The provisions of Section 13(2) of the Prevention of Food Adulteration Act, 1954 and Rule 9-A of the Prevention of Food Adulteration Rules, 1955 are directory and not mandatory. Non-compliance with these provisions does not per se render the prosecution case unsustainable unless prejudice is caused to the accused.

( 1 ) THE question which arises for consideration in this reference made by one of us (K. L. Shrivastava, J) is whether the provisions of S. 13 (2)of the Prevention of Food Adulteration Act, 1954 (for short the Act') and of R. 9-A of the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules') are mandatory or directory.

( 2 ) THE material facts are these : On 5-3-1978 the Food Inspector, Nagar Palika Mandsaur purchased milk from the respondent as sample for analysis. The sample was sent to the Public Analyst who on analysis found that the sample was adulterated. The report of the public Analyst is dt. 13-3-1978. The Food Inspector filed a complaint against the respondent on 24-4-78.

( 3 ) THE trial Magistrate held that the milk purchased by the Food Inspector from the respondent was adulterated and convicted the respondent of the offence under S. 7 (1) read with S. 16 (1) (a) (i) of the Act. On appeal by the respondent the Additional Sessions Judge acquitted the respondent on the ground that the compliance of the mandatory provisions of S. 13 (2) of the Act was not proved. The Food Inspector has preferred this appeal against the acquittal of the respondent.

( 4 ) THE learned single Judge who heard the appeal came to the conclusion that though a copy of the report of the Public Analyst was sent to the respondent there is no evidence that the respondent was informed that if it is so desired he may apply to the court for the sample being sent to the Director, Central Food Laboratory for analysis as required by the second part of S. 13 (2) of the Act. The question which arose for consideration before the learned single Judge was whether this omission on the part of the Local (Health) Authority was fatal to the prosecution case. It was contended on behalf of the respondent that the provisions of S. 13 (2) of the Act were mandatory and therefore non-compliance thereof by the Public (Health) Authority was fatal to the prosecution case. Reliance was placed upon a single Bench decision of this court in Nathusingh v. State of M. P. , 1982 Jab LJ 805.

( 5 ) IT was contended on behalf of the appellant that the provisions of S. 13 (2) of the Act and Rule 9-A of the Rules were directory and as no prejudice is shown to have been caused to the respondent on account of the non-compliance thereof the acquittal of the respondent by the appellate court was not justified. In support of this contention the appellant placed reliance upon a single Bench decision of this Court in Tulshiram v. State of M. P. , 1983 FAJ 338.

( 6 ) THERE are other single Bench decisions of this court also in which contrary views have been taken on the aforesaid question. The learned single Judge was of the opinion that the decision in Nathusingh's case (supra) does not lay down good Law and requires reconsideration by a Larger Bench. This Bench has been constituted to consider the aforesaid question.

( 7 ) WE have heard the learned counsel for the parties.

( 8 ) BEFORE considering the question it would be useful to reproduce the relevant provisions of the Act and the Rules.

( 9 ) SECTION 13 (2) of the Act as substituted by S. 10 of the Act No. 34 of 1976 reads as follows :"13 (2 ). On receipt of the report of the result of the analysis under sub-sec. (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the persons, if any, whose name, address and other particulars have been disclosed under S. 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be informing such person or persons, that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of article of food kept by the Local (H