Abdul Majeed vs State by Food Inspector

Ratnavel Pandian, J.—This revision is directed by the accused C.C.77 of 1978 on the file of the Chief Judicial Magistrate, Thanjavur at

Kumbakonam, questioning the correctness and legality of the judgment made in Criminal Appeal No. 237 of 1978 on the file of the Court of

Session, West Thanjavur, confirming the conviction passed by the trial Court against him, of an offence under S. 7 (1) read with S 16 (1) (a) (i)

and section (2) (ia) and (0 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and the sentence to undergo

rigorous imprisonment for two months.

The brief facts of the case, which led to this revision, can be summarised as follows: On 30th November 1977, at about 11-40 a.m., P.W.I, the

Food Inspector of Kumbakonam Municipality, in the presence of P.W. 2, took a sample of 375 grams of gingelly oil on payment of Rs. 3-75 as

evidenced by Ex. P2 (cash receipt) from the grocery shop under the name and style of Rani stores situate at Sowrashtra Big street, Kumbakonam,

of which the accused was the owner as well as the licensee, after observing the procedure and formalities laid down under the Act. Exs. PI and P3

are the Form VI and Form VII notices respectively.

Part of the sample of food, viz., the gingelly oil, sent to the public analyst, was found on analysis to have contained ""free-fatty-acids"" in excess of

the maximum allowable limit to the extent of 110 per cent, though as per clause A17 11 Appendix B to the Prevention of Food Adulteration Rules

(hereinafter referred to as the Rules), gingelly oil should not contain more than 3.0 per cent of ""free-fatty-acids."" Ex. P4 is the report of the Public

Analyst and it was received by the Local (Health) Authority on 19th December, 1977. The complaint was filed before the trial Court on 22nd

March, 1978. The Local (Health) Authority, after the institution of the prosecution against the accused, served Ex. Dl, a copy of Ex. P4, with a

memo of intimation (Ex. P5.), as required by S. 13 (2) of the Act on 3rd April, 1978. Exs. P6 and P7 are the acknowledgements of the accused

evidencing the receipt of Exs. Dl and P5. According to P. W. 1, the delay in institution of the prosecution, viz., after the expiry of more than three

months, was occasioned due to his availing of his earned leave. P.W.2, who has attested Exs.Pl and P2, has not supported the prosecution case.

When questioned under S. 318, Crl. P.C., the petitioner denied the offence and stated that P.W. 1 took the sample only from a tin which had

been kept separately and signatures were obtained outside the shop. He examined three defence witnesses D.Ws 1 to 3 and filed Ex.Dl.

The trial Magistrate, after rejecting the various contentions raised by the petitioner-accused, convicted and sentenced him as afore-mentioned.

Feeling aggrieved by the judgment of the trial Court, the petitioner preferred Crl.App. No. 237 of 1978 before the lower appellate Court, which,

for the reasons assigned in its judgment, dismissed the appeal and confirmed the judgment of the trial Court. Hence this revision.

Mr. Sriramulu, learned counsel appearing on behalf of the petitioner, contends that the judgment of the lower appellate Court is unsustainable as

it suffers from manifest illegalities in that (1) there is a flagrant violation of law due to the non-compliance of the mandatory provisions of S. 13 (2)

of the Act and R. 9A of the Rules, which impose a statutory obligation on the Local (Health) Authority to forward a copy or the report of the result

of the analysis delivered to him under sub-rule (3) of R. 7 immediately after the institution of the prosecution with a memo of intimation, and (2) the

inordinate and unusual delay in launching the prosecution on the expiry of more than three months from the date of receipt of the report of the

Public Analyst (3gx.P4) has deprived the accused of his valuable right to challenge the report of the Analyst in the manner prescribed under S.

13(2) of the Act and therefore, that laxity on the part of the prosecution has caused grave prejudice to the petitioner and hence it should be

construed as vitiating the entire trial of the case.

Mr. Sriramulu, in support of his first contention, laid much stress on the construction of the word ""immediately"" occurring in R. 9A of the Rules

and took me through a plethora of decisions which have interpreted the said word used in various other enactments. The above contention really

raises a question of importance and it has been debated with great fervor on both sides. For a proper appreciation of the points so raised, I feel

that it would be necessary to examine the scope and import of S. 13(2) of the Act and R. 9-A of the Rules and the effect of the non-compliance of

the provisions contained therein, for which one has to traverse through the legislative history behind the present sub-section (2) of S. 13 of the Act

and R. 9-A of the Rules, because, in my view, it would throw considerable light in understanding the purpose for which these two provisions have

been enacted.

Legislative history of S. 13 (2) and R. 9-A and the scope and import of these provisions as they stand at present: S. 13(2), as it was originally

enacted, has undergone a change consequent upon the Amendment Act 34 of 1976 which took effect from 1st April, 1976. By this Amendment

Act, a change is introduced in S. 13 (l) to the effect that the Public Analyst should deliver his report to the Local (Health) Authority instead of to

the Food Inspector as was provided under the un-amended section, Again a major change is effected to the section, by deleting Sub-s.(2) as it

stood before and in lieu there of substituting the present sub-Ss.(2) (2A) (2B), (2C), (2D)and(2E). Sub-Ss.(3) and (4) are retained as they were,

except that in the place of the words ""under Sub-S.(2),"", the words, ""under Sub-S. 2(B)"" have been substituted. Sub-S.(5) has been retained, but

the proviso has been amended and an explanation has been newly added.

Sub-S.(2) of S. 13 provides a very good safeguard to the persons from whom the. ample of food for analysis is taken and to the persons

mentioned in S. 14A, from being subjected to any avoidable harassment, and it prescribes the procedure to be followed by those persons in

challenging the report of the Public Analyst.

As the Act stood before the introduction of the Amendment Act 34 of 1976, it was contemplated under S. 11(1) (c), CI. (i), (ii) and (iii), that

when the Food Inspector took a sample of food for analysis, he should deliver one of the parts to the person from whom the sample was taken,

send another part for analysis to the Public Analyst, and retain the third part for production in case of any legal proceeding being taken or for

analysis by the Director of Central Food Laboratory under Sub-s.(2) of S.U. This un-amended S. 13(2) gave a discretionary right both to the

accused vendor and to the complainant, as the case might be, on payment of the fee prescribed, to make an application to the Court after the

institution of the prosecution, for sending the part of this sample mentioned in sub-Cls.(i) or (ii) of CI. (c) of S. 11(1), to the Director of Central

Food Laboratory for a certificate. Neither under any one of the original sections of the Act, nor under any one of the Rules made thereunder, there

was any statutory obligation on the part of the Food Inspector or any of the authorities under the Act to forward to the accused vendor or serve on

him, a copy of the report of the analysis. Only after the amendment, as per S. 11(1) (c), (i) and (iii), the Food Inspector is expected to send one of

the parts for analysis to the Public Analyst under intimation to the Local (Health) Authority and the other two remaining parts directly to the Local

(Heath) Authority for purposes of sub-Ss.(2) (2A) and (2E) of S. 13.

Sub-S.(2) of S. 13, as it stands now, imposes a statutory duty on the Local (Health) Authority to forward a copy of the report of the analyst to

the person from whom the sample was taken and to the person mentioned in S. 14A, in the manner prescribed, after the institution of the

prosecution, with a memo of intimation informing the person or persons concerned that if it is so desired, either or both of them may make an

application to the Court before which the prosecution is instituted, within a period of ten days from the date of the receipt of the copy of the report,

to get the part or parts of the sample kept by the Local (Health) Authority analysed by the Central Food Laboratory. It follows that in case the

accused does not prefer to challenge the report of the Public Analyst forwarded to him by the Public Health Authority to whom it is delivered

under R. 7(3), by availing of this valuable right conferred on him under this amended provision, the report of the Public Analyst becomes final and it

can be used as conclusive evidence of the facts stated therein in any proceedings under this Act or under SS. 272 to 276 of the I.P.C.

The report of the Public Analyst in the prescribed Form as required by the Act is a condition precedent for launching a prosecution, and for a

successful prosecution, the forwarding of a copy of the report of the analysis accompanied by a memo of intimation to the accused person in the

prescribed manner as laid down in the Act is a sine qua non, because in terms of S. 13(2), the accused can take advantage of this provision only

after the prosecution is launched against him and after his receipt of the report of the analyst.

Now, let us examine the present R. 9-A of the Rules. Under the original Prevention of Food Adulteration Rules of 1955, there was no rule

analogous to the present R. 9-A or any other rule, casting a duty on the Food Inspector or any other authority under the Act to send a copy of the

report received by him from the analyst, to the accused vendor. The accused vendor was given only an option of availing himself of the un-

amended S. 13 (2) of the Act and making an application after the institution of the prosecution requesting the Court to send the part of the sample

delivered to the accused himself, or retained by the Food Inspector, for production in Court as mentioned in sub-CI. (i) or (iii) of S. 11(1) (c), as it

stood then, to the Central Food Laboratory, in case the accused vendor intended to challenge the result of the analysis, after coming to know of

the report obviously after receipt of the summons from the Court. For the first time, new sub-R. (j) to R. 9 was inserted by the Prevention of Food

Adulteration (Amendment) Rules of 1968, which came into force from 8th July, 1968. This rule then underwent some change by the subsequent

Amendment Rules of 1974, which came into force, as far as this rule is concerned with effect from 23rd May, 1974. Once again this rule has been

amended and the present R. 9-A which has come for interpretation in the present case, has been introduced by the Prevention of Food

Adulteration (First Amendment) Rules, 1977, In order to have a better understanding of this rule, I would like to give the following comparative

table.

