1. The petitioners in the revision case are A-1 and A-2 convicted under-sections 16(1)(a)(i) and 7 read with section 2(1)(a)(m) of the Prevention of Food Adulteration Act and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- in default to suffer rigorous imprisonment for three months.

2. The prosecution version is that A-1 is the proprietor of a Kirana shop and A-2 is the father of A-1 PW 1, the Food Inspector inspected the kirana shop on 22-12-1981 at about 10 pm and in the presence of PW 2 he purchased 480 gms of groundnut oil for Rs. 6-25 ps and, paid the cost. He sent one among the three sealed sample bottles along with Form No. VII to the Public Analyst. The report of the public analyst stated that the sample contained about 11.8% of castor oil and is, therefore, adulterated. Both the courts found the accused guilty. The learned counsel for the petitioners raised two-fold contention viz., that non-compliance of Rule 7(3) of the Prevention of Food Adulteration Rules is fatal to the prosecution and in any event on the facts the conviction is not sustainable. The learned Additional Public Prosecutor seeking to sustain the conviction contended that the time specified in Rule 7(3) is directory but not mandatory and the conviction is wholly justified in the circumstances.

3. Rule 7(3) of the Rules is as follows:—

“The public analyst shall, within a period of 45 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”.

4. The public analyst received the sample on 31-12-1981. The same was delivered to local (Health) Authority on 15-2-1982. Thus there is a delay of two days. In the The State Through Food Inspector, Khammam… v. Shaik Nisar Ahmed…. (1) (1981) 1 APLJ 392 while considering, the issue whether Rule 7(3) is mandatory or regulatory, Ramanujulu Naidu, J., held as follows:—

“The object of Rule 7(3) of the Rules is that within the stipulated time, the report of the public analyst should be despatched as otherwise the weight or sanctitv attached to his report would not be there. In my view, the provisions of Rule 7(3) of the Rules are mandatory in character and any infraction or violation-thereof does not justify acceptance of the report of the public analyst to sustain conviction of an accused person under the Act”.

5. In State v. Subberatnam (2) (1983) (2) A.P.L.J 212, Ramaswamy J. hold that Rule 7(3) is not mandatory but regulatory only and held as follows:—

“At this juncture I would also like to mention that normally I would be inclined to refer the matter to the Division Bench when I am dissenting with the decision of a co-ordinate Bench. But in view of the facts in this case, I am not inclined to refer the matter to the Division Bench for: I have already pronounced the judgment but this point was not raised then Secondly, this case was already referred once to the Division Bench on another point and the learned judges have sent back the same to a single judge. The respondent suffered a lot of harassment for tossing this matter from one court to another. Thirdly, the law laid down by their Lordships of the Supreme Court to which I have already referred to was not brought to the notice of my learned brother; and fourthly the present rule did not directly come up for consideration before my learned brother; and fifthly the present rule did not directly come up for consideration before my learned brother, in view of the latest decision of the Supreme Court directly airsing under the provisions of the Food Adulteration Act no useful purpose would serve. Hence I refrain from referring this matter to the Division Bench. With great respect to my learned brother, I am unable to share his view.”

6. Again Ramanujulu Naidu, J., in Food Inspector, Kovvur v. Jaladanki Rajamma (3) (1984) (2) APLJ 223 seized of the identical issue held as follows:—

“The observations made by the Supreme Court, it must be noted, are of a general character and have absolutely no bearing on the effect of contravention of Rule 7(3) of the Rules framed under the Act. Only some guidelines are indicated by their Lordships of the Supreme Court for determining the effect of contravention of a particular provision in a given statute. No other decision of the Supreme Court was referred to by Ramaswamy, J. In the circumstances, I stick to my earlier view and reiterate that the provisions of Rule 7(3) of the Rules framed under the Act are mandatory, contravention of which or violation whereof necessarily vitiates the prosecution I, therefore, sustain the order of acquittal of the respondents”.

7. The learned Addl. Public Prosecutor heavily relied upon the latest decision of the Supreme Court in Tulsiram; v. State Of Madhya Pradesh. (4) (1984) 4 SCC 487 : AIR 1985 SC 299 and contended that mere delay without prejudice is not fatal. In the Supreme Court decision, the copy of the report of the public analyst was forwarded to the accused 18 days after receipt of the same. The accused did not make any application to trial court to have one of the samples to send to the Central Food laboratory for analysis. It is contended that Rule 9-A brooked no time and there is a delay of 18 days in forwarding the report to the petitioner and the prosecution is vitiated. In the context of considering the ambit of expression “Immediately” in Rule 9-A, the Supreme Court held as follows:—

“Our conclusions on this question are: The expression “immediately” in Rule 9-A is intended to convey sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under S. 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with Rule 9-A is not fatal. It is a question of prejudice.”

