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Food Inspector Nagar Palika Vs. Davilal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1985CriLJ726
AppellantFood Inspector Nagar Palika
RespondentDavilal
Cases ReferredDalchand v. Municipal Corporation
Excerpt:
.....the rules is the same that is to inform the person concerned that if he is not satisfied with the report of the public analyst he may, if it is so desired, take steps to get the sample analysed by the central food laboratory. municipal corporation, bhopal 1983crilj448 .the question posed before the supreme court was whether the failure to supply a copy of the report of the public analyst within the period of 10 days stipulated by rule 9(j) of the prevention of food adulteration rules, as it was in force at the relevant time, was fatal to the prosecution under the act. whether 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..........in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be informing such person or persons, 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 article of food kept by the local (health) authority analysed by the central food laboratory.10. rule 9-a of the rules reads as follows :9-a. local (health) authority to send report to person concerned - the local (health) authority shall immediately after the institution of prosecution forward copy of the report of the result of analysis in form iii delivered to him under sub-rule (3) of rule 7, by registered post or by hand as may be.....
Judgment:

R.K. Vijayvargia, J.

1. The question which arises for consideration in this reference made by one of us (K.L. Shriyastava, J) is whether the provisions of Section 13(2) of the Prevention of Food Adulteration Act, 1954 (for short the Act') and of Rule 9-A of the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules') are mandatory or directory.

2. The material facts are these : On 5-3- 1978 the Food Inspector, Nagar Palika Mandsaur purchased milk from the respondent as sample for analysis. The sample was sent to the Public Analyst who on analysis found that the sample was adulterated. The report of the public Analyst is dt. 13-3-1978. The Food Inspector filed a complaint against the respondent on 24-4-78.

3. The trial Magistrate held that the milk purchased by the Food Inspector from the respondent was adulterated and convicted the respondent of the offence Under Section 7(1) read with Section 16(l)(a)(i) of the Act. On appeal by the respondent the Additional Sessions Judge acquitted the respondent on the ground that the compliance of the mandatory provisions of Section 13(2) of the Act was not proved. The Food Inspector has preferred this appeal against the acquittal of the respondent.

4. The learned single Judge who heard the appeal came to the conclusion that though a copy of the report of the Public Analyst was sent to the respondent there is no evidence that the respondent was informed that if it is so desired he may apply to the court for the sample being sent to the Director, Central Food Laboratory for analysis as required by the second part of Section 13(2) of the Act. The question which arose for consideration before the learned single Judge was whether this omission on the part of the Local (Health) Authority was fatal to the prosecution case. It was contended on behalf of the respondent that the provisions of Section 13(2) of the Act were mandatory and therefore non-compliance thereof by the Public (Health) Authority was fatal to the prosecution case. Reliance was placed upon a single Bench decision of this Court in Nathusingh v. State of M.P. 1982 Jab.

5. It was contended on behalf of the appellant that the provisions of Section 13(2) of the Act and Rule 9-A of the Rules were directory and as no prejudice is shown to have been caused to the respondent on account of the non-compliance thereof the acquittal of the respondent by the appellate court was not justified. In support of this contention the appellant placed reliance upon a single Bench decision of this Court in Tulshiram v. State of M.P. 1983 FAJ 338.

6. There are other single Bench decisions of this Court also in which contrary views have been taken on the aforesaid question. The learned single Judge was of the opinion that the decision in Nathusingh's case (supra) does not lay down good Law and requires reconsideration by a Larger Bench. This Bench has been constituted to consider the aforesaid question.

7. We have heard the learned Counsel for the parties.

8. Before considering the question it would be useful to reproduce the relevant provisions of the Act and the Rules.

9. Section 13(2) of the Act as substituted by Section 10 of the Act No. 34 of 1976 reads as follows :

13(2). On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the persons, if any, whose name, address and other particulars have been disclosed Under Section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be informing such person or persons, 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 article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

10. Rule 9-A of the Rules reads as follows :

9-A. Local (Health) Authority to send report to person concerned -

The Local (Health) Authority shall immediately after the institution of prosecution forward copy of the report of the result of analysis in Form III delivered to him under Sub-rule (3) of Rule 7, by registered post or by hand as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector and simultaneously also the person, if any, whose name address and other particulars have been disclosed Under Section 14A of the Act : Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under Sub-section (2), or no action is intended under Sub-section (2E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed Under Section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst.

