Jayachandra Reddy, J.
1. The question of law that arises for decision in this case is whether the requirement Under Section 11(3) of the Prevention of Food Adulteration Act, viz., that the Food Inspector shall send the sample by the immediately succeeding working day to the Analyst, is mandatory or directory,
2. The necessary facts that gave rise to this question may briefly be stated. The 2nd petitioner is a dealer in Kdrana articles in the name and style of Sri. Rajarajeswari Provision Stores. The 1st petitioner is an employee under him and he is generally in charge of the shop. On 21-8-1976 at 12-30 P. M. the Food Inspector visited the shop and purchased a sample of 450 grams of Kurd Oil from a tin. After going through the necessary formalities, the sample was divided into three. One of the samples was sent to the public Analyst on 24-8-76, The Public Analyst gave an opinion that the sample was adulterated as it contained 30% of groundnut oil. A prosecution was launch- ed and the trial court convicted them Under Sections 7 and 16(1)(a)(i) read with S; % (m) of the Prevention of Food Adulteration Act, hereinafter referred to as 'the Act', and sentenced each of them to suffer six months rigorous imprisonment and also to pay a fine of Rs. 1.000/-. The petitioners preferred an appeal and the same was dismissed. Hence the revision.
3. The main point that was urged on behalf of the petitioners is that the sample collected by the Food Inspector on 21-8-1976 was sent to the Public Analyst only on 24-8-1976 and therefore there was a contravention of the mandatory provisions enacted in Section 11(3) of the Act It must be mentioned here that there is no denial that 22-8-1976 was a Sunday and 23-8-1976 was the immediately succeeding working day. But the sample was not sent on that day but was sent on the next day- Therefore, there was a delay of one day. The lower appellate Court however held that Sub-section (3) of Section 11 is a mandatory provision but the infraction of the said provision did not vitiate the conviction as there is no material to show that P. W. 1 tampered or meddled with the sample before sending it to the Public Analyst and that the Public Analyst also did not complain that the sample was unfit for analysis. The learned Metropolitan Sessions Judge also pointed out that no suggestion was made to the Food Inspector in cross-examination that he had tampered or meddled with the sample. In this view of the matter the learned Metropolitan Sessions Judge reached the conclusion that the conviction is not vitiated.
4. Sri P. Innayya Reddy, the learned counsel for the petitioners, contended that the appellate court having held Sub-section (3) of Section 11 of the Act as mandatory, ought to have set aside the conviction as there was admittedly infraction of the mandatory provision. The learned Additional Public Prosecutor on the other hand contended that the provision is not at all mandatory but it is only directory and that no prejudice has been caused to the accused by sending the sample with a delay of one day. Therefore, the real question for decision is whether this provision is mandatory or directory.
5. Section 11(3) of the Act reads thus:
11 (3) when a sample of any article of food or adulterant is taken under Sub-section (1) or Sub-section (2) of Section 14 the Food Inspector shall by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the case may be in accordance wealth the rule prescribed for sampling to the public Analyst for .the local area concerned
Much emphasis has been laid on the words 'shall by the immediately succeeding working day' in support of the contention that the provision is mandatory, In this regard reliance is placed an Rule 17 (a) of the Rules framed under the Act Which reads thus
17. The containers of the samples shall foe dispatched in the following manner, namely:(a) the sealed container of one part of the sample for analysis and .a memorandum in Form VH shall be sent in a sealed packet to the public analyst immediately but not later than the succeeding working day by any suitable means.
It must be mentioned here that Section 11(3) was amended in the year 1976 and the words the Food Inspector shall by the immediately succeeding wording day' send a sample of the food or adulterant or both, as the ease may fee have (been substituted for the the Food Inspector shall send a sample of at'. Similarly Rule 17 was amended on 4-1-1977 and the Rule was brought in Accordance with the provision of the main Section 11(8), it has been contended that the Legislature (has brought 'Out these amendments with the object of preventing the food Inspector form tampering with the sample and that being so it was man datory duty of the food inspector to send the samples immediately by the next succeeding working day
6. In Collector of Monghyr v. Keshav Prasad : 1SCR98 , the Supreme Court observed thus '(at P- 1701):
it is needless to add that the employment of the auxiliary verb 'shall' is inconclusive and similarly the mere Absence of the imperative is not conclusive 'either. The question whether any requirement is mandatory of directory has to be decide not merely on the basis of any specified provide which for instance, sets out the consequences of the omisflion to observe the requirement, but on the -purpose for which the requirement has 'been enacted, particularly in the content of the other provisions of the Act and the general Scheme .thereof. 'It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the night of liberty of person or of propel whith she action might involve.
