The Judgment of the Court was delivered by

Natarajan, J.:— This revision comes before this Bench on a reference made by one of us (Maheswaran J.) regarding the correctness of the view taken by Paul J. in Cr. R.C No. 7 of 1978 in his order dated 18th June, 1979.

2. The revision is directed against the judgment of the learned Sessions Judge of Salem division confirming the conviction of the revision petitioner under Sec. 7(1). and Sec. 16(1)(a)(i) read with Sec. 2(1)(a)(m) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the sentence of rigorous imprisonment for six months and a fine of Rs. 1000 imposed on him by the Judicial First Class Magistrate No. 2, Salem. The conviction came to be awarded in the following circumstances: On 29th December, 1976 at about 9.15 a.m the Food Inspector of Attur found the petitioner to be selling milk and purchased from him 750 mililitres of milk for purpose of analysis. The milk was sealed in three clean bottles in observance of all formalities and one of the bottles was sent to the Local (Health) Authority for analysis and report. The report subsequently received disclosed that the milk was deficient in solids-non fat to the extent of at least 17 per cent. On receipt of the report, the Food Inspector served a copy of the Analyst's report on the petitioner on 14-2-77. On 15-2-77 and 16-2-77 respectively the Food Inspector and the Commissioner signed the complaint and prosecution was instituted against the petitioner on 19-2-1977. One of the contentions raised by the petitioner in the trial of the case was that the mandatory provisions of S. 13(2) of the Act had not been complied with and hence he had been prejudiced and consequently, the complaint ought not till have ended in conviction. The contention was not accepted by the trial court as well as the Appellate Court and the result was that the petitioner was awarded conviction and sentence as ??? out supra. The only point urged in the revision is that a Bench of this court had held in P.K Moorthy…Accused- v. Food Inspector, Kumbakonam Municipality…Complainant-., 1979 Mad LW (Cri) 139 : 1980 Cri LJ 51 : 1980 FAJ 198 that non-compliance with the pro vision contained in S. 13(2), which is mandatory, vitiates the entire proceedings and on the said ratio, the petitioner should have been acquitted. Or behalf of the State, the Public Prosecutor placed reliance on an unreported judgment of Paul J. in Cri. R.C No. 7 of 1978. (Balu v. State of Tamil Nadu wherein the learned Judge has observed that though S. 13(2) of the Act and Rule 9(a) of the Prevention of Food Adulteration Rules required that the report of the Analyst should be serve after the prosecution had been launched, the failure to do so will not with the proceedings, if no prejudice has been caused to the accused. In that case, the facts were that the report of the Analyst had been sent ten day prior to the laying of the complaint. The referring Judge did not agree with the view expressed by Paul J. becaus it is in conflict with the Bench decision in P.K Moorthy…Accused- v. Food Inspector, Kumbakonam Municipality…Complainant-., 197 Mad LW (Cri) 139 : 1980 Cri LJ 51 : 1980 FAJ 198. Hence, to resolve the conflict, the matter has been posted before the Bench.

3. For determining the scope and effect of S. 13(2) of the Act it is necessary to refer to the relevant provision as it stood before the amendment and as it now stands after the amendment. The section, as it originally stood, read as follows (at pp. 51 & 52 of Cri LJ):—

“After the institution of a prosecution under this Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an application to court for sending the part of the sample mentioned in sub-clause (i) or sub-clause (iii) of clause (c) of sub-section (1) of Sec. 11 to the Director of Central Food Laboratory for a certificate; and on receipt of the application, the court shall first ascertain that the lark and seal or fastening as provided ??? clause (b) of sub-sec. (1) of Sec. 11 ??? intact and may then despatch the part of the sample under its own seal ??? the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis.”

4. After the amendment in 1976, Sec. 13 ??? as follows:—

“13. Report of Public Analyst:— (1) The public analyst shall deliver, in such form as may be prescribed a report to the Local (Health) Authority of he result of the analysis on any article of food submitted to him for ???.

(2) On receipt of the report of the result of the analysis under sub-sec. (1) ??? the effect that the article of food is ??? the Local (Health) Authority shall, after the institution of ??? against the person from whom he sample of the article of food was taken and the person, if any, whose lame, address and other particulars have been disclosed under Sec. 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or ??? as the case may be, informing such person or persons that if it is so desired either or both of them 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 he sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.”

