V.S. Deshpande, J.
(1) The respondent Bhagwan Das was prosecuted by the appellant Municipal Corporation of Delhi for the commission of the following offence : The- chillies powder which Was being sold by the respondent was found on analysis by the Director, Central Food Laboratory, Calcutta, to contain foreign organic matter of more than one percent which was in excess of the limit prescribed by the rules framed under the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act). The chillies powder was, thereforee, 'adulterated' within the meaning of section 2(i)(J) of the Act punishable under section 16(1)(a)(i) of the Act.
(2) The only ground on which the learned Magistrate acquitted the accused respondent is that sub-section (7) of section 10 of the Act had been violated- The Food Inspector stated before the learned Magistrate that he requested customers present at the spot and neighbouring shopkeepers to act as witnesses but they refused. This statement was corroborated by two witnesses examined by the prosecution (Public Witness .3 and Public Witness . 4). The learned Magistrate was, however, not satisfied that the Food Inspector had made genuine and vigorous efforts to associate the members of the public as witnesses in taking the sample of the adulterated chillies powder in the present case. The accused denied the whole of the evidence of the prosecution. In such a case it was all the more obligatory on the part of the prosecution to associate public witnesses in taking the sample to inspire the confidence of the Court.
(3) The question for decision, thereforee, is whether this view of subsection (7) of section 10 of the Act is correct.
(4) Section 10(7) runs as follows :-
'WHERE the food inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or subsection (6), he shall, call one or more persons to be present at the lime when such action is taken and take his or their signatures'.
(5) Section 10(7) reproduced above in its present form is the result of an amendment made by Act 49 of 1964 which came into force on 1.3.65. The sample was taken from the accused respondent in the present case on 8.6.1965 and this action of the Food Inspector is, thereforee, governed by the amended section 10(7). Prior to the amendment, section 10(7) required the Food Inspector to call 'as far as possible 'not less than two persons' to be present at the time of the action as witnesses. These words underlined above have been omitted by the amendment. Section 10(7) has, thereforee, been made partly more and partly less stringent in its application. The question is whether the provision is mandatory or directory or whether it is partly mandatory and partly directory. . A mandatory provision has to be complied with exactly in accordance with the language of the statute. If not so complied with, the action under the statute would be illegal and void. A directory provision on the other hand should be complied with but if it is not complied with such non-compliance would not be fatel to the validity of the action under the statute. If a provision is partly mandatory and partly directory, then a substantial compliance with the provision as a whole is sufficient. This would mean that only the mandatory part is complied with while the directory part is not complied with. The decisions of the High Court on this question are divided, some taking the view that the amended section 10(7) is mandatory while others are of the view that it is directory.
(6) The object of this provision seems to us to be two-fold. On the one hand, it is intended to avoid an abuse of the wide power given to the Food Inspector by making him aware that he is to act above board and in the presence of witnesses in taking the action under the provisions of section 10 specified in sub-section (7) thereof. On the other hand, it is also a security to the Food Inspector against false allegations of mis-behavior etc. inasmuch as the witnesses would bear out whether the Food Inspector acted properly or not. But after all this is said, the nature of this provision remains essentially a procedural one.
(7) It merely indicates a certain requirement as to how the action should be taken. It does not go to the substance of the matter. In Pratap Singh V. Shri Krishna Gupta, : 2SCR1029 Bose J. summed up the considerations which should guide the Courts in determining whether a particular statutory provision is mandatory or directory in the following inimitable words:-
(WE)deprecate this tendency towards technicality; it is the the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues : and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad based, commonsense lines.'
