1. As there is a welter of judicial opinion as to the interpretation of Rule 9(j) of the Prevention of Food Adulteration Rules, the matter has been referred to us by the learned single Judge. This rule is in these terms :
'9. Duties of a Food Inspector. It shall be the duty of the Food Inspector
(a) to (i) ...... ...... ...... ......
(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.'
2. It may be pointed out that the above rule existed on the statute book between the period 13-2-1974 to 1-4-1976. The Rule came to be repealed after 1-4-1976 and is now substituted by a new Rule 9-A.
3. Rule 9(i) as it existed and by which the matter, in hand, is governed had come up for consideration in State of Maharashtra v. Jesti Dosa , before Naik, J., who held that the Rule was intended to be mandatory. This view was approved of by Kambli, J. in Sureshchandra v. The State of Maharashtra (Cri. Revn. Appln. No. 146 of 1977 decided on 16th November 1978). Further the view of Naik, J., in Jesti Dosa's case was followed recently by Deshmukh, C.J., in S. G. Chandansa v. Taminuddin 1979 (1) FAC 230.
4. However, in The State Of Maharashtra v. Janardan Ramchandra , Apte, J. held that this Rule cannot be regarded as mandatory and the word 'shall' is not decisive. He referred to Jesti Dosa's case and observed that, Naik, J., was dealing with a Criminal Revision preferred by the State against the discharge order passed by the Magistrate holding that there was non compliance of Rule 9(j) and as such the said case had no application. In Taminuddin's case decided by Deshmukh, C.J., it appears that Jesti Dosa's case alone was brought to the notice of his Lordship, but the subsequent view of Apte J., in Janardan's case on the point was not referred to.
5. In the recent Full Bench decision of the Gujarat High Court reported in M. M. Pandya v. Bhagwandas Chiranjilal it was observed that. it is difficult to hold that the time limit laid down by Rule 9(j) is so strict and rigid that non-compliance therewith necessarily vitiates all prosecutions. The question that was referred was whether a copy of the report of the Public Analyst received by the Food Inspector should be sent or given to the accused within 10 days from the date of its receipt as required by this Rule and if it is not supplied to the accused, within that period what was the effect thereof on the prosecution. It was observed (at 0.1446 of Cri LJ) in this case as under :
'We are, therefore, of the opinion that the infringement of the time limit of ten days laid down in Rule 9(i) of the Prevention of Food Adulteration Rules, does not necessarily vitiate the prosecution nor does it affect in any manner the validity or admissibility of the report of the Public Analyst. However, it is open to the accused to prove prejudice caused to him by such infringement and if an accused proves it, it is open to the Court to consider its effect on the prosecution launched against him.'
6. In the present case, the Food Inspector had received the report from the Public Analyst on 9-8-1974 and the said report was handed over by him to the accused on 19-8-1974 under his acknowledgment Ex. 20 i.e., within 10 days from the date of the receipt. Instead of sending it by Registered post, he effected the service by hand within the stipulated period.
7. Now, the intention of the legislature in formulation of this rule obviously is that the accused must be furnished with a copy of the report of the Public Analyst, at the earliest. The mandate signified by the word 'shall' in the Rule emphasises primarily two things (1) supply of the copy of the report to the accused (2) supply of it within a period of ten days by the Food Inspector, after he receives the report from the Public Analyst. The manner in which it shall be supplied is no doubt also prescribed and is indicated by laying down that it should be sent by registered post. The avowed object in prescribing this particular mode is to ensure its receipt by the accused and to avoid any controversy or dispute about its receipt. If the accused refuses to accept the copy when it is sought to be supplied by hand by the Food inspector, the prosecution certainly may not be able to contend that the Rule has been complied, but if the accused accepts the hand service and voluntarily gives an acknowledgment for the same and if such supply of copy is also made to him, within the stipulated period of 10 days, the intention and purpose of the legislature must be deemed to have been substantially well served. To accept the contention that the prosecution stands vitiated, because the copy is not sent by registered post, is to make both law and justice a hand-maiden of the procedure. In fact when the presumption of the service by registered post as contemplated by this rule, is replaced by the fact of actual service under the acknowledgment of the accused within time, then to hold that even so the trial must stand vitiated for non-compliance of this Rule is to defeat the very object and spirit of the law. It may be pointed out that the said rule is now replaced and substituted by the new Rule 9-A with effect from 1-4-1976 and the change brought about this new Rule may be shortly enumerate as under :-
1. The copy of the report of the Public Analyst is to be sent not by the Food Inspector, but by the Local (Health) Authority.
2. The report need not be sent within ten days but immediately after the institution of the prosecution.
3. The report need not be sent by registered post, but it can be sent either by registered post or by hand.
4. If the sample conforms to the provisions of the Act or Rule, the said authority has to intimate the result to the vendor within ten days from the receipt of the report from the Public Analyst,
8. Thus, from the subsequent changes made in this Rule by the legislature, there is every reason to believe that the old Rule as it existed was not intended to be mandatory, unless of course it could be demonstrated by the accused that the strict non-compliance of this Rule has vitally prejudiced the accused in his defence.
9. We, therefore, find that the view taken by Apte J., in Janardan's case is in consonance with the object and the spirit of the said rule. The decision In Jesti Dosa's case ad in Tumizuddin's case 1979 (1) FAC 230 is no longer good law. The delivery of the report of the Public Analyst by the Food Inspector to the accused by hand under acknowledgment was in full compliance of the said Rule and there was no infringement of the same merely because, it was not sent by registered post. The Rule 9(j) is held as not mandatory.
10. The papers shall now be placed before a single Judge for decision of this Criminal Revision on merits.
11. Order accordingly.