1. The trial Court found the respondent to have committed an offence punishable under Section 16(1)(a)(i) and Section 7(1) read with Section 2(i) (a) and (m) of the Prevention of Food Adulteration Act and convicted and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rupees one thousand and in default, to undergo simple imprisonment for a farther period of two months. On appeal, he was acquitted on the sole ground that the mandatory requirement of R. 18 of the Prevention of Food Adulteration Rules has not been complied. Thus, the above appeal came to be filed.
2. P.W. 1, the Food Inspector of Gram Panchayat Giddalur, inspected the shop of the respondent at 4 p.m. on September 29, 1977 along with P.W. 3. He found the accused transacting the sale of articles of food. He also found a tin containing 5 K.Gs. of groundnut oil to be for sale. On inspection he suspected the ground nut oil to be adulterated. He purchased 375 grams of groundnut oil from the accused in the presence of P.Ws. 2 and 3 and complied with all the essential steps required under Section 11 of the Act and the Rules. It is also not disputed by the defence. He sent one bottle for analysis and also sent separate From VII (Ex. P-4) to the Government Analyst with a specimen seal affixed on that form. The oil contained free fatty acid and 3.42% caster oil. It is thus adulterated. On receipt of the report from the Analyst Ex. P-5. P.W. 1 served a copy of it on the accused and laid the complaint before the Court. The Food Inspector, appeal form examining himself as P.W. 1 he also examined P.Ws. 2 and 3, the panch witnesses and marked the documents Exs. P-5 to P-6. The respondent-accused also examined D.Ws. 1 and 2 to substantiate his plea that P.Ws. 1 and 2 never visited his shop or took any sample from his shop. As stated earlier, the Magistrate believed the prosecution case and convicted and sentenced the accused as stated above. But the lower appellate Court acquitted the accused holding that compliance of R. 18 is mandatory and P.W. 1 did not comply with the requirement and therefore the prosecution is vitiated. I have gone through the evidence of P.Ws. 1 to 3. It consistent and trustworthy. The controversy centres round the compliance of the requirements envisaged under R. 18.
3. The learned Public Prosecutor contended that the evidence of P.W. 1 establishes that he has adhered to the requirement contemplated under R. 18 of the Prevention of Food Adulteration Rules. But the learned Additional Sessions Judge committed grievous error of law in holding otherwise. He further contended that the report of the Public Analyst Ex. P. 5 discloses that the specimen seal sent by P.W. 1 was also found to be intact and that it was not tampered with. It corroborates the evidence of P.W. 1. This circumstances was not considered by the lower appellate Court, thereby miscarriage off justice has been ensured to the prosecution.
4. Sri Subbarao, learned counsel for the respondent strenuously contended that Rule 18 is mandatory and the non compliance thereof vitiated the entire prosecution case and the respondent is entitled to the acquittal. According to him, the object of R. 18 is to enable the accused to know that the procedure contemplated under the Act has been strictly complied with and if there is any digression from the compliance of the mandatory requirement, the prosecution must be held to have failed to discharge the requirement under R. 18. The lower appellate Court has rightly considered this aspect and acquitted the accused, giving the benefit of doubt. Along with this appeal, several other appeals raising common question of law have been posted. I have heard the Counsel for the respondent in the other cases. Sri Bhagiratha Rao contended that the Food Inspector merely stated that he sent the sample and specimen seals as contemplated under Form VII by registered post, but he did not place any material evidencing that he sent them to the public Analyst. Unless it is proved as of fact that he sent them by registered post, the mandatory requirement of Rule 18 must be held to have not been complied with.
5. Sri K. Venkataramaiah learned counsel appearing for the respondent in another appeal, further contends that the report of the Public Analyst though discloses that the seals were intact, as a matter of fact, the Analyst should be examined as a witness to establish to by the Food Inspector. Unless he comes into the witness box and gives evidence in that regard it cannot be taken that what was stated by him in the report shall be treated as evidence, namely, the sample was sent in the manner contemplated in Rule 18 and as per Form VII. The said contention was eloquently echoed by Sudarshan Reddy, learned counsel appearing for the respondent in another appeal.
