JUDGMENT : Madan Mohan Pd., J. This is an application under Section 482 of the Code of Criminal Procedure for the purpose of quashing the prosecution of the petitioner under Section 16(1)(a) of the Prevention of Food Adulteration Act 1954 (hereinafter called the Act'). 2. According to the prosecution case, on the 16th of November, 1972 a Food Inspector went to the shop of the petitioner and purchased 450 grams of ghee as sample for testing. I As usual, he divided the same into three parts and the next day he sent one of these parts to the Public Analyst. On the 7th of February, 1973, the report of the Public Analyst was sent saying that the sample was adulterated. The present prosecution was thus started on the basis of a report of the Food Inspector after the sanction of the Health Office of the Patna Municipal Corporation. Cognizance of the offence was taken on the 25th of May, 1974. The trial of the petitioner was going on in the court of the Magistrate when on the 26th of July, 1976 the petitioner same up to this court with the present application. 3. Counsel for the petitioner has raised three points. FIRSTLY that the sanction in this case is improper; secondly, that there has been a violation of' Rule 7(3) of the Prevention of Food Adulteration Rules, 1955 (hereinafter called 'the Rules') which is mandatory and thirdly that there has been a violation also of another mandatory rule contained in Rule 9(j) of the Rules. 4. Before I take up the first contention, it would be relevant to state in this behalf that the petitioner had raised the question of Improper sanction before the Magistrate by a petition dated the 13th of' July, 1976 which was decided against him on the 15th of July, 1976. However, the question remains whether the sanction granted is proper. In this connection counsel has urged that in view of Section 20 of the Act no prosecution for an offence under this Act is to be instituted except with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf by an ORDER :of the aforesaid Government or the local authority. It is said that In view of the definition contained in Section 2(VIII) 'local authority' means in the case of a local are which is a municipality, the municipal corporation. It is urged that by the Patna Municipal Corporation Act of 1951 (hereinafter called (Corporation Act of 1951) the Bihar & Orissa Municipal Act, 1922 has been repealed and that there had been no notification made under the Corporation Act of 1951 declaring the area to be a Municipality. Thus, unless the area in question is declared to be Municipality under the corporation Act of 1951, there is no ‘Local authority' created in respect of the area. For this reason the sanction granted by the Health officer appointed by the Municipal Corporation, as the authority granting the sanction is no sanction in law. 2. The first question is what is 'local area' and whether the area where the shop of the petitioner is located is 'local area' In respect of which there is the need for prescribing a 'local authority'. The definition of local area is to be found in Section 2(vii) of the Act which is as follows:- “Local area means any area, whether urban or rural, declared by the Central Government or the State Government by notification in the Official Gazette to be a local area for the purposes of this Act.” The question has not been raised before me and it has not been disputed that the area of Maroofganj, Patna City I falling within the Patna City Municipality has been declared by the State Government to be a 'local area' for the purposes of this Act. The contrary has not been urged and for good reason counsel appearing for the Patna Municipal Corporation has drawn attention to a notification issued by the State Government and' published in the Bihar Gazette dated 2nd November, 1955, declaring all municipalities within the State of Bihar to be 'local areas' within the meaning of Section 2(VII) of the Act for the purposes thereof. I will, therefore, start on the basis that the aforesaid area is a 'local area' so declared for the purpose of the Act:- The question which has been raised is that there is no 'local authority' for this area. I will, therefore, start on the basis that the aforesaid area is a 'local area' so declared for the purpose of the Act:- The question which has been raised is that there is no 'local authority' for this area. 'Local authority' has been defined in Section 2(VIII) of the Act as follows:- (1) a local area which is- (a) a municipality, the municipal board or municipal corporation; (b) a cantonment, the: cantonment authority: (c) a notified area, the notified' area committee; (2) any other local area, such authority as may be prescribed by the Central Government or the: State Government under this Act." Reading aforesaid clause (a) it is obvious that where a local area is a municipality, the local' authority thereof is the municipal Board corporation, and in the cases of local area which are cantonments or notified areas the cantonment authorities or the notified area committees are the local authorities. In case the local area is none of the kind mentioned in clauses (a) (b) and (c), the authority is to be prescribed by the Central or the State Government The argument of learned counsel is, to state even at the cost of repetition, that the local area concerned has not been declared to be a municipality under the Corporation Act of 1951 and since the Bihar & Orissa Municipal Act under which it had been so declared has been repeated, the Municipal Corporation cannot be clamed the local authority for the concerned area. The argument is untenable for more than one reason. According to Section 2(14) of the Bihar & Orissa Municipal Act, 1922 (hereinafter called the Municipal Act') 'municipality' means a local area declared under the Municipal Act to be municipality. It is not denied that the area in question was declared at one time to be a municipality under the Municipal Act. The question is whether a further such declaration was required after the coming into force of the Corporation Act of 1951. The argument that the Municipal Act having been repealed as such a fresh notification was necessary, ignores the relevant provisions of the Corporation Act. The Corporation Act, 1951 came into force on the 15th of August 1952 in accordance with the