J.M.L. Sinha, J.-

This revision arises out of the judgment dated June 20, 1978 passed by the Sessions Judge, Nainital, 'dismissing the appeal that was filed by the present applicant against his con­viction and sentence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.

On February 8, 1977, Sri T.D. Bhandari, Food Inspector, collected sample of Bundi Laddoos from the shop of the applicant situate in Railway Bazar, Haldwani. One part of the sample was sent to the Public Analyst who reported it to be adulterated. A complaint was, therefore, filed for the prosecution of the applicant. The defence set up by the applicant was a total denial of the prosecution case. The trial court held the applicant guilty under Section 7 read with Section 16 of the Act and, convicting him there under, sentenced him to six months' R.I. and a fine of Rs. 1,000/-. Aggrieved against it ap­plicant filed an appeal in the court of sessions which resulted in dismissal and hence this revision.

One of the contentions raised by the learned counsel for the applicant before me was that Section 13(2) of the Act has not been complied with and hence the conviction recorded against the ap­plicant stands vitiated.

For appreciation of the contention raised by the learned counsel for the applicant it is necessary to read sub­sections 2 and (2-A) of Section 13. They are as follows:

"(2) On receipt of the report of the result of the analysis under sub­section (1) to the effect that the arti­cle of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the per­son, if any, whose name, address and other particulars have been disclosed under Section 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 persons, 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 the sam­ple of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

(2-A) When an application is made to the court under Sub-section (2) the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requi­sition being made, the said authority shall forward the part or parts of the sample to the court within a period of five days from the date of the receipt of such requisition."

It is pertinent to note that both in sub­section (2) and sub-section 2(a), the legislature used the word 'shall'. When .the legislature uses the word 'shall' the inference, unless a contrary is shown by context or otherwise, is that the rule is mandatory. In the instant case, it is apparent on a perusal of Section 13 that sub-sections (2) and (2-A) thereof were enacted by the legislature to provide an opportunity to the accused to ask for the other sample phial in the possession of the local authority being produced in court for its being sent to the Director of Central Food Laboratory, if he dis­putes the report of the Public Analyst. The provision was thus enacted for the benefit of those who are proceeded aga­inst under the Act in order to provide an effective defence to them against un­called for prosecution. In this connec­tion it is also worthy of notice that pre­viously there was a provision in Section 11 of the Act that when any sample was collected by the Food Inspector, it was divided in three parts and one part thereof was handed over to the person from whom the sample was collected. By the Amending Act 34 of 1976, Section 11 of the old Act has been am­ended and the Food Inspector is no more required to hand over any part of the sample to the person from whom it is collected. The result is that the per­son from whom the sample is collected can by no means take any action by himself for any part of it being sent the Director of Central Laboratory.

There is yet another circumstance which points to the conclusion that the provision contained in sub-sections (2) and (2-A) of Section 13 is mandatory. According to sub-Section (2) of Section 13, a copy of the report of the Public Analyst has to be sent to the person concerned 'in such manner as may be prescribed'. The expression 'Prescrib­ed' means prescribed by rules. According to Rule 9-A a copy of the report of the Public Analyst should be sent by the local authority to the person concerned im­mediately after the institution of the pro­secution by registered post or by hand,, as may be appropriate. The fact that the rule required the local authority to send the copy of the report of the Public Analyst immediately after the institu­tion of the prosecution clearly indicates that the provision contained in sub-sec­tions (2) and (2-A) of Section 13 was enacted to be complied with and not for being ignored.

It may also be not out of place to mention that previously there was a corresponding provision contained in Rule 9 (j) of the Rules framed under the Act. It read as follows:

"It shall be the duty of the Food Inspector 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 there under, as soon as the case is filed in the Court."

It has been held by this Court in the case of Puttu Lal v. State (Criminal Revision No. 565 of 1978 Decided on july 24, 1979) that the pro­vision contained in Rule 9(j) is manda­tory. Similar view was taken by the High Court of Calcutta in the case of Bhola Nath Naik v. The State and an­other (1977 Cr.L.J. 154) by the High Court of Andhra Pradesh in Public Prosecutor, Hydera­bad v. J. Murhdfior (1977 Cr.L.J. 1634) and by the Bombay High Court in the case of State of Maharashtra v. Jesti Dosa (1978 Cr.L.J. 427). If the provision contained in Rule 9(j) was of a mandatory character, there is no reason why the rule contained in sub-sections (2) and (2-A) of Section 13 be not held mandatory and I hold accordingly.

Coming to the facts of the present case, the prosecution no doubt placed on record a copy of the notice purporting to have been sent to the applicant under Section 13 (2) of the Act. Learned counsel for the applicant however pointad out that the prosecution in. this case was instituted on June 1, 1977, while the notice purports to have been sent on April 12, 1977, i.e. much before the institution of the complaint. Learned counsel urged that the notice claimed to have been sent on April 12, 1977 could not be in fulfillment of the provi­sions contained in sub-section (2) of Section 13.

The mere fact that the notice was sent to the applicant before the institu­tion of the complaint and not thereafter does not appear to be of much consequ­ence. The fact, however, remains that there is no evidence worth the name to show that the notice was at all despatched, much less of the fact that it was ever received by the applicant. The only witness examined by the prosecu­tion in this case was Sri T.D. Bhandari, Food Inspector (P.W. 1). In his emanation in-chief, he no doubt, said that a notice under Section 130(2) had been sent to the applicant and that the notice carried the signatures of the Chief Me­dical Officer. In cross-examination, however, he admitted that the notice was not sent by him but was sent by the Chief Medical" Officer. The prosecution did not put into the witness box any per­son of the office of the Chief Medical Officer to depose that the notice was ac­tually despatched to the applicant or was handed over to him by hand. The prosecution did not even place on re­cord any postal receipt to show that the notice was sent by registered post. The notice does not carry any endorsement to indicate whether it was sent by post or by hand nor does that carry any ac­knowledgment of the applicant. That being the state of evidence, it cannot be held that any notice as required by Sec­tion 13 (2) was at all sent to the appli­cant.

Since the provisions contained in Section 13(2) of the Act are of manda­tory nature and since they were not complied with, the conviction recorded against the applicant cannot be main­tained.

Learned counsel far the applicant also raised a couple of other conten­tions, but since the revision succeeds on the point of non-compliance of Section (2) of Section 13, it is not necessary to enter into any discussion on those points.

This revision is, accordingly, allow­ed. The conviction and sentence re­corded against the applicant are set aside. The applicant is on bail. He need not surrender. The bonds fur­nished by him stand discharged. The fine, if paid, shall be refunded.