It shall be the duty of

the Food Inspector�

R. 9(j) (j) to sent by hand or

introduced registered post, a copy

by the of the report received

Amendmentin Form III from the

Rules of Public Analyst to the

1968 person from whom the

(deleted in sample was taken, in

1974) case it is found to be

not conforming to the

Act or rules made

thereunder as soon as

the case is filed in the

Court.

It shall be the duty of

the Food Inspector�

R. 9(j) as it(j) to send by

stood after registered post a copy

the amend, of the report received

ment by thein Form III from the

1974 public analyst to the

Amendmentperson from whom the

Rules sample was taken

(deleted in within ten days of the

1977) receipt of the said

report. However, in

case the sample

conforms to the

provision of the Act or

Rules made

thereunder, then the

person may be

informed of the same

and report need not be

sent.

R. 9-A as it9. A Local (Health)

now standsAuthority to tend

after the report to the person

1977 First concerned. The Local

Amendment(Health) Authority shall

Rules. immediately after the

institution of

prosecution forward a

copy of the report of

the result of analysis in

Form HI delivered to

him under sub-R.(3) of

R. 7, by registered

post or by hand, as

may be appropriate, to

the person from whom

the sample of the

article was taken by

the Food Inspector,

and simultaneously also

to the person, if any,

whose name, address

and other particulars

have been disclosed

under S. 14-A of the

Act: Provided that

where the sample

conforms to the

provisions of the Act

or the rules made

thereunder and no

prosecution is intended

under Sub-s.(2), or no

action is intended

under Sub-s.(2E)of S.

13 of the Act, the

Local (Health)

Authority shall intimate

the result to the vendor

from whom the sample

has been taken and

also the person, whose

name, address and

other particulars have

been disclosed under

S. 14A of the Act,

with''n 10 days from

the receipt of the

report from the Public

Analyst.

From the above table, it is clear that before the present R. 9A was introduced by the 1977 (First Amendment) Rules, R. 9 (j) as it stood from

1968 till 1974 required the Food Inspector to send a copy of the report of the analyst to the accused person either by hand or by registered past

as soon as the case against the accused person was filed.

As per the Rule as amended in 1974, which was in force between 23rd May, 1974, the date from which the 1974 amendment took effect, so

far as this Rule was concerned, and 4th January, 1977, the date from which the 1977 First Amendment Rules came into force, the Food Inspector

was required to send a copy of the report of the analyst to the accused person by registered post within ten days of the receipt of the said report

by him.

The amendment of R. 9(j) of the Rules, as introduced by the 1968 Amendment Rules, and by the 1974 Amendment Rules, was presumably

brought about with the intention of affording an opportunity to the accused-vendor to have a part of the sample mentioned in S. 11(1) (c) of the

Act, examined by the Director of the Central Food Laboratory, if the accused so desired, at the earliest point of time, so that the article of food

might not become unfit for analysis by the Central Food Laboratory (by their being decomposed) due to any intervening causes, and also with the

intention of avoiding any prejudice that might be caused to or complained of by the accused vendor due to any possible delay in launching the

prosecution. In R. 9(j) both as it stood in the year 1968 when it was for the first time enacted and in 1974 when it was amended, there was some

anomaly. As per the original R. 9 (j) the Food Inspector was required to send the copy of the report of the analyst to the accused-vendor as soon

as the case was filed. In other words, the Food Inspector was not required to furnish any copy of the report to the accused before the case was

filed. In a given case, if the Food Inspector had filed the case after a long delay and then sent the copy either by hand or by registered post as soon

as the case was filed, he would be acting in strict compliance with the rule, but at the same time defeating the object of the Rule by causing a grave

prejudice to the accused in availing himself of S. 13(2) of the Act. Presumably, the Parliament, realising this anomaly, had amended R. 9(j) in

1974. Even after the 1974 amendment, the Rule was not without any anomaly. After the 1974 amendment, as per the Rule, the Food Inspector

was, of course, required to send the report of the analyst to the accused person within ten days of the receipt of the said report. As per the un-

amended S. 13 (2), with which R. 9 (j) was to be read, an option was given to the accused vendor to take out an application only after the

institution of the prosecution in a Court. There was a great difficulty facing the accused. Supposing in a given case the Food Inspector had

furnished a copy of the report to the accused person within the prescribed period of ten days from the date of receipt of the report by him, but

delayed in launching the prosecution for a considerable length of time, the accused would not be in a position to avail of S. 13 (2) at the earliest

point of time, because even though he had got a copy of the report with him, he could not take out any application, because the case would not

have been instituted in the Court. Even the institution of the case would be made known to him only when he received the summons from the

Court. Assuming that the person receiving the copy of the report approached the Court having jurisdiction over the matter, that Court would not

entertain such an application from the said person, because that Court would not be seized of the matter. Thus, the Food Inspector was here again

able to defend his action, contending that he had complied with the provisions of the Act, but at the same time defeating the object of S. 13(2) by a

delayed institution of the prosecution.

There was yet another anomaly with reference to R. 9(j) consequent upon the amendment of S. 13(2) as per Act 34 of 1976 which came into

force with effect from 1st April, 1976. While, as per S. 13 (2) as amended in 1976, the obligation was cast on the Local (Health) Authority to

forward a copy of the report of the result of analysis to the accused person, R. 7(3) as it stood then directed the Public Analyst to send two copies

of his report to the Food Inspector who, as per R. 9(j), was required to serve the copy on the accused as per the rules prescribed from time to

time. This anomaly existed, because when the Act was amended with effect from 1st April, 1976 by Act 34 of 1976, no corresponding

amendment was brought about in the rules. This continued till 4th January, 1977, on which date the new R. 9-A came into force. The Parliament

thought of deleting the old R. 9(j) and introducing the new R. 9-A, obviously on account of the difficulties felt and anomalies experienced by the

persons concerned.

As per the present R. 9-A, the Local (Health) Authority (but not the Food Inspector) to whom the Public Analyst has to deliver the report, has

a statutory obligation to forward a copy of the report of the result of the analysis delivered to him by the analyst under the amended R. 7(3), to the

person from whom the sample has been taken by registered post or by hand, immediately after the institution of the prosecution.

I feel that it is necessary to make further examination of this R. 9-A so that we can ascertain the real purpose for which the parliament has

enacted this Rule in substitution of the old R. 9(j). The Ministry of Health and Family Planning (Department of Health, Government of India)

published a notification in the Gazette, dt. 24th June, 1976 G.S.R. 420 -E) publishing the rules proposed to be introduced or substituted in the

Prevention of Food Adulteration Rules, 1955 as contemplated in S. 23(1) of the Act, thereby giving information to all persons likely to be affected

and calling for objections and suggestions, if any. It was only after considering the objections and suggestions received from the public and after

consulting the Central Committee for Food Standards constituted under S. 3 of the Act, that the present R. 9-A has been introduced in the place

of old R. 9(j), and it has come into force from 4th January, 1977. R. 9-A of the Draft Rules read:

The Local (Health) Authority shall, as soon as may bi after the institution of the prosecution, forward...

While R. 9-A as ultimately enacted reads:

The Local (Health) Authority shall immediately after the institution of the prosecution forward a copy....

Though no proviso was added to the draft R. 9-A, there is a proviso to R. 9-A as enacted. A cursory glance at the draft R. 9-A and the present

R. 9-A would clearly indicate that the framers of the Rules, on a careful examination of the meaning of the terms ""as soon as may be"" and

''immediately"" have purposely used the latter expression in the place of the former, obviously with the object of compelling the authorities to

accelerate the forwarding of Form III without any lapse of time after the institution of the prosecution.

Whether S. 13 (2) and R. 9-A are mandatory or directory: So far as S. 13 (2) is concerned, almost all the High Courts, before whom the

question whether S. 13 (2) is mandatory or not came up for consideration, have held that it is mandatory and not merely directory. Suffice it to say

that this Court, in three reported judgments has consistently held that S. 13 (2) is mandatory and non-compliance of S. 13 (2) vitiates the trial.

A Division Bench of the Madhya Pradesh High Court in Municipal Corporation Vs. Kishan Swaroop, pointed out that where there was delay

in launching the prosecution, it deprived the accused of the valuable right to challenge the report of the analyst in the manner prescribed by S. 13

(2) of the Act (un-amended section) and when this right was denied for no fault of his, but wholly due to the inordinate laces of the prosecution, no

weight could be given to the report of the Public Analyst.

The Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram (1962) 2 S.C.R. 116 while examining the import of S. 13 (2) as it stood

then, observed as follows :-

It appears to us that when a valuable right is conferred by S. 13(2) of the Act on the vendor to have the sample given to him, analysed by the

Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to

him. The right is a valuable one, because the certificate of the Director supersedes the certificate of the Public Analyst and is treated as conclusive

evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able

to have sample kept in his custody analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence.

The judgment of the Madhya Pradesh High Court in Kishan Swaroop''s case Cr. R.C. 768 of 1978 Judgment dated 2-10-1981 has also been

referred in this decision by the Supreme Court.