8. The learned Additional Public Prosecutor stressed that the accent should be upon prejudice and not upon mere delay and as such the provision should be considered as regulatory only. It is not necessary to refer to the decisions of other High Courts relied upon by the learned counsel for the petitioners in support of the proposition that the provision is mandatory and the time stipulated in Rule 7(3) should be adhered to strictly. The issue whether rule 7(3) is mandatory or otherwise is not directly in issue before the Supreme Court in Tulsiram; v. State Of Madhya Pradesh. (4 supra). In view of the divergence of opinion between the two learned judges, the matter is referred to the Division Bench and the papers may be placed before the learned Chief Justice.

9. Pursuant to order of the Court dt. 25-4-1985 referring the case to a Division Bench this petition coming on for hearing on Monday the 15th day of July, 1985 and upon perusing the petition and the judgment of the Lower Court and the proceeding recorded by Lower Court in the case and upon hearing the arguments of Mr. T. Bali Reddy, Advocate for the petitioners and Public Prosecutor on behalf of the State and having stood over for consideration till this day, the Court delivered the following:

JUDGMENT

(Judgment of the Bench delivered by Jeevan Reddy, J.)

This Criminal Revision Case has been referred to a Division Bench in view of the conflict of opinion in this Court with respect to the question whether the time limit prescribed by Sub-Rule (3) of Rule 7 of the Prevention of Food Adulteration Rules, 1955, is mandatory or directory. Sub-Rule (3) of Rule 7 says:

“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.”

10. In this case, the report was delivered to the Local Health Authority on the forty seventh day. It is agreed that, if the time limit prescribed in Rule 7(3) is held to be mandatory this Revision ought to be allowed. The other contentions raised in the Criminal Revision Case would come up for consideration only if it is held that the said requirement of Rule 7(3) is not mandatory, but only directory.

11. The prevention of Food Adulteration Act, 1954 has been enacted by the Parliament to make provisions for prevention of adulteration of food. Section 7 prohibits the manufacture, sale, storage, or distribution of any adulterated, misbranded, or prohibited food or articles of food, and also says that an article of food, the sale whereof is regulated by a licence, shall not be sold except in accordance with the conditions of such licence. Even the manufacture and sale of adulterant is prohibited. Section 8 provides for the appointment of Public Analysts, holding prescribed qualifications, and Sec. 9 provides for appointment of Food Inspectors. Section 10 empowers the Food Inspector to take sample of any article of food from any person in possession of the same and, for that purpose, he is invested with certain powers of entry, inspection, and seizure. The procedure for seizure is also prescribed by the Act. After effecting the seizure the Food Inspector is obliged to send, immediately by the succeeding working day of seizure a sample of the article of food seized to the concerned Public Analyst in the prescribed manner. Section 13 requires the Public Analyst to deliver, in the prescribed form, a report of the result of his analysis of the food article sent to him, to the Local Health Authority. On receipt of such report, if the Local Health Authority decides to prosecute the person from whom the food article was seized, a complaint will be made to the appropriate Court in the prescribed manner. Sub-Section (2) of Section 13 requires that, soon after the institution of the prosecution, a copy of the report of the Public Analyst shall be sent to the person from whom the food article has been seized. It is open to such person, if he so desires, to apply to the Court within ten days of the receipt of the report of the Public Analyst, to have the sample of the article of food kept with the Local Health Authority analysed by the Central Food Laboratory. If such an application is made, the Court shall require the Local Health Authority to comply with the said request and then proceed with the enquiry.

12. Rules have been framed by the Central Government in exercise of the powers conferred upon it by Section 23 of the Act. Rule 7 deals with the duties of a Public Analyst. It would be appropriate to set out the Rule in its entirety.

“7. Duties of a Public Analyst:—

1. On receipt of a package containing a sample for analysis from a food inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.

2. The Public Analyst shall cause to be analysed such samples of articles of food as may be sent to him by the food inspector or by any person under the Act.

3. 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 forward the same to him for analysis under S. 12 of the Act”.

