1. This is an appeal filed by the appellant one Gela Hira Rabari against the judgment and order of his conviction and sentence passed by the learned City Magistrate, 6th Court, Ahmedabad, in Criminal Case No. 228 of 1966. The conviction is under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (37 of 1954) for the accused having on the morning of December 31, 1965 at 9.30 a.m. sold to the complainant Food Inspector of the Ahmedabad Municipal Corporation 700 M litre of cow's milk for 0.56 Paise which on analysis, was found to be adulterated. The offence was committed near the station of Maninagar in Ahmedabad. The accused-appellant has been sentenced to suffer rigorous imprisonment for one month and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for seven months.
2-3. The prosecution case as is revealed from the evidence of the Food Inspector Shantilal Vidyashankar Pandya P.W. 1 Ex. 2 is that on the morning of December 31, 1965 at about 9-30 a.m., while he was standing near Maninagar with his peon ahmad, he had seen the accused going with the milk pot containing about one maund of milk. He called one Bhagwandas to be present at the time of his taking the sample and then asked the accused to stop. He enquired of the accused the quality and usual rate of the milk. The accused told him that it was cow's milk and quoted the rate at 0.08 Paise per 100 ml. He then purchased 700 ml. Of milk from the accused on payment of 00.56 Paise as its cost and informed him that he was a food inspector and the purpose of his taking the milk was to get it analysed by the public analyst. He served upon the accused a notice in the prescribed Form VI under Rule 12 of the Prevention of Food Adulteration Rules, 1955, and he took the thumb impression at the accused on the original and gave him the carbon copy. He then separated the milk (sample) in three dry clean bottles and added formalin as a preservative and then got the bottles sealed and labelled. The labels were signed by him and the panchas. He then wrapped each bottle separately in a thick paper and secured the paper cover by means of a strong twine and sealed it. He and the panchas signed the wrappers. He then delivered one of the parts to the accused who gave the receipt Ex. 4. He then sent the sample to the public analyst along with the memo and a specimen impression of the seal. The report of the public analyst D.G. Vyas Ex. 5 dated January, 24, 1966, stating that the sample of milk which was caused to be analysed by him contained 3.5% of fat. 7.3% of solids other than milk fat and addition of 14% of water was received by the food inspector. He then obtained the necessary sanction to prosecute the accused on receipt of which he instituted the complaint against the accused on May 17, 1966.
x x x x
4. Mr. P. D. Desai, learned Advocate appearing for the appellant-accused, has contended before me:
(1) That no satisfactory evidence was led to show that the sample in question was taken from the appellant.
(2) That the prosecution evidence revealed that there was scope that the sample taken from the appellant could have been tampered with and as such, there was no guarantee that the appellant had adulterated the same.
(3) That there was no evidence that formalin of requisite strength and quantity was added to the sample in question.
(4) That Rules 7, 18, 19 and 20 of the Prevention of Food Adulteration Rules 1955, were mandatory rules and wee not complied with in the case
(5) That even if Rules 19 and 20 are held to be directory, the report of the public analyst was inadmissible in evidence having regard to the definition of 'Sample' in S. 2(xiv) of the Act read with Rules 19 and 20 since the sample of milk was not obtained in accordance with the Act and the Rules.
(6) That there was inordinate delay in filing the complaint which had caused prejudice to the accused and vitiates the trial
(7) That in any event, the sentence was excessive.
5. Mr. Desai has thus, inter alia, raised two material questions of law: (i) whether Rules 7, 18, 19 and 20 of the Prevention of Food Adulteration Rules, 1955, are mandatory, and (ii) whether inordinate delay in filing the complaint vitiates the trial, the point which Mr. Desai, I must say, fairly gave up at the end of his elaborate arguments on the point having regard to the material fact that the appellant whom he represented did not avail himself of the opportunity available to him under Section 13(2) of the Prevention of Food Adulteration Act and a decision of the Supreme Court which was brought to his notice. However, I am told that similar questions arise in a large number of appeals which are pending hearing. I have, therefore, permitted Mr. H. K. Thakor to intervene. Mr. G. T. Nanavaty, learned Assistant Government Pleader appearing for the State, has contended that Rules 19 and 20 are directory. He has further contended that delay per se is no ground so as to constitute a fatal infirmity in the prosecution case. M/s. D. C. Trivedi and S. B. Vakil have appeared for the food inspector and have supported the view canvassed before me by Mr. G. T. Nanavaty, I would, therefore, before considering the appeal on merits first deal with the question as to whether Rules 7, 18, 19 and 20 of the Prevention of Food Adulteration Rules, 1955, which will hereafter be referred to as 'the Rules' are mandatory or directory.
6. The Rules are made by the Central Government under its rule-making powers conferred by sub-section (2) of S. 4 and sub-section (2) of Section 23 of the Prevention of Food Adulteration Act, 1954 (37 of 1954) which will hereafter be referred to as 'the Act'. Rule 7 deals with the duties of the public analyst and reads:
'Rule 7 Duties of public analyst:
(1) On receipt of a package containing a sample for analysis from a food inspector or any other person the public analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon.