5. From a reading of the section before he amendment as well as after the amendment, it may be seen that originally a duty was not cast on the Local (Health) authority to send a copy of the report of the result of the analysis to the person from whom the sample was taken. No time-limit was also prescribed within which the person, from whom the sample was taken, could apply to the court for one of the unutilised samples being sent to the Director of the Central Food Laboratory for his opinion in order to see whether the report sent by the Public Analyst was correct or not. Consequently, a person affected by the report of the Public Analyst could apply to the Court even several months after the institution of the prosecution for a sample being sent to the Director of the Central Food Laboratory for obtaining his report. The laxity of the provision gave room for certain unwanted consequences. Firstly, an accused person could delay the trial of the case by applying belatedly for a sample being sent to the Director of the Central Food Laboratory. Since no time limit has been prescribed for the sample being sent, when an application was made in that behalf by an accused person, the court had no alternative but to send the sample to the Central Food Laboratory and adjourn the trial of the case till the report was received. Another concomitant was that by reason of delay the sample that was preserved was likely to get decayed and be unfit for the director of the Central Food Laboratory to examine it and give his report. In such a situation, the accused was deprived of a valuable opportunity available to him under law for contradicting the report of the Public Analyst by obtaining a different report from the Central Food Laboratory. It is only to overcome these situations, the Legislature must have amended the section and enacted it in its present form. Under the present provision, a duty has been cast under sub-sec. (2) on the Local (Health) Authority to send a copy of the result of the analysis to (i) the person from whom the sample of the article of food was taken and (ii) the person, if any, whose name, address and other particulars have been disclosed under Sec. 14-A informing him that he should make an application if he so desired, to the court within a period of ten days from the date of receipt of the aforesaid copy, to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. In such circumstances, if the object underlying the amendment is to be fully ensured it goes without saying that the requirement of Sec. 13(2) must be conformed to the letter of the law. As per the section, any adverse report received from the Local (Health) Authority should firstly be communicated to the affected party after the institution of the prosecution. Secondly, the report should be forwarded in such manner as may be prescribed. Thirdly, the communication sent to the affected party must inform him that if he so desired, he should 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 the Local (Health) authority analysed by the Central Food Laboratory. It is in this connection, the relevant rule also has to be considered. The relevant rule, as it originally stood was Rule 9(j) of the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules). That Rule was worded as follows—

“Rule 9:— It shall be the duty of the Food Inspector — ……… (i) to send by hand or registered post a copy of the report received in form III from the Public Analyst to the person from whom the sample was taken in case it is found to be not conforming to the Act or the Rules made thereunder as soon as the case is filed in the Court.”

6. The rule was subsequently substituted by S.R.O No. A.438/77 with Rule 9-A. The substituted rule reads as follows:

“Rule 9-A; The Local (Health) Authority shall, immediately after the institution of the prosecution, forward the copy of the result of analysis in form III delivered to him under sub-rule (3) or 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, address and other particulars have been disclosed under S. 14-A of the Act.”

7. As per the new rule, the report of the result of the analysis in form III could be delivered to the affected party either by registered post or by hand as may be appropriate. What is of significance in the rule is that the forwarding of the copy of the report has to be done ‘immediately after the institution of prosecution’. Hence it may be seen that both under S. 13(2) as well as under Rule 9-A, the forwarding of the report by the Local (Health) Authority has to be done after the institution of the prosecution and not before.

8. The words ‘after the institution of the prosecution’, in the section as well as in the rule must be understood in their proper perspective and also in conformity with the object underlying the amendment of S. 13(2). As already stated, there must not be an abuse of the right given to the affected party by his making an application to court at ??? belated stage of the case for the sample being sent to the Central Food Laboratory. At the same time, the valuable right given to the affected party must not also be lost to him on account of tin decay of the sample due to passage to time. Therefore we are of the opinion that the forwarding of the copy of the report by the Local (Health) Authority should be done only after the institution of the prosecution and not earlier, is, no doubt, true that the words ‘after the institution of the prosecution’ should not be construed to mean that the report should be forwarded on the same day on which the complaint is filed and that even a delay of a day or two would no be brooked by law. We may only refer, in this connection, to two cases. In Gopal Mondal v. State Of West Bengal., (1975) 2 SCC 590 : AIR 1975 SC 1807 : (1975 Cri LJ 1554) the meaning of the word ‘forthwith’ occurring in S. 3(3) of the Maintenance of Internal Security Act, 1971, was considered and it was held as follow: (Para 3):

“The word ‘forthwith’ has been in terpreted to mean ‘as soon as possible without any delay’. If there is some delay which is reasonably explained then there is no violation of the mandatory requirement of the law.”

