R. Sachar, J.
(1) -IS Rule 15 of the Prevention of Food Adulteration Rules 1955 mandatory or not is the question that calls for determination in the reference under section 438 of the Code of Criminal Procedure by the Additional District and Sessions Judge who by an order dated 9th of June, 1972 has recommended that the charge framed against the petitioner under section 7/16 of the Prevention of Food Adulteration Act 1954 (hereinafter called the Act) be quashed.
(2) On 6th August, 1970, Food Inspector Municipal Corporation of Delhi, took a sample of haldi powder from a sealed 'Agmark' packet from one Shri Duli Chand. The sample was sealed in the ttle. Later on the sample which was taken by the Food Inspector was sent to the Public Analyst who declared it to be adulterated. Accordingly, acomplaint was logded by the Food Inspector against the said Duli Chand. It having been disclosed by Duli Chand that the petitioner was a manufacturer of the said 'Agmark' haldi powder, summon was issued to the petitioner. After examining the Food Inspector the petitioner was charged under section 7/16 of the Act, by Judicial Magistrate by his order dated 31st May, 1971. The petitioner filed a revision before the Sessions Judge for quashing the charge. The contention which has prevailed with the Additional Sessions Judge in recommending that the charge against the petitioner be quashed is that there has been non-compliance of Rule 15 of the Prevention of Food Adulteration Rules, 1955 (hereinafter called the Rules).
(3) Section 11 of the Act provides that when a Food Inspector takes a sample of food for analysis he shall separate a sample into three parts and mark, seal and fasten up each part in such a manner as it permits and deliver one part of it to the person from whom the sample has been taken, send another part for analysis to Public Analyst and retain the third part for production in case any legal proceedings are taken or for analysis by the Director of the Central Foods Laboratory under Sub-section 2 of section 13 as the case may be. Rule 15 reads as under : Bottles or containers to be labelled and addressed :- All bottles or jars or other containers containing samples for analysis shall be properly labelled and the parcels shall be properly addressed. The table on any sample of food sent for analysis shall bear:-
(A)Serial No. (b) Name of the sender with official designation, if any. (c) Name of the vendor. (d) Date and place of collection (e) Nature of article submitted for analysis. (f) Nature and quantity of preservative, if any, added to the sample. (Provided that in the case of a sample of food which has been taken from Agmark sealed container, the label shall bear the following additional information:- (a) Grade. (b) Agmark label No. /Batch No. (c) Name of packing station.)
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The case against the petitioner is based on the complaint made by the Food Inspector that the sample of adulterated haldi powder was taken from an 'Agmark' Packet and that the petitioner is slated to be manufacturer of the haldi sealed in 'Agmark' packet. The sample in the bottle which in terms of Section 11 of the Act was retained by the Food Inspector was opened before the learned Additional District and Sessions Judge who found that the lable on the bottle was blank and was not filled up as required by Rule 15. In a case of a sample of food which is taken from an 'Agmark' further requirements as mentioned in the proviso to Rule 15 are to be given on the label but the same were also not found on the label. I myself had the seal of the sample bottle broken and found that though the printed label was put on the bottle, yet no details, as mentioned in Rule 15, are filled up. It can, thereforee, be taken that there had been non-compliance of Rule 15. The question still arises, whether because of non-compliance of Rule 15 there is any legal bar to the prosecution of the petitioner or to the framing of a charge. The contention of the learned counsel for the petitioner is that once it is proved that there has been non-compliance of Rule 15 it must automatically vitiate the trial and there is a legal bar to the prosecution of the petitioner and neceasasily charge should be quashed. In my opinion there is no merit in this contention. It is not every non-compliance of a rule that can be held to be fatal to the prosecution nor the mere fact that Rule 15 uses the word 'shall' does it necessarily make it mandatory. An enactment mandatory in form might in substance be directory and the use of word 'shall' does not conclude any matter vide Hari Vishnu Kamath v. Ahmad Ishaque. A distinction has to made between what is essential and non-essential. The consequence of holding the provision mandatory is that if there is non-compliance with it, it renders all the proeeedings illegal and void while a directory provision is one where there may be non-compliance but it will not automatically invalidate all the proceedings. It is only if the non-compliance of the provision leads lo manifest prejudice that it can be held that such a provision is