Basing on the dictum laid down in Ghisa Rain''s case2 a contention was raised before the Supreme Court in Babu Lal Hargovindas Vs. The

State of Gujarat, that the appellant therein was not afforded an opportunity to second a sample of the milk left with him to the Director of the

Central Food Laboratory for certificate, in as much as the complaint itself was launched after a lapse of over four months from the date of the

taking of the sample and therefore, in those circumstances the milk could not have been preserved for the appellant to have taken the opportunity

afforded to him by Sub-s.(2) of S. 13 by sending it to the Director, Central Food Laboratory, for a certificate. The Supreme Court distinguished

the decision in Ghisa Rani''s case 1981 Cri. LJ. 1225 (Ker), stating that the decision in that case had no application to the facts in Babu Lal

Hargovindas Vs. The State of Gujarat, since in Municipal Corporation of Delhi Vs. Ghisa Ram, the sample of the vendor had been sent to the

Director of the Central Food Laboratory on his application ; but the Director had reported that the sample had become highly decomposed and

could not be analysed, whilst in Bibulal''s case Cr. R.C. 768 of 1978 Judgment dated ''2-10-1981 no application had been taken before the Court

by the accused vender availing S. 13 (2). Having regard to the facts in that case (Babulal''s 1978 Case Cr. R.C. 768 of Judgment dated ''2-10-

1981), the Supreme Court observed thus:

There is also, in our view, no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director,

Central Food Laboratory, under S. 13 (2), because he made no application to the Court for sending it. It does not avail him at this stage to say

that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had

deteriorated and could not be analysed.

In yet another case, viz., Ajit Prasad Ramkishan Singh Vs. The State of Maharashtra, the Supreme Court once again, distinguished the

decision in Ghisa Ram''s Case 1981 Cri. LJ. 1225 (Ker) and, having regard to the facts before them, followed the ruling in Babula''s case 1978

Cri. R.C. 768 of Judgment dated 2-10-1981 and held that in the absence of any application by the accused under S. 13 (2) forgetting the sample

analysed by the Director of Central Food Laboratory, the accused could not complain that he was deprived of the right to have the sample

analysed by the Director and that the mere delay and latches on the part of the complainant in getting the summons served on the accused, was

not, in the absence of evidence to show that the sample had deteriorated when the summons was served, sufficient to hold that the accused was

prejudiced by reason of deprivation of the right under S. 13 (2),

The Calcutta High Court in Ram Chandra Banerjee v. A K. Chatterjee (1973) 78 Cal.W.N. 530 following the decision in Babulal''s case,

1978 C. R.C. 768 of Judgment dated 2-10-1981 observed that the accused could not have any legitimate grievance in the absence of any

application by him under S. 13 (2); however, it quashed the proceedings in that case on the ground that the trial Court had wrongly rejected the

application filed by the accused by availing of S. 13 (2) and thereby deprived him of the opportunity afforded to him under that provision.

The Allahabad High Court in Nagar Mahaparika, Ghazhiabad v. Gopal 1974 F.A.C. 145 and in Ganesh Prasad v. State of Uttar Pradesh

1974 F.A.C. 381 following the dictum laid down in Babull''s case 1978 C. R.C. 768 of Judgment dated 2-10-1981, held that the plea that he had

been prejudiced by a delayed prosecution was not open to the accused vendor.

A single Judge of the Madhya Pradesh High Court in Jairam v. State of Madhya Pradesh 1978 Cri. L.J. 15 following the decision in Babula v.

case 1978 C. R.C. 768 of Judgment dated 2-10-1981, rejected the contention raised on behalf of the accused that there was non-compliance of

S. 13 (2) due to the inordinate delay in filing the complaint, on the ground that the petitioner had not even made an application to the Court to send

the sample to the Director of the Central Food Laboratory.

At the outset, I would like to state that all the decisions which I have referred to above are with reference to S. 13 (2) of the Act, as it stood

before that Section was amended by Act 34 of 1976. Further, in the above cases, viz, in Babula v. Case 1978 Cr. R.C. 768 of Judgment dated 2-

10-1981 and in Ajit Prasad''s Case3 the question that arose for determination was whether the accused vendor was justified in complaining that

because of the inordinate delay occasioned in launching the prosecution, the accused had been deprived of the opportunity of availing of the

valuable right vested in him under the un-amended S. 13 (2), and it was having regard to the facts and circumstances of those cases and the limited

question with regard to the delay in launching the prosecution raised on behalf of the accused in those cases, the Supreme Court had held so.

Further the facts in the above two cases show that the dates of the offences therein were before R. 9 (j), was introduced for the first time in 1968.

The prosecutions were launched by a delay of four months in Babu Lal Hargovindas Vs. The State of Gujarat, and by a delay of about two months

in Ajit Prasad Ramkishan Singh Vs. The State of Maharashtra, . The question whether the un-amended S. 13 (2) was mandatory or directory did

not arise in those cases, because as per the said section, the accused vendor or the complainant, as the case may be, was given an option to make

an application to have the part of the article of food analysed by the Director of the Central Food Laboratory and a certificate got from him. In

terms of the abovesaid provision, no time limit was fixed for taking out an application, even though the Director of the Central Food Laboratory

was given only one month''s time to send his report from the date of receipt of the sample. It is to be noted that unlike the present provision under

S. 13 (2), no duty was cast upon the Food Inspector to serve a copy of the report of the Analyst on the accused vendor enabling him, if he so

desired, to challenge the report of the Public Analyst by taking out an application before the trial Court for a certificate from the Director of the

Central Food Laboratory. R. 9 (j) in and by which the Food Inspector was required to serve a copy of the report of the analyst on the accused as

soon as the case was filed, came into force only on 8th July, 1978. Therefore, there was no necessity for the Courts to go into the question as to

whether S. 13 (2) as it stood before amendment was mandatory or directory.

The Supreme Court, by its observation that in the absence of any evidence that the accused had availed of S. 13 (2) as it then stood by taking

out an application the accused could not make any legitimate grievance that the delayed prosecution had occasioned prejudice resulting in grave

injustice to him, cannot be said to have laid down that the Food Inspector could launch the "" prosecution at his pleasure even after (sic.) an

unreasonable and unexplained delay.

At this juncture, it would be relevant to refer to the decision of a Bench of this Court consisting of Natarajan and Maheswaran, JJ., in

Kandaswami v. The Food Inspector, Athoor, (Judgment in Crl.R.C. No. 611 of 1977 of this Court, dt., 31st July, 1981-Since reported in 1981

L.W.(Cri.) 299 .) wherein the Bench, while examining a question under reference whether there was violation of S. 13 (2) as amended, causing

prejudice to the accused in case the copy of the report of the Public Analyst had been served on the accused person prior to the institution of the

prosecution, referred to the decision in Babulal''s case Cr. R.C. 768 of 1978 Judgment dated 2-10-1981, and five other decisions following it,

viz., Jai Singh Vs. State, ; Chandrika Prosad Rai Vs. The State of Assam, , Jairam v. State of Madhya Pradesh, 1978 Cri. L.J. 115 , The State of

Maharashtra Vs. Hariram Hambarram, , and Gobichand v. State 1981 F.A.J. 90 and held that :-

in all those cases the Courts did not go into the question whether S. 13 (2) of the Act was mandatory or not, but instead rejected-the contention of

the accused on the ground that they had not made applications at any time to the trial Court for having the sample sent to the Central Food

Laboratory and that the plea of non-conformity with the provision of S. 13 (2) had been raised for the first time before the High Court in the

revision proceedings"", and ""hence these decisions are distinguishable on facts and they cannot be taken to mean that in these decisions a view has

been taken that S. 13 (2) was not mandatory in character, but was only directory.

In a recent decision, viz., Nebh Raj v. State (Delhi Administration) 1981 M.L.J. Cri. 436, the Supreme Court set aside the conviction of the

accused and acquitted him only on the ground that there was a wide time-gap from the date of the analysis in the year 1970 until the filing of the

case in 1972. While doing so, their Lordships observed thus: -

To launch a prosecution at such belated stage may result in causing harassment to the accused in some cases and may also result in genuine

offenders escaping punishment.

Now the present position is entirely different from what it had been before certain Section of the Act were amended by Act 34 of 1976. For a

proper appreciation of the distinction between the un-amended S. 13(2 and the amended S. 13(2), where there is a material change, I may extract

below a comparative table:-

S. 13Q) &(2), as S. 13(l) & (?)

they stood be-fore as they stand

the Amendment. at present

after the

amendment.

(1) The public 13. (1) The

analyst shall deliver, public analyst

in such form as may shall deliver

be prescribed, a in such form

report to the Food as may be

Inspector of the the prescribed, a

result of the analysis report to the

of any article of foodLocal

submitted to him for (Health)

analysis. Authority of

the result of

the analysis

of any article

of food

submitted to

him for

analysis.

(2) After the 13. (2) On

institution of a receipt of the

prosecution under report of the

this Act the accused result of the

vendor or the analysis

complainant may> onunder Sub-s.

payment of the (l)to the

prescribed fee, makeeffect that the

an application to the article of

Court for sending thefood is

part of the sample adulterated,

mentioned in sub-Cl.the Local

(i) or sub-Cl.(ii) of (Health)

Cl.(c) of Sub-S.(l) ofAuthority

S.1l to the Director shall, after the

of the Central Food institution of

Laboratory for a prosecution

certificate ; and on against the

receipt of the person from

application the Courtwhom the

shall first ascertain sample of the

that the mark and article of

seal or fastening as food was

provided in CI.ib) oftaken and the

Sub-s.(l) of S.1l are person, if

in tact and may then any, whose

despatch the part of name,

the sample under its

own seal to the address and

Director of the Cntralother

Food Laboratory particulars

who shall thereupon, have been

send a certificate to disclosed

the Court in the under S.

prescribed form 14A,

within one month forward, in

from the date of such manner

receipt of the sample,as may be

specifying the result prescribed, a

of his analysis. copy of the

report 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) ...