9. In Food Inspector Gram Panchayat Nuzvid v. Golla Nageshwara Rao, 1979 Mad LJ (Cri) 622 : (1979 Cri LJ NOC 177) (Andh Pra), it was held that though Rule 9-A is imperative and mandatory in character, the word should not how ever, be construed to mean that a copy of the report of the Public Analys should be forwarded on the very day or which the complaint is instituted and if without any unreasonable delay, a copy of the report of the Analyst is forwarded, it would amount to substantial compliance with the rule. Hence the word: ‘after the institution of prosecution’ have to be understood in a pragmatic sense however, the forwarding of the report must be done after the institution of the prosecution and not earlier as has been done in the instant case, viz., forwarding the report on 14-2-1977 and filing the complaint on 19-2-1977.

10. Now, let us examine the matter from another angle, Assume a case where a report of the Local (Health) authority is sent (Public Analyst?) to an accused person even before the prosecution is instituted. Under S. 13(2), the person from whom the sample is taken or the person whose name, address and other particulars have been disclosed under S. 14-A, has a period of ten days from the date of receipt of the copy of the report to move the Court to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. If the report is received before the institution of prosecution, to which court is the affected person to make his application? There may be stations where there may be more than one Magistrate to deal with cases filed under the Act. The affected person may not be in a position to know to which court he must make the application. Secondly, from which day is the person concerned to reckon the period of limitation of ten days. Is it a period of ten days from the date of receipt of the report or is it ten days from the date on which he comes to know that prosecution has been instituted? If prosecution has not been instituted within a period of ten days after the receipt of the copy of the report, the court to which an application is made for the sample being sent to the Central Food Laboratory cannot entertain the application made by the affected person and have the sample sent to the Central Food Laboratory. If the application is made within a period of ten days after the institution of prosecution but beyond a period of ten days from the date of receipt of the report, the court may refuse to act on the application on the ground that if had been made beyond a period of ten days from the date of receipt of the report by the applicant. Thus, viewed from this angle also, we think that the only view that could be taken of S. 13(2) is that the copy of the Analyst's report should be sent only after the institution of prosecution and not earlier. The view of Paul J. in Cr. R.C 7 of 1978 that the forwarding of the Analysts report even before the institution of prosecution will not cause any prejudice to the accused, cannot be accepted for two reasons. Firstly, the communication of the report in that manner will not be in conformity with the requirements of the section. Secondly, as we have already pointed out, the accused is also likely to be prejudiced by the sending of the Report before the-institution of prosecution.

11. We may now refer to the case law on the subject, in Chattarpal v. State of U.P, 1980 FAJ 140 : (1980 All LJ 348), it was found that though the report of the Public Analyst had been sent to the affected party by registered post one day after the filing of the complaint, information was not sent to him that within ten days of the receipt of the report he could move the court for getting the sample of food analysed by the Central Food Laboratory. In P.K Moorthy…Accused- v. Food Inspector, Kumbakonam Municipality…Complainant-., 1979 Mad LW (Cri) 139 : 1980 FAJ 198 : 1980 Cri LJ 51, it was found that the Food Inspector had followed the old procedure as it stood prior to the amendment of S. 13(2). In Bhaskar Krishna Shetty v. State of Maharashtra, 1980 FAJ 258 (Bom) the contravention complained of was that a copy of the report of the Public Analyst was not forwarded to the accused immediately after the institution of the prosecution and there had been a breach of Rule 9-A and deprivation of the right conferred by S. 13(2) on the accused. In Sri Ram Gopal v. State, 1980 (1) FAC 375 (All), Amarchand v. The State, 1981 (1) FAC 230 (P.A Jose v. Food Inspector, (1981) 1 FAC 287 (Ker), the prosecution had failed to forward a copy of the report of the Public Analyst to the accused and also to give intimation to him under S. 13(2) about his right to have one of the samples sent to the Central Food Laboratory for analysis and report. In State by Public Prosecutor v. C. Sambandamurthy, 1980 Mad LW (Cri) 81 : 1980 Mad LJ (Cri) 518 : (1980 Cri LJ 1198) there was no evidence to show that information was sent to the accused after the prosecution was launched that he could move the court for having the sample analysed by the Central Food Laboratory. In all these cases it has been held that the terms of S. 13(2) and Rule 9-A are mandatory in character and a contravention or non-observance of the provisions had pre-judicially affected the interests of the accused and as such, the convictions ought not to have been awarded in such cases. In Chakravarthi v. State Food Inspector, Kumbakonam Municipality, 1980 Mad LW (Cri) 55 an identical question as the one before us came to be considered by one of us (Maheswaran J.). In that case the report of the Local (Health) Authority (public analyst?) was served on the accused on 23-2-1977, whereas the complaint was forwarded to court by the Municipal Health Officer only on 25-2-1977. The sending of the report was held to be not in conformity with the provisions of S. 13(2) and as such, the conviction and sentence awarded to the accused should be set aside. In Bholanath v. State, 1977 Cri LJ 154 (Cal), it was held that Rule 9(j) as amended conferred a right, on an accused, independent of the right conferred under S. 13(2) of the Act and hence a delay of more than ten and a half months in supplying the copy of the report of the Public Analyst caused prejudice to the defence and therefore the conviction should be set aside.