6. Upon these contentions, the questions that arise for consideration are :
(1) Whether R. 18 is mandatory
(2) Whether the Food Inspector has complied with the requirement under R. 18
(3) Whether it is necessary for the Food Inspector to establish as a fact by adducing evidence that he sent the sample and seal by registered post
(4) Whether the Public Analyst should be examined as a witness to establish that what was stated by him in his report is true and correct
7. To appreciate these contentions, it is necessary to consider some of the salient provisions of the Prevention of Food Adulteration Act (37 of 1954) and the Rules made thereunder.
8. Consumption of adulterated articles of food would have deleterious effect on health of the public. To eradicate adulteration, a social crime the Act has been brought on statute. It is not necessary to deal in detail with respect to all the provisions of the Act for the purpose of this case, but suffice to consider Sections 11 and 13 of the Act and Rr. 14 to 24 in Part V of the Prevention of Food Adulteration Rules.
9. Section 11 prescribes the procedure to be followed by the Food Inspector. As sated earlier, P.W. 1 followed strictly the procedure prescribed in Section 11 in purchasing the groundnut oil and it is not disputed by the defence. It is therefore unnecessary to extract the relevant provisions of Section 11.
10. The articles of food purchased under sub-section (1)(a) of Section 10 shall be produced before the Magistrate as soon as possible.
11. Part V of the Prevention of Food Adulteration Rules deals with the manner of sending samples for analysis. 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. Then the procedure prescribed in Rr. 15, 16 and 17 has to be adhered to. The relevant rule now the subject-matter of consideration is R. 18, which reads thus :
'18. Memorandum and impression of seal to be sent separately : A copy of the memorandum and 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.'
12. The other Rules viz., Rr. 19 to 22A are not necessary for the purpose of this case. Therefore they need not be considered in extenso.
13. After the bottle containing the suspected article of food is received by the Public Analyst, a duty has been cast on him to perform as contemplated under Section 13.
14. Section 13(1) postulates that the Public Analyst shall deliver, the such form as may be prescribed a report to the food inspector of the result of the analysis of any article of food submitted to him for analysis.
15. Sub-section (5) postulates that any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3) or any document purporting to be a certificate signed by the Director of Central Food Laboratory, may be used as evidence of the facts stated therein in any proceedings under this Act or under Sections 272 to 276 of the Penal Code (Act XLV of 1860).
16. The proviso to sub-section (5) is not necessary for the purpose of this case. Therefore it is not necessary to deal with in detail.
17. In the light of the above facts, the first question that has to be considered is whether R. 18 of the Rules is mandatory. It admits of no doubt that commission of crime of adulteration of food is a serious social crime, the eradication of which is the prime object of the Act. Therefore the Act provides the minimum sentence for adulteration of the article of food and even the application of the beneficial provisions of the Probation of Offenders Act 1958 or Section 360 of the Cr.P.C. has been specifically excluded to the offences punishable under the provisions of this Act except to the category of persons mentioned therein. Under those circumstances to make Rule 18 meaningful, it is mandatory to comply with strictly the rigour of the procedure contained in the R. 18.
18. A reading of R. 18 and the language 'shall be sent' give an indication that the rule is intended to be complied strictly. As stated by Craies, on Statute Law. Seventh Edn, at page 262 that : 'It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed ......... go further than that in each case, must look the subject-mater, consider the importance of the provisions and the relation of that provisions to the general object intended to be secured by the Act and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory.' At page 62, the same learned author states that 'when a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to attend its performance, those prescribed formalities which are assential to the validity of the thing when done called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory.'
19. In the light of the above rules of construction of the statutes and the duty of the Court as adumbrated, it is necessary to consider whether R. 18 is mandatory. Mere employment of the word 'shall' is not by itself conclusive but the object which the provision seeks to serve has to be considered in the light of the purpose is seeks to achieve and the guarantee it assures to the person that gets advantage thereunder or the failure to perform the duty enjoined under the statute would cause disadvantage to the general public.