(2) The public analyst shall cause to be analysed such samples of articles of food as may be sent to him by food inspector or by any other person under the Act.
(3) After the analysis has been completed, he shall forthwith supply to the person concerned a report in Form III of the result of such analysis.'
Form III of Appendix 'A' to the rules, inter alia, embodies the certificate of the public analyst stating; 'I further certify that I have/ I have caused to be analysed that aforementioned sample, and declare the result of my analysis to be as follows ...........' It is require to be signed by the public analyst.
7. Rule 17 lays down the manner in which containers of sample have to be sent to the public analyst and requires that the containers shall be enclosed together with a memorandum in Form VII in an outer cover addressed to the public analyst
8. Rule 18 reads:-
'Memorandum and impression of seal to be sent separately - A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by registered post or delivered to him or to any person authorised by him.'
9. Rules 19 reads:-
'Addition of preservative to samples- Any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis.'
10 Rules 20 reads:-
'Preservative in respect of milk, cream and gur - The preservative used in the case of samples of any milk (including toned, separated and skimmed milk), standardised milk, channa, skimmed milk channa, cream, ice-cream, mixed ice-cream, ice-candy, dahi and gur in liquid or semi-liquid form shall be the liquid commonly known as 'formalin' that is to say a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of 0.1 ml. (two drops) for 25 ml. or 25 grams.'
The aforesaid rules which have a bearing on the result of the analysis of the sample of an article of food sent to the public analyst by the food inspector do not in their very nature expressly declare as to what shall be the consequence of non-compliance therewith. The use of the word 'shall' in Rules 7, 18 and 20, and the use of word 'may' in Rule 19 do not conclude the matter. The question then arises as to the true legislative intent in using the word in a given statute. For the purpose, the distinction between the terms 'mandatory' or 'imperative' and 'directory' or 'permissive' which seem to have reference o the method by which the legislature sets about attaining its object, must be borne in mind. When the statute requires that something shall be done, or done in a particular manner or form without expressly declaring what shall be the consequence of non-compliance, the question often arises: what intention is to be attributed by inference to the legislature? The following passage in Maxwell on the Interpretation of Statutes. Eleventh Edition, at page 254, serves as a useful aid to ascertain the true intention of the legislature.
'It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard or as imperative with an implied nullification for disobedience, beyond the fundamental one that it depends on the scope and object of the enactment. If may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice and, when the result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded.'
In this connection the general rule as laid down in Woodward v. Sarsons, (1875) 10 CP 733, 746 is that an absolute enactement must be beyond or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially, i.e. that the act permitted by an absolute enactment is lawful only if done in accordance with the conditions annexed to the statutory permission. As observed by the Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233, at p. 245:
'The practical bearing of the distinction between a provision which is mandatory and one which is directory is that while the former must be strictly observed, in the case of the latter, it is sufficient that it is substantially complied with.'
It was earlier observed in the same decision:
'It is well established that an enactment in form mandatory might in substance be directory might in substance be directory and that the use of the word 'shall' does not conclude the matter.'
As observed therein, the rules of interpretation aforesaid are well known and are all of them only aids for ascertaining the true intention of the legislature which is the determining factor and that must ultimately depend upon the context. A valuable guide in the matter even while construing a penal statute is to be found in People v. De Renna (2 NYS (2) 694 = 166 Misc 582) where the statute provided that a defendant, upon conviction by the Jury to life imprisonment, 'may be sentenced to life imprisonment' by the Court, the ordinary permissive word 'may' was held to be mandatory. The relevant passage in the case which is set out in the Construction of Statutes by Earl T. Crawford, 1940 Edition, at page 516, reads:
'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. This case is applicable to the case at bar because it deals with the question of punishment.'
In Liverpool Borough Bank v. Turner, (1860) 30 LJ Ch. 379, 380 Lord Campbell has, with regard to enactments expressed in merely affirmative language, observed:
'No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.'
The passage appears at p. 242 in Crales on Statute Law, 5th Edition.
A useful aid to ascertain the true legislative intent is to be found in the following passage from Maxwell on The Interpretation of Statutes, 11th Edition, at page 369, which has been approvingly referred to and reaffirmed by the Supreme Court in the case of State of Uttar Pradesh v. Babu Ram Upadhyaya, AIR 1961 SC 751, which reads:
'On the other hand, where the prescriptions of a statute relate to the performance of a public duty, and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them.'