(2-B)

(2-C)

(2-D)

(2-E)

Thus, as per the present S. 13 (2), there is a statutory duty cast on the Local (Health) Authority, to whom the Public Analyst has to send four

copies of his report, to forward one of the copies to the accused person and to the person mentioned in S. 14 A in the manner prescribed, with a

memo, of intimation informing that if it is so desired, either or both of them may make an application within a period of ten days from the date of

receipt of. the report to get the part of the sample analysed by the Central Food Laboratory. Consequent upon this, R. 9A is introduced in the

place of R. 9 (j). While R. 9 (j) required the Food Inspector to furnish a copy of the report within ten days from the date of receipt of the report

from the analyst, R. 9A [as pointed out earlier, requires the Local (Health) Authority to forward a copy of the report of the analyst, immediately

after the institution of the prosecution. Having regard to the rigor of the language used in the present S. 13(2) and R. 9 A. various Courts have now

laid down that S. 13(2) is mandatory. A Division Bench of this Court consisting of Paul and Maheswaran, JJ., in P. K, Moorthy v. Food Inspector

Kumbakonam Municipality 1979 L.W.Cri. 139 has held that the provisions of S.13(2) of the Act are mandatory and the non-compliance of the

said provisions would vitiate the entire proceedings. Maheswaran, J., in State, by Pub'' lie Prosecutor v. Rangaswami 1981 L.W (Cri.) 207,

following the abovesaid Bench decision, has held that the non-observance of the mandatory provisions in S. 13(2) would vitiate the entire

proceedings.

Maheswaran, J"" in Kandasami v. Food Inspector, Athoor Crl. Revn. Case. No. 611 of 1977. Since reported in, 1981 L. W. (Cri.) 299, while

referring the case before a Bench disagreed with the view taken by Paul, J. in Balu v. State of Tamil Nadu Judgment dt. 18th June. 1979 Crl. R.

C. No. 70 1978 in the following terms :-

With great respect, I am not in agreement with the observation of Paul, J., that ''the fact that the result of the analysis was served on the revision

petitioner ten days before the prosecution was launched, would not amount to non-compliance with S. 13 or R. 9A''. I am further of the view that

the said observation is against the ratio of the decision of the Division Bench in P. K. Moorthys'' case. 1979 L.W. (Cri.) 139.

On the said reference, the Bench (consisting of Natarajan and Maheswaran, JJ.) examined the question whether S. 13(2) is mandatory or merely

directory, after referring to the un-amended and amended provisions of S. 13 (2) and held thus :

From a reading of the Section before the amendment as well as after the amendment, it may be seen that originally a duty was not cast on the

Local (Health) Authority to send a copy of the report of the result of the analysis to the person from whom the sample was taken. No time-limit

was also prescribed within which the person, from whom the sample was taken, could apply to the court for one of the unutilized samples being

sent to the Director of the Central Food Laboratory for his opinion in order to see whether the report sent by the Public Analyst was correct or

not. Consequently, a person affected by the report of the Public Analyst could apply to the Court even several months after the institution of the

prosecution for a sample being sent to the Director of the Central Food Laboratory for obtaining his report. The laxity of the provisions gave room

for certain unwanted consequences. Firstly an accused person could delay the trial of the case by applying belatedly for a sample being sent to the

Director of the Central Food Laboratory. Since no time-limit had been prescribed for the sample being sent, when an application was made in that

behalf by an accused person, the court had no alternative but to send the sample to the Central Food Laboratory and adjourn the trial of the case

till the report was received. Another concomitant was that by reason of delay the sample preserved was likely to get decayed and be unfit for the

Director of the Central Food Laboratory to examine it and give his report. In such a situation, the accused was deprived of a valu Sic. Under the

unamended provisions, the reference was to the Food Inspector and not to the Local Health Authority able opportunity available to him under law

for contradicting the report of the Public Analyst by obtaining a different report from the Central Food Laboratory. It is only to overcome these

situations, the Legislature must have amended the Section and enacted it in its present form. Under the present provision, a duty has been cast

under Sub. S.(2) on the Local (Health) Authority to send a copy of the result of the analysis to (i) the person from whom the sample of the article

of food was taken and (ii> the person, if any whose name address and other particulars have been disclosed under S. 14-A informing him that he

should make an application, if he so desired, to the court within a period often days from the date of receipt of the aforesaid copy, to get the

sample of the article of food kept by the Local Health Authority, analysed by the Central Food Laboratory. In such circumstances object if the

underlying the amendment is to be fully ensured it goes without saying, that the requirement of S. 13 (2)must be conformed to the letter of the law.

Then after considering the import of R. 9A in the background of various authoritative judicial pronouncements, the Bench has finally expressed the

view in the following terms :

In all these cases it has been held that the terms of S. 13 (2) and R. 9A are mandatory in character and a contravention or non-observance of the

provisions had prejudicially affected the interests of the accused and as such, the convictions ought not to have been awarded in such cases.

A close reading of the judgment would spell out that the Bench is in agreement with the view expressed in the other cases as regards the

mandatory nature of S.13(2) and R. 9A.

In yet another portion of the judgment, it is pointed out thus:-

Thus, a review of judicial authority also leaves no room for doubt that the preponderance of opinion is in favour of holding that S. 13 (2) is

mandatory in its terms.

I respectfully agree with the view expressed by the Bench in the above case.

The Andhra Pradesh High Court in Food Inspector, Gram Panchayat, Nazwid v. Golla Nakeswara Rao 1980 F.A.C. 80 : 1979 M.L.J. Cri

622, while examining the scope of R. 9A, has held that R. 9A is imperative and mandatory in character and violation or infraction thereof should be

fatal to the prosecution. The Bombay High Court, in Bhaskar Krishna Shetty v. The State of Maharashtra 1980 F.A.J. 258, has ruled that the

provisions under S. 13 (2) and 13 (2A) are mandatory and the provision under R. 9 A also must be held to be mandatory and not directory, and

that any breach of these provisions would entitle the accused to get an acquittal. See also Braj Biharilal v. State 1981. F.A.J. 149. M. A. Sathar

Sayeed, J., in Panchami, In re 1981 L.W. Cri. 112, has held that S. 13 (2) and R. 9A are mandatory and that failure to follow the section and the

rule vitiates the prosecution.

It would be appropriate to note here that some of the High Courts have held that even the repealed R. 9 (j) was mandatory : Vide : The Public

Prosecutor Vs. J. Murlidhar, , Bhola Nath Nayek Vs. The State and Another, , The State of Maharashtra Vs. Jesti Dosa, , State of Maharashtra

v. Jesti Dosa 1979 1 F.A.C. 230 (Bom)., S.G. Chandmane v. Tamizuddin 1980 M.L.J. Cri. 291. (Kerala), Beena Stores v. Food Inspector,

Perumbavur 1979 L.W. Cri. 139, P. K. Moorthy''s Case, (Division Bench of this Court), State of Kamataka v. Ruqoario Menezes, 1980 Cri.

L.J. N.O.C. 35 : 1980 M.LJ. Cri. 574. (Karnataka) Satyanarayan Patwari v. Bharat Prasad Kasera 1980 F.A.J. 371. (Patna), Ram Kishore v.

State of Madhya Pradesh 1980 F.A.J. 277. (Madhya Pradesh) and Vijai Singh v. State of Uttar Pradesh 1981 F.A J. 496. (Allahabad). In P. K.

Moorthi''s Case a Division Bench of this Court, disagreed with the view taken by a Division Bench of the Gujarat High Court in Martand Balvant

Risaldar and Another Vs. Chhaganlal Ambalal Gandhi and Others, , that R. 9 (j) cannot be said to be mandatory despite the use of the word

shall"" in it, and observed thus:-

We are, however, unable to subscribe to that view.

In other words, the Bench in P. K. Moorthy''s case has in effect held that R. 9 (j) is mandatory.

I feel that the discussion on this aspect will not be complete without fairly mentioning here that some of the High Courts have taken a contrary

view holding that R. 9(j) is not mandatory: Vide The State of Maharashtra Vs. Janardan Ramchandra Nrawankar, ; Martand Balvant Risaldar and

Another Vs. Chhaganlal Ambalal Gandhi and Others, . M.M. Pandya v. Bhagwandas Chiianjilal 1979 Cri. L.J. 1441 : 1979 (O) F.A.C. 104. F.B.

(Gujarat.). Jai Singh v. State 1980(1) F.A.C. 198 : 1980 F.A.J. 10. Municipal Council of Sri Ganga Nagarw. Nanak Chand and another 1979 (2)

F.A.C. 45. (Rajasthan). Mahipal v. State of Haryana 1980 Cri. L.J. 77 : 1980 F.A.J. 267. Gopi Chand v. State 1981 F.A.J. 80. Allahabad and

Kashmirilal v. State of Haryana 1981 (2) F.A.C. 167. (F.B.) of Punj. and Har. High Court. I think it is not necessary for me to swell this judgment

by citing all the decisions of the various High Courts for and against the view that R. 9(j) is mandatory.