20. Rule 18 appears to give a guarantee to the accused assuring that after taking samples of food for analysis, the same article is to be sent to the public analyst for analysis. Its object appears to be that after taking the sample by the food inspector and before the sample actually reaches the analyst, there shall not be any tinkering or tampering with the articles of food taken in the presence of the accused and the panch witnesses and before the receipt of the report from the analyst and communication of a copy thereof to the accused, he will be completely under dark as to how the samples taken have been handled. The contents of the report were ascribed to be the evidence of facts stated therein. Therefore Rule 18 serves as a bridge generating a definite source of assurance to the accused as well as to the Court to verify that the sample taken from the accused is the same that was sent for analyst with regard to its contents concludes (sic) the accused unless it is superseded by the report of the Director. Central Food Laboratory to which conclusiveness has been given. Thereby it seeks to serve a great public purpose of honest handling of the sample taken for analysis. If the respondent is not adhered to, the efficacy ascribed to the report of the analyst gets eroded and casts doubt on the prosecution case. If this object is kept in view, it admits of no doubt that the compliance with R. 18 shall be construed to be mandatory. Therefore the steps prescribed under Rule 18 are mandatory and shall have to be complied with and non-compliance thereof gets the entire prosecution vitiated.
21. The next question that arises for consideration is whether P.W. 1 has complied with the requirement of R. 18 R. 18 postulates that a copy of the Memorandum and 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. Therefore, two requirements have to be complied with by the food inspector after taking the sample. He has to send one of the samples taken in the presence of the panch witnesses to the public analyst for analysis. He shall also send a copy of the memorandum and of specimen impression of the seal affixed thereon separately by registered post or delivered to him or to any person authorised by him. In this case, P.W. 1 has stated in his evidence that he complied with both the requirements. In his Chief-examination he stated :
'I sent one sample bottle of groundnut oil to Government Analyst for analysis along with Form VII Ex. P-4 is the office copy of Form VII. requesting the Analyst to analyse the properties sent to him. I sent another Form VII to Government Analyst by registered post.'
22. This part of the evidence was not specifically disputed. But to a suggestion given to him, he stated :
'It is not true that I did not send copy of Ex. P-4 to the Government Analyst.'
23. Except this suggestion there is no other material brought on record to show that P.W. 1 did not send a separate Form VII containing a specimen seal put on the sample taken by him under Lable No. 111. A Copy of the Memorandum has been marked as Ex. P-5. I have gone through Ex. P-5. It does contain the specimen seal fixed on the pro forma with the seal of the office of the Public Analyst. Ex. P-5 report of the Analyst states thus :-
'I hereby certify that I ........... received on the Third day of October, 1977 from the Food Inspector. Giddalur Panchayat sample of Ground Nut Oil market (marked ?) No. 111 (one hundred eleven) for analysis. Properly sealed and fastened, and that I found the seal intact and unbroken. The seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis.'
24. From the above evidence it is clear that P.W. 1 has complied with the mandatory requirement of R. 18.
25. Sri Bhagiratha Rao contended that P.W. 1 did not file the receipt under which he sent Ex. P-4 to the Public Analyst nor established it as of fact that he sent it by registered post. In the absence of any such material evidence, it cannot be construed that the mandatory requirement under Rule 18 has been complied with. Undoubtedly, R. 18, as already held, is mandatory. But the question is whether the food inspector sent the sample to the public analyst for analysis and also Form VII containing the specimen seal put on the sample. This is always a question of fact. It has got to be investigated in each case as of fact whether the Food Inspector has complied with R. 18 or not. It is not a matter of law. The Food Inspector has to establish this fact. While cross-examining P.W. 1 as I have already stated, it has not been put to him nor anything has been elicited. Nothing has been shown to discredit the testimony of P.W. 1. In this regard it may also be necessary to notice that when official acts have been regularly performed, a presumption under Section 114, illustration (e) can be drawn that official acts have been regularly performed.
26. In Chinta Lingam v. Govt. of India. : 2SCR871 . The Supreme Court held :
'.......... There was moreover a presumption that public officials would discharged their duties honestly and in accordance with rules of law.'