So, the mere employment of the word 'shall' is not conclusive to hold that the provision is mandatory. We have to further see the context in which these words have been used and also . the intention and purpose behind the employment of these words. Yet another important aspect is whether the requirement is insisted on as a protection for safeguarding the right of liberty of person or of property. In State of Bihar v. Chandreshwar Prasad : AIR1960Pat1 a Full Bench of the Patna High Court observed thus at p. 3):
In law, however, the true construction of any section in a statute is that which is more consistent with the scheme of the Act as a whole and not less with the essential principle underlying it.
In State of Uttar Pradesh v. Babu Ram Upadhya : 1961CriLJ773 the Supreme Court observed at follows (at P. 765):
When a statute uses the word 'shall' prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial conse quences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.
Bearing these principles in mind let us examine the scope and object of the Act. The object of the Act is to check the evil of food adulteration and in that direction to give the State Government the necessary means to check the evil. The Food Inspector has to possess certain qualifications and he shall be deemed to be a public servant within the meaning of Section 21 of the I. P- C. He can exercise all the powers enumerated in Section 10 of the Act. It is also his duty to send the sample for analysis to the Public Analyst. Section 11 prescribes the procedure to be followed by the Food Inspector after taking the sample.. Rules 9 to 22 deal with the duties of the Food Inspector and also the manner in which he has to seal the sample and despatch the same. As already mentioned, Rule 17 lays down that the sample shall be sent to the Public Analyst on the succeeding working day. A perusal of these provisions shows that some of the duties of the Food Inspector are mandatory in nature. But that does not mean that every duty cast on him should be characterised as mandatory and that any type of infraction of the same vitiates the entire case.
7. In deciding whether a particular duty is mandatory or not, we have to keep in view the scheme of the Act and the context of the particular provision. At the same time it must be remembered that the procedural law in general is intended to further the ends of justice and not to frustrate the same. As mentioned above, the Act and the Rules on the one hand constitute an elaborate code against contravention of law on adulteration of food articles and on the other it provides sufficient safeguards and checks against the wrong acts or misdeeds of the. Food Inspector. A perusal of the Rules also shows that they channelise the rights as well as the obligations laid down by the Act. At this stage it is useful to refer to some of the decided cases on this aspect. Under Section 10(7) of the Act the Food Inspector 'shall' call one or more persons to be present at the time when he takes the samples and prepares the mediatornama. In Public Prosecutor v. Veeramalla Veera Raju 1972 (1) A P L J 294: (1972 Cri L J 1127), this Court agreeing with the view taken by the Madhya Pradesh High Court and the Mysore High Court in Kapoor Chand v. Jabalpur Corporation : AIR1960MP179 and State of Mysore v. Udipi Co-operative Milk Society AIR 1960 Mys 80 : 1960 Cri LJ 494 respectively, held that the requirement Under Section 10(7) of the Act that the Food Inspector 'shall' call two persons as witnesses is only directory and the irregularity in not complying with the same would not vitiate the entire proceedings. In Public Prosecutor v. Thatha Rao : AIR1968AP17 also it has been held that Section 10(7) is not mandatory. In Public Prosecutor v. J. Murlidhar, 1977 A P L J (H C) 115: (1977 Cri L J 1634) a Division Bench of this Court considered the question whether Rule 9 (j) framed under the Act was mandatory or directory. Under the said rule the Food Inspector shall send the report of the public analyst to liie person from whom the sample was taken within ten days at the receipt of the said report- The learned Judges observed thus: (At p. 1635).
Keeping the severity of the sentence in mind, we think, that the Legislature intended that the right of liberty of the subject should also be safeguarded. With this view in mind, the Legislature had imposed several duties on the Food Inspector so that the accused should have a fair chance in meeting the case against him, and to defend his ease against any improper action on the part of the complainant- We are not laying any undue emphasis on the word 'shall' used in the rule; but we are of the opinion that having regard to the scheme of the Act and the severity of the punishment, the Legislature had insisted on the requirement of sending the report of the Analyst to the person horn whom the sample was taken as a protection for safeguarding the liberty of the subject.
