Trial vitiated due to non-compliance of the provisions.

SRINIVASAN, J. : This appeal comes before us on a reference by Kunhameri Kulli, J. The learned Judge felt a doubt with regard to the proper interpretation of rule 22 of the rules framed under the Prevention of Food Adulteration Act, though in two earlier judgments of single judges of this court, the view had been taken that the Rule is not mandatory in the sense that non-compliance therewith would vitiate the prosecution proceedings. For that reason that this question is one which is likely to arise frequently the matter has been posted before a Bench.

2. The petitioner was prosecuted under Ss. 7 and 16(1) read with S. 2(1)(a) of the Prevention of Food Adulteration Act 1957. The Food inspector, who is the complainant seized a certain quantity of milk from the petitioner and divided the milk into three parts, one of which was handed over to the petitioner and one part sent to the Government Analyst. The report of the analyst showed that the milk contained 13 per cent of added water. The Sub-Divisional Magistrate, who tried the case found that the quantity sent to the Government Analyst consisted only of 5.2 fluid ounces. Rule 22 however prescribes that the quantity of the sample to be sent to the Public Analyst shall be in the case of milk 9 ounces. The trial magistrate accepted the contention that the opinion of the Analyst arrived at on conducting test with a quantity less than that prescribed by the Rule cannot be taken to be one arrived in accordance with the law. He accordingly acquitted the accused.

3. The Public Prosecutor filed an appeal against the acquittal, and that is how le matter came before the High Court.

4. It is unnecessary to refer to the several Sections of the Act. Broadly stated, Food Inspectors have been appointed under S. 9 of the Act. Under S.10 certain powers have been conferred upon them which include the power to take samples of any article of food from any person selling such articles and to send such sample for analysis to the Public Analyst for the local area within which such sample was taken. Public Analysts are appointed under S. 8 of the Act. Section 11 prescribes the procedure to be followed by the Food Inspectors when taking sample of food for analysis. Section 12 enables the purchaser of any article of food also to have such article analysed by the Public Analyst. Section 13 provides that the Public Analyst shall deliver a report to the Food Inspector of the result of the analysis of any article of food submitted to him. A report so made by the Public Analyst may be used as evidence of the facts stated therein in any proceeding under this Act. The rules framed under the Act prescribe by Rule 22 the quantity of sample to be sent to the Public Analyst. In so far as milk is concerned, the quantity so prescribed is 220 ml (cc) and this quantity is described in that rule as the "approximate quantity to be supplied". The only point to be noticed in this connection is that with regard to A variety of articles of food, different approximate quantities to be supplied are specified in the appropriate column of the rule.

5. There is no doubt that in this case a quantity less than what is prescribed in this rule was sent to the Analyst. The question is whether, though the Public Analyst did not apparently find any difficulty in making a proper analysis of the article sent to him the failure of the food inspector to send an approximate quantity of 220 ml vitiates either the result of the analysis or the proceeding under the Act Rule 22 reads thus :

''The quantity of sample of food to be sent to the Public Analyst for analysis shall be as described below :

milk - approximate quantity to be supplied 220 ml"

Before Kunahamed Kutti, J., the learned Public Prosecutor relied upon two earlier judgments and urged that though the provision of Rule 22 is worded mandatorily, the exact quantity of the food articles specified therein need not be sent for analysis and that if the quantity sent to the Analyst was su