27. As stated earlier, nothing has been suggested to P.W. 1 when he was in the witness box to doubt that he did not send the specimen seal to the public analyst for verification. On the other hand, there is positive evidence on record from Ex. B-5 in compliance of R. 7(1) of the Rules stating specifically that the seal affixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the food inspector. In view of this intrinsic evidence adduced by the prosecution, it admits of no doubt that P.W. 1 has performed the mandatory duty enjoined on him under R. 18.
28. Sri Venkataramaiah contended that the Public Analyst also should be examined as a matter of fact to substantiate the contents in the report that what was stated by him in his report is true and correct and the specimen seal sent by the food inspector is the same that was found to be affixed on the lable wrapped to the sample containing the article of food taken from the accused. It is too late in the day to raise this contention. It is common knowledge that for the entire local area one public analyst will be appointed and with a view to obviate the difficulty for the public analyst to be summoned in each Court throughout the area over which he has got jurisdiction for being examined as a witness and to avoid undue delay for the disposal of the criminal case causing hardship to the accused, the Legislature has provided under sub-section (5) of Section 13 of the Act that any document purporting to be a report signed by the public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act. Thereby no doubt, the Legislature did not give conclusiveness to the statement of facts made by the public analyst in his report but none the less the correctness or otherwise of the report of the public analyst could not be made the subject of doubt and the statement made therein is to be treated as evidence of facts stated therein. The Legislature is competent to lay down the rule of evidence and also its effect thereof subject to the limitations prescribed thereunder. The statement of the Analyst shall be treated as evidence as to the facts stated therein until they are rebutted. Therefore it is not incumbent upon the prosecution to summon the Public Analyst as a witness to substantiate the contents of the report. I am not to understand that in no case the Public Analyst be summoned and examined as a witness. In an appropriate case where justice demands that his evidence is necessary to unfold certain facts in relation to his report he may be summoned as per the procedure contemplated under the Procedural Code, be as prosecution of defence or even as a Court witness. But it does not mean that invariably the prosecution has to examine him in every case as its witness. Except raising a contention, no substantial material has been brought before the Court to doubt the statement of facts contained in Ex. P-5. Therefore, I have no hesitation to hold that the contention is devoid of any substance.
29. Then the next question that arises for consideration is whether the lower Court is justified in holding that the prosecution has not complied with the mandatory requirement of R. 18. I have gone through the evidence and the record and the learned Additional Sessions Judge has taken an easy course to hold that the requirement of R. 18 has not been complied with without considering the evidence on record. On going through the evidence. I am satisfied that the evidence extracted earlier amply demonstrates the compliance of R. 18 by P.W. 1 and the prosecution has complied with the mandatory requirement of Rule 18. Except this ground, no other ground has been stated by the learned Additional Sessions Judge to give the benefit of doubt. Therefore, in view of the finding I have reached above. I have no option but to allow the appeal and set aside the order of acquittal and confirm the conviction of the accused as ordered by the Court of the Magistrate of First Class, Giddalur.
30. On June 21, 1983, I have dictated the Judgment in the open Court and allowed the appeal and set aside the order or acquittal. Before pronouncing the sentence, Sri S. V. Subbarao, learned counsel for the respondent requested time to argue the matter on sentence. According I adjourned the matter. Sri C. Padmanabha Reddy, Senior Counsel was instructed to appear for the respondent. He requested permission to raise a new point viz., the Public Analyst did not deliver the result of the analysis within 45 days as enjoined under R. 7(3) of the Rules. Though I pronounced but not yet singed the judgment. I gave an opportunity to the respondent. Sri Padmanabha Reddy contended that originally the rule was that the analyst shall send to the person concerned the report of such analysis within 60 days of the receipt of the sample and that rule was amended in 1974 reducing to 45 days. In January 1977, the said rule was again amended and introduced the present rule namely that the Public Analyst shall, within a forty-five days from the date of receipt of any sample for analysis, 'deliver' to the Local (Health) Authority a report of the result of such analysis in Form III. The proviso have no application to the facts in this case. Therefore it is unnecessary to extract them. In this case the Public Analyst received the sample on October 3, 1977. The report of the Analyst is dated November, 16, 1977. The Local (Health) Authority received it on November 27, 1977. The total days occupied is 54 days.
