D.G. Gatne, J.
1. The question referred to this Division Bench in these three appeals is:
Whether the provisions of rule 20 of the Prevention of Food Adulteration Rules, 1955. are mandatory in character and whether even where less formalin has been added and the samples have been found to be fit for analysis the report of the Public Analyst could be ignored merely on the ground that there is no strict compliance with the requirement of rule 20 of the Rules?
2. Before we proceed to answer this question it is necessary to mention a few facts. The accused in these three cases were all prosecuted for an offence punishable under Section 7 (i) read with, Section 16 (1) (a) of the Prevention of Food Adulteration Act. 1954. So far as the accused in the first case is concerned cow's milk was purchased from him for analysis on 20-3-1968 on payment of the necessary price by the Food Inspector of the Municipal Corporation of Nagpur. As soon as the milk was purchased, it was divided into three portions and each portion was poured in a bottle and the bottles were sealed on the same day. One of the bottles was given to the accused, the other was retained by the Food Inspector for being produced in Court, and the third was sent for analysis on that very day. The analysis was made by the Public Analyst on the same day. So far as the accused in the second case is concerned, the Food Inspector purchased cow's milk from him on 24-2-1968 and the same procedure was followed in respect of this milk also. One of the samples was sent for analysis on that very day, and the analysis was made by the Public Analyst on the same day. So far as the accused in the third case is concerned, cow's milk was purchased from him on 15-5-1968, and after following the same procedure one of the three samples was sent for analysis on the same day and the same was analysed on that very day. In each case the sample analysed consisted of 220 ml of cow's milk. In the first case, the Public Analyst found that the sample contained 57 % of extraneously added water. The finding in the second case was that the sample in that case contained 42.1% of extraneously added water. In the third case, it was found that the sample contained 7.7% of extraneously added water. All the three accused were accordingly prosecuted for an offence punishable under Section 7 (i) read with section 16 (1) (a) of the Prevention of Food Adulteration Act, 1954. All the three accused were acquitted by tile learned Magistrate and the order of acquittal in each case was challenged by the Municipal Corporation of Nagpur in these three appeals.
3. One of the points urged in this Court was that the provisions of rule 20 of the Prevention of Food Adulteration Rules, 1955, were mandatory, and since there was no strict compliance with those provisions in these three cases, the accused were entitled to an acquittal. These three appeals were heard by my. learned Brother, and he felt that in view of the conflicting decisions on this point, it was necessary that a Division Bench of this Court should decide whether the provisions of rule 20 are mandatory and whether the accused were entitled to an acquittal merely for non-compliance with the provisions of this rule even when the reports of the Public Analyst show that the sample in each case was adulterated. That is why a reference has been made to this Bench.
4. We have heard Mr, Dharmadhikari on behalf of the Municipal Corporation and Messrs. Dhabe and Jaiswal on behalf of the accused. The submission of Mr. Dharmadhikari was that the provisions of rule 20 were directory and not mandatory, and since they were directory in character, strict compliance with these provisions was not necessary if, as a matter of fact, the reports of the Public Analyst showed that the sample sent for analysis had not been adversely affected on account of failure to strictly comply with these provisions. In the first place he emphasised the provisions of rule 19, and the word 'may' used in that rule. He further emphasised that there was no provision in the Prevention of Food Adulteration Act to indicate that the consequence of non-compliance with the provisions of rule 20 would by itself affect the validity of the report of the Public Analyst. Finally, he emphasised the provisions of section 13 in general and the provisions of Sub-sections (2), (3) and C51 in particular. He also relied upon two decisions of the Gujarat High Court in Manka Hari v. State : AIR1968Guj88 ; and G. H. Rabari v. S. V. Pandya : AIR1970Guj235 two decisions of the Andhra Pradesh High Court in Public Prosecutor v. Pasala Rama Rao : AIR1967AP49 and Public Prosecutor v. Venkata Swami : AIR1967AP131 ; the decision of the Patna High Court in Jugsalai Municipality v. Mukram : AIR1969Pat155 ; and the decision of Deshmukh J. in Criminal Revn. Appln. No. 126 of 1960 decided on 1-10-1969. Mr. Dhabe appearing on behalf of the accused, on the other hand, contended that having regard to the scheme of the Act and sections 11, 13 and 23 in particular and the provisions of rules 14 to 22, it was clear that the rule in question was intended to be mandatory and not directory and non-compliance with a mandatory rule of this kind was bound to be fatal to the prosecution. In support of his submission, he placed reliance on the decision of the Mysore High Court in Mary Lazrado v. The State AIR 1966 Mys 244; two decisions of the Madhya Pradesh High Court in Gwalior Municipality v. Kishan Swaroop : AIR1965MP180 and State v. Tulsiram : AIR1970MP123 ; one decision of the Allahabad High Court in Babboo v. State : AIR1970All122 ; and the decision in Criminal Appeal No. 792 of 1969 decided on 19-12-1970.