12. In the following cases there was delay in the filing of the complaint after the receipt of the report of the Local (Health) Authority. The concerned accused person in each of the cases contended that his right to have one of the samples sent to the Central Food Laboratory had been, deprived and hence the conviction should be quashed. Vide Babulal Hargovindas v. State of Gujarat, 1971 Supp SCR 63 (or 53?): (1971 Cri LJ 1075); Jai Singh v. State, 1976 Cri LJ 739 (All); Chandrika Prosad v. State of Assam, 1976 Cri LJ 149 (Gau); Jai Ram v. State of M.P, 1978 Cri LJ 115 (Madh Pra), The State Of Maharashtra… v. Hariram Hambarram…., 1979 Cri LJ 397 (Bom) and Gopichand v. State, 1981 FAJ 90 (All). In all these cases the court did not go into the question whether S. 13(2) of the Act was mandatory or not but instead, rejected the contention of the accused on the ground that they had not made applications at any time to the trial court for having the sample sent to the Central Food Laboratory and that the plea of non-conformity with the provisions of S. 13(2) had been raised for the first time before the High Court in the revision proceedings. Hence these decisions are distinguishable on facts and they cannot be taken to mean that in these decisions a view has been taken that S. 13(2) was not mandatory in character, but was only directory.

13. In Public Prosecutor, Hyderabad v. J. Muralidhar, 1977 Cri LJ 1634 (Andh Pra) a Division Bench of the Andhra Pradesh High Court construed the terms of Rule 9(j) and held as follows (at p. 1635):—

“Of course, if there is, some delay in sending the report, the complainant's case cannot be thrown out unless the accused shows that even this slight delay has caused prejudice to him. It is not possible to lay down any hard and fast rule regarding the delay in sending the report of the Public Analyst to the person from whom the sample was taken. Every case will have to depend on its circumstances. But, when the report of the Public Analyst was not sent to the accused even until the filing of the complaint, then to our mind, in such a case, the accused could be acquitted without his pleading prejudice.”

14. The Bench did not consider the terms of S. 13(2), but confined its scrutiny only to Rule 9(j).

15. Thus, a review of judicial authority also leaves no room for doubt that the preponderance of opinion is in favour of holding that S. 13(2) is mandatory is its terms. We have discussed above the twin-fold object sought to be achieved by the amendment of the Section, viz., protecting the interests of society by ensuring that the trial of cases filed under the Act are not protracted by the accused by making applications at a belated stage for the sample being sent to the Central Food Laboratory for further report and at the same time, ensuring that due opportunity is given to the accused to set right any mistake contained in the report of the Local (Health) Authority (Public Analyst?) by having a sample sent to the Central Food Laboratory and obtaining a report from that institution. Since the opportunity afforded to an accused to have one of the samples sent to the Central Food Laboratory is restricted to a period of ten days and time will begin to run from the date of service of a copy of the report together with the requisite information contemplated under S. 13(2), it necessarily follows that the sending of a copy of the report as well as the information contemplated in S. 13(2) must be done after the institution of the prosecution. Sending the report and information earlier and instituting the prosecution later Will not amount to full and proper compliance with the terms of S. 13(2) and, furthermore, the accused will be left wondering in which court he should make application and as to when he should make the application. We are, therefore, of opinion that the view taken by Paul J. in Cr. R.C No. 7 of 1978 is not correct view and instead, the view taken by one of us (Maheswaran J.) in Chakravarthi v. State, Food Inspector, Kumbakonam Municipality, 1980 Mad LW (Cri) 55 (Mad) is the proper one. In the light of the above conclusion, the revision will stand allowed and the conviction and sentence awarded to the petitioner will stand set aside.

16. Revision allowed.