JUDGMENT 1. - This appeal has been filed by the State under Section 378 (i) of the Code of Criminal Procedure, 1973, against the judgment dated 13th July, 1976 passed by the chief Judicial Magistrate, Nagpur in Criminal case No. 1007/1974. By its judgment aforesaid, the Chief Judicial Magistrate acquitted the respondent of the charge under Section 7/16 (1) (a) of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as the Act) on the ground that there had been non compliance with the provisions of Rule 22 of the Prevention of Food Adulteration Rules 1955, (herein-after referred to as the Rules) in the matter of the quantity of sample sent by the Food Inspector to the public Analyst. 2. The facts, briefly stated, are that on 23rd July, 1976, Shri Hari Kishan Vishnoi (PW/1) the Food Inspector, purchased 450 gms. of Ghee by way of sample from the respondent Noparam after paying a sum of Rs. 7 25, and issued a receipt for the same in favour of respondent. The said sample was divided into three equal parts and which were put into three bottles which were duly labelled and sealed. One of these bottles was delivered to the respondent and a receipt was obtained from him,, the second bottle was sent to the Public Analyst Jodhpur, and the third bottle was retained by the Food Inspector. According to the report (Ex. P.4) of the Public Analyst, the sample of Ghee was found to be adulterated and thereupon, after obtaining the consent of the Administrator, Municipal Board, Ladnu the Food Inspector filed a complaint against the respondent in the court of Munsif & Judicial Magistrate 1st Class, Deedwana. The case was subsequently transferred to the court of Chief Judicial Magistrate, Nagpur. 3. In support of its case, the prosecution examined Shri Hari Kishan Vishnoi (PW/1), the Food Inspector and Jagdish (PW/2) who is an attesting witness to the memo (Ex. P. 2) which was prepared by the Food Inspector at the time of taking the sample of the Ghee from the respondent. The prosecution, in support of its case, has produced Form VI (Ex. P. 1) prepared by the Food Inspector on 23rd April, 1974 Ex. P. 1, the Memo (Ex. P. 2) prepared by the Food Inspector on 23rd April, 1974, the memorandum (Ex. The prosecution, in support of its case, has produced Form VI (Ex. P. 1) prepared by the Food Inspector on 23rd April, 1974 Ex. P. 1, the Memo (Ex. P. 2) prepared by the Food Inspector on 23rd April, 1974, the memorandum (Ex. P. 3) in form VII dated 30th April, 1974 sent by the Food Inspector to the Public Analyst, the report (Ex. P. 4) of the Public Analyst and the order (Ex.P. 5) passed by the Administrator Municipal Board, Ladnu giving his consent for the filing of the complaint under Section 16 of the Prevention of Food Adulteration Act against the respondent.The respondent in his statement recorded under Section 313 Cr. P.O. has stated that the Food Inspector had purchased 330 gms. of Ghee by way of sample of examination from him after paying Rs. 7.25 and the said Ghee was filled in three bottles which were duly sealed and that his signatures were obtained. The respondent has, however, claimed that the ghee which was sold by him to the Food Inspector was not adulterated. 4. The Chief Judicial Magistrate in his judgment dated 13th July, 1976 has observed that one of the bottles containing the sample of a ghee, when it was opened in the Court, was found to contain only 100 gms. of ghee and that the said bottle could not have contained 150 gms. of ghee which is the quantity of Ghee required to be sent by way of sample to the Public Analyst under Rule 22 of the Rules. The Chief Judicial Magistrate, therefore, held that there was non-compliance with the mandatory provisions of Rule 22 of the Rules and, relying upon the decision of the Supreme Court in Rajaldas G. Pamnani v. State of Maharashtra (A.I.R. 1975 SC 189) the Chief Judicial Magistrate acquitted the respondent by giving him the benefit of doubt. 5. In support of the appeal, the learned Public Prosecutor has submitted that the decision of the Supreme Court in Rajaldas G. Pamnani v. State of Maharashtra , is no longer good law and that the said decision has been reversed by the Supreme Court in its recent decision in State of Kerala v. Alasserry Mohammed etc. 5. In support of the appeal, the learned Public Prosecutor has submitted that the decision of the Supreme Court in Rajaldas G. Pamnani v. State of Maharashtra , is no longer good law and that the said decision has been reversed by the Supreme Court in its recent decision in State of Kerala v. Alasserry Mohammed etc. , wherein it has been laid down that the provisions of Rule 22 of the Rules are mandatory in nature and the mere fact that the sample which was sent by the Food Inspector to the public Analyst was lesser than the quantity prescribed under Rule 22 is no ground for acquitting the accused if the quantity sent to the Public Analyst is sufficient to enable the Public Analyst to make a correct analysis. The submission of the learned Public Prosecutor is that the quantity of Ghee sent to the Public Analyst was sufficient to enable him to make a correct analysis and that the acquittal of the respondent, for the reasons given by the Chief Judicial Magistrate could not be sustained. 