mandatory. The argument that rule 7(3) of the rules as it originally stood which required that after analysis had been completed by the Public Analyst he shall forthwith supply to the person concerned in form 3 of the result of such analysis was mandatory and its non-compliance would make the prosecution had was negatived by a Full Bench in The Municipal Corporation of Delhi v. Chhote Lal. In that case their Lordships found that though there had been non-compliance with Rule 7(3) will fraud a prosecutioa on that account would be seeking a sequence which would be altogether is proportionate to the nature of the non-compliance. It was also observed that any non-compliance with the provisions of the law relating to the machinery for the collection of evidence would not vitiate the trial unless it has resulted in the mis-carriage of justice. In the present case it was sought to be urged by counsel for the petitioner that as no details were mentioned on the label, it is possible that the Food Inspector and vendor may have colluded in order to falsely implicate the manufacturer. I do not see how this argument can possibly be advanced to find out whether Rule 15 is a mandatory or not. If they are to collude I do not see how it will prevent it even when label is filed up. I do not see how collusion between an Inspector and a vendor is necessarily avoided by holding Rule 15 as mandatory. Even if the Rule was to be held mandatory a collusuion may still be there between the Food Inspector and the vendor and the libel filed up showing a sample was taken from article manufactured by the manufacturer while infact it may not be so. It is apparent that the argument about the mandatory nature of a rule cannot be made to depend upon the apprehension whether real or imaginary of collusion or dishonest intentions on the part of vendor or the Food Inspector. These considerations are totally extraneous to the correct rule of interpretation to determine whether a rule is to be held mandatory or directory. It is no doubt true that Rule 15 is a salutary rule providing that the label on the bottle should contain the various details when it is sealed so that subsequently the controversy about the date of collection, the name of sender and the sample of article are reduced to the minimum. But these all relate and have relevance to the in chinery for collection of evidence What value would be placed on a sample when it does not contain the various details on the label and how much importance has to be attached to it is a matter on merits and will vaiy in the facts and circumstances of each case,and is a matter on merits to be examined by the trial Court. But there is no warrant for the proposition that the mere absence of the details to be specified on the label has the necessary consequence of prohibiting a prosecution at. the initial stage. A reference to Part 3 of the rules will show that various rules provide in detaill a number of matters as to how the sample should be sealed and packed and sent to the public analyst. No doubt all these are wholesome and salutory provisions and it is expected that the persons concerned will follow them scrupulously. But I cannot accept the argument that the moment it is shown that there has been a non-compliance of one of the requirements given in the Rule the result must be that prosecution cannot proceed any further. To give such a wide meaning to the rule would be to strike at the very root of the object of the Act and to place hinderances in the eradication of the evil of adulteretion of foodstuff which is necessary for the health and safety of the community. Such an interpretation would plainly be inconsistent with the very purpose of the Act nor does the context of the rule compel such an interpretation to be accepted. Mr. Sethi for the State pointed out that no doubt the labels are blank but all the details and even the mention of the fact that the samples were taken from the pickets of 'Agmark' are mentioned in the inventory which was prepared at the spot Exhibit PC. He also mentioned that the reference to the batch number of these 'Agmark' packets also finds mention in Exhibit Pb seizure memo. He also referred me to the memo of the Food Inspector Pc in which the Seriall number of the sample is given and Exhibit Pe report by the Public Analyst which apparently refers to this very sample. Mr. Sethi's contention is that even if the labels were left blank the.details of the article seized was sufficiently proved by these documents. It is unnecessary for me to comment one way or the other on this aspect as this is a matter which relates to merits of the prosecution and has to be examined and tried by the trial Court. All that I am concerned at present is to find out whether the non compliance with the rule 15(3) per se vitiates the trial. In can see no warrant for so holding. The result is that I cannot hold that the Magistrate has in any manner acted illegally in framing a charge against the petitioner. In that view of the matter the recommendation made by the Additional Sessions Judge is declined and the revision petition is dismissed.