ORDER
M.S. Parikh, J.
1. The Revisional Petitioner-original accused has brought under challenge the judgment and order dated 30th May 1986 passed by the learned Addl. Sessions Judge, City Sessions Court at Ahmedabad in Criminal Appeal No. 66 of 1985 confirming the conviction of the accused under Section 7 read with Section 16(1)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “The Act“) rendered by the learned Metropolitan Magistrarte, Court No. 8 in Criminal Case No. 124 of 1982 sentencing the accused to suffer six months, Simple Imprisonment and the fine of Rs. 1000/and in default one month’s Simple Imprisonment.
2. The case of the prosecution was that on 26th June 1982 at about 6.00 a.m. the accused was intercepted by the Food Inspector of Ahmedabad Municipal Corporation and the Inspector purchased a sample from him in presence of Panch Dilipkumar Tarachand Shah and Peon Sarabhai Bhanabhai for its analysis by a Public Analyst. Upon the analysis having been carried out by the Analyst it was found that the sample was adulterated. Complaint was filed before the learned Metropolitan Magistrate and when the accused filed appearance one packet of the sample was prayed for being sent to the Central Food Laboratory and the Central Food Laboratory opined that the sample was adulterated.
(3, 4, 5 ******)
6. That being the position with regard to the question answered by this Court in C.C. Christian’s case 1992 (1) Cri. LR 434 (supra) the only course which would be open for this Court would be to see that this matter also stands decided on the said question along with the aforesaid referred matters. However, the matter does not rest here. The submission of Mr. Amin learned Advocate for the accused is that this is not the only flaw in the prosecution case. He referred to the discrepancy appearing in the reference of memorandum number being different from the one stated in the sample having been taken on 26-6-1982. The contention has been dealt with by the learned Addl. Sessions Judge in this fashion. The report of the Central Food Laboratory Ex.4 indicates Memorandum bearing No. 115 of 1983 whereas the Memorandum under which the sample was stated to have been sent bears No. 114 of 1983. The learned Addl. Sessions Judge has made reference to the Court case No. 124 of 1982 appearing in both the aforesaid documents. He has also referred to the date of the Memorandum being 5-2-1983 appearing in both the aforesaid documents. He has, therefore, come to the conclusion that the discrepancy in stating the Memorandum number appearing on Ex. 4 was merely a typographical error or mistake and the sample sent to the Food Laboratory for analysis was the same since Ex. 4 tallies with page: 119 in all the respects. It can also be seen from the Judgment of the learned Addl. Sessions Judge that page : 119 originally displayed the No. 514 having been written and then secured and replaced by No. 114. Thus, he has come to the conclusion that this was an obvious typographical error in writing Memorandum Number in Ex. 4. He, therefore, distinguished the decision of this Court cited before him, in Criminal Appeal No. 458 of 1974 rendered on 23-4-1976 in the case of Popatlal Baldevdas Thakkar v. the State of Gujarat (Coram M.P. THAKKAR, J. as his Lordship was then). In that case the discrepancy was not merely in stating the memorandum number, but was also in stating the date. Following observations were read before this Court from the unreported Judgment in Criminal Appeal No. 458 of 1974:
“Now emphasis must be laid on the serial number of the memorandum and the date of the communications from the metropolitan Magistrate. The number is mentioned as 284 of 1974. The certificate shows that the memorandum of the metropolitan magistrate, 8th Court was one dated April 25, 1974. The record, however, shows that so far as the sample pertaining to the present matter is concerned the memorandum which was issued by the metropolitan magistrate bears the date of April 26, 1974 and it refers No. 294 of 1974. There is, therefore, a discrepancy both in the date as well as in the reference number. The date mentioned in Certificate Ex. 17 is April 25, 1974 and not April 26, 1974 as mentioned in the memorandum. So also the reference number mentioned in the certificate is 284 and not 294 as mentioned in the memorandum. The learned Public Prosecutor himself examined the record and was constrained to admit that such was the position. The appellant can be convicted only if the sample sent with the memorandum bearing reference No. 294 of 1974 issued on April 26, 1974 was adulterated. He cannot be convicted if a sample sent with some other memorandum pertaining to some other case (Reference No. 264 of 1974 sent on April 25, 1974) was found adulterated, and not the sample pertaining to the appellant which was sent on the previous day (April 25, 1974) along with the communication bearing a reference No. 284. On this ground alone the appellant is entitled to acquittal.”
7. Miss. K.K. Valikarimwala, Ld.A.P.P. for the State also tried to distinguish this Judgment on the ground that there is no mistake in recording of the date and therefore the mistake appearing in the memorandum number has rightly been explained away as typographical error. The matter does not rest here.
