Judgment S.S.Sandhawalia, J. 1. Whether Rule 9-A of the Prevention of Food Adulteration Rules, 1955 (substituting Rule 9 (j) with effect from the 4th of January, 1977), though couched in terms mandatory, is yet, in substance, directory, is the meaningful question which has necessitated this reference to the larger Bench. 2. The facts lie in a narrow compass. The Food Inspector of Pandaul Block within the district of Madhubani inspected the shop of the petitioner and took samples of mustard oil and Mirich and, in accordance with the rules, sent them to the Public Analyst for chemical examination. On a report received from the Public Analyst, it was found that both the food articles were adulterated and, after obtaining necessary sanction, two separate complaints were preferred before the Chief Judicial Magistrate, Madhubani, who took cognizance thereof under Section 16(1) of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred, to as the Act). Both the cases were later transferred for trial to another Magistrate. The petitioner thereafter preferred two Criminal Miscellaneous Application Nos. 1771 and 1776 of 1981 under Sec. 482 of the Code of Criminal Procedure for quashing the proceedings. 3. These criminal miscellaneous cases originally came up for hearing before my learned Brother, B.P. Griyaghey, J., sitting singly. Before him it was first sought to be urged that sanction required under Sec.20 of the Act having not been obtained in the present cases, the prosecution instituted was illegal. However, on behalf of the State, Notification No. 126 dated the 29th of November, 1978 was placed on the record, whereby all the Chief Medical Officers had been authorised by the State Government under Sec.20 of the Act to accord sanction for the prosecution. In view of this, the learned Counsel for the petitioner very fairly abandoned this ground altogether. 4. In view of this, the learned Counsel for the petitioner very fairly abandoned this ground altogether. 4. However, apprarently under some misapprehension about the statutory amendments, it was strenuously contended that there had been non-compliance with Rule 9 (j) of the Prevention of Food Adulteration Rules, 1955 (hereinafter to be called the Rules) in so far as the Food Inspector had not served a copy of the report of the Public Analyst on the petitioner within ten days of the receipt of the same When it was pointed out that the said rule had been repealed and substituted by Rule 9A with effect from the 4th of January, 1977, the contention was modified to the effect that there had equally been non-compliance within the manadatory provisions of this rule and the prosecution of the petitioner was, therefore, vitiated. My learned Brother, in his lucid referring order, noticed some conflict of precedent on the point and entertaining some doubt about the correctness of the earlier single Bench judgment in Satyanarain Patwari V/s. Bharat Prasad Kasera, 1980 0 BBLJ 563. referred the matter for an authoritative decision. 5. It is manifest that the core question herein is whether Rule 9A is so mandatory in its terms that any infraction thereof (irrespective of any prejudice caused to the accused persons thereby) would ipso facto vitiate the proceeding and the consequent prosecution. 6. Before I proceed to construe the language of Rule 9A itself, it is instructive to refer to the legislative background of this provision because it tends to provide a clear pointer to the legislative intent. The Prevention of Food Adulteration Act was promulgated on 1st of June, 1955 and the prevention of Food Adulteration Rule 1955 thereunder were enforced on different dates in 1956. For well-nigh thirteen years there was no Section of the Act or any rule which required the Food Inspector to supply a copy of the report of the Public Analyst to the accused. It was only on the 18th of July, 1968 that Clause (j) was inserted in Rule 9. For well-nigh thirteen years there was no Section of the Act or any rule which required the Food Inspector to supply a copy of the report of the Public Analyst to the accused. It was only on the 18th of July, 1968 that Clause (j) was inserted in Rule 9. At that stage it merely provided that the Food Inspector should send a copy of the said report (in case it was adverse) by hand or registered post to the person from whom the sample was taken as soon as the case was filed, in court; it did not then lay down any time limit within which the copy of the report of the Public Analyst was required to be supplied by the Food Inspector to the accused. Six years later, however, on the 13th of February, 1974 Clause (j) of Rule 9 was amended and it then provided for a copy of the report being given to the accused by the Food Inspector within ten days of its receipt from the public Analyst. Despite this amendment, the said rule did not subsist for long on the Statute Book. What calls for a pointed notice herein is that on the 4th of January, 1977 it was altogether omitted and a new Rule 9A was inserted in its place. It is apt at this stage to juxtapose the two provisions Rules 9 (j) and 9A .- X X X X X X X 9... It shall be the duty of the food inspector,- (j) to send by registered post, a copy of the report received 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 the case the sample conform 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. "9A. The Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Sec.14-A of the Act. Provided that where the sample conforms to the provisions of the Act or the Rules made thereunder, and no prosecution is intended under Sub-section (2-E) of Sec.13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to th person, whose name, address and other particulars have been disclosed under Sec.14-A of the Act, within 10 days from the receipt of the report from the Public Analyst. 