J.M.L.Sinha, J. - (1.) THIS revision arises out of the judgment dated 20th June, 1978 passed by the Sessions Judge, Nainital, dismissing the appeal that was filed by the present applicant against his conviction and sentence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.
(2.) ON 8th of February, 1977, Sri. T. D. Bhandari, Food Inspector, collected sample of Bundi Laddoos from the shop of the applicant situate in Railway Bazar, Haldwani. ONe part of the sample was sent to the Public Analyst who reported it to be adulterated. A complaint was, therefore, filed for the prosecution of the applicant. The defence set up by the applicant was a total denial of the prosecution case. The trial court held the applicant guilty under Section 7 read with Section 16 of the Act, and, convicting him thereunder, sentenced him to six month's R. I. and a fine of Rs. 1,000/-. Aggrieved against it applicant filed an appeal in the court of Sessions which resulted in dismissal and hence this revision. One of the contentions raised by the learned counsel for the applicant before me was that Section 13 (2) of the Act has not been complied with and hence the conviction recorded against the applicant stands vitiated. For appreciation of the contention raised by the learned counsel for the applicant it is necessary to read subsections (2) and (2-A) of Section 13. They are as follows : "(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of 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. (2-A) When an application is made to the court under sub-section (2) the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said authority shall forward the part or parts of the sample to the court within a period of five days from the date of the receipt of such requisition."
(3.) IT is pertinent to note that both in sub-section (2) and sub-Sec. (2-A), the legislature used the word 'shall'. When the legislature uses the word 'shall' the inference, unless a contrary is shown by context or otherwise, is that the rule is mandatory. In the instant case, it is apparent on a perusal of section 13 that sub-sections (2) and (2-A) thereof were enacted by the legislature to provide an opportunity to the accused to ask for the other sample-phial in the possession of the local authority being produced in court for its being sent to the Director of Central Food Laboratory, if he disputes the report of the Public Analyst. The provision was thus; enacted for the benefit of those who are proceeded against under the Act in order to provide an effective defence to them against uncalled for prosecution. In this connection it is also worthy of notice that previously there was a provision in Section 11 of the Act that when any sample was collected by the Food Inspector, it was divided in three parts and one part thereof was handed over to the person from whom the sample was collected. By the Amending Act No. 34 of 1976, Sec. 11 of the old Act has been amended and the [Food Inspector is no more required to handover any part of the sample to tie person from whom it is collected. The result is that the person from whom the sample is collected can by no means take any action by himself for any part of it being sent to the Director of Central Food Laboratory. There is yet another circumstance which points to the conclusion that the provision contained in sub-sections (2) and (2-A) of Section 13 is mandatory. According to sub-section (2) of Section 13, a copy of the report of the Public Analyst has to be sent to the person concerned "in such manner as may be prescribed." The expression 'Prescribed' means prescribed by rules. According to Rule 9-A a copy of the report of lite Public Analyst should be sent by the local authority to the person concerned immediately after the institution of the prosecution by registered post or by hand, as may be appropriate. The fact that the rule required the local authority to send the copy of the report of the Public Analyst immediately after the [institution of the prosecution clearly indicates that the provision contained in sub-sections (2) and (2-A) of Section 13 was enacted to be complied with and not for being ignored.;