1. The Food Inspector, Circle No. 11, Municipal Corporation, Hyderabad, filed a complaint against the accused on 25-8-1975 alleging that the accused has contravened the provisions of Section 7 read with Section 2(1)(a) and Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The Food Inspector visited the shop of the accused on 10-2-1975. After complying with the formalities prescribed in the Rules framed under the Act, he purchased 375 grams of Groundnut Oil for Rs. 8-15 p. He divided the Oil into three equal parts and put them in three empty, dry and clean bottles, corked them, and affixed his seal. He gave one sample to the accused, and sent another to the Public Analyst while retaining the third with himself. The Public Analyst in his report dated 22-3-1975 came to the conclusion that the sample contained about 7 per cent of Castor Oil and was, therefore, adulterated, It is not known as to when exactly the report was received by the Food Inspector; but we have it in the evidence of P. W. 2 that on 19-6-1975 he received the record in the case along with the Public Analyst's report which would go to show that the report of the Analyst was received before 19-6-75. Thereafter the complaint was filed on 25-8-1975. The trial Court came to the conclusion that under Rule 9(j) of the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules), it was incumbent on the part of the Food Inspector to send a copy of the report of the Public Analyst within 10 days of its receipt by him, and since the Food Inspector has not complied with that provision, the accused was entitled to acquittal. The trial Court, therefore, acquitted the accused.
2. The State has preferred this appeal against the acquittal, It came up before our learned brother, Ramachandra Raju, J., who by his order dated 15-10-1975 referred the case for consideration of the Bench. The learned Judge was of the opinion that the provisions of Rule 9 (j) of the Rules were mandatory. In Public Prosecutor V. Sreeramulu 1975 2 APLJ 145, Madhusudhan Rao, J. had taken a similar view; but in Cri. R. C. No. 773 of 1975. D/- 27-1-1976: 1976 Cri LJ 1832 (Andh Pra) the same learned Judge had held that mere non-compliance with the Rule does not entitle the accused to an acquittal unless prejudice is shown to have been caused, Hence our learned brother, Ramachandra Raju, J., was of the opinion that the question as to whether Rule 9(j) of the Rules is mandatory or directory should be decided by a Bench, and that is now this appeal is before us.
3. Mr. Obulapathi Chowdary, the Learned Public Prosecutor contends that Rule 9(j) of the Rules is not mandatory but directory. He contends that simply because the word 'shall' is used in the rule, it cannot be concluded that the rule is mandatory. In support of his contention, he has cited Babulal v. State of Gujarat : 1971CriLJ1075 and Sriveshwar v. District Magistrate : AIR1966Pat144 .
4. In order to determine whether Rule 9(j) of the Rules is mandatory or directory, it is necessary to quote the relevant rule. Rule 9 provides for the duties of the Food Inspector, and it reads as follows:--
9. It shall be the duty of the Food Inspector--
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(j) to send by registered post, copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within 10 days of the receipt of the said report. However, in case the sample conforms to the provision of the Act or Rules made thereunder, then the person should be Informed of the same and report need not be sent.
A reading of the said rule would show that a duty is cast on the Food Inspector to send a copy of the report which he has received from the Public Analyst within 10 days of its receipt to the person from whom the sample was taken. If, in case the report which the Food Inspector had received is in favour of the person from whom the sample was taken, then the Food Inspector need not send the reports The reason for not sending such a report is obvious because when the report is in favour of the accused, no question of future prosecution could arise. But it is evident from Rule 9(j) that where the report of the Public Analyst is against the person from whom the sample was taken, the Food Inspector is duty bound to send a copy of the report to such person within 10 days of its receipt by him. No doubt, the Act is passed with the object of preventing adulteration of food; but a reading of Section 16 of the Act would show that heavy penalties of imprisonment for not less than six months but which may extend to six years and a fine of not less than Rs. 1,000/- are provided for commission of offences under the Act. Of course, the Courts have been given the power to impose a lesser sentence in some cases provided adequate and special reasons are given, 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 case 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 from whom the sample was taken as a protection for safeguarding the liberty of the subject. We are fortified in our conclusion by a judgment of the Supreme Court in Collector of Monghyr v. Keshavprasad : 1SCR98 in which the Supreme Court has observed:
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 or directory has to be decided not merely on the basis of any specified provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context 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 right of liberty of person or of property which the action might involve.
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(j) 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. The ruling of the Supreme Court relied upon by the Learned Public Prosecutor has no relevancy to the case on hand. In Babulal's case it was held that the plea of the accused that due to inordinate delay in launching the prosecution, he could not invoke the provisions of Section 13(2) of the Act, was not available to him as he did not make any endeavour to send the sample to the Director of Central Food Laboratory Under Section 13(2) of the Act. It is to be noted that there is no provision in the Act prescribing any limitation within which the prosecution should be launched.
5. We consider it unnecessary to discuss Shiveshwar's Case in the light of what has been observed by the Supreme Court in Collector of Monghyr v. Keshav Prasad : 1SCR98 .
6. In the instant case, admittedly the report of the Public Analyst was not sent to the accused at all. The copy of the report was filed along with the complaint. Rule 9(j) provides for the sending of the copy of the report of the Public Analyst by registered post. P. W. 2 is silent as to whether he sent the report by registered post or by messenger. Except for his bald statement that he came to know that the accused had closed his shop three months prior to 29th July, 1975, there is no other evidence to corroborate his testimony.
7. The Trial Court has acquitted the accused on the ground that Rule 9(j) of the Rules was not complied with. Hence having regard to what has been stated and the circumstances of this case, we do not see any reason to interfere in the judgment of the Trial Court.
8. The appeal is, therefore, dismissed.