7. Now it would be plain from the above that the requirement as to the time limit within which, on the receipt of the report of the Public Analyst, a copy thereof was to be given or supplied to the accused has now been wholy deleted by the framers of the Rules. Instead, it has been provided that only after the institution of the prosecution a copy of the report has to be or warded to the accused immediately. 8. In this context reference to Sec.13 of the Act is again inevitable as it provides for a second and conclusive analysis of the sample, if so required, by the Director of the Central Food Laboratory which supersedes the report given by the Public Analyst under Sub-section (3) thereof. It deserves notice that substantial amendments in Sec.13 of the Act were made by Act No. 34 of 1976 whereby, apart from the amendments in Sub-section (1) and (2) thereof, Sub-sections (2-A), (2B), (2C), (2D) and (2E) were Inserted therein. These now. inter alia, provide that on the receipt of the report of the result of the analysis to the effect that the article of food was adulterated, a copy of the report of the Public Analyst shall be forwarded to the accused person or persons informing them that all or any of them, if they so desire, may make an application to the court within a period of ten days from the 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 would thus appear that now the Legislature has, on the other hand, sought to prescribe a certain time limit within which the accused persons can exercise a valuable right of having the sample finally analysed by the Director of the Central Food Loboratory. 9. It would thus appear that now the Legislature has, on the other hand, sought to prescribe a certain time limit within which the accused persons can exercise a valuable right of having the sample finally analysed by the Director of the Central Food Loboratory. 9. It seems to follow plainly from the aforesaid delineated legislative history of the provision that for well-nigh thirteen years after the enforcement of the Act In 1955 (whilst ignoring the predecessor statute of the Pure Food Act) there was no requirement even remotely analogous to the earlier Clause (j) of Rule 9 in the Statute Book. Even when the same was first prescribed in July, 1968, it laid down no time limit within which a copy of the report was to be supplied to the accused right up to the 13th of February, 1974. It was only thereafter that this time-limit was introduced by way of amendment in Rule 9 (j) and remained on the Statute Book for hardly three to four years before it was omitted on the 4th of January, 1977. All this is plainly indicative of the fact that the prescription of time is not to be construed as if it were a prescription of limitation beyond which the prosecution could be vitiated. This can hardly be considered as something basic or integral in the statutory provision and appears to be primarily a guideline for ensuring expedition. The legislature having earlier provided no such time limit and later having reverted to the previous state of the law and a general mandate that this should be done immediately after the institution of the prosecution seem to make plain its intent of not attaching a technical and literal adherence thereto. 10. Again examining the contents of Sec.13 of the Act and the relevant statutory rubs in the larger prospective, it would appear that the heart of the matter herein is the conferring of a valuable safeguard on the accused persons to have the samples analysed afresh by the Central Food Laboratory. The report of the Director in this context has been made conclusive and supersedes the other report. The essence of this provision is, therefore, the grant of this right. Some of the remaining provisions of Sec.13 and the Rules are, in essence, procedural to protect and safeguard this privilege. The report of the Director in this context has been made conclusive and supersedes the other report. The essence of this provision is, therefore, the grant of this right. Some of the remaining provisions of Sec.13 and the Rules are, in essence, procedural to protect and safeguard this privilege. So long as the same is not infringed or violated a marginal variation of the procedural revision cannot be necessarily fatal in itself. It is significant to recall that the earlier Clause (j) of Rule 9 (8 times) was only one of the ten duties which were laid on the Food Inspector by Rule 9. The present Rule 9-A is in a way a deliberate amendment of the rule which expressly abandons the time limit prescribed earlier. It, therefore, cannot be easily said that every marginal infraction of the various duties prescribed in Rule 9 as also in the present Rule 9-A would have the necessary result of vitiating the proceeding. Even though the word shall has been employed in the opening part of Rule 9-A, it is not to be held that the use of this word is by itself decisive. It is long since well settled that a statutory provision, even though couched in mandatory terms, may, in essence, be directory. I am unable to see how some delay in forwarding a copy of the result of the analysis to the accused person would necessarily or gravely prejudice him in his defence during the course of the trial. On principle, therefore, it seems difficult to hold that Rule 9A is so strict, rigid and inflexible that every non-compliance therewith must entail a vitiation of the whole proceeding. 