notification issued by the Corporation Act. The argument that the Municipal Act having been repealed as such a fresh notification was necessary, ignores the relevant provisions of the Corporation Act. The Corporation Act, 1951 came into force on the 15th of August 1952 in accordance with the notification issued by the Corporation Act. The preamble of the Act shows that it is a law relating the municipal affairs of the town and suburbs of Patna including the areas' administered by the Patna City Municipality and the Patna Administration Committee. Section 2(a) of the Corporation Act withdraws the provisions of the Municipal Act from the local areas comprised within the Patna Municipality and by clause (b) of Section 2 it repealed the Patna Administration Act 1915, but it laid down "nothing in the said withdrawal or repeal shall...... affect the validity of anything done thereunder, before the commencement of this Act." Section 3 of the corporation Act relates to transfer of liabilities and obligations and Continuance of legal proceedings. Subsection (2) of this section lays down as follows:- "Every appointment, rule, byelaw, form, notification, notice, tax, fee, scheme, ORDER :, licence or permission made, imposed, sanctioned or given under the Bihar and Orissa Municipal Act, 1922, or the Patna Administration Act, 1915, shall, so far as it relates to the areas administered by the Patna City Municipality and the Patna Administration Committee and so far as it is in force at the commencement of, and is not inconsistent with, this Act, be deemed to have been made, issued, imposed, sanctioned or given under the provisions of this Act, and shall, unless previously altered, modified, cancelled, suspended surrendered or withdrawn, as the case may be, under this Act, remain in force for the period, if any, for which it was so made, issued, imposed sanctioned or given." It will appear from the above quoted provision that every rule, byelaw or notification issued under the Municipal Act shall be deemed to be made or issued under the provisions of the Corporation Act in so far as they relate to the areas administered by the Patna City Municipality. It will thus appear that the savings clause in Section 2 and Sub-section (2) of Section 3 of the Corporation Act clearly show that what was done under the Municipal Act by Issuing a notification declaring the area to be a municipality, will be deemed to have been saved and continued in effect as if the notification has been made under the Corporation Act itself. The argument thus that the repeal of the Municipal Act had given a death knell to the notification constituting the local area to be a municipality, is without substance. 6. There is one more aspect of this matter. The Corporation Act lays down the law for the areas covered by the Patna City Municipality and the Patna Administration Committee. Section-5 of the Corporation Act creates a Corporation which is a Municipal Authority. It does not create any new kind of a local area. The local area in respect 'of which the Corporation is to function is still a municipality corporation and a municipality area thus not synonymous terms. They have different connotations. That is the reason why Section 2(VIII) of the Act 'lays down that where the local area is a municipality, the local authority thereof shall be the municipal corporation. 7. It will thus appear that the Patna Municipal Corporation is the local authority in respect of the local area declared to be so comprising of the areas administered by the Patna City Municipality and the Patua Administration Committee and thus including the area where the shop of the petitioner is situated. 8. The question next arises whether the Corporation, which is the local authority, had authorised any person to sanction prosecution within the meaning of Section 20 of the Act. It appears from a resolution passed by the Corporation and signed by the Mayor dated the 30th March, 1957 (Ext. 6) that the Health Officer of the Corporation has been authorised to sanction prosecution. My attention has next been drawn to a notification dated the 1st of June. 1972 published in the Bihar Gazette dated the 6th of June, 1972 showing the appointment by the State Government, of Shri R.P. Verma, the person who filed the prosecution report in the present case, as a Food Inspector under Section 9 of the Act for the area of the Patna, Municipal Corporation. 1972 published in the Bihar Gazette dated the 6th of June, 1972 showing the appointment by the State Government, of Shri R.P. Verma, the person who filed the prosecution report in the present case, as a Food Inspector under Section 9 of the Act for the area of the Patna, Municipal Corporation. A reference to Section 10(2) of the Act would show that a Food Inspector may enter and inspect any place where article of food is manufactured, stored or exposed for sale, and take samples of such articles of food for analysis. It would thus appear that the complaint in the present case was filed by a Food Inspector with the sanction of the Health Officer who was appointed to sanction prosecution on behalf of the Corporation. The requirement of Section 20 is thus fulfilled inasmuch as the prosecution report was filed with the consent of the Corporation which is the local authority in respect of the local area consisting of the municipal area of Patna. 9. In this connection an argument was raised that by a subsequent notification dated the 24th of November 1975, the Administrator of the Municipal Corporation has been appointed as the 'local authority'. Further, it has been pointed out that Ext. 7 is a notification issued by the Administrator on the 9th of November, 1974 appointing and authorising Shri R.P. Verma, the Food Inspector to file complaints under Section 20 of the Act. It has, therefore, been urged that neither the authorisation of the Food Inspector to file complaint nor the appointment of the Administrator as the local authority both being subsequent to the date of the prosecution report in the present case, can have retrospective effect. It has also been contended' that a local authority can be declared only in accordance with the prescribed rules. This matter does not need to be investigated by this court in the present case for the simple 'reason that the prosecution need not rely' upon' these