11. The passages aforesaid from Maxwell Crawford and Craies were approvingly referred to by the Supreme Court in AIR 1961 SC 751 (supra) which lays down the rules of interpretation of statutes and holds that para 486 of the Police Regulations was mandatory in nature. In that case, by a majority judgment as per A.K. Sarkar, K. Subba Rao and J.R. Mudholkar, JJ., with P.D. Gajendragadkar and K. N. Wanchhoo, JJ, dissenting, the Supreme Court laid down the rules of interpretation, following which it held that para 486 was mandatory in the language of the majority view:
'The relevant rules of interpretation may be briefly stated thus: when a statute uses the word 'shall', prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention, the Court may consider, inter alia, the nature and the design of the statute, and the consequence which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.'
In that case, the Supreme Court was concerned with an order of dismissal passed against a police officer under Section 7 of the Police Act which was challenged by the Police officer in the High Court of Uttar Pradesh on the ground that the provisions of Rule 1 of para 486 of the Police Regulations which were mandatory were not observed and, therefore, the proceedings under Section 7 of the Police Act were invalid and illegal, a contention which was upheld by the High Court and the State had filed an appeal in the Supreme Court by special leave. Para 486 of the Police Regulations provided that: 'When the offence alleged against a police officer amounts to an offence only under Section 7 of the Police Act, there can be no magisterial inquiry under the Criminal Procedure Code. In such cases, and in other cases until and unless a magisterial inquiry is ordered, inquiry will be made in accordance with the following rules: 1. Every information received by the police relating to the commission of a cognizable offence by a police officer shall be dealt with in the first place under Chapter XIV Criminal Procedure, Code, according to law a case under the appropriate section being registered in the police station concerned.' The Supreme Court considered the question as to whether Rule 1 of para 486 was directory having regard to the aforesaid rules of interpretation including the nature and the design of the statute and in the context of the provisions contained in paras 487, 489 of the Police Regulations which made it abundantly clear that the police investigation under the Criminal Procedure Code was a condition precedent for the departmental trial. The view expressed as per the majority judgment was that when a rule says that a departmental trial can be held only after a police investigation, it is not permissible to hold that it can be held without such investigation and that for all the reasons stated in the judgment, para 486 was mandatory and as the investigation had not been held under Chapter XIV of the Criminal Procedure Code, the subsequent inquiry and the order of dismissal were illegal. The guide lines have been thus clearly laid down by the Supreme Court in the case, which I must say have been strongly relied upon by Mr. P.D.Desai. as observed in the earlier Supreme Court case, the use of the word 'shall' does not conclude the matter, nor does the use of the word 'may'. The overall considerations in such a case would be the real legislative intent and whether the object of the legislation will be defeated or furthered by interpreting the particular rule or rules as mandatory or directory. It is in light of these guide lines that I will now proceed to ascertain the real intention of the legislature as expressed in Rules 7, 18, 19 and 20 and for the purpose I will carefully attend to the whole scope of the statute. I will first consider the object of the Act.
12. Now, the Act has been enacted to make provision for the prevention of adulteration of food and the maintenance of public health. As observed by Mr. Justice J. M. Shelat, (as he then was) speaking from the Division Bench of this High Court in Mohanlal Chhaganlal Mithawala v. Vipinchandra R. Gandhi (1961) 2 Guj LR 735 at p. 741 = (AIR 1962 Guj 44 at p. 47):
'The object of the Act as seen from the title and the preamble is the prevention of adulteration of food. In other words, the object is to achieve purity of food and the maintenance of public health. The Legislature presumably intended, while enacting this statute, that those responsible for such adulteration are brought to book and the mischief of the evil prepetrated by them is prevented. x x x'
It was further observed at p. 743 (of Guj LR ) = (at p. 48 of AIR) of the report:
'It is obvious from the Act that the object that the Legislature had in mind were : to secure purity of food, to maintain public health, to eradicate the evil of adulteration of food and to prevent a vendor of such adulterated food from continuing to perpetrate the mischief sough to be done away with under this statute.'
These are the objects which must be kept in view while considering the relevant rules. In this background I will now examine the nature and design of the Act of which the rules and appendix 'A' and Appendix 'B' are parts.