6. I am in agreement with the aforesaid contention urged by the learned Public prosecutor. The Supreme Court in its recent decision in State of Kerala v. Alasserry Mohammed etc. has examined the provisions of the Act and the Rules relating to the taking of sample by the analysis of the said sample by the public analyst for the purpose of determining whether the provisions of Rule 22 are mandatory in nature and whether a non-compliance with the same must necessarily lead to the acquittal of the accused. The Supreme Court has observed as under : 7. "It would thus be seen that the whole object of section 11 and Rule 22 is to find out by a correct analysis, subject to further verifications and tests by the Director of the Central Laboratory or otherwise, as to whether the sample of food is adulterated or not. If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis, then merely because the quantity sent was not in strict compliance with the Rule will not result in the nullification of the report and obliterate its evidentiary value. If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analysis, then merely because the quantity sent was not in strict compliance with the Rule will not result in the nullification of the report and obliterate its evidentiary value. If the quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not. If, he finds it insufficient, there is an end of the matter. If however, he finds it sufficient, but due to one reason or the other, either because of further tests or otherwise, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt the case may fail. In other words, if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst, it is obvious that the case may end in acquittal. But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt then it will endanger public health to acquit offenders on technical grounds which have no substance. 8. For the reasons aforesaid, the Supreme Court has laid-down that Rule 22 is directory and not mandatory and it has reversed the contrary view taken by it earlier in Pamnani's case.In the present case Shri Hari Kishan Vishnoi (PW/1), the Food Inspector, has claimed that he had sent 150 gms. Ghee to the Public Analyst. The finding of the Chief Judicial Magistrate is that the quantity which was sent by the Food Inspector did not exceed 110 gms. The quantity prescribed in respect of the ghee under Rule 22 is 150 gms. Thus there is no dispute that there has been non-compliance with the provisions of Rule 22. In view of the Supreme Court in State of Kerala v. Alasserry Mohd. the question that arises for consideration is as to whether the quantity of 100 gms. of Ghee which was sent to the Public Analyst was sufficient so as to enable the Public Analyst to make a correct analysis. In State of Kerala v. Alasserry Mohammed etc. In view of the Supreme Court in State of Kerala v. Alasserry Mohd. the question that arises for consideration is as to whether the quantity of 100 gms. of Ghee which was sent to the Public Analyst was sufficient so as to enable the Public Analyst to make a correct analysis. In State of Kerala v. Alasserry Mohammed etc. the Supreme Court has referred to the Manual of Methods of Tests and Analysis for Food and has observed that generally the quantities fixed are more than double the quantity required by the Public Analyst for the various tests.By way of illustration, the Supreme Court has pointed out that the total quantity of Ghee required for the various tests is approximately 55 grams but the quantity prescribed in Rule 22 is 150 gms. From the aforesaid observation of the Supreme Court, it is clear that the quantity of 100 gms. which was sent by the Food Inspector to the Public Analyst cannot be regarded as insufficient for the purpose of enabling the Public Analyst to make correct analysis and that the report of the Public Analyst wherein he has found that the sample of ghee sent to him was adulterated is not open to challenge on the ground that it was not trustworthy as it was based upon short quantity of the sample sent to him. I am, therefore, of the view that the acquittal of the respondent only on the ground that there was non-compliance with the provisions of Rule 22 in the matter of quantity of sample sent to the Public Analyst cannot be sustained. 