The main legal point established in the judgment is that R. 7(3) of the Prevention of Food Adulteration Rules, 1955 is mandatory, and any violation of the rule is fatal to the prosecution.

FATHIMA BEEVI, J.

This appeal has come up before us on a reference made by Bhat, J. by order dated 22-10-1982, as an important question involving the interpretation of R. 7(3) Prevention of Food Adulteration Rules, 1955 arises for decision. The appeal is directed against an order of acquittal. The appellant is the Food Inspector, Palghat Municipality, who instituted the complaint against respondents 1 and 2 for offence punishable under Sections 16(1)(a)(i) and 16(1)(g) read with S. 7(1) Prevention of Food Adulteration Act, 1954.

2. The complainant on 26-8-1978 collected for purpose of analysis a sample of 'Karimasala' from the shop of respondent 2 and forwarded the same to the Public Analyst. The sample was received by the Public Analyst on 31-8-1978. The public Analyst delivered the report Ext. P9 signed by him on 9-10-1978 to the Local (Healthy Authority on 31-10-1978. The result of the analysis was that the sample did not conform to the standards prescribed for curry powder under Prevention of Food Adulteration Rules. 1955 and was therefore adulterated. On the basis of the report, the appellant instituted a complaint against the respondents, respondent 1 being the manufacturer as disclosed by respondent 2 the vendor.

3. The trial court found that public analyst had not delivered his report within the stipulated period of forty-five days provided under R. 7(3). Prevention of Food Adulteration Rules, 1955 and acquitted the accused on the ground that the non-compliance with the mandatory provision is fatal to the prosecution.

4. According to the learned counsel for the appellant sub-r. (3) of R. 7. Prevention of Food Adulteration Rules, is only directory and in the absence of proof of any prejudice having been caused to the respondents on account of the delay in delivering the report by the public analyst the violation of the rule cannot invalidate the report and thereby vitiate the prosecution. It was also pointed out that the analysis was completed on 9-10-1978 within the time limit of forty five days and the respondents have not chosen to challenge the report by getting the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory by making an application under S. 13(2) of the Act and, therefore, no prejudice can be said to have been caused to the accused in this case.

5. In Food Inspector v. Moosa, (1982 Ker LT 37) : (1982 Cri LJ 168) Janaki Amma, J., has held that sub-r. (3) of R. 7 is mandatory and any violation thereof must necessarily lead to an acquittal. The appellant's learned counsel canvassed the correctness of this decision.

6. The question thus arising in the appeal is whether R. 7(3) P.F.A. Rules, 1955, as it stood at the material time in 1978 is mandatory and non-compliance with which would prove fatal to the prosecution or whether the rule is directory and any infraction of the rule would not prove fatal in the absence of prejudice to the accused. Rule 7 Prevention of Food Adulteration Rules 1955, defining the powers and duties of the public analyst had been framed in exercise of the powers conferred by Clause (e) of sub-sec. (1) of S. 23, of the P.F.A. Act. Sub-rule (3) as it stood in 1978 reads :

"(3) The public analyst shall, within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form III.

Provided that where any such sample does not conform to the provisions of the Act or these rules, the public analyst shall deliver four copies of such report to the said Authority :

Provided further that the public analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis under S. 12 of the Act."

This rule required the public analyst to deliver the report of analysis to the Local (Health) Authority within 45 days of the receipt of the sample. In construing sub-r. (3) of R