Effect of non-compliance with Rule 9(j).

The revision petitioners are a firm and one of its partners. They were convicted under the provisions of the Prevention of Food Adulteration Act for sale of adulterated Bengal gram. The minimum sentence provided under the Act was awarded to the partner.

2. It was conceded on behalf of the Food Inspector who launched the prosecution, the first respondent in this revision petition, that the provisions of rule 9(j) of the Rules framed under the Act were not complied with in the instant case. Under that Rule if the Public Analyst's report was adverse to the vendor the Food Inspector had a duty to give a copy of it to the vendor within 10 days of its receipt by him. Rule 9(j) was omitted with effect from 4th January, 1977 and from that date it ceased to be in operation. From 4th January, 1977 onwards rule 9-A came into force. Under that Rule no such duty was cast on the Food Inspector but the Local (Health) Authority was directed to give a copy of the report to the vendor. Even that he need give only after launching the prosecution. Under rule 9(j) the copy had to be given even before the launching of the prosecution if the report was received more than 10 days before such launching. This change was made by the Amendment Act XXXIV of 1976. After purchase of the article concerned the Food Inspector has to divide it into three parts. He has to send one part to the Public Analyst for analysis. Previous to the amendment of the Act as regards the other two parts he had to retain one part with him and deliver the third part to the vendor, but by the amendment of section 13(2) of the Act that provision was changed and he had to send those two parts to the Local (Health) Authority. After analysis the Public Analyst was directed to send his report not to the Food Inspector as before but to the Local (Health) Authority. The Local (Health) Authority in turn had to give a copy of the report to the vendor if the report was adverse to him. These changes brought about by Act XXXIV of 1976 came into force on 1st April, 1976. From that date till 4th January, 1977, when rule 9-A came into force rule 9(j) which was in force even previously was allowed to continue in force. We are concerned here only with the operation of rule 9(j) during this limited period of about nine months between 1st April, 1976 and 4th January, 1977. Cases in which prosecutions were launched during that period and which would now be pending would only be very few.

3. It is not disputed that the provision in rule 9(j), if it was applicable during the period between 1st April, 1976 and 4th January, 1977, had to be complied because it was mandatory. The only dispute is as to whether it was applicable in spite of it having been allowed to continue in force till 4th January, 1977. There are two conflicting decisions of this Court about this matter, both single Judge decisions. The earlier one is State of Kerala v.Abdut Azeez1 and the later Narayanan v.Food inspector, Calicut Corporation2 In the earlier decision it was held that the provision in rule 9(j) had to be applied in the case of prosecutions between 1st April, 1976 and 4th January, 1977 and in Narayanan v. Food Inspector, Calicut Corporation2 an opposite view was taken. The learned Judge who decided the later case thought that in the earlier case no definite opinion had been expressed about the consequences of non-compliance with rule 9(j). With great respect, that does not appear to be correct. The earlier decision expressly said that the provisions of rule 9(j) had to be satisfied. In the later decision the learned Judge thought that the provisions of rule 9(j) conflicted with the provisions of section 13(2) of the Act and therefore the provisions in rule 9(j) had to yield to the provisions of section 13(2). With great respect there does not appear to be any conflict between the provisions of section 13 (2) and rule 9(j). The provisions of section 13(2) relate to what the Local (Health) Authority should do in a case of