The learned Judges further observed thus:
From what has been stated above, we should not be misunderstood as having held that even a delay of one day over and above ten days would be enough to throw out the case of the complainant for non-compliance with Rule 9 ()) of the Rules. Of course if there is some delay in sending the report, the complainant's case cannot be thrown out unless the accused shows that even this slight delay has caused prejudice to him. It is not possible to lay down any hard and fast rule regarding the delay in sending the report of the Public Analyst to the person from whom the sample was taken. Every case will have to depend on its circumstances. But when the report of the Public Analyst was not sent to the accused even until the filing of the complaint, then to our mind, in such a case the accused could be acquitted without his pleading prejudice.
From the above decisions it becomes clear that every requirement in the abovesaid provisions of law which prescribe the duties of the Food Inspector cannot be held to be mandatory. The employment of the word 'shall' also is not conclusive about the mandatory nature of the requirement. It must also be satisfied that the requirement is intended to protect the right of liberty of the person While examining the true manner of a particular requirement, we must also see whether infraction of the same has caused any prejudice to the accused in a given case. Section 11(3) merely lays down that the Food Inspector shall send the sample on the succeeding working day to the Public Analyst. This provision is mainly intended to check the Food Inspectors from tampering with the samples with a view to help the accused who have committed the unsocial act of adulteration, and accordingly prescribed the time limit. If for any reason the Food Inspector causes some delay in sending the sample that does not in any way affect the right of liberty of a person or cause any prejudice to his case. If because of the delay the sample gets decomposed, the delay is to the advantage of the accused. If the sample is tampered with the Analyst can easily detect the same by a comparison of the seals on the container with the subsequent impression received separately as prescribed under Rule 7t
8. The learned counsel for the petitioners however sought to contend that in some cases the Food Inspector may, with a view to cause harm to the person from whom the sample is taken, delay the sending of the sample and utilise the time for tampering with the samples. I see no substance in this submission. First of all it must be remembered that two of the samples must be kept with the local authority and the Rules 14 to 17 which deal with the sealing and despatching the samples lay down the manner in which the samples have to be packed and sealed. Any type of subsequent tampering with the sample thus packed and sealed can easily be detected. However, I am not impressed with the argument that the requirement that the Food Inspector shall send the sample on the succeeding working day is intended to protect the interests of the accused. On the other hand it is clearly plain from the report of the joint committee on the bill to amend the Act that these provisions are intended to check the Food Inspectors from indulging in corrupt practices. Therefore, if there is any delay, the Food Inspector may be answerable to the higher authorities but that delay does not in any way prejudice the case of the accused, In Maxwell on Interpretation of Statutes, 11th Edition, page 369, a passage reads terms:
It has often been held, for instance, when an Act ordered a thing to be done by a pub-lie body or public officers and pointed out the specific time when It was to be done, that the Act was directory only and might be complied with after the prescribed time.
In Sutherland, Statutory Construction, 3rd Edition Volume 3, at page 102 it is stated as follows:-
A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the officer.
Following the above principles, if we examine the provisions of Section 11(3) from the point of the scheme of the Act it must be held that the time limit is not insisted as a protection for safeguarding the right of the person and it is also not in the nature of a public duty and any delay does not cause general inconvenience or injustice. Therefore, the provision is only directory and not mandatory. On the other hand, the interpretation that the provision is mandatory does not in any way promote the main object of the legislature. However, it shall not be understood that there is no duty cast on the Food Inspector to send the sample to the Public Analyst without the least delay. As already mentioned, this is a provision to check the Food Inspectors from indulging in corrupt practices and also a measure to ensure that the samples are sent without any delay, so that they may be fit for analysis. In Public Prosecutor v. J. Murlidhar (1977 Cri LJ 1634) (Andh Pra) (supra) the Division Bench held that the object of Rule 9 (j) was to safeguard the right of liberty of the subject and therefore that rule was held to be mandatory. But Section 11(3) is not of that nature. Therefore, I hold that it is not mandatory.
9. Now I will refer to some of the decisions relied on by the learned counsel for the petitioners in support of his contention. In Rajaldas G. Pamnani v. State of Maharashtra : 1975CriLJ254 , it was held that failure on the part of the Food Inspector to send the requisite quantity for analysis amounts to infraction of Rule 22. In para 17 of the judgment it is held thus:-
The Public Analyst did not have the quantities mentioned in the rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by the statute.