5. Now, if we turn to Section 11 of the Prevention of Food Adulteration Act, it prescribes the procedure to be followed by the Food Inspector while collecting the samples. Among other things, as soon as milk is purchased for analysis, it has to be divided into three parts and each part is to be bottled and sealed properly. One of the parts has to be given to the person from whom the sample has been taken : the other part has to be sent for analysis to the Public Analyst; and the third part has to be retained for production in Court in case any legal proceedings are instituted. Under Sub-section (1) of section 13, the Public Analyst is supposed to submit his report in the prescribed form, and Sub-section (5) of section 13 provides that any document purporting to be a report signed by the Public Analyst may be used* as evidence of the facts stated therein in any proceeding under this Act. So far as the person from whom the sample is collected is concerned, he has also got some rights under Sub-section (2) of section 13. Sub-section (2) lays down that after the institution of a prosecution under this Act, the accused vendor may on payment of the prescribed fee make an application to the Court for sending the part of the sample mentioned in Sub-clause (i) or Sub-clause (ii) of Clause (c) of Sub-section (1) of section 11 to the Director of the Central Food Laboratory for a certificate, and on receipt of the application, the Court shall first ascertain that the mark and seal or fastening as provided in Clause (b) of Sub-section (1) of section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of the receipt of the sample. Sub-section (3) lays down that the certificate issued by the Director of the Central Food Laboratory under Sub-section (2) shall supersede the report given by the Public Analyst under Sub-section (1). Under the proviso to, Sub-section (5). any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. Section 20 lays down that no prosecution for an offence under this Act shall be instituted except by, or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf by general or special order, by the Central Government or the State Government or a local authority.
6. Section 23 empowers the Central Government to make rules after consultation with the Committee and subject to the condition of previous publication. Under Clause (h) of Sub-section (1) of that section, the Central Government is empowered to make rules specifying the manner in which containers for samples of food purchased for analysis shall be sealed up or fastened up. and under Clause (i) rules can be framed specifying a list of permissible preservatives, other than common salt and sugar, which alone shall be used in preserved fruits vegetables or their products or any other article of food as well as the maximum amounts of each preservative.
7. The rules thus framed are known as Prevention of Food Adulteration Rules, 1955. and the rules in Part V deal with sealing, fastening and despatch of samples. Rule 14 prescribes the manner of sending samples for analysis. It prescribes that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance entrance of moisture, and shall be carefully sealed. Rule 15 prescribes the procedure for labelling and addressing the bottles and containers. Rule 16 relates to the manner of packing and sealing the samples. Rule 17 lays down how the samples shall be sent to the Public Analyst. Rule 18 lays down that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him. Then follow rules 19 and 20 with which we are particularly concerned in these appeals. Rule 19 provides that any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis. Rule 20 says:
The preservative used in the case of samples of any milk (including toned separated and skimmed milk)... shall be the liquid commonly known as formalin, that is to say, a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of O. 1. ml (two drops) for 25 ml...
Rule 21 provides that whenever any preservative is added to a sample the nature and quantity of the preservative added shall be clearly noted on the label to be affixed to the container. Rule 22 prescribes the quantity of sample of food to-be sent to the Public Analyst, the quantity prescribed in the case of milk being 220 ml.
8. It is not in dispute that in each of the three cases, the Food Inspector collected the sample of milk in accordance with the provisions of section lilt is also not in dispute that one of the samples in each case was immediately sent to the Public Analyst. Another undisputed fact is that the Public Analyst on his part carried out his analysis in each case on the same day and the certificates were issued in due course, and the finding in each case was that the sample was adulterated. Yet another undisputed fact is that each sample was found to be in a fit condition for carrying out the necessary analysis. Even so, the contention urged on the side of the accused is that the accused were entitled to an acquittal because it is an admitted position that the provisions of rule 20 were not strictly complied with. Non-compliance with the provisions of rule 20 arose because according to the provisions of rule 20, what was required to be added to each sample was a little more than 17 drops of formalin but what the Food Inspector actually added was only 16 drops. The point is whether this type of non-compliance must be deemed to be fatal to the prosecution even though the finding of the Public Analyst in each case is that the sample was adulterated. The accused would undoubtedly be entitled to succeed if the provisions of rule 20 are held mandatory. As pointed out by a Division Bench of this Court in Narayan Krishanji v. State 65 Bom LR 473 : 1963 Mah. LJ 660. the distinction between a mandatory and a directory enactment is that a mandatory enactment must be obeyed on fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.