Rule 7(3) reads thus :
'The Public Analyst shall, within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form III.'
31. In view of the change in the language introducing the word 'shall' and substitution of 'a period of forty-five days' from 'sixty days' the learned counsel contened that the Legislature intended it to be mandatory and the non-compliance thereof should entail with acquittal because the prejudice is implicit from non-compliance of the provisions of the Rule. In support thereof, he relies upon the decisions of the Division Bench in State of Maharashtra v. Z. V. Paryan. 1981 Cri LJ 383 (Bom). Food Inspector v. Moosa, 1982 Cri LJ 168 (Ker) and State Public Prosecutor v. Meenakshi. 1972 Cri LJ 1684 (Mad) and the decisions of a single Judge of this court in State through Food Inspector. Khamam v. Shaik Nizar Ahmed, 1981 Mad LJ (Cri) 314. The learned counsel contended that in this view the order of acquittal passed by the appellate Court should be confirmed. The question that arises for consideration is whether R. 7(3) is mandatory or directory. In Interpretation of Statutes by Maxwell. XIth Edn. at page 364, it has been stated :
'When a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.'
In Craies' Statute Law. VIII Edn. at page 250. It is stated :
'The question whether the provisions in a statute are directory or imperative has frequently arisen in this country. But it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at .......... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious general inconvenience or injustice to persons who have no control over those entusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of acts done.'
33. The above statement of law received the approval from the Supreme Court in Dattatraya v. State of Bombay, : 1952CriLJ955 S. R. Das, J. (as he then was) Speaking on behalf of the Supreme Court, held at p. 185 (of AIR) : (At p. 959 of Cri LJ) :
'In my opinion, this contention of the learned Attorney-General must prevail. It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private right are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it has been the practice of the courts to hold such provisions to be directing only, the neglect of them not affecting the validity of the acts done.'
34. In that case if question arose whether Article 166 of the Constitution is mandatory or directory. While approving the above ratio, their Lordships have held that it is only directory. In Narasimhiah v. Singri Gowda. : 7SCR618 , the question arose whether service of notice in a shorter period than the period prescribed under Mysore Town Municipalities Act 1951 to convene a meeting to consider no confidence motion was mandatory or directory. It has contended that the provision to be mandatory. While negativing this contention, it was held that the period of notice prescribed for service is directory. In R. B. Sugar Co. v. Rampur Municipality. : 1SCR970 the question that arose was whether the publication of the proposed enhancement of the property tax by the Municipality under Section 131(3) of the U.P. Municipalities Act was mandatory or directory. While considering that question, majority of their Lordships, speaking through K. N. Wanchoo, J. held that publication of the proposed enhancement of the property tax in the Gazette was mandatory but publication of its substance in the local Hindi paper was held to be directory. Recently the question, whether the supply of a copy of the report of the public analysis to the person from whom the sample was taken for analysis as contemplated under R. 9(j) of the Food Adulteration Rules is mandatory or directory, arose. While considering this question, Chinnappa Reddy, J. in Dalchand v. Municipal Corporation. Bhopal, : 1983CriLJ448 held :
'There are no ready tests or invariable formula to determine whether a particular provision in a statute 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.'