9. Mr. P. N. Mohanani, the learned counsel for the respondents, has pointed out that in State of Kerala v. Alasserry Mohammed etc. (2) the Supreme Court had declined to interfere with the acquittals in the cases before it and has submitted that for the same reasons the acquittal of respondent also should not be interfered with in the present case. The aforesaid argument of Shri Mohanani can not be accepted for the reason that in the judgment above referred the Supreme Court has observed that the appeals before it had been argued as test cases only and in such cases the Supreme Court does not normally set aside the order of acquittal especially in exercise of its discretionary jurisdiction under Article 136 of the constitution. The circumstances referred to by the Supreme Court in said case are not present in the present case. 10. Shri Mohanani has further contended that, in any event, from the evidence adduced by the prosecution it is established that the provisions of Rule 9 (j) of the Rules have not been complied in the present case and that as the provisions of the said rules are mandatory in nature, the petitioner cannot be convicted of the offence under Section 16 (i) (a) of the Act. In support of his aforesaid contention the learned counsel for the respondent has placed reliance on the decision of the Calcutta High Court in Bhola Nath Nayek v. The State and another (1977 Cr.L.J. 154) , the decision of Andhra Pradesh High Court in the Public Prosecutor, Hyderabad v. J. Murlidhar (1977 Cr.L.J. 1963) and the decision of Bombay High Court in the State of Maharashtra v. Jesti Dosa (1978 Cr.L.J. 427) wherein the provisions of Rule 9 (j) (as amended by Notification dated L3th February 1974). have been construed and it has been held that the said provisions are mandatory in nature. 11. In the present case the Food Inspector had taken the Sample of Ghee on 23rd April, 1974 and therefore Rule 9 (j), as amended by the Notification dated 13th February, 1974 is applicable to the present case. The said Rule provided as under:- "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 than the person may be informed of the Same and the report need not be sent." The aforesaid provisions of Rule 9 (j) can be construed in three possible modes. The rule may be read as wholly mandatory so as to mean that non-compliance with any of the requirements of the rule would vitiate the trial. On such a construction the accused would be entitled to an acquittal if the copy of the report is sent by hand and not by registered post or the said copy is sent on the 11th day after the receipt of the report. On such a construction the accused would be entitled to an acquittal if the copy of the report is sent by hand and not by registered post or the said copy is sent on the 11th day after the receipt of the report. Another mode of construing the Rule may be to read it as wholly directory so as to mean that a conviction may be validly recorded even though there has been a complete non-compliance with the Rule in as much as the copy of the report has not been supplied to the accused at all. The third mode of construing the Rule may be to read it as partly mandatory and partly directory so as to mean that non-compliance with certain requirements of the rule would vitiate the trial whereas non-compliance with the other requirements may not have the said effect. 12. The test that was applied by the Supreme Court in State of Kerala v. Alassery Mohd. for determining whether the provisions contained in Rule 22 of a mandatory or prohibitory nature was to "look to the subject matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act." As to the object of the present Act the Supreme Court has observed that it is to obtain the conviction of a person dealing in adulterated food, The Supreme Court has expressed the view that it will endanger Public health to acquit offenders on technical grounds, which have no substance and after taking into consideration the object of the Act and the purpose of the Rule, the Supreme Court held that substantial compliance with the provisions of Rule 22 would achieve the purpose of the said Rule. The aforesaid principles laid down by the Supreme Court, while construing Rule 22, are equally applicable for the purpose of construing Rule 9 (j) it is, therefore, necessary to first find out the purpose of the provision contained in Rule 9 (J) and thereafter to determine which of the three constructions referred to above would best achieve the said purpose of the Rule as well as the object of the Act. 13. 