9. In so far as the preservative prescribed under rule 20 is concerned, the object of adding that preservative is laid down in rule 19 and that object is to maintain the sample in a condition suitable for analysis. It is with reference to that object that the adequacy of the preservative has to be considered. Since rule 20 speaks of formalin as a liquid containing about 40 per cent, of formaldehyde in aqueous solution, it indicates that the percentage of formaldehyde is not required to be precisely 40 per cent, but may be nearabout it and the preservative would nevertheless under the rule be a good preservative. It is, therefore, reasonable to infer that what was expected was substantial compliance with rules and not rigid compliance. If the sole object of adding formalin to the sample of milk was to maintain it in a condition suitable for analysis, what is of more importance is to find out whether that object has or has not been achieved in each case. In the present case as we have already pointed out although what was required to be added was about 17 drops or a little more, what was actually added was 16 drops, and the addition of these 16 drops has achieved the object as is clear from the report in each case that the sample was found fit for analysis and the Public Analyst was in fact in a position to certify that the same was adulterated. Having regard to the scheme of the Act, there is, in our view, reason for saying that a sufficiently high proportion of formalin must have been prescribed so as to en-sure as long immunity from deterioration as possible. No period is prescribed under the Act or the Rules for the Public Analyst to examine the sample sent to him for analysis. After the Public Analyst 'has examined the sample which it may be assumed he will do as early as practicable, formalities relating to the obtaining of the sanction of the competent authority for the prosecution have to be gone through. After the prosecution is instituted, both the milk vendor and the complainant have a right under section 13 (2l to have the report of the Director of the Central Food Laboratory on any of the other two samples and the Director is given a period of one month from the date of the receipt of the sample by him to submit his report. Therefore when the rules, which under section 23 are required to be framed, in consultation with the Expert Committee constituted under section 3, provide for addition of 2 drops for 25 ml. of milk it is legitimate to assume that the rule-making authority was aware of the time that is likely to be taken before the report of the Director which is made under the Act final and conclusive is available and during that period the sample must be maintained in a condition suitable for analysis as contemplated by rule 19 The scheme of the Act therefore, indicates that the two drops of formalin for 25 ml. of milk would not be the minimum but must be much higher than the minimum. It is under the circumstances reasonable to conclude that when Rule 20 prescribes two drops (now 0.1 ml.) for 25 ml. it provides for a fairly high degree of immunity, and what is expected is that the rule be substantially complied with.
10. Mr. Dhabe appearing on behalf of the accused emphasised that under the provisions of Sub-section (5) of Section 13 a document purporting to be a report signed by the Public Analyst may be used as evidence of the facts stated therein. His argument, therefore, was that since so much sanctity was to be attached to the report of the Public Analyst the intention of the Legislature must have been that the provisions of rule 20 should be mandatory in character, and hence the word 'may' appearing in rule 19 should be construed as meaning 'shall'. The answer to this argument is that although the report of the Public Analyst is entitled to evidentiary value under Sub-section (5) of section 13, a right is also available to the accused to test the correctness of that report by applying to the Court to send his own sample to the Director of the Central Food Laboratory for a certificate, and from the provisions of Sub-section (3) and the proviso to sub-sec-(5). it is clear that the certificate issued by the Director of the Central Food laboratory under Sub-section (2) shall supersede the report given by the Public Analyst under Sub-section (1) and the document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the fact stated therein. There is nothing in section 13 or any other section of the Act to indicate that the consequence of non-compliance with the provisions of rule 20 would render either the report of the Public Analyst or the certificate of the Director of the Central Food Laboratory nugatory.
11. In AIR 1968 Guj 88 the facts were that 700 ml. of milk was purchased and divided into three portions and the preservative added to each portion consisted, of 16 drops of formalin, and on these facts it was held that in so far as the preservative prescribed under rule 20 is concerned, the object of adding that preservative is laid down in rule 19 and that object is to maintain the sample in a condition suitable for analysis. It is with reference to that object that the adequacy of the preservative has to be considered. When the rule speaks of formalin as a liquid containing about 40 per cent. Formaldehyde in aqueous solution, it indicates that the percentage of formaldehyde is not required to be precisely 40 per cent, but may be nearabout it and the preservative would nevertheless be under the rule a good preservative and the scheme of the Act indicates that a sufficiently high proportion must have been prescribed so as to ensure as long as immunity from deterioration as possible.
