1. The revision petitioners have been convicted by the Sub-Divisional Judicial Magistrate, Shencottah, for an offence under Sections 7(1) and (2) and 16(1)(a)(i) read with Section 2(la) and (a) and (m) and 2(ix) of the Prevention of Food Adulteration Act, and Rule 42(m) of the Rules framed thereunder. In that, on 14-6-1979 at 5.00 p.m. the first petitioner had sold compounded asafoetida for sale which was manufactured by the second petitioner and that on analysis the sample was found to contain foreign resin. The Food Inspector was examined as P. W. 1 and P. W.2 who is a mahazar witness, as usual, turned hostile. The accused contended that the asafoetida was not kept for sale and that it was kept only for treatment of cattle disease. The accused also examined a witness (D.W. 1) to the effect that the concerned article was kept in the lumber-room where the damaged articles were kept.
2. The learned Magistrate accepted the prosecution case and convicted the accused and sentenced each of them to three months, rigorous imprisonment and also to pay a fine of Rs. 500 each. On appeal the learned Sessions Judge confirmed the conviction but reduced the imprisonment to one till the raising of the Court and confirmed the fine. The accused have now come on revision.
3. Learned Counsel for the- petitioners argued that the mandatory provisions of Section 13(2) of the Prevention of Food Adulteration Act have not been complied with in this case, and therefore, the conviction has to be set aside. It was pointed out that the Court had taken cognizance of the case on 20-8-1979, but the accused 1 and 2 were served with reports of the Analyst only on 13-9-1979 and 15-9-1979 respectively. It is therefore argued that there was a delay of three weeks. Reliance was placed on the ruling reported in Sebastian v. State 1982 MLW (Cri) 28 : 1982 Cri LJ 1359, for the proposition that the word 'immediately' in Rule 9-A of the Prevention of Food Adulteration Rules would mean 'at once' or 'without delay' or 'forthwith'. It was held in that case that a day or two can be taken as 'immediately' and that it is always a question of fact to be determined taking into consideration all the circumstances in a given case. Another decision was relied on which is reported in State v. Pachiappan 1982 MLW (Cri) 207 : 1983 Cri LJ NOC 161, wherein a delay of 17 days between the filing of the complaint and the service of notice under Section 13(2) violated the provisions of the Act. In yet another case reported in P. Rathinasami v. The State by Food Inspector, Ayyampettai, Town Panchayat 1982 MLW (Cri) 117 : 1983 Cri LJ 948, a delay of ten days in forwarding the copy of the Analyst Report to the accused after the initiation of the prosecution was held to be not in conformity with the requirements of Section 13(2) of the Act read with Rule 9-A of the Rules framed thereunder.
4. In the instant case, before us, as already stated, the report was served on the accused after a delay of 22 days for which there is no acceptable explanation. In fact, Ex. P-4 intimation discloses as if the complaint was filed and taken cognizance of by the Magistrate on 6-9-1979' for which there is no basis. The date incorporated in this notice as '6-9-1979' is misleading and incorrect. On this short ground, the conviction has to be set aside.
5. There is yet another ground for this Court to interfere in revision. Of course, the Analyst Report shows that the sample contained foreign resin and the finding is based on a particular test. But, there is no evidence to show that this is the only test prescribed under the Rules. Though it is not necessary to examine the Analyst to prove the report, having regard to the peculiar facts and circumstances of the case with reference to the concerned article, namely, compounded asafoetida, the accused did not have the opportunity of cross-examining the Analyst with reference to the various tests prescribed under the Act and the finality of the test. As such, I am of opinion that this evidence of the report is not sufficient for acting upon the finding, and, in a case of this kind, it would have been better, though not obligatory on the part of the prosecution, to examine the Analyst.
6. So, on these two grounds, the conviction of the two revision petitioners has to be and is hereby set aside. The criminal revision petition is allowed. The fine, if paid, would be refunded to the petitioners.