The importance of application of mind and compliance with the provisions of Section 26 of the Act in legal proceedings.

( 1 ) THIS appeal is directed against the order and judgment of acquittal dated 14-11-1977 passed by sri K. P. Mathur, Special Judicial Magistrate, Allahabad.

( 2 ) FOOD Inspectors Sukh Mangal Prasad found Ram Kailash, respondent No, 1, selling buffalo milk near Jamuna Bridge, Allahabad on 27-11-1973 at about 11-30 A. M. and took a sample of that milk on payment of price after complying with all the rules. A sample phial of the milk was sent to the Public Analyst for analysis and report He reported that the milk was adulterated being deficient in non-fatty solids content by about 23 per cent. Respon- dent No. T was prosecuted for an ollence, Under Section 7 read with Section 16 of the Prevention of Food: Adulteration Act i (briefly the Act ). 1 He denied the prosecution allegations and contended that he had: not received a copy of the report of the Public Analyst. He did not produce any defence.

( 3 ) THE learned Magistrate came to the conclusion that there was no compliance with the mandatory provisions of Section 20 of the Act and Rule 9 (j) of the rules framed under the, Act,. He held that the accused could not be convicted on account of the non-observance of the aforesaid mandatory provisions and he acquitied the accused.

( 4 ) I have heard learned Counsel for the parties and have perused the relevant portions of the record.

( 5 ) IN criminal revision No. 1050 of 1977, Sumer Chand, v. State, decided on" 24-1-1980 by honble Bakshi J. , the question whether the provisions of Rule 9 (i) are directory or mandatory, was referred to a Division Bench for decision. The Division Bench answered the reference on 4-1-1980 and held that the provisions of Rule 9 (1) were only directory. However, in every case it had to be determined if there had been any prejudice to the accused on account of the non-observance of the provisions of this rule. The question of prejudice would be a question of fact in each case to be decided on its peculiar facts and circumstances. On receipt of this opinion of the Division Bench, Honble Bakshi J. decided the revision. The judgment of the revision is reported as (1980) 1 FAC 258. It does not appear that the opinion of the Division Bench was also reported in that journal. Thus, now it stands well settled, so far as this Court is concerned, that the provisions of Rule 9 (j) are only directory.

( 6 ) IN the instant case, the prosecution had examined S. C. Srivastava, Food Clerk (P. W. 2) to prove that copy of the report of the Public Analyst was sent to the accused through post. The only short-coming was that this witness had not brought the relevant papers showing that a copy of the report of the public analyst was sent to the accused. It is really strange that the witness came to depose on that point and did not bring the relevant papers. However, from the failure of the witness to bring the papers it cannot be inferred that the copy of the report was not sent to the accused. If the Magistrate entertained any doubt on this PQint. he should have directed the witness to bring the papers. Without taking this step, the learned Magistrate was not justified in taking the view that there was no compliance with the provisions of Rule 9 (j ).

( 7 ) even though R- 3 (i) has been held to be directory, it is open to the accused to show that non-compliance with this rule has caused prejudice to him. In the instara1 case, the accused seems to have concentrated on the point that there was no compliance with, the provisions of. R. ,,9 (j) and he did not pay any attention to the question of prejudice. The accused should get an opportunity to place material on this aspect of the matter as well.

( 8 ) THE view of the Magistrate regarding the invalidity of the complaint launched by the Nagar swasthya. Adhi-kari is also not well founded. He does not seem to have carefully perused the provisions of Section 20 of the Act. Under, this section a prosecution can inter. alia be instituted by a person authprised in th