S.S. Sandhawalia, C.J.
1. A categoric doubt about the ratio in Jagat Ram v. State of Haryana 1981 Chand LR 684 (Punj and Har) had necessitated the hearing of this criminal revision by the Division Bench.
2. Since the primary issue herein is the correctness or otherwise of the aforesaid precedent, it is unnecessary to advert to the facts in any great detail. Gopal Dutt petitioner was brought to trial on charges under Section 16 read with Section 7 of the Prevention of Food Adulteration Act before the Judicial Magistrate, 1st Class, Palwal, and having been found guilty thereof was convicted and sentenced to one year's rigorous imprisonment and a fine of Rs. 500/-. On appeal the learned Additional Sessions Judge, Gurgaon, upheld the conviction but reduced the sentence to six months' rigorous imprisonment and a fine of Rs. 2.000/-. The appellate Court in its judgment, remarkable both in its exhaustiveness and lucidity, specifically noticed the six contentions raised on behalf of the petitioner and adverting to each one of them repelled the same. Reliance on behalf of the petitioner was primarily placed on Jagat Rani's case (supra) for pressing his stand that the deficiency found in the sample by the Public Analyst being in respect of solids not fat only and the fat being in excess of the prescribed limit, no offence was made out. The appellate Court, however, rejected this contention whilst noticing that the Full Bench in State of Punjab v. Teja Singh (1976) 78 Pun LR 433 : 1976 Cri LJ 1648 and the other High Courts and the Supreme Court had taken a view at variance with that in Jagat Ram's case. As already noticed the view in Jagat Ram's case was doubted at the motion stage itself and the petition was admitted to hearing by the Division Bench.
3. Before us learned Counsel for the petitioner had vigorously canvassed for the adoption of the view in Jagat Ram's case 1981 Chand LR 684 (Punj and Har) (supra). Reliance was also placed on the observations to the same tenor in Hans Raj v. State of Punjab 1980 (2) FAC 396. On these premises it was contended that because the sample of the milk was found on analysis to nave milk fat in excess of the minimum prescribed standard and was merely deficient in milk solids not fat than the prescribed limit of 8.5 per cent the said variations could be set off against each other and the milk could not be held as adulterated within the definition under the Act. There is no gainsaying the fact that the observations in Jagat Ram's case as also those in Hans Raj's case (with regard to one of the two grounds for acquittal) lend signal support to the stand taken on behalf of the petitioner. It is, however, equally manifest that these are in direct conflict with what has been authoritatively laid down by the Full Bench in State of Punjab v. Teja Singh (1976) 78 Pun LR 433 : 1976 Cri LJ 1648. Therein the specific legal issues which fell for consideration were formulated in the following terms:
1. Whether it is permissible to add the percentages of the various constituents of milk disclosed by the Public Analyst and thereafter to deduce a conclusion therefrom about the overall deficiency or otherwise of the milk from its prescribed standards?
2. Whether the Court is entitled to assume a slight or reasonable margin of error in the conclusions recorded by the Public Analyst during the course of analysis of the milk?
3. Whether a negligible or marginal deviation from the prescribed standard laid down by the Act can be ignored and acquittal recorded on that basis?
It was authoritatively and categorically held that the answer to all the aforesaid three questions must be returned in the negative.
4. In view of the above it seems to be plain that no resort can be had to the process of any addition or substraction of the percentages of deviation from the prescribed standard for arriving at a conclusion that the article is not adulterated or that marginal deviation from the prescribed standard could be ignored. This, however, is what exactly seems to have been done both in Jagat Ram's case and Hans Raj's case. A perusal of the judgments recorded would show that the counsel were sorely remiss in not bringing to the notice of the Court the authoritative enunciation in Teja Singh's case (1976 Cri LJ 1648) (Punj & Har) (FB) (supra) aforesaid. With the greatest respect to the learned Judges the view expressed by them is in conflict with the Full Bench and has, therefore, to be and is hereby overruled
5. Repelled on the main ground, counsel then fell back to contend that there was a plain infraction of Section 11(3) of the Act in so far as the prosecution had not in terms established that the Food Inspector had sent the sample to the Public Analyst on the immediately succeeding working day. The appellate Court had in terms adverted to the established facts and came to the conclusion that the petitioner had not chosen to get the precise date of the despatch established from the Food Inspector when he was in the witness-box. It was found that the sample having been sent by the railway parcel after it had been taken on the 6th had reached the Public Analyst on the 13th and this could be consistent with its despatch on the immediately succeeding working day. This apart, learned Counsel could not show even a hint of prejudice to the petitioner by a marginal delay in the despatch of the sample. Whether the rule in Section 11(3) of the Act is mandatory or directory has been the subject of elaborate discussion in G. Chandramouli v. The State 1978 Cri U 549 (Andh Pra). After adverting to principle and precedent it has been concluded in this context as follows (at p. 554) :
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.' To avoid treading the same ground over again it suffice to observe that we are in respectful agreement with the reasoning and the conclusion arrived at in the aforesaid case. Consequently this contention raised on behalf of the petitioner must also be rejected.
6. I earned counsel for the petitioner had then raised the identical contentions which stand ably repelled in the exhaustive judgment of the appellate Court. In the revisional jurisdiction it suffices to say that we are in agreement thereof and the same are hereby affirmed. The Criminal Revision is without merit and is hereby dismissed.