Hon’ble Ramesh Sinha, J.—Heard Sri Rajiv Lochan Shukla, learned Amicus Curiae and Sri S. K. Pal, learned Government Advocate assisted by Ms. Manju Thakur, learned AGA for the State.

2. While deciding the aforementioned criminal revision, the learned Single Judge has been pleased to frame following questions for consideration by a larger bench;

“(i) Whether the provisions of Section 13(2) read with Rule 9-A of the Prevention of Food Adulteration Act and Rules are mandatory or directory in character?

(ii) Under what circumstances, if ever, non-compliance with the provisions of Section 13(2) and Rule 9-A has the effect of exonerating the accused?

(iii) What is the effect of service of intimation required by Section 13(2) with the Public Analyst Report a few days before the institution of the prosecution?”

3. Vide order of the Hon’ble Chief Justice dated 20.5.2018, the present reference has been assigned to be considered by this bench.

4. The facts in brief relating to this matter are as follows :

According to the prosecution case, the revisionist (accused) was found in possession of the adulterated liquor at his shop on 12.12.1977 at about 4:00 p.m. Ranjit Singh (PW1), the Food Inspector had purchased sample of coloured wine from the shop of the accused on 12.12.1977 at 4:00 p.m., which was 600 grams in quantity, and the same was divided in three phials and was seized and, thereafter, one phial was sent to Public Analyst for being examined. The Public Analyst had sent his report dated 31.1.1978 (Exhibit 3), which contained prohibited Coaltar Dye (Malachite Green). A copy of this report was sent by registered post on 25.2.1978 to the accused with a direction that the prosecution was being launched and he could move the Court for test by the Central Food Laboratory (CFL). The complaint was actually filed on 13.3.1978. The prosecution examined Ranjit Singh (PW1). The accused was put on trial who pleaded not guilty and explained that he was a salesman at a licensed vendor’s shop for selling liquor from Government godowns, but did not examine any witness in defence. Ranjeet Singh (PW1) proved all the facts alleged by the prosecution and stated that he himself had sent a copy of Public Analysis report to the appellant by registered post No. 731 dated 25.2.1978 and that the Chief Medical Officer of Bareilly sanctioned the prosecution after examining all the documents and facts. The learned trial Court convicted the accused under Section 7/16, Prevention of Food Adulteration Act, 1954 (to be referred in short as ‘Act of 1954’ from here onwords) and awarded him punishment of 6 months rigorous imprisonment with a fine of Rs. 1,000/- and further in case of default, he was directed to further undergo four months rigorous imprisonment in Special Case No. 140 of 1978, State v. Ram Kishor, P.S. Haphizganj, District Bareilly. Feeling aggrieved, the accused preferred Criminal Appeal No. 313 of 1979, Ram Kishor v. State of U.P., in which the learned Sessions’ Judge, Bareilly dismissed the appeal and upheld the conviction and sentence awarded by the trial Court. Thereafter, the accused preferred the present revision before this Court.

5. The learned Single Judge of this Court vide judgment and order dated 22.1.1981 has mentioned that it was argued on behalf of the accused that the conviction was unsustainable because of non-compliance by the prosecution of Section 13(2) of the PF Act and Rule 9-A of the PF Rules, and also recorded that it was not necessary to go into the defence of the accused and on the preliminary basis only aforementioned point was discussed by him at great length, in the said judgment. The facts and arguments as mentioned by him in the said judgment are that Rule 9-A had come into force on 4.1.1977, hence there was no question that it would be applicable in the present case pertaining to a sample taken on 12.12.1977. As regards, factual position regarding compliance, it is mentioned that in the present case prosecution