminal Procedure is filed against an accused before a Magistrate with a prayer that necessary action be taken against him, it must be deemed that the prosecution or criminal proceedings have been instituted against that accused.
11. On the admitted facts, the accused has not filed any application for sending the sample kept with the Local (Health) Authority to the Central Food Laboratory for analysis, within the period prescribed under Section 13(2) of the Act and in the circumstances, if the sample got decomposed or curdled owing to the delay on the part of the accused in filing an application before the trial court he cannot turn round and take the benefit of the same contending that a valuable right given to him under Section 13(2) of the Act has been deprived of. The acquittal of the accused on this ground is therefore clearly wrong and cannot be sustained.
12. The learned Advocate appearing for the first respondent submitted that the trial court has not considered the evidence in the case on merits and given any finding whether there was any sale of the adulterated article by the accused as alleged by the prosecution; that milk being primary food his client is entitled to the benefit of the proviso to Section 2(a) of the Act; that this aspect also has not been considered by the trial court and that therefore in fairness to the accused the case may be sent back to the trial courts for disposal afresh according to law. Although the evidence of P. Ws. 1 and 2 has been summarised, their testimony has not been discussed and a finding given by the trial court on the question of sale of the adulterated article to the Food Inspector by the accused. The other aspects referred to by the first respondent are not even raised or argued before the trial court and therefore the Magistrate cannot be found fault with for not considering the same. But this will not bar or preclude the accused from raising those contentions before the trial court when the case goes back to that court.
13. In the result this appeal is allowed, the order of acquittal is set aside and the case is sent back to the trial court for disposal afresh, according to law and in the light of this judgment.