N. Ibotombi Singh, J.
1. This Re vision is directed against the order of conviction and sentence dated 7-8-74. passed by the learned Sessions Judge. Nowgong. in Criminal Appeal No. 24 (M-2) of 1974. confirming the conviction and sentence of the accused-petitioner under Section 16(1) read with Section 7 of the Prevention of Food Adulteration Act, 1954. (hereinafter called 'the Act') passed by the learned Chief Judicial Magistrate. Nowgong. on 23-5-74. in. C. R. Case No. 4216 of 1971. The accused-petitioner was sentenced to suffer rigor-ous imprisonment for 6 months and fine of Rs. 1,000 and in default of paymert of fine, to undergo rigorous imprisonment for the period of 3 months more.
2. The petitioner was the owner of a grocery shop at Keyanpatty, Nowgong,Assam. On 10-1-71, the District Food Inspector of Nowgong visited his shop and took a sample of mustard oil from a sealed tin after conforming to the for-malities enjoined by the Act and the Rules framed there under. The Food Inspector divided the sample into three parts. retained two parts with him and delivered the other part to the peti tioner. The Food Inspector sent one part for analysis by the Public Analyst. Ext 4 is the report of the Analyst. The report revealed that the mustard oil was adulterated with linseed oil. After obtaining the requisite sanction from the authority, a complaint was filed in the court for prosecution of the accusedpetitioner on 13-12-71. The copy of the report, Ext. 4. was furnished to the accused-petitioner on 28-4-72 i.e. about 4 months 25 days after the complaint was filed. The accused. however, never applied to the court under Section 13(2) of the Act for sending the part of the sample mentioned in Sub-clause (i) or Sub-clause (in) of Clause (c) of Sub-section (i) of Section 11 to the Director of the Central Food Laboratory for analysis and certi ficate.
3. The learned Chief Judicial Magis' trate found the accused guilty of the offence and convicted and sentenced him as aforesaid. The appeal to the learned Sessions Judge was also without success Hence the revision.
4. The case was originally placed before the learned single Judge, B. N Sarma J. The main point urged on behalf of the petitioner before the learned single Judge was that Rule 9 (i). as inserted by Government Notification No GSR 1533 dt. 8-7-68. is mandatory. non-observance of which rendered the proceeding under the Act void, relying on the decision of the Single Bench of this Court (Lahiri J.) rendered on 14-12-77 in Criminal Revision No. 34 of 1976 (Agartala Bench). Sukhan Bhowmik v State. The learned single Judge. B. N Sarma J. by an order passed on 29-3-79. referred the case to a larger Bench for re-consideration of the decision of the learned single Judge. Lahiri J., as the Advocate General. Assam, seriously contended that that decision required reconsideration. The case was referred to a Division Bench, and this is how the case came up before us.
5. The sole question on which the learned Counsel of both the parties addressed the court, is whether Rule 9 (i). a? it stood at the relevant time, is mandatory or directory? There is cleavage of opinions among different High Courts on this question. Some of the High Courts took the view that it was mandatory, while some others took the contrary view. Both the learned Counsel cited a number of decisions of the different High Courts, and the arguments of both the Parties took a number of days.
6. The question is no longer res Integra, in view of the decision of the Supreme Court, in Dalchand v. Municinal Corporation, Bhopal (1982) 2 FAC 29 : 1983 Cri LJ 448. In that case the Supreme Court was concerned with the interpretation of Rule 9 (i). as amended by Notification No. GSR 205. dt. 13-2-74. which came into force with effect from 13-5-74. substituting the earlier provision of Rule 9 (i). which is a subject matter of controversy in this revision.
7. Though the Act came into force on June 1. 1955, no Rule was framed under it which required the Food Inspector to supply a copy of the report of the Public Analyst to the accused. It was for the first time on July 8. 1968. that Rule 9 (i). was inserted. It is in the following terms:
It shall be the duty of the Food Inspector
9(j) to send by hand or registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken in case it is found to be not conforming to the Act or Rules made thereunder as soon as the case is filed in the Court.
After the amendment on 13-2-74. Sub-clause (i) is as follows:
To send by registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was sent within 10 days of the receipt of the said report. However, in case the sample conforms to the provisions of the Act or Rules made there under; then the persons may be informed of the same and the report need not be sent.
8. We may, however. state that Rule 9 (i) has been altogether deleted and replaced by Rule 9-A with effect from 1-4-77. It lays down that the Local (Health) Authority shall immediately after the institution of the prosecution forward a copy of the report of the result of analysis in Form III to the accused. In the case before us. interpretation of old Rule 9 (1), as it stood prior to the amendment with effect from 13-2-74. is in issue.
9. In our opinion, in view of the decision of the Supreme Court in Dal-chand 983 Cri LJ 448 (supra), we do not consider it necessary at all to discuss the cases of different High Courts cited at the Bar. This decision of the Supreme Court was, however. not brought to our notice at the time of the argument. In the case before the Supreme Court, one of the Questions raised was whether the failure to supply a copy of the report of the Public Analyst within the period of 10 days stipulated by Rule 9 (i) of the said Rules, as it was in force at the relevant time, was fatal to a prosecution under the Act. In other words, whether Rule 9 (i) is mandatory or directory. The Supreme Court held the Rule to be directory and not mandatory. O. Chinnappa Reddy J. speaking for the Court observed at page 30:
There are no ready tests or invariable formula to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and more often, than not. determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of Public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom, public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period. Rule 9 (j) of the Prevention of Food Adulteration Rules, as it then stood, merely instructed the Food Inspector to send by Registered Post copy of the Public Analyst's Report to the person from whom the sample was taken within 10 days of the receipt of the report. Quite obyiously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that Rule 9(i) of the Prevention of Food Adulteration Rules was directory and not mandatory.