notifications of a subsequent date. For the purposes of the present ease, at the relevant time the local, authority was the Municipal Corporation which authorised the Health Officer to grant sanctions, which means that the consent of the Health Officer given on behalf of the Corporation fulfilled the requirements of Section 20 of the Act. For the purposes of the present ease, at the relevant time the local, authority was the Municipal Corporation which authorised the Health Officer to grant sanctions, which means that the consent of the Health Officer given on behalf of the Corporation fulfilled the requirements of Section 20 of the Act. The question whether the Food Inspector had been authorised to file complaint is not relevant for the purposes of the present case. Section 20 only requires a complaint to be filed with the consent of the local authority or any, person authorised by such authority. The Health Officer being the person entitled to give the consent on behalf of the Corporation, the question whether the Food "Inspector has been authorised to file complaint does not arise. 10. That brings me to the next argument in respect of the violation or Rule 9(j) of the Rules. Rule 9(j) is as follows:- "9. Duties of Food Inspector-It shall be the duty of the Food Inspector: ** ** ** (j) 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 rules made thereunder as soon as the case is filed in the court." In this connection it is urged that although the rule requires a copy of the report to be handed over as soon as the case is filed in the court, in the present case the copy was given to the petitioner on 24th of May, 1976, even though cognizance had been taken and the accused had been summoned as far back as 25th of May, 1974. It said that the purpose of supplying a copy of the report to the accused is to enable him to make an application to the court for sending one of the parts of the sample to the Director of Central Food Laboratory. Further, it has been pointed out in this connection that on the 16th of June, 1976, the petitioner filed an application to send the sample lying with the Inspector to the Director, but it was never sent and thus the delay' in giving copy of the report of the Public Analyst resulted in prejudice to the petitioner. 11. Further, it has been pointed out in this connection that on the 16th of June, 1976, the petitioner filed an application to send the sample lying with the Inspector to the Director, but it was never sent and thus the delay' in giving copy of the report of the Public Analyst resulted in prejudice to the petitioner. 11. Firstly, it appears horn the ORDER :sheet that although cognizance of the offence was taken and summonses were issued to the 'petitioner, they were not served on him with the result that warrant of his arrest was issued. He remained absconding until' the 1st of April, 1976 when he appeared in court and prayed for bail. The case was then transferred to another Judicial Magistrate on the 20th of April, 1976. It appears next that the copy was not ready on a few dates and ultimately it was handed over. It would be obvious from this that it was the petitioner himself who was responsible party for the delay inasmuch as he was absconding for nearly two years. The copy of the report could not have been given to him by hand. The question, however, arises whether it had been sent by registered post. That is a question of fact which has not been investigated into by the court below because the point was not pressed before the Magistrate, one does not know thus if the report was sent by registered post. Assuming that it was not present, the reason is obvious. The petitioner was absconding and thus it could not have been sent to him, his whereabouts being unknown. To say that inspite of it, it should have been sent to his last known address, would amount to asking for a technical compliance, for, in that case it would have come back to the sender the addressee not being available. Be that as it may, it appears that be filed a petition under Section 13(2) of the Act for sending one part of the sample to the Director of Central Laboratory. It appears, however from the ORDER :passed on the date that this application was not moved and it was therefore kept on record. It further appears that this petition was pressed before the Magistrate on the 16th of July, 1976 but it was rejected. It appears, however from the ORDER :passed on the date that this application was not moved and it was therefore kept on record. It further appears that this petition was pressed before the Magistrate on the 16th of July, 1976 but it was rejected. It is said that against the aforesaid ORDER :the petitioner came up to this court in Criminal Miscellaneous No. 3361 of 1976, which was disposed of on the 2nd of August, 1976 by allowing the petition and directing the sample kept by the Food Inspector to be sent to the laboratory at the cost of the petitioner. The petitioner has pot stated in his petition the facts relating to his filing an application in this court and getting the ORDER :aforesaid. It has also not been stated as to what happened after this ORDER :in connection with the sending of the sample to the Director Perhaps it was not sent and that was for another reason. It has been pointed out that the requirement of Section 13(2) of the Act itself was not fulfilled inasmuch as the petitioner never paid the prescribed fee for sending the sample for analysis. The provision of Section 13(2) of the Act is in the following terms:- "After the institution of a prosecution under this Act the accused vendor of the complainant may; on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in Sub-clause (1) or Sub-clause (ii) of clause (c) of Sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate,' and on receipt of the application the court shall first ascertain that the "mark and seal or fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and may then dispatch the part of the sample under its own seal to the Director of Central Food Laboratory who shall thereupon send a certificate to the court in prescribed form within one month from the date of receipt of sample specifying the result of his analysis." It would appear that the accused is to make 8uch an application and make payment of the prescribed fee. It has been