11. Rule 9-A of the Rules was inserted by GSR 4(E) dated 4-1-1977 w.e.f. 4-1-1977. Rule 9(j) of the rules which was then in force and which dealt with the forwarding of the report of the Public Analyst to the vendor was deleted with effect from 4-1-1977 on insertion of Rule 9-A of the Rules.

12. It would be useful to reproduce Rule 9(j) of the Rules also which reads as follows :

9. Duties of a Food Inspector.-

It shall be the duty of the Food Inspector -(j) To send by registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case the sample conforms to the provisions of the Act or Rules made thereunder then the person may be informed of the same and the report need not be sent.

13. The provisions of Rule 9(j) of the Rules were substantially similar to the provisions of Section 13(2) of the Act and Rule 9-A of the Rules with the difference that Under Section 13(2) of the Act the Public (Health) Authority is required to forward a copy of the report of the result of the analysis after institution of the prosecution and the person against whom the prosecution is instituted has also to be informed that if it is so desired he may make an application to the court within a period of 10 days from the date of the receipt of the copy of the report to get the sample of article of Food kept by Local (Health) Authority analysed by Central Food Laboratory.

14. Now the purpose of Section 13(2) of the Act as it then stood read with Rule 9(j) of the Rules and of Section 13(2) of the Act as now in force read with Rule 9-A of the Rules is the same that is to inform the person concerned that if he is not satisfied with the report of the Public Analyst he may, if it is so desired, take steps to get the sample analysed by the Central Food Laboratory.

15. There was a conflict of opinion whether the provisions of Rule 9-J of the rules were directory or mandatory. In some, decisions the view taken was that the provisions of Rule 9-J of the Rules were mandatory and the non-compliance thereof by the Food Inspector was fatal to the prosecution case and the accused was entitled to be acquitted on that ground. In other decisions it was held that the provisions of Rule 9-J of the Rules were directory and unless prejudice was shown to have been caused to the accused the non-compliance thereof would not justify the acquittal of the accused only on that ground.

16. This question was referred to a Division Bench of this Court in Food Inspector M.C. Mandasaur v. Ranglal Gujar 1982 JLJ 777 : 1982 Cri LJ 2283 which held that Rule 9(j) of the Prevention of Food Adulteration Rules as it stood at the relevant time was not mandatory but directory in nature and non-compliance thereof i.e. non supply of the Public Analyst's report to the vendor was not fatal to the prosecution. The Division Bench in para 10 of the judgment observed as follows at P. 2284 of Cri LJ :

Section 11 of the Act prescribes the procedure to be followed by Food Inspectors while taking sample of food for analysis. Sub-section (4) and proviso thereto and Section 13(2) contain appropriate safeguards to protect the interest of the vendor the vendor can apply to the court for getting the sample analysed by Central Food Laboratory. The scheme of the Act and the Rules framed thereunder thus provides for adequate protection to a vendor to prove that the sample of food purchased from him for analysis was free from any adulteration. Unless it is shown that non-compliance with Rule 9(j) has caused prejudice to the vendor, the omission is not fatal to the charge. It other words the rule is directory in nature and not mandatory.

17. This matter also came up for consideration before the Supreme Court in Dalchand v. Municipal Corporation, Bhopal : 1983CriLJ448 . The question posed before the Supreme Court was whether the failure to supply a copy of the report of the Public Analyst within the period of 10 days stipulated by Rule 9(j) of the Prevention of Food Adulteration Rules, as it was in force at the relevant time, was fatal to the prosecution under the Act. Was Rule 9(j) mandatory or directory.? The Supreme Court held that Rule 9(j) of the Rules was directory and not mandatory. It held as follows :

There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Whether 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 noncompliance of the provision is necessary to invalidate the act complained of. It is well settled to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period. Rule 9(j) of the Prevention of Food Adulteration Act, as it then stood, merely instructed the Food Inspector to send by registered post copy of the public Analyst's Report to the person from whom the sample was taken within 10 days of the receipt of the Report. Quite obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the Report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. There the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the public Analyst's Report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint.