8. Mr. D.F. Amin, learned Advocate has also placed reliance upon an unreported decision of Division Bench of this Court in Criminal Appeal No. 907 of 1982 with Criminal Appeal No. 157 of 1983 between State of Gujarat v. Ramesh Prajapati, rendered on 9-10-1991 (Per : J.M. PANCHAL, J. speaking for the Bench). There the error was in recording of the memorandum number as also in recording of the date to the effect that the memorandum was dated 21/ 23-2-1981, whereas the certificate of the Director of Central Food Laboratory stated the date 21 -2-1981. It has been submitted that in substance there was no discrepancy with regard to the recording of the date in the two documents. The Division Bench held that it could not be said that the identity of the sample which was sent to the Director, of Central Food Laboratory was established to be beyond reasonable doubt by the prosecution. In that case the circumstance with regard to the error appearing on the face of the report of the Director of Central Food Laboratory was not confronted to the accused in his statement under Section 313 of the Code of Criminal Procedure 1973 (2 of 1974) and under such circumstance it was further held that not putting up of such a circumstance to the accused would result into miscarriage of justice, hence it was held that the prosecution failed to prove the case beyond reasonable doubt. This submission of Mr. Amin holds good in so far as present case is concerned. There is not only the discrepancy appearing on the face of the record as aforesaid, but such an error surfacing on the face of the document noted above has not been confronted to the accused in his statement under Section 313 Cr.P.C. It is apparent on the Judgments of both the Courts below that this vital part of the matter has escaped their attention.
9. In my opinion, by virtue of the decision of the Division Bench in Criminal Appeal No. 907 of 1982 in the case of State of Gujarat v. Rameshkumar Parajapati (supra) the accused would be entitled to benefit of doubt on account of the aforesaid discrepancy and it could hardly be explained away by saying that it was merely a typographical error or mistake in the absence of such circumstance being confronted to the accused for his explanation under Section 313 of the Cr.P.C.
10. Then there is a submission with regard to the violation of Rule 9 (A) of the Rules. It would be appropriate to record the relevant dates for the purpose of appreciating this submission. The date of incident is 26-6-1982. The date of the report of the public analyst is 12-7-1982. On 4-10-1982 the complaint was filed. On 14-10-1982 the accused was required to appear before the Court, but that process was delayed till upto 11-1-1983 when the accused applied for being released on bail on account of bailable warrant having been issued against him. On that day i.e. on 11-1-1983 the copy of the Report of the Public Analyst as required under Rule 9 (A) of the Rules was supplied to the accused. The accused then prayed for one of the sample being sent for examination by the analyst of Central Food Laboratory and the learned Magistrate granted the request of the accused. The Director of Central Food Laboratory received the sample accordingly sent to him on 14-2-1983 and his report is dated 1-3-1983. Thus, there is a passage of about 8 months in between the taking of the sample and the report of the Director of Central Food Laboratory. There is also a passage of more than four months from the date of filing of the complaint till the date on which the copy of the report of the Public Analyst was supplied to the accused. In the background of such facts Rule 9 (A) has been pressed into service. Before the learned Addl. Sessions Judge, reliance was placed on the decision in the case of “Sebastin v. The State, reported in 1982 Criminal Law Journal 1359″. There the word “immediately” occurring in Rule 9 (A) of the Rules was held to mean “forthwith” and to connote “reasonably quick and prompt in time”. There was a delay of 25 days in sending the copy of the report of the analyst in violation of Rule 9 (A) of the Rules. Reference was also made to a decision of the Kerala High Court in the case of K.V. Kunhappa v. The Food Inspector, Kannapuram Panchayat reported in 1982 Criminal Law Journal 778. There the prosecution for /the offence under the Act was instituted on 4-3-1977 and the copy of the report was sent only on 4-9-1977. It was held that such delay on the part of the prosecution would be fatal. The conviction and sentence of the accused there were quashed.
11. The reference was also made to a decision of this Court in the case of Babulal Nanuram Trivedi v. Amthabhai Harjibhai Rsbari and the State of Gujarat in Criminal Misc. Application No. 1976 of 1982 with Criminal Appeal No. 1262 of 1982, rendered by a learned Single Judge of this Court (Coram: S.L. Talati, J. (as he then was) on 28-2-1983. In that case after quoting Rule 9 (A) of the Rules this Court observed as under:
By no stretch of imagination it could be suggested that an intimation given to the accused-person after a period of more than four months could be said to be in compliance of Rule 9A of the Rules and the word “immediately” could not be so construed so as to mean that the period is more than four months. Such a construction can never be put on the Section.”