13. Rule 9-A, which has been introduced in 1977, requires that “the Local Health Authority shall immediately after the institution of prosecution forward copy of the report of the result of analysis in Form III delivered to him under Sub-Rule (3) 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, and simultaneously also to the person, if any, whose name and address and other particulars have been disclosed under Sec. 14-A of the Act”.

14. A review of the above provisions makes the following position clear: once a Food Inspector seizes an article of food on the belief that it is adulterated, he shall send the sample thereof to the concerned Public Analyst “by the immediately succeeding working day”. Another sample is kept with the Local Health Authority. The Public Analyst shall analyse the food article sent to him and deliver his report to the Local Health Authority “within a period of forty-five days from the date of receipt of………… sample for analysis”. After the receipt of this report, the competent authority shall decide whether to institute the Prosecution, or not. There is no provision either in the Act or in the Rules and it is very important to remember this-prescribing any time limit within which the prosecution should be launched or the complaint made to the Court, as the case may be. In the light of the scheme of the enactment, it can no doubt be said that the decision whether to prosecute the person concerned, or not, should be taken with due deligence and the prosecution, if decided to be launched, should be instituted with reasonable promptitude; but, beyond that, it is not possible to say, in the absence of any provision in the Act or in the Rules, of Course, once a prosecution is instituted or a complaint laid, as the case may be, then sub-section (2) of Sec. 13, read with Rule 9-A, springs into action. It requires that, immediately upon the institution of the prosecution, a copy of the report of the Public Analyst should be sent to the person concerned (accused), and the latter has an option to apply to the Court, within ten days of the receipt of the report, to send the sample kept with the Local Health Authority, for analysis by the Central Food Laboratory. Sub-Section (3) of Section 13 gives an overriding effect to the certificate issued by the Director of Central Food Laboratory, over the report of the Public Analyst. It is in the light of these provisions that we have to decide the question referred to us.

15. Whether a provision of law is directory or mandatory has always been a vexed question. Several tests have been evolved by the Courts from time to time but ultimately, it is a question to be decided in each given case in the light of the language employed in the provision, the object underlying it, and the general scheme of the context and the enactment in which it occurs. The mere use of the word “shall” is held not to be conclusive, but only an indication. Generally it is held that, if the consequences of non-compliance are set out, it is a sura indication of the intention of the Legislature: (see; State Of U.P v. Manbodhan Lal Srivastava (1) AIR 1957, SC, 912. In this case, the question was whether sub-clause (c) of clause (3) of Art. 320 of the Constitution, which requires the Public Service Commission to be consulted in all disciplinary matters affecting a person serving the Government in a Civil Capacity, is mandatory or directory. While examining the said question, it was observed:

“Does the constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Art. 320(3)(c)? It does not either in express terms or by implication, provide that the result of such non compliance is to invalidate the proceedings ending with the final order of the Government”.

16. This aspect was held to have a direct bearing on the question whether the said provision is mandatory, or not. It was held that the said provision was not mandatory.

17. There is no provision in the Prevention of Food Adulteration Rules, or the Act, which provides the consequence that follows if the Public Analyst does not deliver his report within forty-five days, as prescribed in Rule 7(3). The sub-rule, no doubt, uses the expression “shall”, but, the question is whether the said time limit prescribed for delivering the report, is mandatory. The contention of Sri T. Bali Reddy, the learned counsel for the petitioners is that, having regard to the several provisions in the Act and the Rules, and the context in which Rule 7(3) occurs, the said requirement should be held to be mandatory. He submits that this is also necessary from the point of view of the accused who should not be kept in a state of uncertainty too long. He brought to our notice that, almost all the High Courts in the country, as also a learned single Judge of this Court, have taken a consistent view that the said requirement is mandatory. He also brought to our notice the legislative history of this sub-rule. Initially, the sub-rule merely required that the Public Analyst shall, after the analysis has been completed. “Forthwith supply to the person concerned a report in Form III of the result of such analysis”. The amendment effected in 1968, prescribed for the first time, the period of sixty days for sending the report to the person concerned. By another amendment in 1978, the period of sixty days was reduced to forty-five days: it is now required that the report shall be delivered to the Local Health Authority within the said period of forty-five days. It is also brought to out notice that, by another amendment effected recently, the period of forty-five days has been reduced to forty days. This aspect has been relied upon as indicating the concern of the rule making authority to ensure the prompt delivery of the Public Analyst's Report.

