Jitendra Nath Chaudhuri, J.
1. This application under section 401 and section 482 of the Code of Criminal Procedure, 1973 arises out of an impugned order dated 28-5-80 passed by the learned Judicial Magistrate, Jangipur (District Murshidabad) in G.R. Case No. 33C of 1977 (T.R. 66 of 1977) by which the learned Magistrate discharged the accused opposite party No. 1 on the ground that the notice under section 13(2) of the Prevention of Food Adulteration Act, 1954 (Act 37 of 1954), (hereinafter referred to as the said Act) had been sent to the accused before the institution of the prosecution against him and not 'after the institution of the prosecution' against him.
2. The facts of this case may be shortly stated as follows:
It is the prosecution case that the present petitioner inspected the shop of the accused opposite party No. 1 on 29-11-76 situated at Goffurpur Ward No. 2 under Jangipur Municipality. The petitioner is the Food Inspector appointed by the State Government under section 9 of the said Act for the local area of the said Municipality. The petitioner found cocoanut oil stored/exposed for sale. Thereupon a sample was purchased by the petitioner from the shop of the accused and after due observance of the legal formalities as per the provisions of the said Act, as amended in 1976, one part of the sample was sent to the Public Analyst and the remaining two parts to the Sub-Divisional Health Officer, Jangipur for future reference. The Public Analyst in his report No. 472 dated 29th December, 1976 opined that the said coconut oil was adulterated. After obtaining the said report the Sub-Divisional Health Officer, Jangipur sent a notice under section 13(2) of the said Act and a copy of the said report of the Public Analyst dated 29-12-76 to the accused on 4-1-77. The said notice and report was sent by registered post under acknowledgement due and was received by the accused on 84-77. The present proceedings against the accused were instituted on 7-1-77.
3. On 18-2-80, the date fixed for evidence, the accused for the first time filed a petition for discharge complaining that since the notice under section 13(2) of the said Act had not been sent after institution of the prosecution against him but had been sent before the institution of the prosecution, the provisions of section 13(2) of the said Act had not been complied with and by such non-compliance he had suffered prejudice.
4. Mr. Roy, learned Advocate for the petitioner has submitted that in this case the reason why the said notice along with the copy of the said report of the Public Analyst was sent just before the institution of the proceedings against the accused was that Rule 9(j) of the Rules under the said Act was replaced by Rule 9 A with effect from 4-1-77, that is to say, the day on which the notice along with the copy of the report was in fact sent to the accused Under Rule 9(j) the notice along with the report had to be sent within 10 days of the receipt of the same by the authority concerned. Hence as soon as the report in question was received on 29-12-76 it was immediately sent on 4-1-77, that is to say, within ten days. By the Rule 9 A which replaced Rule 9(j) the period of ten days has been done away with and now the authority concerned has to forward a copy of the said report and the notice 'immediately after the institution of the prosecution'.
5. Mr. Roy has submitted that no prejudice, whatsoever has been caused to the accused in this case and in fact he has submitted that the nature of the prejudice suffered has not been stated in the petition for discharge filed on 18-2-80 on the strength of which the impugned order dated 28-5-80 was passed. He has also submitted that no petition was made by the accused at any point of time before 18-2-80 complaining of any prejudice caused to him. Mr. Roy has also produced before me the original acknowledgement due slip from which it appears that the accused received the said notice including the said report of the Public Analyst on 8-1-77. Mr. Roy is permitted to take back the original acknowledgement due slip on his undertaking to keep a xerox copy of the same on record. Mr. Roy/has further submitted that the provision violated, namely, sending of the said notice with the copy of the report being just before the institution of the proceedings against the accused and not after the institution of the same, is a directory one and not mandatory and hence unless the prejudice is shown, it is curable. He has referred to the decision reported in : 1984CriLJ1731 (Tulsiram v. State of Madhya Pradesh). The decision reported in : 1983CriLJ448 , inter alia laid down that the requirement under Rule 9(j) of the said Rules (which has now been replaced by Rule 9A with modifications) which require that a copy of the report of the Public Analyst was to be sent to the persons from whom the sample was taken within a period of ten days of the receipt of the report was directory and not mandatory and hence proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of.
6. In : 1984CriLJ1731 , the Supreme Court construed the provisions of Rule 9A of the said Rules and has inter alia held that the expression 'immediately' -in Rule 9A was intended to convey a sense of continuity, rather than urgency and what must be done is to forward the report to the person from whom the sample was taken at the earliest opportunity so as to facilitate the exercise of the statutory right under Section 13, Sub-section (2) in good and sufficient time before the prosecution commences leading evidences. It was further urged that non compliance with Rule 9A is not fatal unless prejudice has been caused.
7. Mr. Kar, learned Advocate, appearing on behalf of the State has supported Mr. Roy and submitted that no prejudice has been caused in this case to the accused at all.
It is obvious that in this case the reason why the notice along with the said report of the Public Analyst was sent just before the institution of the proceedings against the accused and not after the institution of the same, was because as has been already noted above, the date 4-1-77 was the date when Rule 9(j) of the said Rules was replaced by Rule 9A. The judgment reported in 1980 Cri. LJ 51 of the Madras High Court relied upon by the learned Magistrate in passing the impugned order was on Rule 9(j) as it then stood and is of no avail on the facts of the present case and after the decision of the Supreme Court referred to above.
8. In this case, in my view, no prejudice at all has been caused to the accused by the notice including the report of the said Analyst, which was sent to him just before the institution of the proceedings, instead of being sent immediately after institution of the same. As observed above, this appears to have happened because it fell within the transitional period of the replacement of Rule 9(j) of the said Act by the present Rule 9A. It is also a matter of record that no prejudice at all has been proved by the accused before the learned trial court so as to invalidate the act complained of, namely, sending of the notice with the report of the Analyst just before the institution of the proceedings and not immediately after the 'institution of the same. In my view, mere non-compliance of the provision violated cannot invalidate the present act complained of without proof of prejudice.
9. In the result, this application succeeds. The impugned order dated 28-5-80 is set aside and the learned Magistrate is directed to proceed with the trial in accordance with law from the stage at which it was when the said order of discharge dated 28-5-80 was passed The Rule is, thus, made absolute. Let the records be sent down forthwith.