13. A perusal of Rule 9 (j) will show that it seeks to effectuate the right conferred by Section 13 (2) of the Act on a person accused of an offence under the Act to ask for an analysis of the sample taken from him to be done at the Central Food Laboratory in cases where the report of the Public Analyst is that the sample does not conform to the provisions of the Act and the Rules, Rule 9 (j), as it stood prior to the amendment by notification dated 13-2-1974, required that the copy of the report of the Public Analyst should be sent to the person from whom the sample was taken as soon as the case was filed in the court. It was observed that many times the complaint was filed after a lapse of considerable time and on account of the aforesaid delay in the filing of the complaint the person from whom the sample was taken was supplied with the copy of the Report of the Public Analyst at a stage when on account of decomposition or otherwise the sample became unfit for a proper analysis. In order to obviate such an eventuality Rule 9 (i) was amended by notification dated 13-2-1974 so as to provide that the copy of the report of the Public Analyst shall be sent to the person from where the sample was taken within ten days of the receipt of the said report. The purpose of this provision appears to be enable the person from whom the sample was taken to have the part of the sample, which was delivered to him by the Food Inspector, examined by an expert of his choice before the prosecution is launched against him. In order to achieve the aforesaid purpose it is necessary that the copy of the report of the public analyst must be furnished to the person from whom the sample is taken before the sample becomes unfit for analysis. 14. If the provisions of Rule 9 (j) are construed as wholly directory the result would be that the failure on the part of the Food Inspector to send the copy of the Public Analyst to the person from whom the sample was taken, would be of no consequence. 14. If the provisions of Rule 9 (j) are construed as wholly directory the result would be that the failure on the part of the Food Inspector to send the copy of the Public Analyst to the person from whom the sample was taken, would be of no consequence. Such a construction would mean the accused being deprived of a valuable right and it would frustrate the purpose of the said Rule. I am, therefore, of the view the provisions of Rule 9 (j) cannot be construed as wholly directory. In ray view the provisions of Rule 9 (j) cannot also be construed as wholly mandatory. If such a construction is placed on the said provision the result would be that an accused would be entitled to an acquittal in a case where the copy of the report of the Public Analyst has been supplied to the person from whom the sample was taken but instead of being sent by registered post the said copy was either delivered by hand or instead of being sent within 10 days of its receipt it was sent on the 11th day. In other words the accused would be entitled to an acquittal even though he has not suffered any prejudice at all on account of the non-compliance with the provisions of the Rule. Such a construction would defeat the object of the Act. I am of the opinion it would be more reasonable to construe the provisions of the Rule as partly mandatory and partly directory. I would construe the said provisions as mandatory in the sense that it is incumbent on the Food Inspector to send a copy of the report of the Public Analyst to the person from whom the sample has been taken and a failure on the part of the Food Inspector to do so would result in the accused being deprived of a valuable right and the purpose of the rule being frustrated. It may be that in a particular case the prosecution may be able to show that the failure on the part of the Food Inspector to send the copy of the report of the Public Analyst has not caused any prejudice to the accused at all and in that event it may be held that the non-compliance with the aforesaid requirement of the Rule cannot result in acquittal. But in the absence of such evidence being adduced by the prosecution it will have to be held that failure on the part of the Food Inspector to send the copy of the Report of the Public Analyst to the accused vitiates the trial. But the same cannot be said with regard to the other requirements of the rule viz., sending by registered post and sending within a period of ten days from the receipt of the report. The purpose of the provision requiring the copy of the report being sent by registered post is to ensure the delivery of the same to the person concerned and to dispense with the need of producing evidence about the receipt of the copy of the report by the person concerned. But this does not mean that a person is entitled to an acquittal if the copy of the report is delivered to him by hand or is sent to him by post instead of being sent by registered post if there is evidence to the effect that the accused has received the copy of the report. What is of essence is the delivery of the copy of the report and not the mode in which it is delivered. Similarly with regard to the requirement that the copy of the report must be sent within 10 days of the receipt of the report, I am of the view that even in a case where the copy of the report has not been sent within 10 days of the receipt of the report, the accused may not be entitled to an acquittal if the prosecution adduces satisfactory evidence to explain the circumstances in which it was not possible to send the copy of the report within 10 days and establishes that no prejudice has been caused to the accused on account of the failure to send the copy of the report within a period of 10 days of the receipt of the report. I wish, however, to add that an unduly long delay in sending the copy of the report should not ordinarily be condoned. 