The learned counsel strongly relied on this decision and contended that the Supreme Court has held that Rule 2 is mandatory and? that for the same reasoning Section 11(3) also must be held to be mandatory. I am un? able to agree. The Supreme Court did not say that the rule is mandatory. Further it has been pointed out that the quantities mentioned in Rule 22 are required for correct analysis. In that view of the matter, it was held that non-compliance with the rule results in injustice. The same principle cannot be applied in sending a sample Under Section 11(3). Further a Bench of the Supreme Court in State of Maharashtra v, Shanthilal : 1977CriLJ1920 found it difficult to accept the observations made in Rajaldas' case : 1975CriLJ254 and was not prepared to hold Rule 22 to be mandatory, and accordingly referred the case to a larger Bench. Therefore, the decision in Rajaldas' case : 1975CriLJ254 , is of no assistance to the learned counsel for the petitioners. Relying on Rama-chandra Keshav Adke v. Govind Joti : 3SCR839 , the learned counsel for the petitioners contended that where a power is given to do a certain thing in a certain way, the thing must be done in that way only and if there is a contravention the benefit should go to the accused and there is no need to get at the real intention of the legis1-lature. In the abovesaid case the Supreme Court held that certain provisions of the Bombay Tenancy and Agricultural Lands Act are mandatory and therefore it was held that they must be complied with. In Jam-shedpur Notified Area Committee v. Niran-jan Paul, 1976 Cri LJ 421 (Pat) the Pataa High Court held that Rules 7 and 18 of the Prevention of Food Adulteration Act are mandatory. Those two rules deal with th duties of the Analyst. While considering the question whether these rules are mandatory or directory the Patna High Court followed its earlier decisions and however observed: (At p. 424).
Rules 7 and 18 do not expressly declare as to what shall be the consequence of non-compliance therewith. The expression 'shall' has no doubt been used in both the rules, but that by itself cannot be a true guide to the exact nature of the rules; as to whether mandatory or directory. It is, however, one of the cardinal principles of interpretation of statutes that when the statute requires that something shall be done, or done in a particular manner or form without expressly declaring what shall be the consequence of non-compliance, the question often arises; what intention is to be attributed by inference to the Legislature?
The learned Judges of the Patna High Court further proceeded to consider the nature of the requirements of these two rules and reached the conclusion that the intention of the Legislature was that the provisions in these rules should be mandatory. As already observed, it depends on the nature of the duty contemplated under a particular rule or section. When once it is declared that a particular provision is mandatory, naturally it must be complied with in the manner prescribed therein. The same principle cannot be applied to a case where a requirement is held to be only directory.
10. The learned counsel next relied on a decision of this Court in Public Prosecutor v. Sreeramulu 1975 (2) A P L J (H C) 145. In that case Madhusudan Rao, J, held that Rule 9 (j) of the Prevention of Food Adulteration Act is mandatory. Reliance is also placed on Food Inspector, Vuyyuiu v. P. Samu4raiah 1977 (2) APLJ (SN) 64 wherein Justice Muktadar held failure to give a notice to the accused informing him of his right to ask the Court to send one of the sample bottles retained with the lociil authority, to the Central Food Laboratory as provided Under Sections 11 and 13, is a contravention of the mandatory provision. The learned counsel relying on these two derisions contended that for the same reason Section 11(3) also must be held to be man-dalory. As already held whether a particular provision is mandatory or directory depends on so many factors, The principles laid down in these decisions cannot universally be applied to all the other provisions in the Act and Rules. As already mentioned, the only point urged in this revision is that Section 11(3) is mandatory and the contravention of the same is sufficient to vitiate the proceedings. There is no definite plea on behalf of the petitioners that the delay of one day in sending the sample has caused any prejudice to the petitioners. The lower appellate Court held Section 11(3) to be mandatory but as already mentioned dismissed the revision on the ground that there was no evidence that the Food Inspector tampered with the samples. However, for the aforesaid reasons the finding of the lower appellate court that Section 11(3) is mandatory, cannot be upheld and the Criminal Revision has to be dismissed on the ground that Section 11(3) is only directory and that the infraction of the same by the Food Inspector viz, sending the sample to the Public Analyst with the delay of one day has not caused any prejudice to the accused.
11. The criminal revision is accordingly dismissed.