18. On the other hand it is contended by the Learned Public Prosecutor that the said requirement is not mandatory Reliance is placed upon the decision of Ramaswamy, J., of this Court, in support of this contention.

19. In our opinion, two important factors must be kept in mind while answering the above question, viz., (i) that Rule 7(3) deals with a stage anterior to the Institution of the prosecution. By the date of receipt of the report of the Public Analyst, the matter has not yet gone to the Court. Indeed, it is on the basis of this report that a decision will be taken by the appropriate authority whether to institute a prosecution, or not; and (ii) that, neither the Act nor the Rules prescribe or provide any time limit within which the prosecution—if it is decided to be instituted—has to be instituted. When there is no time limit prescribed for instituting the prosecution, from the date of receipt of the report of the Public Analyst, we fail to see any reason for holding the said period of forty-five days as a mandatory. Once the Rule is held to be mandatory, even the delay of one day would be fatal, and we see no reason for holding so. This is not to say that the Public Analyst can ignore the time limit prescribed under Rule 7(3) and can send his report at any time he chooses. He must, in all cases, try to comply with the said time limit. But, if in a given case there is a slight delay of a few days, it should not be held that the very report is void, nor should it be held that such a report cannot form the basis for the appropriate authority to decide whether to institute a prosecution, or not. Indeed, if the delay is too long, the Court may refuse to attach any value to such a report. But, we find it difficult to say that merely because a time limit is prescribed, it is necessarily the outer limit and that, even a day's delay should make the report void, or inadmissible in law.

20. The matter can be looked at from another angle a test which was also applied in Manbodhanlal Srivastav's Case (supra)-viz., whether Rule 7(3) confers a right upon the accused, or is it merely a procedural provision. As pointed out herein before, Rule 7(3) deals with a stage anterior to the institution of the prosecution. Indeed, no prosecution has yet begun, and the accused has not come into the picture. The matter is still at the stage of investigation. It is, no doubt true that both in public interest and also from the point of view of the accused, it is necessary that these matters should be disposed of expeditiously. It is equally true that many of the food articles are perishable articles, and if the analysis is delayed too long, the analysis may not be correct; but, we are told that some preservatives are added in the case of perishable articles, so that they are available in the same state till they are analysed; in any event, the law does not prescribe that the analysis should be carried out on the same day the sample is received, or on the next day, but gives a sufficiently long period of forty-five days for analysis, and communication of the report. Be that as it may, it is clear that it is not a right given to the accused, but only a procedural provision designed to speed up the investigating process leading to the institution of the prosecution.

21. We shall now refer to the decisions taking a contrary view, and to the reasoning thereof. In the State, Through Food Inspector, Khammam v. Shaikhisar Ahmed (2) 1981-(1) A.P.L.J 392 Ramanujulu Naidu, J. held:

“The object of Rule 7(3) of the Rules is that within the stipulated time, the report of the Public Analyst should be despatched, as otherwise the weight or sanctity attached to his report would not be there. In my view, the provisions of Rule 7(3) of the Rules are mandatory in character and any infraction or violation thereof does not justify acceptance of the report of the Public Analyst to sustain conviction of an accused person under the Act.”

22. The same view was reiterated by the learned Judge in another decision, in the Food Inspector, Kovvur v. Jaladanki Ajamma (3) 1984-(2), A.P.L.J 223, disagreeing with the view taken by Ramaswamy, J., in Public Prosecutor v. Subbaratnam (7) 1983-(2), A.P.L.J, P. 212.

23. In Food Inspector, Palcha Municipality v. K.M Moose (4) 1984, Criminal Law Journal, 563, a Bench of the Kerala High Court came to the same conclusion. The reasons for holding the Rule mandatory, are the following: (1) if the analysis is done within a certain time prescribed, the fate of the accused will be decided early: (ii) in the case of certain articles of food, it is highly desirable that analysis be done as early as possible; any delay in the analysis may defeat the very purpose of analysis and would cause unnecessary and avoidable inconvenience: (iii) Rule 7(3) relates to the essence of the thing to be performed and to matter of substance, and is not a mere rule of convenience. The time limit is prescribed to ensure that the article of food is analysed before it gets deteriorated and the report is promptly delivered, thereby enabling the authority to launch the prosecution, (iv) it is also intended to safeguard the right given to the accused by Sub-Section (2) of Section 13, read with Rule 9-A. (v) the scheme of the Act and the Rules discloses a time schedule; therefore, wherever a time limit is prescribed, it can only be the outer limit, indicating its imperative nature; and (vi) holding Rule 7(3) to be directory only would encourage slackness on the part of Public Analysts to the detriment of the accused. The very fact that the period has been reduced from sixty to forty-five days, is itself indicative of the keenness of the rule making authority that the Public Analyst should discharge his duties within the period prescribed.