15. I wish, however, to add that an unduly long delay in sending the copy of the report should not ordinarily be condoned. 15. I, therefore, hold that the provisions of Rule 9 (j), as amended by notification dated 13.2.1974, were mandatory in the sense that it was incumbent upon the Food Inspector to send a copy of the report of the Public Analyst to the person from whom the sample was taken before the filing of the complaint and the failure to do so would entitle the accused to an acquittal. The requirement in the said Rule that the copy of the report of the Public Analyst should be sent by registered post within 10 days of the receipt of the report is however, directory in the sense that failure to comply with the same will not have any bearing on the trial, if it is shown that the said provisions have been substantially complied with and that no prejudice has been caused to the accused as a receipt of the failure to strictly comply with the said requirement. 16. A reference may now' be made to the cases in which reliance has been placed by the counsel for the respondent in support of bis submission that the provisions of Rule 9 (j) as amended are mandatory. In State of Maharashtra v. Jesti Dosa (1978 Cr.L.J. 427) a learned Judge of the Bombay High Court has expressed the view that if the copy of the report of the Public Analyst, instead of being sent by registered post is given to the person concerned by hand, there is contravention of the mandatory provisions of clause (j) of Rule 9 and the accused is entitled to an acquittal. In Bhola Nath Nayak v. The State and another , the copy of the report of the Public Analyst was given to the accused after a lapse of more than 10, 1/2 months and a learned Judge of the Calcutta High Court has held that there was contravention of the mandatory provisions of clause (j) of Rule 9 and the court was not entitled to look into the report of the Public Analyst and the accused was entitled to an acquittal. In Public Prosecutor, Hyderabad v. J. Murlidhar (1977 Cr.L.J. 1634) , a Division Bench of the Andhra Pradesh High Court had to deal with a case and in which the report of the Public Analyst was not sent to the accused till the filing of the complaint and the High Court held that the accused was entitled to be acquitted for the reason that there was noncompliance with the provisions of Rule 9 (j). In the said case the High Court has observed , "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 R. 9 (j) of the Rules. 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. 17. For the reasons given earlier, I am in agreement with the aforesaid observations of the Andhra Pradesh High Court but regret my inability to concur with the judgment of the Bombay High Court.My attention has also been invited to the recent decision of this Court in Chhogaram v. State of Rajasthan (S.B. Criminal Revision No. 140/1978 decided on 3rd November, 1978) , wherein the petitioner was acquitted on the view that the mandatory provision of Rule 9 (j) about the supply of the report of the Public Analyst to the accused had not been complied with and that it was a serious matter. An examination of the facts of the case shows that in that case this Court has found that the copy of the report of the Public Analyst had not been supplied at all to the petitioner. Thus there was complete non-compliance with the provisions of clause (J) of Rule 9. The afore said decision is thus inconsonence with the view taken by me that in a case where the accused has not been furnished with the copy of the report of the Public Analyst, his conviction cannot be sustained. 18. Thus there was complete non-compliance with the provisions of clause (J) of Rule 9. The afore said decision is thus inconsonence with the view taken by me that in a case where the accused has not been furnished with the copy of the report of the Public Analyst, his conviction cannot be sustained. 18. Coming to the facts of the present case find that the evidence adduced by the prosecution does not show that the copy of the report of the Public Analyst was furnished to the respondent before the institution of the complaint and thus there has been complete non-compliance with the provisions of clause (j) of Rule 9. The respondent is, therefore, entitled to be acquitted.The result is that the appeal is dismissed and the order dated I3th July, 1976, passed by the Chief Judicial Magistrate, Nagpur in Cr. Case No. 1007/1974 acquitting the respondent is affirmed. *******