11. What has been said above on principle and in the light of the statutory provisions appears to be equally buttressed by the weight of precedent. Pride of place in this context must be given to the observation of the Constitution Bench in State of Kerala V/s. Alasserry Mohammed. Therein also their Lordships were construing a provision of the Prevention of Food Adulteration Rules, 1955, namely, rule 29 with regard to the quantity of the sample of food to be sent to the Public Analyst or Director for analysis. Equally the word shall has also been used in the said rule. Therein also their Lordships were construing a provision of the Prevention of Food Adulteration Rules, 1955, namely, rule 29 with regard to the quantity of the sample of food to be sent to the Public Analyst or Director for analysis. Equally the word shall has also been used in the said rule. Nevertheless it was observed as follows whilst unanimously reversing an earlier decision of the Supreme Court in Rajal Das G. Pamanani V/s. State of Maharashtra. But it is well known that the mere use of the word shall does not invariably lead to this result. The whole purpose and the context of the provision as to be kept in view for deciding the issue. The object of the Act is to obtain the conviction of a person dealing in adulterated food. 12. However, the cases that govern the issue substantially by way of analogy with regard to the earlier Rule 9 (j) are the Full Bench judgments of the Gujrat High Court reported as M.M. Pandya V/s. Bhagwandas Chiranjilal, 1979 0 CrLJ 1440 , and the Full Bench of the Punjab and Haryana High Court in Kashmiri Lal V/s. State of Haryana, 1982 0 CrLJ 311 . In the latter case, after an exhaustive discussion on principle, on examination of the statutory provisions and the case law on the point, it was concluded as follows ; To conclude, we take the view that Rulwe 9 (j) even though framed in mandatory terms is in substance directory....However, it is for the accused to establish material prejudice by such an infringment and if he does so it would be open to the Court to consider its effect on the prosecution launched against him. 13. It suffices to mention that the aforesaid view was in consonance with Shakoor V/s. State of Rajasthan, 1977 0 CrLJ(NOC) 238.; Public Prosecutor V/s. Pyare Ali, 1976 2 FAC 51 (A.P.) and Immadi Ramchandram V/s. State of Andhra Pradesh, 1976 CrLJ 1832 (A.P.) 14. Indeed with regard to the repealed provision of the earlier Rule 9 (j), the matter seems to be concluded by the summary rejection of a Special Leave Petition by O. Chinnappa Reddy, J., (sitting singly during the vacation) in Dalchand V/s. Municipal Corporation, Bhopal and Anr. -- . with the following observations: Where no prejudice was caused there could be no cause for complaint. -- . with the following observations: Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that Rule 9 (j) of the Prevention of Food Adulteration Rules was directory and not mandatory, The decisions in Public Prosecutor V/s. Murli Dhar, 1977 0 CrLJ 1634 (AP) and Bhola Nath V/s. State, 1977 0 CrLJ 154 (Cal) to the extent that they hold that Rule 9 (j) was mandatory are not good law. 15. In the light of the aforesaid discussion, on an examination of the language of Rule 9-A in the context of its legislative history ; and on precedent ; I am firmly of the view that identical considerations are attracted in relation to the present Rule 9-A as well. To conclude, I would take the view that Rule 9A, even though framed in the somewhat mandatory form, is, in substance, directory. Every violation thereof would not ipso facto vitiate the prosecution. It is for the accused to establish material prejudice by such an infringement and if he does so, it would be open to the Court to consider its effect on the prosecution launched against him. 16. Whilest holding as above, I must recall and reiterate the following observations in Allasserry V/s. Mohammeds case (supra) in the virtually identical context: ....We may add that the decisions of the Courts holding that the Rule is merely directory and if the quantity sent by the Food Inspector is sufficient for the purpose of analysis, the report of the Public Analyst should not be thrown out merely on the ground of the breach of the Rule, are not meant to give a charter or a licence to the Food Inspectors for violating the Rule. They must remember that even directory Rules are meant to be observed and substantially complied with. A Food Inspector committing a breach of the Rule may be departmentally answerable to the higher authorities. 17. One may not advert to the judgment of "this Court in Satyanarain Patwari case (supra), which, indeed, has necessitated this reference to larger Bench. This case pertained to the repealed provision of the earlier Rule 9 (j). A Food Inspector committing a breach of the Rule may be departmentally answerable to the higher authorities. 17. One may not advert to the judgment of "this Court in Satyanarain Patwari case (supra), which, indeed, has necessitated this reference to larger Bench. This case pertained to the repealed provision of the earlier Rule 9 (j). Reliance therein was heavily placed on Bhola Nath Nayak V/s. State (supra) which was expressly dissented from by the Full Bench in Kashmiri Lais case(supra) and has now been in terms overruled by the Supreme Court in Dalchands case (supra). The reasoning therein runs counter to the weight of precedent which has been noticed earlier. With the greatest respect, I am of the view that the said judgment does not lay down the law correctly and is, therefore, overruled. 18. Now, applying the law enunciated above, it seems to be plain that in both the Criminal Miscellaneous Petitions the petitioner is, indeed, very far from haying established any prejudice to him at all by some delay in the communication of the report of the result of the analysis. As has already been noticed, he came up in this Court at threshold stage of the cognizance being taken by the trial court of the said offence. It must be noticed that the learned Counsel for the petitioner fairly stated that no material prejudice or any irreparable injury could be possibly shown on the present record. Both the petitions are consequently without merit and have necessarily to be rejected.