13. Section 2 of the Act defines the expression 'adulterated' in Clause (i), sub-clauses (a) to (i). The expression 'adulterated' is used in reference to an article of food as defined in Section 2(v) it is a deeming clause. Clause (i) lays down that an article of food shall be deemed to be adulterated (a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice or is not of the nature, substance or quality which it purports or is represented to be (b) if the article contains any other substance which affects, or if the article is so processed as to affect injuriously the nature, substance or quality thereof x x x x x x (j) if any colouring matter other than that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article (k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits; (1) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. Definition of the word 'adulterated' to be found in clauses (i)to (l) thus lays down that the article of food may be deemed to have been adulterated for various reasons. This has no direct relation to the process of fermentation, acidification or other decomposition of a given article of food which may if provided by the Rules be prevented by addition to it of a preservative, capable of inhibiting retarding or arresting the process of fermentation, acidification or other decomposition of the food article. Clause (xiv) of Section 2 of the Act defines 'sample' as meaning a sample of any article of food taken under the provisions of the Act or of any rules made thereunder. Section 3 of the Act deals with the constitution of the Central Committee for Food Standards. Section 4 provides, inter alia, for establishment of Central Food Laboratory and further for making of the Rules by the Central Government after consultation with the committee prescribing the functions of the Food Laboratory, the procedure for submission to the said Laboratory of samples of articles of food for analysis or tests and the forms of the laboratory's report thereon. Section 5 prohibits import of certain articles of food into India. Section 6 deals with application of law relating to Sea Customs and powers of Customs Officers, which is not relevant for our present purpose. Section 7 prohibits manufacture for sale, distribution or storage by himself or by any person on his behalf, of certain articles of food which includes any adulterated food, any misbranded food, any article of food incontravention of any other provisions of the Act or of any rule made thereunder, of food by the public analyst. Section 8 empowers the Central Government or the State Government to appoint such persons as it thinks fit having the prescribed qualifications to be public analysts for such local areas as may be assigned to them. Section 9 deals with the powers of the Central Government to appoint Food Inspectors. Section 10, which is material , lays down the powers of the Food Inspectors. Under Section 10(1)(a), the Food Inspector has power to take samples of any articles of food from (i) any person selling such article; (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee and (iii) a consignee after delivery of any such article to him, Section 10(1)(b) provides for sending of such sample for analysis to the public analyst. Sub-section (3) of Section 10 provides that the cost of the sample taken by the Food Inspector shall be paid to the person from whom it is taken. Sub-section (4) gives the power to the Food Inspector to seize and carry away or keep in the safe custody of the vendor any article of food which appears to him to be adulterated or misbranded. Sub-section (6) gives power to the Food Inspector to seize any material likely to be employed for the purpose of adulteration and which is found in the possession of a manufacturer of any article of food. Sub-section (7) provides that where the Food Inspector takes action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (6), he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures. Thus, Sections 10(1)(a) and (b), 10(3) and 10(7) provide valuable safeguards to ensure that an article of food which is taken as a sample by the Food Inspector is not tampered with and the person from whom the sample is taken is not wrongly involved in the offence of adulteration of food. Sub-section (9) adds one more salutary safeguard in the shape of likely prosecution of Food Inspector who exercises the powers under the Act or Rules vexatiously and without any reasonable grounds of suspicion seizes any article of food; or commits any other act to the injury of any person without having reason to believe that such act is necessary for the execution of his duty, Section 11 lays down the procedure to be followed by the Food Inspectors in taking samples. Sub-section (1) provides that when a Food Inspector takes a sample of food for analysis he shall (a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample. Clause (b) provides that except in special cases provided by Rules under the Act, the Food Inspector shall separate the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits. Clause (c) provides that the Food Inspector shall deliver one of the parts to the person from whom the samples has been taken, send another part for analysis to the public analyst, and retain the third part for production in case any legal proceedings are taken or for analysis by the Director of Central Food Laboratory under sub-section (2) of Section 13, as the case may be, sub-section (3) provides that the Food Inspector taking such a sample must send a sample of it in accordance with the rules prescribed for sampling to the public analyst for the local area concerned. Sub-section (4) prequires that the article of food seized under Section 10(4) shall be produced before a Magistrate as soon as possible. Proviso to sub-section (4) of Section 11 lays down that in the case of any article of which samples have been sent to the public analyst for analysis, it may be produced before the Magistrate on or after the receipt of the public analyst; and further that it an application is made to the Magistrate in this behalf by the person from whom article of food has been seized, the Magistrate shall an order in writing direct the Food Inspector to produce such article before him within such time as may be specified in the order, it will thus be seen that Section 11(1) and (3) of the Act provides sufficient safeguards and guarantees with a view to see that all possible scope of tampering with the sample taken is avoided, until it is sent to the public analyst. Section 12 confers a right on a private party to purchase food and have it analysed. In such a case, the second proviso lays down that the provisions of sub-section (1), sub-section (2) and sub-section (3) of Section 11 shall, as far as may be, apply to a purchaser of article of food who intends to have such article so analysed, as they apply to a Food Inspector