10. No doubt, in the case before us. we are concerned with Rule 9 (i). which provides that a copy of the report of the Public Analyst was to be supplied to the accused either by hand or registered post, as soon as the case is filed in court, while Rule 9 (i). as it. stood after the amendment on 13-2-74, which was subject matter of consideration before the Supreme Court, provides that, such a report was to be sent to the accused by registered post within 10 days of the receipt of the report, in case the sample does not conform to the provisions of the Act or the Rules made there under. But the principle laid down by the Supreme Court will govern the interpretation of Rule 9 (i). with which we are concerned. Even in the case where the Rule prescribing a period within which a copy of the report of the Public Analyst is to be given to the accused, was held to be directory and not mandatory, there can be no plausible reason as to why Rule 9 (i). with which we are concemed, should not be held as directory and not mandatory. Following the reasoning of the Supreme Court in the case of Dalchand (supra), we hold that Rule 9 (j), with which we are concerned. is directory and not mandatory.
11. The Supreme Court pointed out the difference between the expression 'forthwith' in Section 3(3) and the expression 'as soon as may be' in Section 7 of the Preventive Detention Act, 1950 in two cases, vide Keshav Nilkanth Joglekar v. Commissioner of Police, Greater Bombay : 1957CriLJ10 and Abdul Jabar Butt v. State of J. & K. : 1957CriLJ404 The expression 'as soon as may be' means 'within the time which was reasonably convenient, or requisite'. It was further pointed out in these cases that the expression must by its very nature be indefinite depending on the facts and circumstances of the case and that whenever the question of reasonableness arises in computing the period of time, the court has perforce to have regard to the particular circumstances of the case in which the question arises for decision. It may not be possible in many cases to affirmatively say or to precisely quantify the period of time by referring to hours, days or months: nevertheless it is possible having regard to the circumstances of the case to say whether the thing was done or was not done as soon as may be i.e. within the time reasonably convenient or requisite.' It was further pointed out that an act which is to be done 'forthwith', it must be held to have been so done when it is done with all reasonable despatch and without avoidable delay and that the expresson 'forthwith' is more peremptory than the expression 'as soon as may be'. It is also a settled principle of law that a mandatory enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled substantially.
12. Section 13(2) of the Act has been the subject matter of discussion of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram. : 1967CriLJ939 Babulal Hargovinddas v. State of Gujarat : 1971CriLJ1075 and Ajit Prasad Kishan Singh v. State of Maharashtra, : 1972CriLJ1026 . In Ghisa Ram (supra) the Supreme Court on the facts found that in a case where there is denial of right under Section 13(2) on account of the deliberate conduct of the prosecution, the vendor was so seriously prejudiced that it would not be proper to upheld the conviction on the basis of the report of the Public Analyst, even though the report continued to be evidence in the case, Section 13(2) was again considered in Babulal (supra). That was a case of a sample of cow's milk which was found to be adulterated. The sample was taken on Dec. 2, 1965, and the complaint was filed in April, 1966. It was contended before the Supreme Court that over 4 months had elapsed from the time the samples were taken to the time the complaint was filed and consequently the sample had deteriorated and could not be analysed. The contention was repelled by the Supreme Court. The court, while distinguishing the facts of the case in Ghisa Ram from those in the case before it, observed at pace 770 of 1971-1 SCC : at p. 1078 of Cri LJ:
There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director. Central Food Laboratory under Section 13(2) because he made no application to the court for sending it. It does not avail him at this stage to say that over 4 months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed.
13. In our view, the ratio in this case is that, unless an application under Section 13(2) of the Act is made, it is not open to the accused to challenge the conviction on the ground that he has been deprived of the opportunity under Section 13(2), The same view was reiterated by the Supreme Court in Ajit Prasad 1972 Cri LJ 1026 (supra).
14. As observed by the Supreme Court in Dalchand 1983 Cri LJ 448 (supra), where the effect of non-compliance of the Rule was such as to wholly deprive the right of the person to challenge the Public Analyst's report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ laree: but where no prejudice was caused, there could be no cause for complaint. In the case before us, the accused-petitioner had not made an application to the court under Section 13(2) of the Act to get the sample analyzed by the Director of Central Food Laboratory for a certificate. In the absence of an action on the cart of the accused, mere delay of some months to supdIy a copy of the report of the Public Analyst to the accused on the facts and circumstances of the case, does not per se cause prejudice to th.3 petitioner, and more particularly when, the accused-petitioner has not shown any material to show that in fact he has been prejudiced.
15. In view of the principle laid down by the Supreme Court in Dalchand 1983 Cri LJ 448 (supra), the decision of the learned single Judge. Lahiri J. in Sukhan Bhowmik (supra) is no longer a good law. The conviction of the petitioner is, therefore, upheld.
16. Turning to sentence, it may be noticed that the accused-petitioner was convicted and sentenced for having violated Section 2(b) (I) read with Rule 44(c) of the Rules. The occurrence took place in 1971, and a great hardship would be caused 1o the accused-petitioner in case he is sent to jail, at this stifle. after about nearly 11 years. Considering the facts and circumstances of the case, we are inclined to reduce the sentence to the period of imprisonment already undergone, if any. and to fine of Rupees 1,000 only. We accordingly reduce the sentence to fine of Rs. 1.000 and. in default, to undergo further rigorous imprisonment of 3 months.
17. In the result, the revision application is rejected with the modification of the sentence as indicated above. The Rule is discharged.
K.N. Saikia, J.
18. I agree.