When some of the High Courts inclusive of a Division Bench of this Court have taken a view that R. 9 (j) as it stood then is mandatory, with

which view I respectfully agree and which view I am bound to follow, afortiorari Rule 9-A should be held to be mandatory for the reasons to be

presently stated.

It would be relevant at this stage to refer to the decision of the Supreme Court in State of Kerala and Others Vs. Alasserry Mohammed and

Others, wherein the Lordships, while examining their nature of certain provisions contained in the Prevention of Food Adulteration Act and the

Rules, have held that even if a rule is a recommendatory, it should be observed by the Food Inspector concerned. The observations of their

Lordships read thus :

...Whether the Rule is recommendatory or mandatory it should be observed by the Food Inspector concerned.... They (Food Inspectors) must

remember that even directory Rules are meant to be observed and substantially complied with. A Food Inspector committing a breach of the Rule

may be departmentally answerable to the higher authorities. He should, therefore, always be cautious in complying with the Rules as far as

possible....

In yet another place in the same judgment, it has been observed as follows:

In our considered judgment, the Rule (rule 22) is directory and not mandatory. But we must hasten to reiterate what we have said above that, even

so, Food Inspectors should take care to see that they comply with the Rule as far as possible.

The quintessence of the above judgment is that even rules which are recommendatory in nature should be strictly complied with as far as possible,

not withstanding the fact that the non-observance of those rules may not vitiate the proceedings.

Though R. 9 (j) was to be read along with S. 13 (2), the right given to the accused person under R. 9 (j) was independent of the provisions of

S. 13 (2) till it was amended, which section stood independent of any rule analogous of R. 9 (j) from 1954 to 1968 in which year, for the first time,

the said rule was introduced. The present R. 9-A forms part of the present S. 13 (2) since there is an in-built provision in the amended section to

the effect that the copy of the report of the Analyst should be forwarded ""in such manner as may be prescribed ''''; in other words, the copy of the

analyst''s report should be forwarded in the manner that is prescribed in any other specific provision of the Act itself or in any Rule to be framed

under the Rulemaking power given under S. 23. Therefore, R. 9A has necessarily to be read along with the present S. 13 (2), which section

dehorn that Rule does not become complete by itself, conveying the meaning which the Parliament intended to convey and satisfying the purpose

for which it was amended. For the above reasons, this R. 9A has to be treated as part of the statute having statutory force and both S. 13 (2) and

R. 9A should be treated as complementary to each other and have therefore to be read conjunctively and not disjunctively. In this connection, I

may add that even a plain reading of the section and the Rule clearly shows that there is a statutory duty on the Public (Health) Authority to

forward a copy of the Analyst''s report with a memo of intimation to the accused person, thereby conferring a right of liberty to challenge the report

of the Public Analyst, if he so desires. For the discussions and reasons mentioned above I hold that the present S. 13 (2) and the newly substituted

R. 9A are mandatory and not directory and that the non-compliance of these provisions would vitiate the trial and entitled the accused person to an

acquittal.

Meaning of the word ""immediately"" occurring in R. 9 A :-The present S. 13 (2), when read in conjunction with R. 9 A, means, that the Local

(Health) Authority should forward a copy of the report of the analyst delivered to him, to the accused person immediately after the institution of the

prosecution with the memo of intimation informing him that if he desired to challenge the report of the result of the analysis, he may file an

application before the Court (before which the prosecution is launched) within ten days from the date of receipt of the report sent to him. In case

the accused makes such an application, the Court has no other option but to require the Local (Health) Authority to forward the part of the sample

for further analysis to the Director of the Central Food Laboratory and as per S. 13 (2D), the Court shall not continue with the proceedings of that

case until the receipt of the certificate from the Director of the Central Food Laboratory. The important question that now arises for my

consideration is, what is the, meaning to be given to the word ''immediately''. At the risk of repetition, I wish to state that the Parliament first of all

thought of amending R. 9 (j) by requiring the Food Inspector to| furnish a copy of the analyst''s report within ten days of the receipt of the report

by him, instead of furnishing the copy of the report as soon as the case was filed, which was the expression used before 1974. Now, by the

insertion of R. 9-A after deleting R. 9 (j) the Parliament has in its wisdom provided that the copy of the report of the analyst should be forwarded

to the accused person immediately after the institution of the prosecution, though the draft rule read ""as soon as may be"". By the Amendment Act

34 of 1976, the penal provisions of this Act are made more severe, enhancing the periods of the substantive sentence of imprisonment as well as

fine, at the same time providing an absolute minimum sentence of imprisonment as well as fine. In fact, by S. 20(AA), the application of the

benevolent provisions of the Probation of Offenders Act, 1958 and S. 360 of the Crl. P.C. 1973, is completely barred unless the accused person

is under 18 years of age. See Pyarali K. Tejani v. M.R. Dange. (1974) l S.C.C,167 : 1974 S.C.C. (Cri.)87 Keeping the severity of the sentence

prescribed under the present penal provisions of the Act in mind and with the avowed object of fairly safeguarding the right of liberty of the citizen,

the Parliament has amended S.I3 (2) and introduced the present R. 9-A, by imposing several duties on the Local (Health) Authority so that the

accused person can have the fullest opportunity of meeting his case against him in all respects. In the various provisions of the Act, the following

phrases are used-in some places in the strict sense of the term and in some others in a liberal sense, depending upon the context in which they are

used.

So far as this Act is concerned, the expression ""as soon as"" is used in S. 3 (1) and S. 24 (2); ""as soon as possible"" in Ss. 11 (4) and 24 (3);

as soon as practicable"" in S. 13 (2C); ""forthwith"" in S. 6 (2); ""then and there"" in S. 11(l) (a) and (b); ""immediately"" in R. 9 A of the Rules;

immediately before"" in S-25 (1) and 25 (2); ""immediately succeeding working day"" in S. 11(3) and ""immediately, not later than the succeeding

working day"" in R. 17 (a). The framers of the Act have used the above said various expressions depending, upon the context and in relation to the

cause and effect, place or space or time, both in the strict sense and with an enlarged relative meaning. However, the Parliament has thought of

using the adverbial form ""immediately"" in R. 9-A with a specific purpose.

42, Now, let us see the meaning of the term ""immediately"" as lexicographically defined and interpreted by various judicial pronouncements.

In the Shorter Oxford Dictionary, III Edition, Vol. I, the word ""immediately"" is defined at page 960 as follows:

.In an immediate way; by direct agency; directly.

With no person, thing, or distance intervening in time, space, order, or succession* closely, proximately; directly.

Without any delay; instantly....

The Lexicon Webster Dictionary, Encyclopedic Edition, Vol.1, gives the meaning of the word ""immediate"" at page 478 as follows:

Occurring or done without separation by an interval of space or time, as, in the immediate area, in immediate reaction; instant; related to the

present time; as the immediate future; in closes relation; as, the immediate numbers of the family. Acting or occurring without a medium, or without

an intervening cause, means, or condition, as the immediate source of the problem; direct.

The word ''immediately'' is described therein thus:

Without delay; instantly; at once; forthwith, without the intervention of any space, object, or medium; directly....

In Black''s Law Dictionary, Fifth Edition, at page 6/5, the word ''immediately'' has been described as follows:

Without interval of time, without delay, straightway or without any delay or lapse of time.... The words ''immediately'' and ''forthwith'' have

generally the same meaning. They are stronger than the expression ''within a reasonable time'' and imply prompt, vigorous action without any

delay....

Baldwin''s Century Edition Bouvier''s Law Dictionary, 1928 Edition, explains the meaning of the word ""immediately"" at page 519 as follows:

The words ''forthwith'' and ''immediately have the same meaning. They are stronger than the expression ''within a reasonable time'', and imply

prompt, vigorous action, without any delay, and whether there has been such action is a question of fact, having regard to the circum stances of the

particular case....;

The Dictionary of English Law by Earl Jowitt, 1959 Edition Vol.2, gives the definition of the word ''immediately'' at page 2937 thus:

Immediately, in a statute, usually means within a reasonable time.

Chambers Twentieth Century Dictionary, 1972 Edition, defines the words ''immediate'' and ''immediately'' as follows at page 652;

immediate With nothing between: not acting by second causes; direct; present; without delay...adv. immediately....

In Wharton''s Law Lexicon, Fourteenth Edition, it is defined at page 493 as follows :

immediately, in a statute, means within a reasonable time....

Mitra''s Legal and Commercial Dictionary, Second Edition, (1976) gives the following meaning to the words

Immediately. A provision to the effect that a thing must be done ''immediately'' means that it must be done as soon as possible in the circumstances,

the nature of the act to be done being taken into account.... The word ''immediately'' is stronger than the expression ''within a reasonable time''s

and imply prompt, vigorous action, without any delay.... The word ''immediately'' should not be construed so as to require doing something which

is impossible....

Halsbury''s Laws of England, Third Edition, Vol.37, gives the meaning of the words ''immediately'' and ''forthwith'' thus at page 103 :

There appears to be no material difference between the terms ''immediately'' and ''forthwith''. A provision to the effect that a thing must be done

''forthwith, or immediately'' means that it must be done as soon as possible in the circumstances, the nature of the act to be done being taken into

account.