who takes a sample of food for analysis. Section 13 of the Act which deals with the report of public analyst, provides that the report may be used as evidence of the facts stated therein and confers a valuable right on the accused as provided in sub-section (2) to have a sample sent to the Director of Central Food laboratory for analysis and report. Sub-section (1) thereof provides that the public analyst shall deliver in such form as may be prescribed, a report to the Food Inspector of the result of the analysis of any article of food submitted to him for analysis. Sub-section (2) provides that after the institution of a prosecution under the Act, the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in sub-clause (i) or sub-clause (ii) of clause (c) of sub-section (1) of Section 11 to the Director of Central Food Laboratory for a certificate, and on receipt of the application, the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of Section 11 are inact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis. Sub-section (3) provides that the certificate issued by the Director of the Central Good Laboratory under sub-section (2) shall supersede the report given by the public analyst under sub-section (1). Sub-section (5) provides that any document purporting to be a report signed by the public analyst unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the Indian Penal Code. Proviso to sub-section (5) lays down that any document purporting to be a certificate signed by the Director of Central Food Laboratory shall be final and conclusive evidence of the facts stated therein. Thus, the scheme of Section 13 of the Act provides that the report of the public analyst may be used as evidence of the facts stated therein in any proceeding under the Act. At the same time, it confers upon the accused a very valuable right to make an application to the Court for sending a part of the sample to the Director of Central Food Laboratory for certificate. A similar right is conferred upon the complainant also. The Director of Central Food Laboratory is required to analyse the sample and send the certificate to the Court within one month from the date of the receipt of the sample and such a certificate which is to be in the prescribed form and to be signed by the Director of Central Food Laboratory supersedes the report of the public analyst submitted under sub-section (1) of Section 13 of the Act and is to be treated as final and conclusive evidence of the facts stated therein. Section 13 provides a valuable safeguard against any possible tampering with the sample, besides conferring a valuable right on the accused. Having regard to the scheme of the Act, it appears that Section 11(1)(c) and Section 13(2) of the Act between then provide sufficient checks or safeguards against any tampering with the sample taken and to use the words of Sarela, J., in Manka Hari v. State of Gujarat 8 Guj LR 588 at p. 601 = (AIR 1968 Guj at p. 96), they provide for a built-in-guarantee against tampering between the taking of the sample and its analysis by the public analyst. As further observed by the learned Judge. In cases where the prosecution evidence suffers from infirmities which show that the burden placed on the prosecution in a criminal case has not been discharged no importance can be attached to the built-in-guarantee against tampering earlier referred to, but where all that the prosecution is expected to do under the rules has been done and there are no circumstances from which a reasonable possibility of tampering could arise, the fact that the accused was by the law furnished with the means of exposing any attempt at tampering cannot be overlooked. Sections 14, 14-A and 15 are miscellaneous provisions which are not very relevant for the present purpose. Section 16 provides for various penalties for contravention of the provisions of Section 7 of the Act. Sub-section (1) (a) (i) of Section 16 provides that if any person whether by himself or by any other person on his behalf imports into India or manufactures for sale or stores, sells or distributes any article of food which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) Authority in the interest of public health he shall be punished as stated in that section. Sub-clause (ii) of clause (a) provides for such dealings in respect of other articles of food in contravention of the provisions of the Act or of any rules made thereunder. Sub-clause (b) of sub-section (1) provides penalties for a person who prevents a Food Inspector from taking a sample as authorised by the Act. Sub-section (1) also makes provisions in its clauses (c), (d), (e) and (f) for penalties for other offences. Section 19 lays down defence which may or may not be allowed in prosecution under the Act. Section 20 deals with cognizance and trial of the offences. It provides that no prosecution for an offence under the Act shall be instituted except by, or with the written consent of the Central Government or the State Government or a local authority or a person authorized in this behalf, by general or special order by the Central Government or the State Government or a local authority. Section 23 deals with the power of the Central Government to make rules which may be made after consultation with the Committee and subject to the condition of previous publication. Clause (i) of the sub-section (1) of Section 23 provides that the Central Government may make rules specifying a list of permissible preservatives, other than common salt and sugar, which alone shall be used in preserved fruits, vegetables or their products or any other articles of food as well as the maximum amounts of each preservative, Section 24 gives power to the State Government to make rules for the purpose of giving effect to the provisions of the Act in matters not falling within the purview of Section 23 and this power is to be exercised after consultation with the Committee. This, in brief, is the nature and design of the Act. The whole scheme of the Act shows that in enacting the Act the object the Legislature had in mind was to secure purity of food, to maintain public health, to eradicate the evil of adulteration of food and to prevent a vendor of such adulterated food from containing to perpetrate the mischief sought to be done away with under this statute and to bring to book those responsible for such adulteration while providing for the trial of an accused under the Act to be concluded as expeditiously as possible. At the same time, it creates elaborate and adequate safeguards to the accused-vendor against being prosecuted vexatiously and without reasonable ground and also against the sample of food being adulterated between the taking of the sample and its analysis by the public analyst and if so required, by the Director of the Central Food Laboratory. It is in this context that the rules require to be considered.
