JUDGMENT Honble Shri Kant Tripathi, J.—The appellant, Nagar Swasth Adhikari, Nagar Mahapalika, Agra, (now Nagar Nigam, Agra) has preferred this appeal against the judgment and order dated 20.4.1979 passed by Sri N.K. Sharma, Additional Chief Judicial Magistrate, Agra in the Case No. 3454 of 1977, whereby the learned Magistrate acquitted the respondent Mahendra Singh of the charge under Section 7/16 of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act. 2. The facts leading to this appeal are that on 4.3.1976 at about 12.15 p.m. the concerned Food Inspector took a sample of 660 ml. Milk from the respondent after conforming to the formalities enjoined by the Act. The Food Inspector divided the sample into three equal parts and added 18 drops of Formaline of the 40% strength in each part by way of preservative and labelled and sealed them in accordance with the rules and forwarded one sealed bottle of the sample to the Public Analyst for analysis and also delivered one sealed bottle to the respondent. The Public Analyst submitted his report Ex. Ka-1 to the effect that the sample of the milk was adulterated and deficient both in fat contents and non-fatty solids, respectively, by about 12% and 14%. On receiving the report of the Public Analyst, the appellant i.e. Nagar Swasth Adhikari accorded sanction for prosecution of the respondent and accordingly the complaint was filed against him in the Court of the concerned Magistrate. 3. The respondent denied the charge and contended that the milk was not for sale. He was taking two litres of cow milk for his brother. The respondent further denied that he was given any notice or paid any price for the milk. The respondent has however, admitted that a sealed bottle of the sample was also given to him. 4. The appellant examined two witnesses, namely, Sri N.N. Srivastava Food Inspector and Sri Mahendra Singh, Sanitary Supervisor. Both these two witnesses supported the prosecution story. The learned Additional Chief Judicial Magistrate acquitted the respondent on the ground that the respondent was not given any copy of the report of the Public Analyst and as such he could not exercise his rights under Section 13(2) of the Act. Both these two witnesses supported the prosecution story. The learned Additional Chief Judicial Magistrate acquitted the respondent on the ground that the respondent was not given any copy of the report of the Public Analyst and as such he could not exercise his rights under Section 13(2) of the Act. The learned Additional Chief Judicial Magistrate further held that the Rule 9(j) of the Prevention of Food Adulteration Rules, hereinafter referred to as the Rules, was mandatory and its non-compliance was fatal to the prosecution. The learned Magistrate further held that it was the duty of the Food Inspector to send a copy of the report of the Public Analyst to the respondent within ten days of its receipt. The learned Magistrate found that the Food Inspector had admitted that copy of the Public Analyst’s report was not sent to the respondent in his presence and he had not himself sent it to the respondent. The learned Magistrate, therefore, acquitted the respondent due to non-compliance of Rule 9(j) of the Rules as well as Section 13(2) of the Act. 5. I have heard Shri B.N. Upadhyay, the learned counsel for the appellant and Shri Rajeev Sharma the learned counsel appearing for the respondent and perused the record. 6. The learned counsel for the appellant submitted that the provisions of Rule 9(j) of the Rules as well as the provisions of Section 13 (2) of the Act, as they were in force on the date of occurrence of this case, were directory and not mandatory. The learned Additional Chief Judicial Magistrate has committed material illegality in holding that the said provisions were mandatory. It was further submitted that non-compliance of Rule 9(j) of the Rules and Section 13 (2) of the Act was material only when it was shown that the rights of the respondent were prejudiced. If no prejudice is shown to have been caused to the respondent, he was not entitled to acquittal on the ground of non-compliance of Rule 9(j) of the Rules and Section 13 (2) of the Act. 7. The learned counsel for the respondent on the other hand submitted that the provisions of Rule 9(j) of the Rules and Section 13 (2) of the Act were mandatory and as such the learned Additional Chief Judicial Magistrate was justified in acquitting the respondent. 8. 7. The learned counsel for the respondent on the other hand submitted that the provisions of Rule 9(j) of the Rules and Section 13 (2) of the Act were mandatory and as such the learned Additional Chief Judicial Magistrate was justified in acquitting the respondent. 8. Rule 9(j) of the Rules provides that it shall be the duty of the Food Inspector to send by hand or registered post, a copy of the report received in Form III from the Public Analyst to the person from whom the same was taken, in case it is found to be not conforming to the Act or the Rules made thereunder, as soon as the case is filed in the Court. 9. It may also be mentioned that Section 13 (2) of the Act, as was in force on the date of the taking of sample from the appellant, provided that after the institution of a prosecution under this Act the accused, vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample mentioning in sub-clause (I) or sub-clause (iii) 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 despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis. 10. It is, therefore, clear that Rule 9(j) of the Rules has imposed a duty on the Food Inspector to send, as early as possible after institution of the case in the Court, a copy of the report of the Public Analyst to the accused if the report discloses that the sample was not in conformity with the aforesaid Act or the Rules made thereunder. The provisions of Rule 9(j) of the Rules have been made to enable the accused to know the result of the analysis made by the Public Analyst in regard to the sample taken from him and also to apply in the Court under Section 13 (2) of the Act for analysis of the sample delivered to him by the Food Inspector at the time of taking the sample, by the Central Food Laboratory. The provisions of Section 13 (2) of the Act as it existed on the date of this occurrence have conferred a right on the accused to have the sample of the Food again analysed by the Central Food Laboratory. 11. Now the question that arises for decision in this appeal is whether the provisions of Rule 9(j) of the Rules and Section 13 (2) of the Act were mandatory on the date of taking the sample from the respondent? 