K. Jayachandra Reddy, J. - (1.) This appeal arising under Prevention of Food Adulteration Act is filed against the judgment of the Kerala High Court in Criminal Appeal No. 153 of 1982 and the main question that arises for consideration is whether Rule 7(3) of the Prevention of Food Adulteration Rules is mandatory or only directory The appellant Usman (A-1) was a vendor. On 4-10-1978, the Food Inspector P.W. 3 purchased six packets of Pan supari from him which were duly sampled and sent for analysis to the Public Analyst who received the same on 5-10-78. But the Analyst's report was received by the Local Health Authority on 6-12-78 which was beyond 45 days. It was opined by the Analyst that the sample contained Saccharin, an artificial sweetener and thus adulterated. The Food Inspector filed a complaint on 15-12-1978 against the appellant (A-1) and also the manufacturer (A-2) and they were charged under S. 16(1)(a) (i) and (ii) read with Ss. 7(i) and (v) and 2(1a)(a) and (b) of the Prevention of Food Adulteration Act. The First-Class Magistrate acquitted both of them mainly on the ground that rule 7(3) was violated inasmuch as the Local Health Authority received Form III report beyond 45 days and the same is fatal to the prosecution. Incidentally the trial Court also observed that Rule 9(a) was not properly complied with. The Food Inspector preferred an appeal before the High Court and the High Court while confirming the acquittal of A-2 convicted the appellant (A- 1) and sentenced him to undergo six months S. I. and to pay a fine of Rs. 1,000 / -, in default of payment of which to further undergo S. I. for two months. The High Court held that Rule 7(3) is not mandatory and non-compliance of the same need be considered only if the prejudice is established. Likewise, the High Court following the judgment of the Supreme Court in Tulsiram v. State of Madhya Pradesh, (1984) 4 SCC 487 held that Rule 9(a) also is not mandatory but only directory.
(2.) In this appeal the only contention is that Rule 7(3) is not mandatory as held by the High Court and that violation of the same is fatal to the prosecution case. Rule 7(3) as it originally stood read thus: "After the analysis has been completed he (the public Analyst) shall forthwith supply to the person concerned a report in Form Ill of the result of such analysis."
(3.) The amendment in l968 substituted the following Rule 7(3): "After the analysis has been completed he shall send to the person concerned two copies of the report of the result of such analysis in form III within a period of sixty days of the receipt of !the samples.";