12. The learned Sessions Judge has tried to explain the requirements of Rule 9 (A) in following terms:
“It is suggested from the record that the public analyst found the sample to be adulterated by his report No. 0-58/82 dt. 12-7-82. Thereafter, the complaint was filed and the accused was required to appear in the Court on 14-10-1982. The Rojkam of 14-10-82 shows that as the accused did not remain’ present bailable warrant was issued against him. The bailable warrant against the accused, was served after 30-12-82 and on which day the surety applied for time and the warrant was reissued. On 11-1-1983 the accused applied for being released on bail. Thus, the accused appeared on 11-1-1983 on which day, the accused has been served with the copy of the report of public analyst. The record and proceedings of the trial Court show that despite the service of the process the accused did not remain present on 4-101983 and that bailable warrant was required to be issued against him and on the very first day, when he appeared before the Court, he was served with the copy of the report of public analyst. I do not find any substance in this contention of the appellant that there was a delay on the part of the prosecution in serving the copy of the report of the public analyst for the reasons that the accused had evaded appearance in the Court and the non service of the report of the public analyst till 11-1-1983 cannot be attributed to the prosecution since till that day, the accused was not available.”
13. Now Rule: 9(A) of the Rules reads as under:
“9.A. Local (Health) Authority to send report to person concerned The Local (Health) Authority shall (within a period of ten days) after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under Sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Section 14-A of the Act.”
The aforesaid bracketed portion containing the words “within a period of 10 days” replaced the word “immediately” which was appearing prior to its amendment by Notification No. GSR 500(E), dated 9-7-1984 (w.e.f. 9-7-1984). It is this word “immediately” which would be required to be .taken into consideration in so far as this matter is concerned. However, the reasoning given by the learned Addl. Sessions Judge is contrary to the provision quoted above which speaks of supplying of the copy either by registered Post or by hand as may be appropriate to the person from whom the sample of the article was taken by the Food Inspector. It is thus clear that the non-appearance by the accused on the returnable date in the Criminal case filed against him would be of no consequence in so far as the duty of the Local Health Authority under Rule 9(A) of the Rules is concerned.
14. The question whether Rule 9( A) of the Rules is directory or mandatory in nature has now been settled by the apex Court. Reference in this connection may be made to a decision in the case of “Tulsiram v. State of Madhya Pradesh” , which in turn refers to the earlier decision in the case of Dalchand v. Municipal Corporation, Bhopal, . However, although the rule is directory in nature if prejudice is shown flowing from the non-complience of the Rule: 9(A) of the Rules the prosecution cannot succeed. Besides, it has been held that the expression “immediately” in Rule: 9(A) is intended to convey the, sense of continuity rather than urgency. What is required to be done is to forward the report at the earliest opportunity so as to facilitate the exercise of the statutory right under Section 13(2) of the Act in good and sufficient time before the prosecution commences leading evidence. In the present case number of technical discrepancies which have been pointed out on behalf of the defence at the earlier stage as also convassed before this Court clearly indicate the inadvertance on the part of the Investigating Agency at various stages while considering the delay aspect in the context of Rule : 9(A) of the Rules the facts and circumstances attending such items on the part of the prosecution would assume importance. It is in this connection that the decision contained in the case of “Ahmad Dadabhai Advani v. State of Maharashtra” reported in 1991(1) Prevention of Food Adulteration Cases 222, cited by Mr. D. F. Amin, Ld. Advocate might be usefully referred to. Referring to Rule : 9(A) of the Rule the Supreme Court held that the expression “immediately” appearing in Rule: 9(A) of the Rules has to be appreciated in the context and in the facts and circumstances of each case bearing in mind the purpose for furnishing the report. In that case the report was dated 1-9-1978. The filing of the complaint was delayed upto 6-4-1979. The copy of the report there, was despatched on 11-7-1979. It was held that, keeping in view the objective of the requirement to furnish a copy of the report to the accused, having regard to the delay which had already taken place, it was incumbent on the part of the Local Health Authority to have promptly sent the copy which it failed to do. In the present case also particularly bearing in mind the aforesaid aspect of the case the delay which has been caused in supplying the copy of the relevant report to the accused is on the face of it not only in breach of continuity aspect spoken to in Tulsiram’s case (Supra) and therefore the statutory requirement under Rule 9(A) of the Rules, but also prejudicial to the defence.
15. In view of what is stated above it would not be necessary to deal with the last submission of Mr. Amin, learned Advocate, which flows from noncompliance of Rule 16(c) of the Rules, but then whatever little flaw which has been noticed by both the Courts below in respect of non-compliance of Rule 16(c) of the Rules would have obviously an effect on the question of delay under Rule 9(A) of the Rules as noted hereinabove.
16. In view of what is stated above the Judgments of both the Courts below recording conviction and sentence of the accused herein shall have to be quashed and set aside. Accused is acquitted of the offences charged against him. Order accordingly. Fine, if paid, be refunded to the accused. Bail Bond furnished by the accused shall stand cancelled., Rule made absolute.