18. As stated above the purpose of Section 13(2) of the Act and Rule 9-A the rules is substantially the same i.e. to inform the person from whom the sample was taken of the report of the Public Analyst so that if it is so desired he may take steps to get the sample analysed by the Central Food Laboratory.

19. In the circumstances the law laid down by the Supreme Court regarding the interpretation of Rule 9(j) of the rules also applies to the interpretation of Section 13(2) of the Act and rule 9-A of the rules.

20. It is therefore not necessary to consider the other decisions of this Court as also of the other High Courts in which a contrary view is taken.

21. The learned Counsel for the respondent however .contended that there is a substantial difference between the provisions of Rule 9(j) of the rules and Section 13(2) of the Act. According to him Section 13(2) of the Act not only enjoins upon the Public (Health) Authority to send a copy of the report to the person concerned but also requires it to inform that person that if it is so desired he may make an application to the court within a period of 10 days from the date of receipt of the copy of the report to get the sample of the articles of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. He urged that if the person is not so informed he loses a valuable right of applying to the court to get the sample of the article of food kept by the Local (Health) authority) analysed by the Central Food Laboratory.

22. In our opinion the contention of the learned Counsel for the repsondent is not well founded. If the Public (Health) Authority fails to inform the vendor of the sample as required by Section 13(2) of the Act it cannot be held that he loses the right to apply to the Court to get the sample kept by the Local (Health) Authority analysed by the Central Food Laboratory.

23. Section 13(2) of the Act requires the person concerned if it is so desired to make an application to the court to get the sample analysed by the Central Food Laboratory within 10 days of the receipt of the report. If no such information as required by Section 13(2) of the Act is given to the person concerned or if a copy of the report of the public Analyst is not sent, the question of making the application by that person within 10 days of the receipt of the report for getting the sample analysed by the Central Food Laboratory, does not arise. In that case when the accused is informed by the court of the institution of the prosecution against him he can take steps to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. If in such case on account of the omission on the part of the public (Health) Authority to inform the accused as required by Section 13(2) of the Act the accused is wholly deprived of the right to challenge the Public Analyst's reprot by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint as prejudice would then be writ large, as observed by the Supreme Court in Dalchand's case (1983 Cri LJ 448) (supra).

24. The vice of adulteration of articles of food is rampant in our country. The adulteration of food articles is seriously affecting the health of the countrymen. The object of the Act is to obtain the conviction of a person dealing in adulterated food so that the mischief of adulteration of the articles of food is prevented. The authorities concerned are vested with powers to enforce the provisions of the Act and certain duties are also imposed upon them so that the interest of the vendors of articles of food are safeguarded. If a person has adulterated an article of food he must suffer the consequences of his misdeed and he should not be allowed to escape the consequences of his act merely because of the neglignece of those to whom Public duties are entrusted unless their negligence has caused prejudice to him. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute ; as held by the Supreme Court in Dalchand's case 1983 Cri LJ 448 (supra).

25. In our opinion as stated above the law laid down by the Supreme Court in Dalchand's case (supra) as regards the interpretation of Rule 9(j) of the rules applies with full force to the interpretation of the provision of Section 13(2) of the Act and Rule 9-A of the rules.

26. We therefore hold that the provisions of Section 13(2) of the Act and Rule 9 A of the rules are not mandatory and are directory and the non-compliance thereof per se is not fatal to the prosecution case. The contrary view taken in Nathusingh's case 1982 Jab LJ 805 (supra) and other decisions is not correct.

27. We may like to add that the view which we have taken should not be construed to mean that those who are entrusted with the duty of implementing the provisions of the Act and the rules may not do their duties as laid down by the provisions of the act and the rules and any lapse on their part must be dealt with at administrative level. They must bear in mind that the procedural provisions made in the Act and the rules are meant to be complied with and their omission to follow the dictates of those provisions may cause prejudice to the accused and in such a case even if the accused had indulged in the act of adulterating articles of food he may have to be acquitted of the offence charged with and thus the salutary object of the Act may be defeated.

28. The appeal may now be fixed for hearing on merits before the learned Single Judge.


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