14. The Rules which are called the Prevention of Food Adulteration Rules, 1955, as aforesaid, are made by the Central Government in exercise of the powers conferred upon it by sub-section (2) of Section 4 and Section 23(1) of the Act after consultation with the Central Committee for Food Standards and are dealt with under 13 different parts. Sub-section (2) of Section 23 requires that every rule made by the Central Government under the Act shall be laid as soon as may be after it is made before each House of Parliament and will operate subject to the modification, if any, made and be of no effect if the Houses agree that the rule should not be made. The Rules under Section 24 of the Act, if any, made by the State Government have also to be laid before the respective State Legislatures. The scheme of the Act thus shows that the rules are statutory rules. Part II of the Rules contains Rules 3 and 4 which respectively lay down the functions of the Central Food Laboratory and the manner of sending food samples to the Director of the Central Food Laboratory, the test or analysis by the Director and his certificate. Rule 4(1) provides that the samples of food for analysis whether under sub-section (2) of Section 13 or under clause (a) of Rule 3 shall be sent either through a messenger or by registered post in a sealed packet enclosed together with a memorandum in Form I in an outer cover addressed to the Director sub-rule (5) of Rule 4 provides that after test or analysis, the certificate thereof shall be supplied forthwith to the sender in Form II. Part III of the Rules which contains Rule 5 lays down the definitions and standards of quality and says that standards of quality and says that standards of quality of the various articles of food specified in Appendix 'B' to the Rules are as defined in that Appendix Part IV of the Rules deals with the public analysts and Food Inspectors. Rule 6 provides for qualification of the public analyst. Qualifications which are prescribed in sub-rule (1) in clauses (a), (b), (c), (d) and (e) and in sub-rule (ii) clauses (a), (b), (c), (d) and (e) and in sub-rules (iii) and (iv), show that the appointment is to be made from the persons holding high qualifications and standing. The two provisos to be found in Rule 6 lay down that for a period of four years from the commencement of the Act persons whose qualifications, training and experience are regarded by the State Government as affording subject to such further training, if any, as may be considered necessary, a reasonable guarantee of adequate knowledge and competence as public analysts and further that any person appointed as a public analyst in terms of the preceding proviso may be allowed to hold his post after the said period of four years if the State Government is satisfied that he continues to possess adequate knowledge and competence as Public Analyst. Thus, the qualifications and conditions which are set down in the rule and the provisos show that adequate knowledge and competence is the basis of such appointments, which basis is calculated to raise confidence in the analysis that may be made or caused to be made of the sample sent to the Public Analyst and also in the report of the public analyst and ensures a reasonably sound test of the sample. Rule 7 which deals with the duties of the public analyst has been set out earlier. Rule 8 lays down the qualifications for appointment of a Food Inspector, who must be a medical officer in charge of the health administration of a local area, or a graduate in medicine, or a licentiate in medicine or a holder of a qualification in sanitary science registrable as an additional qualification by the State Medical council or Health Officers Examination certificate or possesses qualifications prescribed by the respective State Governments for appointment of sanitary inspectors or health inspectors. Proviso to Rule 8 lays down that for a period of four years from the date on which the Act takes effect, persons whose qualifications, training and experience are regarded by the State Government as affording subject to such further training, if any, as may be considered necessary a reasonable guarantee of adequate knowledge and competence may be appointed as Food Inspectors. Thus, the Food Inspectors are to be appointed from persons holding specific qualifications and having adequate knowledge and experience. The provisos to Rule 8 gives a reasonable guarantee about the adequacy of knowledge of the appointees other than the persons who fall in the category (i), (ii) and (iii) Rule 8 is so framed as to ensure the taking of the sample and the despatch thereof to the public analyst by Food Inspectors who can reasonably be relied upon. I may here say that having regard to the qualifications and conditions prescribed in Rule 6 and 8 and the provisos thereunder, the criticism of Mr. P.D. Desai that these provisions cannot be treated as affording sufficient guarantees either in the matter of taking of the sample or in the matter of the report of the analysis is not of much substance. Rule 9 deals with the duties of the Food Inspectors to frequently inspect licensed establishments make enquiries and inspections to detect the contravention of the rules, etc. Rule 12 which again is another salutary check against any possible tampering lays down that where a Food Inspector takes a sample of an article of food for the purpose of analysis, he shall intimate such purpose in writing in Form VI to the person from whom he takes the sample. Then comes Part V of the Rules which deals with sealing, fastening and despatch of the samples. Rule 14 thereof prescribes the manner of sending the samples for analysis. It provides that sample of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed. Rule 15 provides for labelling of the bottles or containers and properly addressing them. Rule 16 deals with the manner of packing and sealing the samples. It provides that all samples of food sent for analysis shall be packed, fastened and sealed in the manner provided thereunder, namely, that (a) the stopper shall first be securely fastened so as to prevent leakage of the contents in transit (b) the bottle jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive, (c) the paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender Rule 17 lays down the manner of sending the containers of samples to the public analyst. It provides that the container of sample for analysis shall be sent to the public analyst by registered post or railway parcel or air freight or by hand in a sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed to the public analyst. Rule 18 provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by registered post or delivered to him or any person authorised by him. Rules 19 and 20 deal respectively with addition of preservatives to samples as may be prescribed and to preservatives in respect of milk, cream and gur. I will deal with the Rules 18, 19 and 20 a little later, Rule 21 provides for the nature and quantity of the preservative to be clearly noted on the label. Rule 22 provides that the quantity of sample to be supplied to the public analyst or to the Director for analysis in respect of 22 specified articles of food and also in respect of food (not specified) which in Item No. 23, as the approximate quantity. Part V as aforesaid lays down the rules for sealing, fastening and despatch of samples and has to be read with Section 11 of the Act which lays down the procedure to be followed by the Food Inspector in taking the sample. It may be remembered that Section 11(1)(c) and Section 13(2) of the Act provide a built-in-gurantee against tampering between taking of the sample and its analysis by the public analyst Rules 14 and 16 of the Rules also provide for such built-in-gurantee against all possible tampering. Part VI deals with coloring matters and comprises Rules 23 to 31. Part X of the Rules which contains Part 52, 53, 54, 55 and 56 deals with preservatives. Rule 52 defines preservative as meaning a substance which when added to food is capable of inhibiting, retarding or arresting the process of fermentation, acidification or other decomposition of food. Rule 53 classifies preservatives in two distinct classes, but it does not include the preservative known as formalin for which provision is made in Rule 20. Rule 54, 55 and 56 are not relevant for the present purpose. Part VII which deals with packing and labelling of foods. Part VIII which deals with prohibition and regulating of sales, part IX which deals with conditions for sale and licence, Part XII which deals with antioxidants and stabilising agents, part XI which deals with poisonous metals and Part XIII which deals with flavouring agents are not much relevant for the present purpose.