24. To the same effect is the decision of the Madras High Court in State Public Prosecutor v. Meenakshi Achi (5) 1972, Criminal Law Journal, 1984. A learned single Judge held that the time limit prescribed by Rule 7(3) is the outer limit, and is unrelaxable. It was held that this time limit is closely connected with the right conferred upon the accused by Section 13(2) of the Act.

25. In State of Maharashtra v. Z.V Haryan (6) 1981 Crl. Law Journal, 383, a Bench of the Bombay High Court held that Rule 7(3) is mandatory in every sense. The reasoning given by the Madras High Court in Meenakshi Achi's case (5) 1972, Crl. Law Journal, 1684 was applied and followed. Indeed, this is the view taken by the Bombay High Court consistently in several decisions which are referred to by the Division Bench of the Kerala High Court in the decision referred to above.

26. It is brought to our notice that in 1983-(I) Food Adulteration Cases, P. 140; the Punjab & Haryana High Court has also taken the same view.

27. With great respect to the learned Judges who took the above view, we find ourselves unable to agree. We are unable to see any direct nexus between Rule 7(3), and the right conferred upon the accused by Section 13(2), read with Rule 9-A. The said right of the accused springs into action, or arises only when a prosecution is instituted and Rule 7(3) deals with a stage anterior thereto. We must reiterate that we should not be understood as saying that the time limit prescribed in Rule 7(3) should altogether be ignored, or that any amount of delay would be countenanced by courts. Indeed, there may be some articles of food where analysis should be done and the result communicated sooner than forty five days. But, once the law recognises forty-five days as the time limit, the question before us is whether the delay of even a few days should be held as vitiating the said report, which would be the result if we hold the Rule to be mandatory. The legislative history of this Rule, no doubt, indicates the concern of the rule making authority that the Public Analyst should conduct the analysis and communicate his report with reasonable expedition; but that does not necessarily mean that report sent a day or two, or a few days later than forty-five days, should be treated as void and as of no effect. Particularly in the absence of any provision fixing the time limit within which the prosecution should be instituted after receiving the Public Analysist's report, and for the several reasons recorded by us herein before we are unable to agree with the said view.

28. Now we shall refer to the decisions taking the other view in Public Prosecutor v. Subbaratnam (7) 1983-(2), A.P.L.J 212 Ramaswamy, J. dealt with this question. The learned judge drew support for the said proposition from the decision of the Supreme Court in Dalchand v. Municipal Corporation, Bhopal (8) (1984) 2 SCC 486 : AIR 1983, SC 303, dealing with Rule 9-A. The learned Judge further held that, inasmuch as the Local Health Authority has not control over the actions of the Public Analyst and there may also be delays in communication, it would not serve the purpose of the Act to held the said Rule to be mandatory. In this behalf, the learned Judge relied upon the proposition affirmed in Dattatreya v. State of Bombay (9), AIR 1952 SC 181, to the effect.

“….. generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or in justice to persons who have no control over these entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.”

29. We agree with the conclusion arrived at by the learned Judge. The other decision taking this view is Babulal v. State (10) 1969, Allahabad Law Journal, P. 757. But we find that there is no specific discussion about sub-rule (3) of Rule, 7, except a general observation that it is not mandatory. This decision was followed by the Orissa High Court in State v. Satyabai Jena (11) 1974 Crl. Law Journal, P. 878, as laying down that Rule 7(3) is not mandatory.

30. We may now refer to a few decisions which though not dealing with Rule 7(3), throw light on the problem. In Dalchand v. Municipal Corporation, Bhopal (8), which has been relied upon by Ramaswamy, J., the question was whether Rule 9(j) of the Prevention of Food Adulteration Rules, which required that the report of the Public Analyst should be served upon the accused within ten days of the receipt of the report, is mandatory or directory. Chinnappa Reddy, J., sitting singly, after observing that the question whether a provision is mandatory or directory has to be decided with reference to the context and purpose of enactment, held as follows:—

“Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period Rule 9(j) of the Prevention of Food Adulteration Act, as it then stood, merely instructed the Food Inspector to send by registered post copy of the public Analyst's Report to the person from whom the sample was taken within 10 days of the receipt of the Report. Quite obviously the period of 10 days was not a period of limitation within which as action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken, to make such arrangements as he might like to challenge the Report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there-could be no cause for complaint. I am clearly of the view that R. 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory”.