See also Words and Phrases, Legally Defined by John B. Saunders II Edition, Vol. III, page 4, and Words and Phrases Permanent Edition,

Vol.20 page 150. At page 156 of that book, the following passage is found :

The word ''immediately'' when used in a statute, is not synonymous with ''then and there'', but means such convenient time as is reasonably

necessary for doing the thing. Taken alone, it excludes all means times. Legal Lexicographers define it as being synonymous with ''within 24 hours'',

1 Bouv. Law Dictionary, 682 ; 1 Abb. Law Dictionary 581.

The Corpus Juris Secondum (1944 Edition), Volume XLII, interprets the word at page 390 as follows:

In General: The word is an adverb, or the adverbial from, of ''immediate'', defined above, and, like that word, is an elastic and relative term,

admitting of much variety of definition ; and, as indicated in the following subdivisions, it may be used with relation to cause and effect, place or

space, and time. Lite similar absolute expressions, it is used with less strictness than the literal meaning requires, and is much subject to its context

or to its grammatical and other connections, and has been defined generally as having nothing intervening either as to place, time or action.

Kelating to time: In General. Where it is perhaps most frequently used with reference to time, it has been said that there is no precise definition, so

far as time is concerned of the word ''immediately''. Depending entirely on the circumstances, it has been variously defined, being a relative term

which may have either a strict or an enlarged relative meaning, as indicated in the two following sub-divisions.

Strict Sense: The word ''immediately'' in strictness, excludes all mesne time, is generally used to indicate the absence of time between two events,

and, under particular circumstances implies prompt, vigorous action without any delay. In its strict sense, it has been defined as meaning at once,

forthwith, instantaneously, instate, or instantly, presently, and it is also defined as meaning promptly ; quickly, without delay ; without interval, or

interval, or intervention, of time; without lapse of time ; without any substantial interval.

Broader Relative Sense : Although, as stated in the preceding sub-division, the word, in its strict sense excludes all mense time, when it is applied

to time, in a less strict sense, it has no very definite signification, is rarely employed to designate an exact portion of time, but is given a relative

signification, and a certain latitude is to be given the significance of the word. As thus used, it does not, in legal contemplation, necessarily exclude

all mesne time, but, indeed, has often been construed to mean as soon as an act can with reasonable diligence be performed. In this use, and

always having regard to the circumstances or the facts of the particular case, ''immediately'' has been specifically defined as meaning ""as soon as

may be,'''' after the happening of some event; as soon as practicable under the circumstances, in, or within, a reasonable time; proximately, directly,

or close to; with due or reasonable diligence, having regard to the circumstances of the particular case, within a reasonable time, under the

circumstances, or under all the facts and circumstances of the case; within such convenient time as is reasonably requisite; or may be reasonably

necessary, under the circumstances, to do the thing required; without unnecessary, unreasonable or inexcusable delay, under all circumstances.

Other Terms compared; In one or another of the senses above indicated, and always of course, depending on the circumstances, the word has

been held equivalent to, or synonymous with, ""''as soon as practicable"", ""at once"", ""directly"", and ""forthwith""''. It has been contrasted or compared

with, and also distinguished from ""at once"", ''forthwith'', ''immediate'', ''instantaneously'', ""instantly'', ''immediately'' ''practically'', then and there'',

''upon the instant'' ''within a reasonable time'', ''without any interval of time-, ''without delay'' and ''without intervening lapse of time.

The word ''immediately'' came up for interpretation in Page v. Pearce, 1841 8 M.&W. 677 :7 ER 151 (Exchequer Division ), p. 1211 at

1212, wherein Lord Abinger, C.B. observed as follows:-

...when the act says only that the Judge shall certify immediately after the trial, and does not more especially define the time, it must mean that it is

sufficient if it be done within a reasonable time.''

In Thompson v. Gibson and another 1841 8 M. & W.281 : B.R. 151 Exchequer Division VII, p. 1043 at 1048), Rolfe, B., held that though the

word ''immediately'' in strictness excludes all mesne time and the lapse of any interval of time, having regard to the object of the Act, it must be

construed to mean ""as speedily and conveniently as can be"". In the same decision, Lord Abinger, holding that the word ''immediately'' is to be

construed literally, observed thus:

If they could be construed literally, consistently with common sense and justice, undoubtedly they ought; and if I could see, upon this act of

Parliament, that it was the intention of the legislature that not a single moment''s interval should take place before the granting of the certificate, I

should think myself bound to defer to that declared intention. But it is admitted that this cannot be its interpretation; We are therefore to see how,

consistently with common sense and the principles of justice, the words ''immediately'' afterwards'' are to be construed. If they do not mean that it

is to be done the very instant afterwards, do they mean within the minutes, or a quarter of an hour, after wards? I think we should interpret them to

mean, within such reasonable time as will exclude the danger of intervening facts operating upon the mind of the Judge, so as to disturb the

impression made upon it by the evidence in the cause;

In Alexiadi and another v. Robinson (1861) (175) E.R. 1237 at 1239 and 1240 : (1861) 2 F. & P. 679 at 683 and 684.) the word has been

interpreted by Cockburn, C.J. as follows:

The first point is, what is the effect of the word ''immediately'' here? Under ordinary circumstances where a man is called upon by a contract to do

an act, no time is specified. He is allowed a reasonable time for doing it what is a reasonable time may depend on all the circumstances of the case.

But here the word used being ''immediately'' which implied that there is a more stringent requisition than what is ordinarily implied in the word

''reasonable''. Still it must receive a reasonable interpretation so far that it cannot be considered as imposing an obligation to do what is impossible.

In The Queen v. The Justices of Berkshire (1878)(4) K.B.D.P.471) the word ''immediately'' is interpreted as follows by Cockburn, C.J.:-

The question is substantially one of fact, it is impossible to lay down any hard and fast rule as to what is the meaning of the word immediately'' in all

cases. The words ''forthwith, and ''immediately'' have the same meaning. They are stronger than the expression ''within a reasonable time'', and

imply prompt, vigorous action, without any delay, and whether there has been such action is a question of fact having regard to the circumstances

of the particular case. Who is to decide the question? Undoubtedly, the Sessions, and unless we can clearly see that they have gone wrong and put

some construction on the word ''immediately'' which it will not bear-their decision must prevail.

In that case, the question arose whether the sessions were right in holding that certain regulations as to entering into recognizance immediately after

notice of appeal had not been complied with. A notice was given in due time. But, the appellant did not enter into recognizance until four days

afterwards. The question related to

did this satisfy the words of the statute?.

In Parker v. Lewis & Peat (1913)3 K.B. 34 Kennedy, L.J has stated that the word ''immediately'' means ""as immediately as the circumstances

permit"".

Now coming to the Indian decisions a single Judge of the Bombay High Court in the decision In the matter of the Government and Nam

Kothare and others (Relating to the Land Acquisition Act ILR 30 Bom. 275 while construing certain provisions of S. 18(b) of the Land

Acquisition Act, as it stood then, observed that where a statute or written contract provided that a certain thing should be done ''immediately''

regard must be had, in construing that word, to the object of the statute or contract as the case may be, to the position of the parties, and to the

purpose for which the Legislature or the parties to the contract intended that it should be done immediately.

A Full Bench of the Madhya Pradesh High Court in Ramnarayan Triyoginarayan Trivedi and Others Vs. State of Madhya Pradesh and Others,

, after referring to. various English and Indian decisions interpreting the word ''immediately'' held that the said word has to be reasonably construed

so as not to require from the applicant something which is impossible and that the word should be so read as to advance its purpose, and not to

defeat justice.

In Keshav Nilkanth Joglekar Vs. The Commissioner of Police, Greater Bombay, , their Lordships of the Supreme Court, while examining the

term ""forthwith"" occurring in S. 3 (3) of the Preventive Detention Act, 1950, have referred to a number of decisions wherein the said word has

been interpreted and have finally recorded their view as follows:

We agree that ''forthwith'' in S. 3 cannot mean the same thing as ''as soon as may be'' in S. 7 (of the Preventive Detention Act, 1950) and that the

former is more peremptory than the latter. ... In S. 7, the question is whether the time taken for indicating the grounds is reasonably requisite.

Under S. 3 (3), it is whether the report has been sent at the earliest point of time possible, and when there is an interval of time between the date of

the order and the date of the report, what is to be considered is whether the delay in sending the report could have been avoided.

A Full Bench of the Karnataka High Court in Keshava v. Ramchandra AIR 1981 Kar. 97, while interpreting the word ''immediately'' occurring

in Art. 134A of the Constitution of India, pointed out that the object of Art. 134A is to avoid unnecessary delay and it is precisely for this reason

that the word ''immediately'' has been used to convey a sense of urgency.

In Gopal Mondal Vs. State of West Bengal, , while interpreting the meaning of the word ''forthwith'' occurring in S. 3 (3) of the Maintenance

of Internal Security Act, the Supreme Court has made the following observation :-

The word ''forthwith'' has been interpreted to mean, ''as soon as possible''; ''without any delay'', If there is some delay, which is reasonably

explained, then there is no violation of the mandatory requirement of the law.

In Food Inspector, Grama Panchayat, Nuzvid v. Golla Nageswara Rao 1979 M.L.J. Cri. 62, it is observed that the word ''immediately''

should not however be construed to mean that the copy of the report should be forwarded on the very day of the institution of the complaint and

that if the copy is forwarded without any reasonable delay, it would amount to substantial compliance with the Rule.

M. A. Sathar Sayeed, J., in Perumal and Ramanarayanan v. Kumbakonam Municipality 1981 L.W. Cri. 109, after referring to the meaning of

the word in the Law Dictionary, has held that the sum and substance of the word ''immediately'' is to the effect that the report of the Public Analyst

has to be sent to the petitioners Without any delay, i.e., forthwith.