15. The scheme of the Act and the Rules thus shows that the provisions dealing with the observance of the formalities laid down by the rules fallinto four broad stages, namely, (1) the taking of the sample dealt with broadly in Sections 10(1)(a), 10(7), 11(1)(a), Rule 12 and its Form VI and Rule 22 (2) the dividing of the sample, adding of the preservative, if necessary and packing and sealing it, broadly provided for in Section 11(1)(b), and Rules 14, 15, 16, 19, 20 and 21; (3) the sending of one of the samples to the public analyst broadly provided for in Sections 11(1)(c)(ii); 11(3) and Rules 17 and 18; and (4) the analysis by the public analyst of the sample sent to him for which provision is made in Section 18 and Rule 7. This, in brief, is the scheme and the contents of the Act and the Rules.
15-A. Rule 5 which as aforesaid occurs in Part III of the Rules headed 'Definitions and Standards of Quality' specifies that the standards of quality of the various articles of food specified in Appendix B to the Rules are as defined in that Appendix, Milk and Milk Products are some of the articles of food whose standards are prescribed in Appendix 'B'. Items (Rules) A 11 to A11.14 of Appendix B specify standards of quality of milk and milk products. Item A.01 deals with non-alcoholic beverages. Item A.03 defines the standard of quality of starchy foods. Item No. A.04 deals with asafoetida or Hing and defines the standard of quality in that respect. Item A.05 deals with spices and other articles. Item No. A.07.04 deals with ice-candy and A.07.05 deals with Gur or jaggery. There are various other articles of food, the standards of quality of which are prescribed in Items A.12 to 26.05 and these include margarine, saffron, tea, edible common salts, fruit products, tomato juice, fruit syrup, fruit squash, fruit beverage or fruit drink, tomato sauce, jam, groundnut oil and other oils, vanaspati, cerals, atta, maida and toffee. Item A.11.05 deals with table (creamery) butter. Thus, Appendix B which forms part of Rule 5 defines a number of food articles and prescribes their standards of quality.
Thus, the Act, the Rules and Appendices A and B constitute an elaborate Code providing for the prevention of adultration of food. Sufficient safeguards and checks are provided against vexatious and wrong acts of the Food Inspectors. As aforesaid, Sections 11(1)(c) and 13(2) of the Act provide for a built-in-guarantee against tampering between the taking of the sample and its analysis. Although the ordinary rules of evidence are in a way to be departed from in so far as the report of the public analyst may be treated as evidence of the facts stated therein, nonetheless in cases where the prosecution evidence suffers from infirmities which show that the burden placed on the prosecution in a criminal case has not been discharged, no importance needs be attached to the built-in-gurantee against tampering. Such is the nature and the design of the statute which lays down standards of quality of the various articles of food, prohibits, amongst others, manufacture, sale, storage and distribution of adulterated, misbranded and prohibited articles of food and lays down penalties for such anti-social offences which affect the health of the people and at the same time provides adequate safeguards and guarantees against illegal involvement of innocent persons. The object of the legislation as is manifest from the entire scheme of the Act is to secure purity of food, to maintain public health and to eradicate the evil of adulteration of food. It is in this, context that I will first examine the question as to whether the Rules 7 and 18 of the Rules are mandatory or directory. I have earlier set out the rules.