(8) The statutory jurisdiction given to the Food Inspector cannot, however, be stultified by making the procedure laid down in section 10(7) mandatory. There may be circumstances in which the Food Inspector may not be able to comply either at all or fully with the requirement of calling independent persons to witness his action. He may not either be able to even attempt to call them or he may be unsuccessful in calling them or even after they are called he may not persuade in making them agree to act as witnesses. It is not possible to lay down any hard and fast rule as to how much of this procedure should be insisted upon and how much of it is expendable. An undue insistence on the procedure may make section 10(7) unworkable. For instance, in the present case, the Food Inspector says that he called certain persons to act as witnesses but they refused to do so. His testimony is also supported by two prosecution witnesses (Public Witness 3 and Pw 4). To insist even after this that the Food Inspector must get some independent witnesses would be to expect the impossible. Such insistence would deprive the Food Inspector all his statutory powers. It could not be the intention of the Legislature to give more importance to this salutary procedure than to the even more salutary and important exercise of the power by the Food Inspector. As a rule. a provision like section 10(7) relating to the manner or form of exercise of statutory powers is held to be directory and not mandatory. It is the exercise of the powers which is the main object of the statute. A procedural safeguard would not be as important as the substantive power except in exceptional cases. The Food Inspector is a public servant possessing certain qualifications and status. The Legislature did not distrust him in the exercise of his powers. He cannot be looked at with suspicion like a police officer or an accomplice or a decoy. If, thereforee, in a particular case, he is not able to obtain local persons as witnesses his evidence cannot be disbelieved for reasons which are beyond his control. Non-compliance with section 10(7) will not, thereforee, vitiate the exercise of the power by the Food Inspector there under particularly if the Food Inspector is shown to be aware of the necessity to comply with the procedure laid down therein or if he is unable even to attempt to comply with the said provision or if after attempting to comply with it he is unable to do so due to reasons beyond his control. It is not possible, thereforee, to lay down that any part of section 10(7) is so mandatory that non-compliance with it would vitiate the action taken by the Food Inspector there under. On the other hand, the provision appears to be directory with the result that a non-compliance with it (particularly when it can be explained) would not vitiate the action of the Food Inspector.
(9) Insofar as the acquittal order is based on the view that the action of the Food Inspector is to be proved only by a particular kind of witnesses, namely, those summoned by him under section 10(7) and that no other evidence is sufficient to prove the action, this view has been rejected by the Supreme Court in Babulal Hargovindas V. State of Gujarat, : 1971CriLJ1075 . (2) Their Lordships observed :-
'(IN)our view no question of the trial being vitiated for noncompliance of these provisions can arise. It is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. He is not an accomplice nor is it similar to the one as in the case of wills where the law makes it imperative to examine an attesting witness'.
(10) This Court also has held, for different reasons, in the following decisions that section 10(7) was not mandatory :-
(1)Kishan Lal Vs The State (Criminal Revision No. 471 of 1969 decided on 17.4.1970.) (3)
(2)Parma Nand V. State (Criminal Revision No. 153 of 1967 decided on 16.7.1970. (4)
AND(3) Municipal Corporation of Delhi V. Banwari Lal Cr. Appeal 12 of 1966 decided on 31.5.1971. (5)
(11) In the present case, the Food Inspector called independent persons to act as witnesses but they refused to do so. His statement is supported by two witnesses of the prosecution (Public Witness . 3 and Public Witness . 4). There is no justification, thereforee, for the conclusion of the learned Magistrate that 'this appears to me simply a formal statement and I am not at all satisfied that Public Witness . I had made any genuine and vigorous effort to associate the public witness in taking the sample'. In our view, section 10(7) has been substantially complied with in the present case inasmuch as the Food Inspector made an attempt to call an attempt to call an independent witness and it is only because they refused to do so, he could not literally comply with section 10(7). The evidence of the Food Inspector supported by the other two prosecution witnesses was sufficient to prove compliance with section 10(7) particularly because there was no rebuttal of the evidence by the accused.
(12) We, thereforee, allow the appeal and set aside the acquittal of the accused respondent. We find that the offence defined in section 2(i)(1) is covered by proviso (i) to section 16(1) of the Act and is, thereforee, not compulsorily punishable with imprisonment. We, thereforee, sentence the accused to pay a fine of Rs. 1000.00 or in default of the payment of fine to undergo a sentence of imprisonment for two months.