A Division Bench of this Court consisting of Natarajan. J., and Maheswaran, J., in Kandaswami v. The Food Inspector, Judgment 1977 Cri.

R.C. 611 of dated 31st July, 1981 Since reported in 1981 L.W.Cri. 299 Athoor to, which decision I have already referred, in another context,

has recorded its opinion on this aspect by way of an obiter dictum as follows:

Therefore, we are of opinion that the forwarding of a copy of the report of (sic) by the Local (Health) Authority should be done only after the

institution of the prosecution and not earlier. It is, no doubt, true that the words ''after the institution of the prosecution'' should not be construed to

mean that the report should be forwarded on the same day on which the complaint is filed and that even a delay of a day or two would not be

brooked by law.

Recently, M.N. Moorthy, J. in Sebastian v. State,1 while construing the word immediately'' has observed as follows:

The word ''immediately'' under R. 9-A of the Rules would mean at once or without delay or forthwith. Whatever action is sought to be done, it

should be taken speedily and promptly. The word would connote reasonably in quick and prompt time. It certainly implies that whatever has to be

done should be done with all possible speed. In my views'' a day, or two can betaken as ''immediately''. If the Local (Health) Authority complies

with the provisions of S. 13(2) read with R. 9-A within a day or two> it cannot be said to be violative of the tenor of rule 9-A and the pith and

substance of the word ''immediately. This, of course, is a question of fact and is to be determined taking into consideration all the circumstances in

a given case. For instance, in a case, for the first one or two days if a holiday intervenes, then three days may be given as ''immediately,'' because

of lack of specific provision, it has become susceptible to varied interpretations.

Reference can also be had to the judicial opinions collected on this aspect in Stroud''s Judicial Dictionary of Words and Phrases, III Edition, Vol.

2, pages 1364 and 1365.

In the Code of Criminal Procedure, 1973 (Act 1 of 1974), the term ''immediately'' occurs in Ss. 353 (1) and (4) and 363 (2).

I think it is not necessary to refer to the other statutes in which this word has been used. Suffice it to say that the meaning of the term

''immediately'' has to be construed taking into consideration the context in which the term is used with relation to the cause and effect, place or

space, or time, as to whether it has to be interpreted in strictness, excluding sill mesne time, or in a liberal sense.

From the various definitions and judicial interpretations, the essence of the expression ''immediately'' can be stated thus: In general, it means

''without interval of time, without delay, straightway, or without any lapse of time''. It has two meanings, one meaning indicating the relation of cause

and effect as direct and proximate, and the other meaning indicating the absence of time between two events. It is not a word of precise

signification and does not, in legal proceedings or statutes, necessarily import the exclusion of interval of time or space, but its meaning must be

determined by the context in which it is used and the purpose for which the statute using the term was enacted. Depending upon the context,

circumstances and events in connection with which it is used, the word has to be sometimes construed literally and sometimes construed liberally,

so as to have the effect of the tenor and spirit of the term, so that it could gather its meaning from its application.

Now, the question is whether the Parliament had used this expression in rule 9-A literally in the strict sense of the term or only in a liberal

sense. There are various provisions in the statute and attending circumstances which would give an indication that the word ''immediately'' in R. 9-

A has been purposely introduced to import the meaning of the term in its strict sense: This indication can be inferred from the following

circumstances :

(1) The various expressions used in the different provisions of the Act, which I have extracted above, are used in different senses with full

awareness of their cause and effect and implication.

(2) When the expression ''as soon as may be'' (used in the Draft R. 9-A) which imports that the act may be performed in a reasonable time, has

been deleted after due consideration and substituted by the words ""...immediately...."", which is more peremptory, it should be construed as

excluding all mesne time.

(3) The fixation of the maximum time limit for the first time by Act 34 of 1976 in the various provisions of Act providing (a) seven days to the Food

Inspector under S. 11(4) to produce any adulterated or misbranded article of food seized under S. 10 (4) before a Magistrate; (b) ten days to the

accused person to make the application before the Court under the latter part of S. 13 (2); (c) five days to the Local (Health) Authority to forward

the part of the sample to the Court as contemplated under S. 13 (2A), and (d) one month to the Director of the Central Food Laboratory to send

the certificate as required under S. 13 (2B) and the reification of the maximum time-limit of 45 days in R. 7(3) by the 1974 amendment Rules as

against the 60 days'' period as prescribed as per the Rules which stood before the Amendment, and the last that R. 9 (j) which prescribed a period

of ten days has been deleted by the substituted R. 9-A, would all go to show that the Parliament has purposefully employed the word

''immediately'' without adding any qualification to the said term so that the Court could hold that R. 9-A means what it says in its strict sense and

has to be strictly complied with.

(4) The fact that the proviso to R. 9-A imposes a duty on the Local (Health) Authority requiring him to intimate the result of the analysis to the

vendor from whom the sample has been taken and to the person mentioned in S. 14-A, within ten days from the receipt of the report from the

Public Analyst, if the sample conforms to the provisions of the Act or the rules made thereunder, and in respect of which no prosecution or action

is intended, indicates that the Parliament intended not to keep the vendor or the person mentioned in S. 14-A under an animated suspense of any

impending prosecution.

(5) The amendment to R. 7 (3) by the 1977 (First Amendment) Rules, requiring the public analyst to deliver four copies of the report of the result

of the analysis, instead of two copies provided under the old R. 9 (j), is obviously to help the Local (Health) Authority to forward one copy of the

report to the accused person, without taking any further time on the ground of preparation of the copies of the said report.

(6) When there is a duty on the authority to forward the copy of the report and when

there is a corresponding right in the accused to challenge the said report, if he so desires, the rule must be strictly interpreted.

(7) When the rule peremptorily and imperiously says that the copy of the report must be forwarded to the accused immediately after the institution

of the prosecution, the question whether the Court has got the power, on the facts of the case, either to waive any non-compliance or extend the

period on the ground that it is only a pure technicality hurting nobody and no prejudice whatever would be caused to anybody just by extending the

period, will be out of consideration. Otherwise, it would be defeating the very object of the rule.

(8) If the framers of the Act had intended to qualify the word ''immediately'' by another adverbial from, they would have used a qualifying

expression as those used either in S. 11(3) reading ''immediately succeeding working day'' or in R. 17(a)and (b) reading ''immediately but not later

than the succeeding working day'', especially when they have thought of deleting ""as soon as may be"" from the draft R. 9-A after due

consideration.

For the reasons stated above and having regard to the scope and object of the Act and the. Rules, and the extent of the possible prejudice that

may be caused to the accused consequent upon the non-compliance with S. 13 (2) read with R. 9-A, I hold that the Public (Health) Authority

should take prompt, vigorous and expeditious action under all circumstances of the case, to set that the copy of the report is forwarded to the

accused as contemplated under S. 13 (2) read with R. 9-A, as speedily as possible without any lapse of time, save such as may be imposed by

circumstances which cannot be avoided. In other words, the copy of the report should be dispatched without any unnecessary, unreasonable or

inexcusable delay having regard to the circumstances of the particular case, consistent with common sense and all principles of justice and also

keeping in view the mandatory nature of the above provisions.

Meaning of the Term ""Institution of the Prosecution?-There is no time-limit prescribed in the Act for instituting the prosecution before the

Court, though the sections and the rules prescribe particular periods within which the Local (Health) Authority, the Food Inspector or the Director

of the Central Food Laboratory, as the case may be, has to carry out their respective duties imposed on them under the Act where there are some

unforeseen and unavoidable circumstances justifying the delay in instituting the prosecution at the earliest point of time. Otherwise, the delay could

be attributed only to the laxity or the negligence on the part of the complainant, which laxity or negligence will have to be viewed strictly in favour of

the accused.

In State of Rajasthan v. Umashankar (1972) 2 F.A.C. 261 it was ruled that delay in launching the prosecution is not per se a ground to vitiate

the proceedings unless such delay is shown to have caused grave prejudice to the accused. In another decision, viz., R.C. Banerjee v. A.K.

Chatterjee (1977) 1 F.A.C. 401, (Calcutta) it has been observed by the Calcutta High Court that the delay in initiating the proceedings against the

accused person, which delay defeats the scope of making an application under S. 13 (2), affects a valuable right given to the accused and

materially prejudices him and therefore, the continuation of the proceedings of the case under such circumstances is nothing but an abuse of the

process of the Court.

If one approaches this aspect, keeping in mind the scheme of the Act and the Rules and the material amendments now brought forth by Act 34

of 1976, one has necessarily to come to the conclusion that the prosecution should be instituted without any unreasonable and undue delay.

Further, in a case of this nature, the complainant is in possession of almost all the materials inclusive of the name, address and other particulars of

the person mentioned in S. 14-A, even before the receipt of the report of the Public Analyst, and therefore, there is really no reason for him to

further delay the launching of the prosecution. There is no question of making any investigation or collecting any more material after the receipt of

the analyst''s report. If at all there is any such delay, that delay could be attributed only to the actual preparation of the complaint and the obtaining

of the order of authorization to prosecute by a special order of authorization by a general order has not been already obtained, except in cases.

