K.N. Shukla. JJ.
1. This is a reference by a single Bench of this Court seeking our opinion on the following question:
Whether Rule 9(j) of the Prevention of Food Adulteration Rules as it stood at the relevant time, was mandatory in nature and non-compliance thereof i.e non-supply of the Public Analyst's report to the vendor, was fatal to the prosecution.
2. On 13-3-1976 Food Inspector, Municipal Council, Mandsaur purchased sample of cow's milk from the respondent and after completing the formalities under the Act and the Rules about service of notice, addition of preservative etc, he sent one sample for analysis to the Public Analyst, The Public Analyst reported that the sample did not conform to the standard prescribed under the Rules for cow's milk. The report of the Public Analyst was received by the Food Inspector on 29-4-1976 and the complaint was filed on 2-7-1976 for a charge under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 19S4.
3. The defence was total denial of each and every fact including sale of milk for analysis.
4. Learned Magistrate after trial acquitted the respondent on the following grounds:
(i) Non-compliance of Rule 9(i) of the Rules framed under the Prevention of Food Adulteration Act;
(ii) non-compliance of Rule 18;
(iii) delay in prosecution; and
(iv) identity of the respondent as the person from whom sample was purchased not proved,
5. Complainant Food Inspector filed an appeal before this Court against respondent's acquittal. The appeal came for hearing before Single Bench, After recording its findings on ground Nos. (ii), (iii) and (iv) supra, the Court noted a conflict of decisions of this Court on ground No. (i) i.e. the effect of non-compliance of Rule 9(j) of the Rules framed under the Prevention of Food Adulteration Act. After holding that there was non-compliance of this Rule the Single Bench referred the above question for decision by a larger Bench.
6. As already mentioned in the referring order there are conflicting single Bench decisions of this Court on the question. In Ramchandra v. State of Madhya Pradesh (Criminal Revn. No. 354 of 1976 dated 15-2-1979), the learned single Judge held that the Rule was directory and not mandatory. In Sagarmal v. State Criminal Revn. No. 225 of 1979 dated 23-4-1980 another single Judge held that the Rule was mandatory. There have been decisions of other High Courts also which we will presently refer.
7. Rule 9 deals with the duties of the Food Inspector, Rule 9(j) as it stood at the relevant time may be reproduced:
9. Duties of Food Inspector--It shall be the duty of the Food Inspector:
CD to send by registered post, a. copy of the report received in Form II 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.
8. Their Lordships of the Supreme Court have from time to time laid down various tests for determining whether a particular Rule is mandatory or directory. Summing up the earlier authorities, the Supreme Court in Sharifuddin v. Abdul Gani Lone : 1SCR1177 observed in para 9 of the judgment as follows:
The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one.'
9. In State of Kerala v. Alsaserry Mohd. : 1978CriLJ925 the Supreme Court had to consider whether Rules 22 and 22(h) of the Prevention of Food Adulteration Rules were directory or mandatory. After referring to the general scheme of the Act and the Rules, the Court dealt with Rules 14 to 22 contained in Chapter IV. Rule 22 as it stood then was as follows:
Quantity of sample of food sent to the Public Analyst or Director for Analysis shall be as specified below....
Overruling its earlier decision in R.G. Pamnani's case : 1975CriLJ254 the Court held that the Rule was directory in nature even though the word 'shall' was used therein.
10. 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 the Central Food Laboratory. The scheme of the Act and the Rules framed thereunder thus provide 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. In other words the Rule is directory in nature and not mandatory.
11. The Full Bench of the Gujarat High Court in M.M. Pandya, Food Inspector v. Bhagwandas Chiranjilal 1979 (1) FAC 104 : 1979 Cri LJ 1440 after tracing the history of the Rule and also taking into view the fact that this Rule about supply of the report of the Public Analyst within 10 days was deleted w.e.f. Jan. 4, 1977, held that the Rule was directory in nature and unless prejudice was shown due to its non-compliance, the charge could not be struck down merely on the ground that the copy of the report of the Public Analyst was not supplied to the vendor.
12. The Full Bench of the Punjab & Haryana High Court in Sashmirilal v. State of Hnrynnn 1982 Cri LJ 311 : AIR 1982 NOC 126 has also taken the same view with respect to the nature of Rule 9(j) and has held that mere infraction of the Rule irrespective of prejudice will not vitiate the proceedings,
13. The Division Bench of the Bombay High Court in Shamrao v. State of Maharashtra 1981 Cri LJ 1332 has taken the same view about the nature and effect of Rule 9(j) of the Prevention of Food Adulteration Rules. The earlier single Bench decision of the same High Court in State of Maharashtra v. Jesti Dosa 1978 Cri LJ 427 was overruled
14. Our answer to the question referred to us, therefore, is 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.
15. The case may now be sent to the single Bench for disposal.