pointed out by the opposite party that in the present case the petitioner did not pay any fee at all. It has been pointed out by the opposite party that in the present case the petitioner did not pay any fee at all. A reference to the Rules would show that part II of the Rules has the heading “The Central Food Laboratory." Rule 4 relates to analysis of foodgrain samples. Clause (6) of this rule lays down:- "The fee payable in respect of such a certificate shall be Rs.40/- per sample of food analysed." It is thus obvious that a petition under Section 13(2) of the Act must be accompanied by the prescribed fee when an accused asks for a further analysis of a sample by the Director of the Central Food Laboratory. If an application is not so accompanied by a fee, no action need be taken thereon. In the present case, it is not contended by the petitioner that he ever paid the fee nor do the records show any such payment. That being so, it was the petitioner himself who was to blame for the non compliance with the provisions of Section 13(2) of the Act. Thus, there was no prejudice caused to the petitioner on account of the laches of the prosecution. 12. That brings me to the question as to whether Rule 9(j) is mandatory and irrespective of the question of prejudice, a non compliance therewith will result in vitiating the prosecution. In this connection counsel for the petitioner relied on a decision of a learned single Judge of the Calcutta High Court in the case of (1) Bhola Nath Nayek V. The State and another (1977 Criminal Law Journal 154). In that case the learned Judge was construing the provision of Rule 9(j) as amended by notification No. G.S.R. 205, dated the 13th February, 1974. It appears that the earlier provision in the rule which has been quoted above has been substituted by the aforesaid Notification by a new provision to the following effect :- “It shall be the duty of the Food Inspector. X X X X (j) to send by registered post, a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt 'of the said report. X X X X (j) to send by registered post, a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt 'of the said report. However, in case the sample conforms to the provisions of the Act or Rules made thereunder, then the person may be informed of the same and report need' not be sent." The learned Judge held that the rule was mandatory and noncompliance therewith vitiated the report itself and that the report should be treated as non-est and that being 'so there was no basis for prosecution. The learned Judge relied greatly on the fact that the rule making authority be prescribed a fixed period of ten days by the new rule which clearly showed that the rule was intended to be mandatory. I am not prepared to adopt the line of reasoning adopted by the learned Judge that the report becomes non-est. To my mind, and I say so with great respect, there is no room for this view. The report remains as a conclusive evidence of the result of the investigation. The question whether the report is non-est is different from the question whether the prosecution or trial is vitiated on account of non compliance with any mandatory procedure. Apart from that I am not concerned with the rule which was being construed by the learned Judge. In that case the fixed period was prescribed. In the rule (as un-amended) which was applicable to the present case where the prosecution report was made in the year 1973, the rule making authority required sending of the report by hand or registered post as soon as the case was filed in the court. It may, however, be stated that on the facts of the case before him,' the learned Judge held that prejudice was caused to the accused in that case on account of the delayed-handing over of the report. Another decision to which my attention has been drawn is in the case of (2) the Public Prosecutor V. J. Murlidhar (1977 Criminal Law Journal 1634). In that case a Division Bench of the Andhra Pradesh High Court held that the provision is mandatory. In that case also the learned Judge were construing the provision of Rule 9(j) as amended in 1974, the case having arisen there after. In that case a Division Bench of the Andhra Pradesh High Court held that the provision is mandatory. In that case also the learned Judge were construing the provision of Rule 9(j) as amended in 1974, the case having arisen there after. The trial court had acquitted the accused on the ground of non supply of copy of the report within ten days as required. The learned Judge appeared to have had that the rule is mandatory but at the same time they have gone further to observe as follows:- ". . . . From what has been stated above, we should not be misunderstood as having held that even a delay of one day over and above ten days would be enough to throw out the case of the complainant for non-compliance with Rule 9(j) of the Rules. Of course if there is same 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……….." These decisions relating to a different rule are thus of no great assistance to the petitioner. 13. The point thus remains whether Rule 9(j) (prior to the amendment) was mandatory. There is no gainsaying the fact that the rule prescribes a duty upon the' Food Inspector, the purpose being to enable the accused to challenge the report of the Public Analyst for a further examination of the sample by the Central Food Laboratory. This is a valuable Fight safeguarding the rights of an individual accused of an offence. It is for that reason that Section 13(2) of the Act contains the provisions for 'the further examination of the sample by the Central Food Laboratory. It is for that reason that one part of the sample is retained by the accused and another by the Food Inspector as required by Section 11 of the Act. It is for that reason that Section 13(2) of the Act contains the provisions for 'the further examination of the sample by the Central Food Laboratory. It is for that reason that one part of the sample is retained by the accused and another by the Food Inspector as required by Section 11 of the Act. According to that section when a Food Inspector takes the sample of food for analysis he is bound to separate the sample taken into' three parts, deliver one to the person from whom the sample has been taken, send another to the Public Analyst and retain