S.S. Dewan, J. - (1.) THE petitioner Amar Chand was convicted by the Judicial Magistrate 1st Class, Garshankar on 14th of June, 1977 under section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentenced to six months' rigorous imprisonment and fine of Rs. 1,000/ - in default to undergo rigorous imprisonment to six months. His appeal having been dismissed by the Additional Sessions Judge, Hoshiarpur on the 25th May, 1978, he has now come up in revision on the ground that on 28.10.76 Shri B.M. Bhargava, Incharge, Civil Dispensary, Mahillpur, having the powers of Food Inspector was present near the Octroi Post, Nawanshahar road. At that time, Dr. Sukhdev Singh and one Sarat Singh were also present with him. The petitioner who was a milk vendor arrived there on a cycle carrying milk in a drum for sale. Shri B.M. Bhargava purchased 560 mls of milk from him on a payment of Rs. 1.05 for the purpose of analysis and sent one of the sample bottles to the Public Analyst who has given the opinion that the sample was Adulterated in as much as it was deficient in solids no fat content to the extent of 5%.
(2.) IT has been contended before me that the trial and the conviction are vitiated in that the Food Inspector has failed to comply with section 13(2) of the Act. Therefore, the only question that falls for determination by me is whether non compliance with the provisions of Sec. 13(2) of the Act vitiates the entire proceedings. In considering that question, I have to find out first of all whether the provisions contained in Sec. 13(2) of the Act are directory in nature or mandatory. Sections 13 reads as follows: - 13. Report of Public Analyst: - (1) That Public Analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis. (2) On receipt of the report of the result of the analysis under Sub -S (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 article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under S. 4A 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 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. Thus a duty has been cast on the Local (Health) Authority to send a copy of the report of the result of the Public Analyst to the person from whom the sample was taken informing him at the same time that he should 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 Authority analysed by the Central Food Laboratory. In the case, now before me the above provision admittedly has not been complied with Nevertheless, the learned counsel for the State has argued that the aforesaid provision is only directory and not mandatory and any non -compliance with the provision would not vitiate the trial or the conviction. I regret my inability to accept this contention. Section 13(2) requires the Local (Health) Authority to forward a report of the result of the analysis by the Public Analyst to the person from whom the sample was taken informing him that if it is so desired he may make an application to the Court within a period of ten days from the date of the receipt of the copy of the report to get the sample of the article of food analysed by the Central Food Laboratory. If the Local Authority fails to send the copy of the report of the Public Analyst and fails to inform the person from whom the sample was taken that he may make an application to the Court within a period of ten days from the date of the receipt of the copy of the report to get the sample analysed by the Central Food, Laboratory, the person from whom the sample was taken would not be able to make an application to the Court (within a period of ten days from the date of receipt of the copy of the report). The object of amending section 13(2) appears to be to not only to give the person from whom the sample is taken a copy of the analyst s report but also to draw his attention to his right to have the sample analysed by the Central Food Laboratory by making an application to the Court within a fixed time. Rule 9 of the Prevention of Food Adulteration Rules has also been suitably amended making it obligatory to send a copy of the report of the Public Analyst to the person from whom the sample is taken. Therefore, it appears to me that by the amendment of section 13(2), a valuable right is given to the accused of receiving such a notice from the Local (Health) Authority, giving a copy of the report of the public analyst and also telling him that if he so desired he may have the sample analysed by the central food laboratory by making an application to the court. The Scheme and object of the provisions of the Act support the view that the provisions of section 13(2) are mandatory. In Municipal Corporation of Delhi v. Ghisa Ram : (1967) 69 P.L.R. 300, the Supreme Court has observed as follows: - A right is conferred by section 13(2) on the accused -vendor to have the sample given to him by the Food Inspector analysed by the Director. After the prosecution was launched against him. It is valuable right because he could for proper defence have that sample analysed by a more competent expert whose certificate supersedes the report of the public analyst under S.13(3) and has to be accepted by the Court as a conclusive evidence of its contents under the proviso to S. 13(2)......... But in a case where there is denial of this right on account of the deliberate conduct of the prosecution, the accused -vendor would be seriously prejudiced in his trial and could not be convicted on the report of the public analyst.
(3.) THEREFORE , in my view, the provisions of section 13(2) of the Act are mandatory and non -compliance with the provisions of this Section would vitiate the entire proceedings. Hence this criminal revision petition is allowed and the conviction of the petitioner and the sentence imposed upon him are set aside and the petitioner acquitted of the offence. Fine, if paid will be refunded.;