12. The same view has been taken in AIR 1970 Gui 235. There also the milk purchased by the Food Inspector consisted of 700 ml. It was divided into three samples. In that case also want of strict compliance with the provisions of rule 20 was pleaded as a ground against the prosecution, but the contention was repelled and it was held that having regard to the nature and design of the Act and the Rules, the nature of the rule and its relation to the general object to be secured by the Act. the consequences which would follow from construing it one way or the other, the impact of the other provisions of the Act whereby the necessity of complying with the provisions of the Act to the very letter is avoided and the object the legislation wants to be furthered, rule 20 is in its nature directory and not mandatory. The true intention of the Legislature which ultimately depends upon the context leads to this conclusion irrespective of the use of the word 'shall' in the rule. The learned Judge has further observed that to take a different view of the matter namely, that the rule is mandatory would amount to giving undue advantage to those guilty without promoting the real aim and object of the enactment. It would defeat the very object of the enactment. Such an intention cannot be attributed to the Legislature.
13. In : AIR1967AP49 also 16 drops of formalin were added to a sample of milk consisting of 220 ml. and the argument that this was no compliance with the provisions of rule 20 was repelled by the Court. It was pointed out that formalin has to be added to preserve the original condition of the sample taken and there was no complaint from the Public Analyst that there was any deterioration in the quality of the sample.
14. The same view has been taken in : AIR1967AP131 . In paragraphs 9 and 10 of the judgment it has been observed:
9. The question is that if only four drops of preservatives were added to the sample as against the direction of putting one drop for each ounce (subsequently amended to two drops) it had adversely affected the opinion of the Public Analyst. The fact of adding in sufficient quantity of preservative has not been considered in the case cited above nor there is any data on record to hold that merely because an insufficient quantity of preservative was added, the opinion of the Public Analyst on that account was liable to be ignored. Here again, I am inclined to hold that the complaint should have emanated from the Public Analyst viz.. that as insufficient quantity of the preservative had been added the sample had deteriorated or that decomposition had set in with the result that the analysis could not proceed on a safe footing. There is no such complaint by the Public Analyst nor the respondent has chosen to examine the Public Analyst from this point of view, I, therefore, think that even conceding that smaller quantity of preservative was added to the sample sent it could not be concluded that the opinion of the Public Analyst could be discarded on that account.
10. It is on record and not controverted that the sample of the milk taken from the respondent was supplied to him. If it was his case that on account of insufficiency of preservative the sample had deteriorated he could have availed of the provisions under Section 13 of the Act and sent the sample to the Central Food Laboratory for an opinion. Admittedly he has not followed this course. In the absence of it, there is no justifiable reason to arrive at the finding that merely because of the insufficiency of the preservative the sample had undergone a further decomposition. The learned Magistrate, therefore, in my opinion was not justified in acquitting the accused on this technical ground.
14-A. These decisions of the Andhra Pradesh High Court have been quoted with approval in : AIR1969Pat155 . The facts of that case were that the Food Inspector had added 8 drops of formalin to. each bottle which contained 8 oz. of milk, while, according to rule 20 of the Prevention of Food Adulteration Rules. 1955 as it stood after the amendment on the date of the taking of the samples, 2 drops of formalin were required to be mixed with 25 grams of milk. Therefore about 16 drops of formalin should have been added by the Food Inspector to the 8 oz. of milk instead of only 8 drops and on these facts it was held that even if the quantity of preservative mixed in the sample of milk was less than the quantity as required by rule 20, it cannot be laid down as a general rule that in all such cases the report of the Public Analyst was not to be relied upon.
15. This very question was considered by Deshmukh J. in Criminal Revision Application No. 126 of 1969 decided on 1-10-1969. In that case, instead of adding 17 to 18 drops to a sample of milk containing 220 ml. what was added was only 6 drops. But the evidence showed that the sample was taken on 13-4-1967 and the same was analysed by the Public Analyst on 15-4-1967. With reference to these facts he pointed out that the purpose of adding formalin is to preserve the sample in a fit condition for analysis, and having regard to the function of the preservative and the fact that the sample taken on 13-4-1967 was analysed on 15-4-1967. he was satisfied that the prosecution had sufficiently complied with the provisions of rule 20 of the Prevention of Food Adulteration Rules and the result of analysis was a valid piece of evidence under Section 13.
16. The decision of the Mysore High Court in AIR 1966 Mys 244 cannot possibly be of any assistance in this case because the rules considered in that case were rules 7 and 18 and not rules 19 and 20 which fall to be considered in these appeals, Merely because rules 7 and 18 are held to be mandatory, it does not by any means follow that rules 19 and 20 also stand on the same level.