the third part for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under Sub-section (2) of Section 13. There cannot be the slightest doubt thus that where there is a complete absence of compliance with the duty cast upon the Food Inspector, a very valuable right of the accused would be taken away. I have thus no doubt that part of the rule enjoining upon the Food Inspector to give a copy of the report to the accused is a mandatory provision as held by the Supreme Court in a number of cases. The only test to find out whether a provision is mandatory or directory is not to see whether the word "shall" or "may" has neon used but to look at the scheme of the Act find out the real purpose of the legislation, the result that may take place in case of its violation, the presence or absence of any penalty prescribed by law for the breach thereof, etc. Looking at the scheme of the Act and what has been noted• above, it is quite clear that a total non compliance with the provision aforesaid is likely to be prejudicial to the accused and is denial of one of the rights give under Section 13 of the Act. It is obvious that unless he gets a copy of the report the accused may not be in a position to decide as to whether the Public Analyst's report is correct and if further examination of the sample is called for. This part of the rule is thus mandatory. 14. It is obvious that unless he gets a copy of the report the accused may not be in a position to decide as to whether the Public Analyst's report is correct and if further examination of the sample is called for. This part of the rule is thus mandatory. 14. That brings me to the question as to whether the later part of the rule prescribing the time, namely, “as soon as the case is filed in the court” is equally mandatory. I may observe that it is not necessary that each part of a rule must be held to be mandatory if one part thereof is so. The question thus is whether the supply of the report after some period of time pursuant to the filing of the case vitiates the prosecution or the trial. I am inclined to hold that it does not necessarily result in it. The intention of the rule making authority obviously is to enable the accused at the first opportunity to get a copy of the report so that he may take action if necessary under Section 13(2) of the Act. If there are circumstances in which this part of the rule cannot be complied with, I venture to think that it could not be the intention of the rule making authority that irrespective thereof the report must be given by hand or sent by registered post. If the accused does not appear for long after the filing of the prosecution report, obviously' it cannot be handed over to him. If the person from whom the sample is taken is not available at the time the prosecution report is filed say for instance, he has gone abroad; can it be the intention' of the rule making authority that, still it should be sent to him by registered post as soon as the case is filed. In my view, the entire purpose of this part of the provision is to enable the accused as soon as he appears in court to be able to know the contents of the report of the public analyst and to decide if he would take steps under Section 13(2) of the, Act. In my view, the entire purpose of this part of the provision is to enable the accused as soon as he appears in court to be able to know the contents of the report of the public analyst and to decide if he would take steps under Section 13(2) of the, Act. Where this right of the accused has not been prejudiced by the late filing of the report in any substantial manner; there can be no good ground for holding that sample because the report has been given later, the prosecution is vitiated. Prejudice to the accused is undoubtedly the underlying principle upon which this provision has been based and in my view where there is a complete absence of prejudice on account of the late filing of the report there can be no good reason for saying that the prosecution would be vitiated. In other words, I am inclined to think that the latter part of the provision prescribing the time is merely directory and the question of prejudice has therefore, to be the guiding principle for a court to apply. I cannot persuade myself to think that the provision relating to time is mandatory. Supposing the report is supplied one day after the one is filed which would not be “as soon as the case is filed”. Will the prosecution be vitiated on that account alone? Supposing, as in the present case, the accused is absconding and is not traceable will the prosecution be vitiated because it, has not been sent to him by registered post? Obviously the report is to be sent by, hand or by registered post is cases/ where the person is available or would be available at the time the case is filed in the court where he is not so available commonsense seems to dictate that the report should be made available to him as soon as he himself is available. I am not inclined to think that the rule requires sending, by hand or by registered post, of the report irrespective of any other consideration at the very moment the case is filed. The words “as soon as the case is filed” cannot be construed to mean in the technical sense tat the very time the case is filed. In any case, the rule making authority could not have meant it to be mandatory in respect of the point of time. The words “as soon as the case is filed” cannot be construed to mean in the technical sense tat the very time the case is filed. In any case, the rule making authority could not have meant it to be mandatory in respect of the point of time. 15. In view of the conclusions which I have arrived at, even if it be assumed that the report was not sent by registered post to the petitioner and, as it appears, it was handed over to him after he appeared in court, which was delayed on account of his absconding and being a fugitive from justice, and it cannot vitiate the prosecution. The contention that the rule as a whole being mandatory non-compliance of any part thereof vitiates the prosecution, must therefore, be repelled. 