A host of other decisions of the Supreme Court and other Courts on this subject are available. To avoid burdening the judgment, I am not referring them. The object which R. 7(3) seeks to achieve, could be discerned when we read it along with Section 13 of the Prevention of Food Adulteration Act as Section 13 is the genus and R. 7 is its specie. Sub-section (1) of Section 13 postulates that the public analyst shall deliver in such form (Form III) a report to the Local (Health) Authority of the result of the analysis. On its receipt, sub-section (2) of Section 13 enjoins a duty on the Health Authority, if the report is that the the article of food is adulterated to institute the proceedings against the person from whom the sample of the article of food was taken and he shall also forward a copy of the report of the result of the analysis to such person or persons informing him or them 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 the article of found kept by the Local (Health) Authority analysed by the Central Food Laboratory. He may apply to the court within a period of ten days to send the sample kept by the Local (Health) Authority for analysis by the Central Food Laboratory. Thus, sub-section (2) of Section 13 invests a valuable right in the accused and the actions taken by the Local (Health) Authority should be such that it would subserve the right but not tend to defeat the right or cause prejudice to the accused in defeasance thereof. Obviously keeping this right in view. R. 7(3) has been amended prescribing a period of 45 days to be the period within which the result of the analysis shall be delivered to the Local (Health) Authority. Sub-section (2-A) envisages that the Local (Health) Authority shall forward the part of parts of the sample kept by the said Authority, within five days from the date of receipt of such requisition. Sub-section (2-B) postulates that the Director of Central Food Laboratory shall, on conducting analysis, send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis. An emphasis was laid in all these sub-sections by employing the word 'shall.' A careful reading of all the provisions referred to above read with R. 7(3) reveals that the result of the analysis of the article of food sent, should be delivered to the Local (Health) Authority 'as expeditiously as possible' and the maximum period prescribed is forty-five days. The object appears to be that the article of food kept with the Local (Health) Authority is likely to decompose or its chemical contents may be deteriorated if the analysis is not done within the permissible time. With a view to obviate the likely prejudice to the defence that may be taken upon the exercise of the right by the accused when the sample kept with Local (Health) Authority was sent to the Director of Central Food Laboratory it does not get decomposed or the result may not be vitiated. It is also necessary to remember that provisions to sub-section (5) of Section 13 gives conclusiveness to the report of the Director of Central Food Laboratory. Keeping these factors in view, it would appear that the legislature intended that the result of the analysis should be delivered to the Local (Health) Authority 'as expeditiously as possible' but not more than forty-five days. Every prescription of a period within which an act must be done is not the prescribed of limitation with painful consequence if the act is not done within the period. It does not also follow automatically that if the report is sent after the expiry of the period of forty-five days, and if prosecution is based on the basis of such a report the prosecution should entail with acquittal. In this regard, it has also to be remembered that the Local (Health) Authority has no control over the actions of the public analyst. The public analyst is enjoined to perform his duty and deliver the result of the analysis within forty five days. But he may not, under certain circumstances have any control over his subordinates in charge of despatch or in given circumstances there may be delay in postal or communication transition of the result of the report from the public analyst to the Local (Health) Authority.
36. It should be also necessary to keep in mind that the object of the legislature is, eradication of the adulteration of articles of food which injuriously affects the health of the consumer public. It the contention of the learned counsel for the respondent is given credence to, there is any amount of scope of public mischief to ensue. Take for instance in a hypothetical case where an article of food was found to be adulterated on analysis but it the person from whom the article was for analysis is successful to manoeuvre with the officers in the office of the public analyst and see that the report is sent after the expiry of period of limitation, then the expiry of period of limitation, then if it is to be held that R. 7(3) is mandatory, then though he committed the offence of adulteration, he could get away with an acquittal. A converse case has also to be visualised. Sub-section (2-B) of Section 13 postulates that the Director of Food Laboratory 'shall' send within one month from the date of receipt of the part of the sample. In a case where he analyses the article of food and send the report to be not adulterated but the report is received after the expiry of one month, then if it is construed that it is mandatory then even though the report is given conclusiveness of its contents and favourable to the accused it cannot be received in evidence. That is not the intendment of the legislature in prescribing the thirty days period under sub-section (2-B) of Section 13. If it were a case where the public analyst deliberately fails to send the report within the prescribed period he will be exposed to disciplinary action for his dereliction of statutory duty but that is not a ground to hold that the person from whom sample was taken for analysis would be entitled to an out right acquittal. The consequence would be that it would promote public mischief : cause public inconvenience and defeat the object of the Act. In interpretation process the Court would endeavour to avoid such consequences. Suppose in a case where after the expiry of the period of forty five days the report was received and the prosecution was launched, he sends the sample kept with the Local (Health) Authority to the Director of Central Food Laboratory and the Director found that the article of food was decomposed or not fit for analysis on account of the lapse of time. In that case, the prejudice can be inferred and the accused may be said to be prejudiced.