31. Indeed, Rule 9(j) deals with a stage subsequent to the institution of the prosecution, and yet the learned Judge held that it is not mandatory. Since Rule 7(3) deals with an anterior stage, and also because the law does not prescribe the period within which the prosecution should be instituted, after receiving the report of the Public Analyst. Rule 7(3) must be held to be directory only. Indeed, in the said decision of the Supreme Court a Bench decision of this Court in Public Prosecutor v. Murlidhar (12) 1977, Crl. Law Journal, 1634, holding that Rule 9(j) is mandatory was held to have been decided wrongly.

32. Another decision to be referred to is the decision of a learned single judge of this Court in G. Chandramouli v. State (13) 1978, Crl. Law Journal, 549. The question before the learned Judge was whether the requirement in Sec. 11(3) which requires that when a sample of any article of food is taken, “the Food Inspector shall by the immediately succeeding working day, send a sample of the article of food…” to the Public Analyst, is mandatory or directory. The learned Judge held that it is not mandatory.

33. For the above reasons, we hold that the time limit prescribed in Rule 7(3) cannot be held to be mandatory, but only directory. This does not, however, mean that the Public Analyst can ignore the said requirement. He must in all cases, observe the said time limit. Indeed, where there is undue delay, the Court may ignore the report on that ground alone. In the event of undue delay, the Court may presume prejudice, without calling for proof thereof. But it is not possible to hold that the delay of even a few days would by itself vitiate the report and make it void, or inadmissible, or of no effect. The matter must be left to be decided in each case, having regard to the nature of the article of food, and having regard to the delay in sending the Public Analyst's report, and all other circumstances, whether the delay in that given case is relevant or not, and if relevant, to what extent it affects the prosecution case?

34. We shall now take up other contentions raised in this Criminal Revision Case. It is contended that the notice under Section 13(2) was not served upon the 1st accused. Though the prosecution has alleged that the notice was sent by Registered Post, there is no proof that it was received by A-1, though it was received by the other accused. It is therefore, stated that the 1st accused was disabled from exercising the right conferred upon him under Sec. 13(2), in such a situation. This contention was not raised in both the Courts below. It is essentially a question offset Undoubtedly, the notice contemplated by Rule 9-A was sent to both the accused, on the next day of the institution of the prosecution. It was admittedly, received by the second accused, and though they are father and son and were defended by the same counsel, no application was made by him under Sec. 13(2). It is, therefore, not possible to hold, on the material before us, that the 1st accused was not served with notice under Rule 9-A.

35. Another contention urged is that, at the time of the inspection, A-1 was not present in the shop and, therefore, in any event, he cannot be held guilty. The decision of the Supreme Court in Smt. Manibai v. State of Maharashtra (14) (1974) 3 SCC 760 : AIR 1974. Supreme Court, 434 is relied upon. We are unable to agree with this contention either. A-1 is the licensee; there is no allegation that he was not actually carrying on the business. At the time of inspection, his mother was there it is not the accused's case that his mother was incharge of or was conducting the business. Mere temporary absence from the shop at the time of inspection does not mean that the 1st accused was not incharge of the business, or that he was not actually conducting the business. The situation may be different where there are joint licenses, or where the business is done by an incorporated body; but, there is no room in this case for holding that the 1st accused was either not actually conducting the business, or that he was not incharge of the business. The decision of the Supreme Court, therefore, has no application herein.

36. The last contention is that, though the report of the Public Analyst was received by the Local Health Authority on 15-2-1983, the prosecution was instituted only on 6-7-1982, i.e, with a delay of 4½ months. While we certainly do not appreciate this delay, it is not possible to hold, in the facts and circumstances of this case that any prejudice has resulted to the petitioners on that account. No such argument was also urged in the Courts below. For the above reasons, the Criminal Revision Case fails, and is dismissed.

37. However, having regard to the age of second accused and the facts of the case the R.I is converted into S.I in the case of both the accused.