16. The next point urged is that Sub-rule (3) of Rule 7 is mandatory and there has been a noncompliance therewith. Rule 7 of the Rules is as follows:- "7 - Duties of Public Analyst - (1) on receipt of package containing a sample for analysis from a Food Inspector on any other person, the Public Analyst or an officer authoised 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 Food Inspector or by any other person under the Act. (3) After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in Form III within a period of sixty days of the receipt of the sample." It will appear from the aforesaid that the Public Analyst has first to make sure about the sample by comparing the seals, then analyse it and thereafter send two copies or the report to the person concerned within sixty days. It will appear that no time limit is such has been fixed for the analysis to be done but the fact that the report is to be sent by him within a period of sixty days from the receipt of the sample would show that the analysis Is to be done before sixty days. It will appear that no time limit is such has been fixed for the analysis to be done but the fact that the report is to be sent by him within a period of sixty days from the receipt of the sample would show that the analysis Is to be done before sixty days. In the present case the sample, was received by the Public Analyst on 17th of November, 1972 but the report was sent by him on 7th of February, 1973. It is thus said that the report was sent after the period of sixty days prescribed and this violation is, said to be of a mandatory provision with the result that the report of the Analyst Is said to be vitiated. Looking at the report (Ext. 3) I find that the date on which the analysis was made has not been given therein. From the date of the report, however, it is obvious that it must have been done prior to the 7th of February 1973. All that Sub-rule (3) 'requires is that the report be sent within sixty days. The question arises as to whether this is a mandatory provision. 17. There are cases of this court and other High Courts where the non-compliance with the requirements of Rule (1) has been held to be fatal to the prosecution. No decision, however, has been cited at the Bar where it has been held that 'noncompliance with Sub-rule (3) would also vitiate the trial. In the case of (3) Badri Sah V. State of Bihar (1970 Cr. L.J. 649) there was a noncompliance with Sub-rule (1) of Rule 7 inasmuch as there was no comparison of the seals the specimen impression of the seal not having been forwarded to the Public Analyst. In such circumstances, the learned Judge held that the provision was mandatory and its non-compliance resulted in a fatal defect in the prosecution case. He relied on the unreported decision of two learned single Judges of this Court in the cases of (4) Anand Mohan Chaudhary V. The State (Criminal Revision No. 1868 of 1967 decided on 21.8.68) and (5) Chhedi Sah V. The State (Criminal Revision No. 945 of 1968 decided on 6.12.68) whel1c also the question related to non-compliance with Sub-rule (1) of Rule 7 read with Rule 18 of the Rules. There are some decisions of other courts where also the question arose as to whether non-compliance with sub rule (1) of rule 7 vitiated the prosecution. In (6) Gela Hira Rabri V. S.V. Pandya and another (AIR 1960 Gujrat 235) a learned single Judge held that rule 7 is mandatory because it has to be read along with rule 18 and these two rules provide if method of check and verification and constitute a built in guarantee against tampering and further because these two rules are framed in terms of Command. It does not appear clearly from the facts of that case as to which part of the sub-rule had been violated. Reading the JUDGMENT : as a whole it appears that it was sub-rule (1) which was alleged to have been violated. The learned Judge relied on the decision in the case of (7) Mary Lazardo V. State of Mysore (AIR 1966 Mysore 244) for the aforesaid proposition and a decision of the same court is (8) State of Gujrat V. Shanta Ben (AIR 1964 Gujarat 136). In the case of State of Gujrat (Supra) also the question arose out of non comparison of the seals as required by sub rule (1) of rule 7. In the case of Mary Lazardo (supra) also the question related to the same point. But in these two cases the lea lined single Judges of the two courts spoke generally about the mandatory nature of rule 7. It is, however, obvious that the specific question as to whether sub-rule (3) of rule 7 was mandatory did not arise for decision in these cases. 18. I have been able to lay my hands on a decision which is more relevant to the circumstances of the present case and relates to rule 7 (3) of the Rules. It is, however, obvious that the specific question as to whether sub-rule (3) of rule 7 was mandatory did not arise for decision in these cases. 18. I have been able to lay my hands on a decision which is more relevant to the circumstances of the present case and relates to rule 7 (3) of the Rules. In the case of (9) the Municipal Corporation of Delhi V. Chhote Lal (ILR Delhi series 1969 part x page 885-FB) the question of the mandatory nature of sub-rule (2) of rule 7, as it existed then arises sub-rule (3) of rule 7 (as it existed then) read as under:- “After the analysis has been completed the shall forthwith supply to the person concerned a report in form III of the result of such analysis." It appears therefrom that there was a conflict of decision on the point in the Delhi High Court itself and for that purpose the matter had been referred to a Full Bench. In one case Prakash Narain, J. had held the non compliance: with that provision to be fatal. This was approved by a Division Bench consisting of Rangarajan and Prakash Narain, JJ of the same court in another case. Another Division Bench of the same court consisting of Hardy and Jagjit Singh, JJ expressed their inability to agree with the view taken earlier. H.R. Khanna, C.J, speaking for himself and Shankar, J. and Rangarajan, J. concurring with him; held that the aforesaid rule was not mandatory. The learned Judges first discussed the meaning of the word "forthwith" which they held on the authority of several decisions to mean "without unreasonable' delay". The learned Judges then applying the well accepted tests for judging the mandatory on directory nature of a provision held that "the object of the above sub-rule obviously is to ensure that the Public Analyst acts with promptitude after analysing a sample in supplying the report, so that action on the report might be taken by the authorities concerned. If the Public Analyst does not sign the report within reasonable time of the completion of analysis, be would be no doubt guilty of slackness, the court, however, would not be justified in throwing out the entire prosecution case on that ground". If the Public Analyst does not sign the report within reasonable time of the completion of analysis, be would be no doubt guilty of slackness, the court, however, would not be justified in throwing out the entire prosecution case on that ground". They held that in the absence of prejudice to the accused non-compliance with provisions of sub-rule (3) of rule 7 would not prove fatal to the prosecution. 