17. In : AIR1965MP180 the position was that the quantity of formalin added to the sample of milk was only half of the strength prescribed by Rule 20. and hence it was held that there was no basis to hold that the preservative added was adequate to prevent disintegration or damage in composition of the milk, and the report of the Public Analyst under Section 13 (1) of the Act was not, therefore, entitled to any weight. The point has not been discussed in detail and the view taken in the case seems to rest on the sole fact that the formalin actually added was only half of what was required by Rule 20. Not much assistance can consequently be derived from the decision in this case.
18. In : AIR1970MP123 the question whether the provisions of Rule 20 are mandatory or directory has not been considered separately. What has been held in that case is that where there is long delay in launching the prosecution, there is denial of the valuable right given under Section 13 (2) to the vendor to have the sample given to him analysed by the Director of Central Food Laboratory. The vendor in his trial is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein. While dealing with the facts of the case, the learned Judge seems to have envisaged three kinds of cases in order to ascertain whether the delay in launching of the prosecution would prejudice the accused in his trial and the third of such cases, according to the learned judge is a case where the samples were examined by the Public Analyst without undue delay but there was undue delay in launching of the prosecution, coupled with the fact that the preservative was not added by the Food Inspector according to the quantity prescribed by Rule 20. In the case before him, the Food Inspector had put one drop of formalin per ounce instead of the prescribed quantity of two drops for an ounce. The decision in this case cannot, therefore, be of much assistance while deciding the question with which we are concerned in these appeals.
19. In : AIR1970All122 it has no doubt been observed that the provisions contained in Rule 20 are mandatory, but no reasons in support of this view have been given, and the conclusion reached simply is that where the prosecution failed to establish that the necessary preservative was added to the sample, it could not be said as to what may have happened to the sample by the time it was examined by the Public Analyst and no reliance on the result of the analysis by the Public Analyst can be placed for sustaining the conviction.
20. This leaves the decision in Criminal Appeal No. 792 of 1969 decided on 9-12-1970. From the judgment in that case it does not appear that any arguments were pointedly advanced in regard to the nature of the provisions contained in Rule 20. But the facts in that case were that the sample of milk consisted of 700 ml. and the total quantity of the preservative which should have been added was found to be 56 drops but the Food Inspector was found to have added only 16 drops to each bottle containing three different parts of the sample, the total amount of formalin thus added being only 48 drops. On these facts, it was concluded that if less formalin has been added it cannot be said that the sample had been properly preserved and it was not, therefore, possible to record a conviction on the basis of the analysis of the sample in question.
21. Having regard to the relevant provisions of sections 11 and 13 of the Act and the rules contained in Part V of the Prevention of Food Adulteration Rules in general and Rules 19 and 20 in particular, it seems to us that the provision for adding a preservative to a sample of milk was made in Rules 19 and 20 with the object of maintaining the sample in a condition suitable for analysis, and so long as this object is shown to have been achieved, the fact that there is no strict compliance with the provisions of Rule 20 cannot possibly affect the validity of the report of the Public analyst. The provisions of Rule 20 must in our view, be regarded as directory and not mandatory in character; and once this is done, what is required is substantial and not strict compliance with the provisions of this rule. In this connection, we would like to make a reference to the Division Bench decision of this Court in 65 Bom LR 473. The Division Bench in that case had an occasion to examine the provisions of Rule 4 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, and the question was whether those provisions were directory or mandatory, and the view taken by the Division Bench was that they were directory. In the course of that judgment, it has been pointed out that where the breach of the rule is such that it is not likely to affect the result of the test or the result of the analysis, it may be disregarded. On the other hand, if the provision of the rule, which is not complied with, is one which may affect the result of the test or which makes it doubtful whether the certificate shows correctly the percentage of alcohol in the blood of the accused person at the time when it was collected, the certificate must be rejected and should not be used as evidence of the facts stated therein. This very approach must, we think, be adopted in the present case also. In this view of the matter, it follows that when in a given case the sample is found fit for analysis, the same cannot possibly be ignored merely by pointing out that there is no strict compliance with the requirements of Rule 20. Therefore, with, respect, we agree with the view taken by the High Courts of Gujarat, Andhra Pradesh and Patna in the cases cited above. We accordingly hold that the provisions of Rule 20 of the Prevention of Food Adulteration Rules, 1955, are directory in nature, and where the sample has been found fit for analysis, the report of the Public Analyst cannot be disregarded though there is no strict compliance with the requirements of Rule 20. The reference is answered accordingly.
22. The appeals may now be placed before the appropriate Bench for further hearing.