Any inordinate delay in the institution of the prosecution after the receipt of the report of the analyst is likely to render the part or parts of the

sample kept by the Local (Health) Authority, unfit for analysis, more so in the case of perishable articles, and in such cases there is the likelihood of

the sample becoming decomposed and consequently making the analysis impossible. It has been experienced by Courts, as seen from various

judgments, that no useful purpose is served if the sample is sent to the Central Food Laboratory after the lapse of a considerable length of time.

Some of the authoritative judicial pronouncements are to the effect that because of the delayed prosecutions, the accused persons have been

deprived of their opportunity of availing of their valuable rights conferred under S. 13 (2) of the Act. At this juncture, it would be worthwhile to

refer to the recent judgment of the Supreme Court in Nabh Raj v. State (Delhi Administration) 1981 M.L.J. (Cri) 436 (S.C.) wherein their

Lordships have clearly pointed out that such a belated prosecution is likely to result ""in causing harassment to the accused in some cases and may

also result-in genuine offenders escaping punishment.

It is the cardinal principle of criminal jurisprudence that the prosecution should be launched in all criminal proceedings with the least delay and

that any unreasonable delay would certify amount to harassment of the accused : Vide Public Prosecutors. Nalla Pydiraju 19 (58 M.L.J. Cri. 290 :

1968 (1) An W.R. 250. It was contended the Bar that when the proviso to R. 9-A requires the Public (Health) Authority to send a memo of

intimation intimating that no prosecution or action is contemplated to the person from whom the sample has been taken and simultaneously to the

person mentioned in S. 11-A within 10 days from the date of the receipt of the report, in case that report reveals that the sample of food sent for

analysis conforms to the provisions in the Act and the Rules, obviously with the object of not keeping those persons under any suspended

animation or under the apprehension of any impending prosecution, afortiorari in case the sample of food does not conform to the provisions in the

Act and the Rules the copy of the report should necessarily be made available to the accused much earlier than the abovesaid ten days, which can

happen only if the prosecution is also launched within the said ten days, because, as per S. 13 (2; read with R. 9-A, the forwarding of the report

would arise only after the institution of the prosecution, and therefore, the prosecution should be launched at any cost within ten days provided the

authorization has already been obtained. The proviso to R. 9-A prescribes a period of ten days apparently for enabling the person, who is shown

to be innocent as per the report of the Public Analyst, to take appropriate proceedings for getting release of the articles of food seized by the

authorities under the Act before they get deteriorated. Nevertheless, the above argument of the learned counsel cannot be said to be illogical or

untenable, Though no hard and fast rule can be laid down as to the period within which the prosecution should be launched, since, as pointed out

supra, there is no specific provision in the Act or the Rules prescribing the period of limitation for instituting that prosecution, I would like to record

my view that a conjoint reading of S. 13 (2) and R. 9-A gives an impression that the prosecution should be launched in all promptitude without

causing any undue delay which would be prejudicial to the accused depending upon the facts and circumstances of each case, provided the

sanction has already been obtained by a general or special order.

Now the question is, what is the meaning of the term ''institution of the prosecution'' appearing in S. 13 (2) and R. 9-A? In Maqbool Hussain

Vs. The State of Bombay, the Supreme Court has defined the word to mean the initiation or starting of proceedings of a criminal nature before a

Court of law or judicial tribunal in accordance with the procedure prescribed in a statute which creates the offence and regulates the procedure.

There is a fine difference between the term ""institution of a case"" and the term ""institution of the prosecution"" under Criminal Law. The Supreme

Court in Jamuna Singh and Others Vs. Bhadai Sah, which is an authority for the definition of the term ""institution of a case in a Court'' under the

Crl. P.C. has explained the term as follows:

The Code does not contain any definition of the words'' institution of a case. It is clear however and indeed is not disputed that a case can be said

to be instituted in a court only when the Court takes cognizance of the offence alleged ; therein. S. 190 (1) of the Crl. P.C, contains the provision

for cognizance of offences by Magistrates. It provides for three ways in which such cognizance can be taken. The first is on receiving a complaint

of facts which constitute such offence : the second is, on a report in writing of such facts, that. is"" facts constituting the offence made by any police

officer; the third is, upon information received from any person other than a police officer or upon the Magistrate''s own knowledge or suspicion

that such offence has been committed. S. 193 provides for cognizance of offences being taken by Courts of Sessions on commitment to it by a

Magistrate duly empowered in that behalf. S. 194 provides for cognizance being taken by High Court of offences upon a commitment made to it in

the manner provided in the Code.

An examination of these provisions makes it clear that when a Magistrate takes cognizance of an offence upon receiving a complaint of facts which

constitute such offence a case is instituted in the Magistrate''s Court and such a case is one instituted on a complaint. Again, when a Magistrate

takes cognizance of any offence upon a report in writing of such facts made by any police officer it is a case instituted in the Magistrate''s Court on

a police report.

From the above observations it is clear that when the Court takes cognizance of a case upon a complaint or a charge-sheet, it can be said that the

case is instituted before a Court. In S. 13 (2) and R. 9-A the expression used is ''institution of the prosecution'', and not ''institution of a case''. S.

20(l) of the Prevention of Food Adulteration Act and the proviso thereunder, which deal with the procedure for initiation or stating of proceedings

under the Act, read as follows:-

No prosecution for an offence under this Act, not being an offence under S. 14 or S. 14-A"" shall be instituted except by, or with the written

consent of the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central

Government or the State Government;

Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in S. 12, if he produces in court a copy of

the report of the public analyst along with the eomp-laint.1''

On a reading of the above provisions, it would be expressly clear that the institution of a prosecution under this Act takes place the moment the

person authorized to launch the prosecution of or the purchaser referred to in S. 12 files the complaint before the Court in compliance with the

requirements of the above section. Further, the words following the term ""institution of the prosecution"", viz., ""by a person authorized in this behalf

or by a person referred to in S. 12"" clearly indicate that it is different from the taking cognizance of the case by the Court. Therefore, the mere filing

of the complaint before the competent Court after complying with the prerequisites of S. 20 (1) either by the person authorised or by the person

referred to in S. 12, would satisfy the meaning of the expression ""institution of the prosecution.

A similar question arose before a Division Bench of the Calcutta High Court in Jyotish Kumar Saha Vs. The State, . The facts of that case

were as follows : The sample of food was taken on 21st September, 1978 and it was sent for analysis on the next day. The report of the analyst

was received by the Food Inspector on 27th November, 1978. Thereupon, the Food Inspector filed a complaint before the Court on 7th

December, 1978 with the requisite consent of the Local (Health) Authority. On the same day, viz., on 7th December, 1978 itself, the Local

(Health) Authority sent a copy of the report of the public analyst to the accused person by registered post, accompanied by a memo as required

by S. 13 (2), which report was received by the accused person on 13th December, 1978. Though the complaint was received by the learned

Magistrate on 7th December, 1978, he took cognizance of the complaint on 29th December, 1978 and issued process against the accused. The

accused challenged his conviction raising a contention before the High Court that the institution of the prosecution envisaged the stage of taking

cognizance of the offence by the Court which, according to him took place on 29th December, 1978, and therefore, the forwarding of the copy of

the report on 7th December, 1979 should be construed not in strict compliance with S. 13 (2). The Division Bench rejected the said contention

and held that the institution of a prosecution under the Act and for that matter, under S. 13 (2), thereof means ''filing'' of the complaint after

complying with the prerequisites of S. 20 (1) and that when the report of the Public Analyst was sent by the Local (Health) Authority, to the

petitioner-accused on the date the complaint was filed, there was compliance with the statutory provisions of S. 13(2). I respectfully agree with the

above view.

In this connection, reference can be had to the judgment of the Kerala High Court in P. Chockalingam v. Food Inspector, Trivandran

Corporation wherein it has been observed that

S. 13 (2) specifically states that the information must be given to him (the accused) after the complaint is laid by the Food Inspector before the

appropriate Court.

For the above discussion, I hold that the institution of a prosecution under this Act means the filing of the complaint before the Court which has

jurisdiction over the matter.

Now, let me examine the contentions of Mr. Snramulu in the light of the above principles of law. Admittedly, the report of the Public Analyst

was received by the Local (Health) Authority on 19th December, 1977. The prosecution was instituted on 22nd March, 1978 and the copy of the

report of the analyst (Ex. P-6) was served by hand on the accused with the memo of intimation, Ex. PS, as required by S. 13 (2) of the Act, on

3rd April, 1978, after the lapse of 12 days, as evidenced by Ex. P7. In this case, there is no evidence adduced on the side of the prosecution,

explaining as to why the copy of the report had been forwarded after such an inordinate and unreasonable delay. Therefore, I am of the view that

the prosecution has failed to comply with the strict requirements of R. 9A which are mandatory.

As regards the second contention raised by the learned counsel, there cannot be any dispute that the prosecution was launched on the expiry

of more than three months after the receipt of the report of the Public Analyst by the Public (Health) Authority. Even though P.W. l in the Chief-

examination would state that he was on earned leave, it is brought out in the cross-examination that he had availed of earned leave only for 30 days

and therefore P.W. 1 could have promptly instituted the prosecution without giving room for a complaint of prejudice or frustration of right by the

accused. However, as I am allowing this revision and setting aside the conviction of the accused on the ground that the mandatory requirement of

R. 9-A has not been complied with, I feel that it is not necessary for me to launch a detailed discussion on this contention and record a finding

thereon.

In the result, the revision is allowed, the conviction and sentence passed against the revision petitioner are set aside and he is acquitted. The

fine amount, if paid, shall be refunded to him.