19. As I have already stated, the learned Judges were interpreting a rule which required the report to be submitted forthwith since then the rule had been amended and the time limit of sixty days was prescribed. The complexion of the question had been changed a little inasmuch as the question now arises whether the time limit prescribed is mandatory on merely directory. To answer this question I would revert to the scheme of the Act. There can be no doubt that what is important is that the analysis be done before perishable good perish 'or become incapable of such examination. It is not, however, that important as to when the report is submitted either by the Public Analyst or by the Director of the Central Laboratory. In this connection it will be relevant to notice Section 13 of the Act. Sub-section (1) thereof lays down that the Public Analyst shall deliver in such form as may be prescribed, a report to the Food Inspector of the result of the analysis of any article of food submitted to him for analysis. It will be relevant to state that no time limit for submission of such report is given in the Section itself. Sub-section (2) thereof provides for a further examination of the sample on request by the Director of the Central Food-Laboratory. This Sub-section lays down that the Director shall send 8 certificate to the court in the prescribed form within one month from the date of receipt of sample specifying the result of his analysis. It will be noticed thus that the time during which the analysis is to be made is not prescribed by Section 13(1) nor is it specifically provided in Section 13(2) that the Director shall examine the sample within a particular period. In the latter case, he has only to send the certificate within a month. It will be noticed thus that the time during which the analysis is to be made is not prescribed by Section 13(1) nor is it specifically provided in Section 13(2) that the Director shall examine the sample within a particular period. In the latter case, he has only to send the certificate within a month. Obviously; therefore; the conclusion is that even though time limit for analysis has not been fixed by the Act or the rules, public interest would enquire that the analysis should be made as soon as possible. For various reasons, it may be possible in one case to do so, at the earliest, in another case after some-time. The provision of Sub-rule (3) of rule 7 is similar to the provision of Sub-section (2) of Section 13, which is in respect of the certificate by the Director. Sub-rule (3) of rule 7 may be implied to mean that the analysis may be completed within a period of sixty days because only in that case the report be sent within the period prescribed. The question is one of emphasis. Is the analysis within that period more important or is it the sending of the report? Even in cases where the analysis has been completed soon after the sample is received, for various administrative reasons, there may be delay in compiling and sending of the report. Would in such circumstances the prosecution be vitiated on the report of the Public Analyst vitiated on that account'. That is the question which 'arises. It will be noticed that in Section 13(2) the certificate is to be received by the court after the institution of the prosecution, whereas the report of the analysis under Sub-rule (3) has to be sent to the person concerned, namely, the Food Inspector or any other person who sends the sample for analysis, and obviously that is before the prosecution. The question thus arises as to what is the purpose of prescribing this period of sixty days for sending of the report. The only purpose of the rule could be to give a direction to the Public Analyst in regard of a matter of procedure prescribing the furthest limit of time allowed to him fop sending of the report. Heading of rule 7 is "Duties of Public Analyst". The only purpose of the rule could be to give a direction to the Public Analyst in regard of a matter of procedure prescribing the furthest limit of time allowed to him fop sending of the report. Heading of rule 7 is "Duties of Public Analyst". If the public Analyst fails to do so, he certainly neglects his duty and may be liable to be taken to task for that. The question, however, remains whether it detracts from the value of the report, unless it be shown that the analysis itself was done after a period during which proper analysis could be made. In other words, unless prejudice on account of some fault in the analysis itself were shown, could the Legislature have intended to lay down the penal consequences of a prosecution being vitiated on the report being vitiated on account of the delay in sending the name. I am in respectful agreement with the observation of Khanna, CJ (as he then was) that the object of the rule is merely to ensure that the Public Analyst acts with promptitude after the analysis is made. If that be so, the consequences which would follow from the aforesaid' direction if it is to be considered mandatory, would be one which the Legislature could not have intended. Supposing in a case the report is sent on the sixty-first day. If the provision be deemed to be mandatory, admitting of the penal consequences that would follow, it would, in my view, not be giving the correct interpretation of the mind of the Legislature. It must be noted that nowhere in the Act or the Rules any penalty has been prescribed if the report is not sent within the period prescribed. What is important is the sending of the report without which no prosecution can result. So far as the direction 'that be shall send to the