37. The Supreme Court in Babulal v. State of Gujarat. : 1971CriLJ1075 held that so long as the accused does not avail of the right it cannot be said that he lost the right. It was followed in Ajitprasad v. State of Maharashtra, : 1972CriLJ1026 . In State of Kerala v. Alasserry Mohd. : 1978CriLJ925 , Untwalia, J. speaking on behalf of the Supreme Court while holding that R. 22 of the Prevention of Adulteration Rules directory laid down that :-
'.......... If the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt then it will endanger public health to acquit offenders on technical grounds which have no substance. To quote the words of Sri George Rankin, C.J. from the decision of the Calcutta High Court in Chandra Nath v. Nabadwip Chandra (AIR 1931 Cal 476 at p. 478) it would be merely piling unreason upon technicality ..........'
38. In view of the above consideration of the subject. I have no hesitation to hold that R. 7(3) is only directory and not mandatory.
39. No doubt, Sri Padmanabha Reddy, learned counsel for the respondent is justified in relying upon the decisions of the Division Bench decision of the Bombay High Court and the single Judge decision of Madras and Kerala High Courts. But the learned Judges did not consider any of the decisions of the Supreme Court referred to above, but merely emphasised 'principle of prejudice.' Under Art. 141 of the Constitution I am bound by the law laid down by their Lordships of the Supreme Court and with due respect. I am unable to persuade myself to share the views of the learned Judges. With regard to the decision in State through Food Inspector, Khammam v. Shaik Nizar Ahmed 1981 Mad LJ (Cri) 314 (supra), no doubt it is a case arising under R. 7(3), but it is prior to the present amendment. At this juncture, I would also like to mention that normally I would be inclined to refer the matter to the Division Bench when I am dissenting with the decision of a coordinate Bench. But in view of the facts in this case I am not inclined to refer the matter to the Division Bench for : I have already pronounced the judgment but this point was not raised then. Secondly, this case was already referred once to the Division Bench of another point and the learned judges have sent back the same to a single judge. The respondent suffered a lot of harassment for tossing this mater from one court to another. Thirdly, the law laid down by their Lordships of the Supreme Court to which I have already referred to was not brought to the notice of my learned brother and fourthly the present rule did not directly come up for consideration before my learned brother. In view of the latest decision of the Supreme Court directly arising under the provisions of the Food Adulteration Act, no useful purpose would serve. Hence I refrain from referring this matter to the Division Bench. With great respect to my learned brother. I am unable to share his view.
40. With regard to the sentence, I have given my anxious thought to the facts in this case. The offence was committed as early as on September 29, 1977 and the learned Additional Sessions Judge acquitted the accused by his judgment dated November 22, 1978. Thereafter, the State filed the appeal. In the first instance it has come up for hearing before Muktadar, J. and the learned Judge referred it to a Bench and after answering the reference, it has come up now for final hearing. The respondent is a petty merchant. The tortious travel the case underwent reverberates in his mind all these years of the hunting conviction and the expenses he incurred are sufficient deterrent factors to operate on his to desist from commission of the crime of adulteration in future. Under these circumstances. I am of the view, that the ends of justice would be met that instead of sending the respondent to jail at this length of time, it would be enough if he is sentenced to pay a fine of Rs. 1,000/-. Accordingly, he is sentenced to pay a fine of rupees one thousand, in default to undergo rigorous imprisonment for a period of six months. This fine shall be paid within one month from the date of receipt of this order.
41. I am conscious of the fact that the Legislature imposed mandatory sentence. Sentence should be commensurate with the gravity of the crime committed. But in view of the circumstances explained above, I am impelled to reach this conclusion, but it should not be understood that the lower courts should also resort to imposing lesser sentence in defeasance of the mandatory sentence envisaged by the Legislature.
42. The appeal is allowed accordingly, as indicated above.
43. Appeal allowed.