12. It may be mentioned that the concerned Food Inspector took the sample of milk from the respondent on 4.3.1976. The Act was materially amended with effect from 1st April, 1976 including the provisions of Section 13 (2) of the Act. In view of the fact that the sample of the milk was taken from the respondent prior to the said amendment, the provisions of Section 13 (2) of the Act as were applicable prior to 1.4.1976 will govern the instant case. It may also be mentioned that after the said amendment, however, Rule 9(j) of the Rules remained intact but it was deleted with effect from 4.1.1977 and a new Rule 9-A was substituted in its place. In view of this legislative change, the provisions of Rule 9(j) of the Rules, as were in force prior to 1.4.1976, shall be applicable in this case. The question whether or not the provisions of Rule 9(j) of the Rules were mandatory was considered and answered in the case Dalchandra v. Municipal Corporation, Bhopal and another, 1983 Cri. LJ 448. The Apex Court held in that case that the Rule 9(j) of the Rules was directory and not mandatory. The accused has to show that his rights have been prejudiced due to non-compliance of Rule 9(j) of the Rules. If no prejudice is shown to have been caused to the accused, non-compliance of Rule 9(j) of the Rules cannot be made a ground to acquit the accused. The accused has to show that his rights have been prejudiced due to non-compliance of Rule 9(j) of the Rules. If no prejudice is shown to have been caused to the accused, non-compliance of Rule 9(j) of the Rules cannot be made a ground to acquit the accused. The learned Magistrate has committed manifest error of law in holding that the provisions of Rule 9(j) of the Rules were mandatory. 13. Section 13 (2) of the Act as it existed prior to 1st April, 1976, was not mandatory. This legal position is somehow different in regard to a case which is covered with the provisions of Section 13 (2) of the Act as amended with effect from 1st April, 1976 but the old provisions of Section 13 (2) of the Act as they existed prior to 1.4.1976 were directory and not mandatory. The accused was required by law to move an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director, Central Food Laboratory for analysis. In case the accused fails to move any application as so contemplated, he cannot be permitted to raise the plea that he was deprived of his rights, to have the sample analysed by the Director, Central Food Laboratory. This Legal position has been explained by the Supreme Court in the case of Babulal Hargovindas v. State of Gujarat, AIR 1971 SC 1277 . A similar proposition of law has been laid down in the case of Ajitprasad Ramkishan Singh v. State of Maharashtra, AIR 1972 SC 1631 . 14. A perusal of the aforesaid decisions clearly reveals that an accused cannot be given any benefit of non-compliance of the provisions of Section 13 (2) of the Act as it existed prior to 1st April, 1976 unless it is shown that he has moved an application to send the sample to the Director, Central Food Laboratory for Analysis. If no such application is moved, the accused has no locus to raise the plea that he has been deprived of his rights to have the sample analysed by the Director, Central Food Laboratory. 15. If no such application is moved, the accused has no locus to raise the plea that he has been deprived of his rights to have the sample analysed by the Director, Central Food Laboratory. 15. In view of the legal position as explained by the Apex Court in the aforementioned cases the finding of the learned Magistrate that the provisions of Section 13 (2) of the Act and Rule 9(j) of the Rules as they existed prior to 1.4.1976 were mandatory and non-compliance thereof caused prejudice to the rights of the respondent and as such he was entitled to acquittal on that ground, cannot be upheld. 16. If there was non-compliance of either Rule 9(j) of the Rules, or Section 13 (2) of the Act, the learned Magistrate instead of acquitting the respondent, should have recorded a clear findings on the question whether or not the rights of the respondent were prejudiced due to non-compliance of the said provisions but the learned Magistrate has not recorded any finding in this regard and without doing so acquitted the respondent. The acquittal order, therefore, cannot be sustained. 17. The learned counsel for the respondent submitted that more than 33 years have elapsed and the sample which was delivered to the respondent must have decomposed and as such no fruitful purpose would be served in remanding the case to the learned Magistrate for a fresh decision. In my opinion, this aspect of the matter should be left open to be decided by the concerned Magistrate. In view of the principles of law laid down in the cases referred to above, the learned Magistrate has to see whether or not non­compliance of the provisions of Rule 9(j) of the Rules and Section 13 (2) of the Act has caused any prejudice to the rights of the respondent, especially, when he had not moved any application till the judgment dated 20.4.1979 rendered by the learned Additional Chief Judicial Magistrate, for sending the sample given to him, to the Director, Central Food Laboratory for analysis and opinion. After a lapse of 33 years the question of invoking the provisions of Section 13 (2) of the aforesaid Act by the respondent does not arise and as such the contention that the sample, which was given to the respondent must have decomposed has no relevance. After a lapse of 33 years the question of invoking the provisions of Section 13 (2) of the aforesaid Act by the respondent does not arise and as such the contention that the sample, which was given to the respondent must have decomposed has no relevance. After the remand the learned Magistrate has to see whether any prejudice has been caused to the respondent due to non­compliance of the Rule 9(j) of the Rules and Section 13 (2) of the Act despite the fact that respondent failed to exercise his rights under Section 13 (2) till the judgment dated 20.4.1979 rendered by the learned Additional Chief Judicial Magistrate. The learned Magistrate while considering the said question shall also decide the case on merit keeping in view the evidence already on record without calling for any additional evidence. 18. The appeal, therefore, succeeds and is allowed. The impugned judgment and order dated 20.4.1979 is set aside. The criminal case No. 3454 of 1977 is remanded to the learned Additional Chief Judicial Magistrate, Agra for a fresh decision in accordance with law and also in the light of the observations made hereinbefore. In view of the fact that the case is very old, the learned Magistrate is expected to decide the case expeditiously, if possible, within six months from the date of receipt of the record of the lower Court. ———