person concerned the report is concerned, this undoubtedly is a mandatory direction as the result must be known in ORDER :to decide whether there is any offence, has been committed and obviously in its absence there can be no prosecution. So far as the direction 'that be shall send to the person concerned the report is concerned, this undoubtedly is a mandatory direction as the result must be known in ORDER :to decide whether there is any offence, has been committed and obviously in its absence there can be no prosecution. So far as the other parts of the rule are concerned, namely, that the report “or the result of such analysis shall be in form III” or "that he shall send the report within a period of sixty days of the receipt of the sample", or that he shall send "two copies" of the report, it is obvious that by their very 'nature they could not be mandatory. Supposing the report is slightly defective in form and thus different from Form III, would it be vitiated on that account? Let me take an example. Form III is in the following manner ; “I hereby certify that I.... public analyst for. . . . . . . .” Supposing he does not fill in his own name after the word "I" and before the word "public analyst would the report be vitiated because it is not in Form III. The answer is obvious. Suppose that the, Analyst sends by mistake only one copy of the report, would, it be fatal to the prosecution? Extending the 'same argument, would the report become useless if it is sent on the sixty-first day? The answer is equally obvious. The latter part of Sub-rule (3) prescribing the period of sixty days thus cannot but be held to be directory in nature of a proper, harmonious and meaningful construction of the rule is to be made. 20. I have, therefore, come to the conclusion that the rule must be held to be directory. There is however, no gainsaying the fact that even directory provisions of an enactment are meant to be followed and not to be honoured in their breach. Where therefore, it is pointed out that the non-compliance with the directory provisions has resulted in prejudice to a party, it will be open to the court I to hold that the prosecution is vitiated on that account where, however, there is no prejudice on that account, it cannot be said that the prosecution or the result of the analysis is vitiated merely because of the delay in sending the report. The prejudice, if any has however to be shown. It cannot be presumed in such case. On the other hand, the, presumption will be that the official act was done in due course. In the case of (10) Public Prosecutor V. Edigs Venataswami, (A.I.R. 1967 Andhra Pradesh 131) a learned single' judge held that “the rules do not contain any direction to the Public Analyst to analyse a sample within a particular period, but the presumption is that in view of the fact that the samples that are sent to him are of a perishable nature, the analysis would be normally conducted as expeditiously as possible. The delay in compiling the report does not necessarily mean that the analysis was also delayed." 21. It may, however, be argued that from the fact that the report has been submitted after the time limit prescribed, it may follow that the analysis itself has been made thereafter. That is entirely a question of fact. There is no presumption in law that the analysis was done on the very day the report was signed. On the other hand, it must be presumed that the analysis was done at any time before the report was signed. The law requires the analysis to be done; it does not prescribe the time limit. It follows, therefore, that the Public Analyst would analyse a sample .during a period when analysis thereof is possible and not after a delay when the goods had perished or had become incapable of such analysis. The presumption under Section 114 of the Evidence Act is that official acts must be presumed to have been done in the manner required. In the case of (11) State of Madhya Pradesh V. Chhote Kanne Khan (1970 Criminal Law Journal 1238) a Full Bench took the view that the provision of Section 114 of the Evidence Act applies to cases under the Prevention of Food Adulteration Act. The Supreme Court in the cases of (12) Kasim Kunju Pookunju V. Ram Krishna Pillai (1969 K.L.T. 500) has held that the presumption about the official acts having been regularly performed applies in such a case and it must be presumed that the Public Analyst acted in accordance with the Rules. The Supreme Court in the cases of (12) Kasim Kunju Pookunju V. Ram Krishna Pillai (1969 K.L.T. 500) has held that the presumption about the official acts having been regularly performed applies in such a case and it must be presumed that the Public Analyst acted in accordance with the Rules. Therefore, unless an accused rebuts the presumption and throws the onus upon the prosecution to prove that a proper analysis was made, from the mere fact that the report is delayed; it cannot be 'presumed that it has caused prejudice. The question of prejudice would thus be a question of fact, to be determined by a court in each case upon the 'circumstances thereof. 22. In the present case, the petitioner has not alleged any prejudice to have been caused to him on account of the fact that the report was sent after a period of sixty days. There is no circumstance on the record to suggest any prejudice. The result of this late submission of the report was the delay in launching the prosecution but that was not to the prejudice of the .petitioner. The only right which could have been affected in the present case was the, right to get the sample further analysed by the Central Food Laboratory under Section 13(2). This Fight he partially exercised by filing an application under Section 13(2) of the Act. Ultimately, however, he did not take advantage of it by not paying the fee required and getting the analysis made. That was the petitioners own fault. It is, however, not his case that the analysis was improper and any prejudice has been caused to him thereby. 23. Thus, all the contention raised on behalf of the petitioner must fail. In the result, I find no good ground for Interfering with the prosecution of the petitioner under Section 16(1)(a) of the Act. His application for quashing the prosecution must, therefore be dismissed. It is accordingly so done. Application dismissed