16. Rule 7 which lays down the duties of the public analyst enumerates as one of his imperative duties which may be performed by an officer authorised by him to compare the seals on the containers and the outer covers with the specimen impression received separately and to note the condition of the seals thereon. Another duty cast upon him is to analyse or cause to be analysed such samples as may be sent to him by a Food Inspector or by any other person under the Act. He is then required to forthwith supply to the person concerned a report in the prescribed Form III contained in Appendix A of the result of such analysis. These duties have been assigned to the public analyst in order to ensure that the sample is received at his end in the original sealed condition, that the sample is not tampered with an either end and it properly analysed at the soonest. Rule 18 is also framed with the similar object in view. It provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by registered post or delivered to him or to any person authorised by him. Rule 18 has to be read along with Rule 7 of the Rules. These two rules provide a method of check and verification and constitute a built-in-guarantee against tampering and inspire confidence that the sample examined or caused to be examined by the public analyst is the very sample taken by the Food Inspector from the accused. Rule 7 and 18 are framed in terms of command, and there is no indication from the nature or wording of the rules or the surrounding circumstances that they are to receive a permissive interpretation. Having regard to the legislative intent in framing these two rules, the nature of the rules, their design and the consequences which would follow from their non-compliance, in my opinion, Rule 7 and 18 are mandatory rules. To say that the Rules could be regarded as directory because the accused is given the liberty of submitting the sample in his possession for analysis, is to render the guarantee afforded by the Rules meaningless. The question had come up for consideration before Raju, J. In State of Gujarat v. Shantaben, AIR 1964 Guj 136, wherein the learned Judge has, on a consideration of the scheme of the Act and the Rules observed at p. 139 of the report:
'These rules are framed in order to prevent the possibility of tampering with the sample before it reaches the public analyst x x x Unless it is done, we cannot be sure that the sample which has reached the public analyst, was not tampered with on the way and Rules 7 and 18 are framed in order to prevent such a possibility.'
In Mary Lazardo v. State of Mysore, AIR 1966 Mys 244, Tukol, J., of the Mysore High Court has considered the matter in some details. The learned Judge has observed:
'This method of check and verification provided for by the Rules is the only guarantee against tampering and is a definite source of confidence both to the accused and to the Court that the sample analysed was the very sample which had been submitted by the Food Inspector. In fact, it is the report or the certificate issued after such analysis that virtually concludes the accused against himself. The procedure prescribed by the Rules serves a great public purpose by guaranteeing impartial and honest handling of the sample despatched to and received for analysis by the public analyst.'
On this reasoning, the view taken was that the Rules 7 and 18 of the Rules are mandatory and hence non-compliance with them affects the evidentiary value of the report of the public analyst and the conviction solely based upon it cannot be sustained. I am in respectful agreement with these observations which have been followed in a latter Mysore case in Belgaum Borough Municipality v. Shridhar Shanker, AIR 1968 Mys 196, where a Division Bench of the High Court of Mysore approvingly referred to the earlier Mysore decision aforesaid.
17. This will take me to the second material question which has been raised for my consideration in this appeal: whether Rules 19 and 20 of the Rules are mandatory as contended by M/s. P.D. desai and H. K. Thakor or they are directory as contended by M/s. G.T. Nanavaty D.C.Trivedi and S.B. Vakil. Now, Rule 19 which I have set out earlier provides for addition of preservatives to samples. It lays down that any person taking a sample of any food for the propose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in a condition suitable for analysis. Rule 19 thus permits the addition of a preservative to the sample. The preservative is to be added in a case where the nature of the sample (article of food) requires the addition of a preservative in order to maintain the sample in a condition suitable for analysis. It may here be recalled that the built-in-guarantees to be found in Sections 11(1)(c) and 13(2) of the Act and in Rules 7 and 18 of the Rules ensure sufficient checks and safeguards against tampering between the taking of the sample and its analysis. The purpose which is sought to be achieved by Rule 19 is to ensure that the sample is maintained in a condition suitable for analysis. There may conceivably be articles of food where it may not be necessary to add preservative to a sample in order to keep it in a condition suitable for analysis. Likewise, there may be cases where addition of a preservative is contra-indicated and not permissible, e.g., Table (Creamery) butter as defined in Item A.11.05 where preservative is not permissible. Again, rule 53, which classifies preservatives into two classes - Class I and Class II, Rule 54 which prohibits use of more than one Class II - preservative in or upon a food, Rule 55 which restricts the use of Class II preservative to the specified group of foods in concentration not exceeding the specified proportions indicate that the use of preservative is not a 'must' in all articles of food, but the use is restricted to some articles of food and is permissive. Rule 19 is not framed in terms of command and the indication from the nature and wording of the rule, the nature and design of the statute, the consequences which would follow from non-compliance with it, the context and surrounding circumstances, is that the rule is intended to be permissive. In my opinion, therefore, Rule 19 is directory and not mandatory.
18. Rule 20, the nature of which now requires to be carefully attended to may again be set out. It reads:-
'20. Preservative in respect of milk, cream and gur - The preservative used in the case of samples of any milk including toned, separated and skimmed milk standardised milk, Channa, Skimmed milk channa, cream, ice-cream, mixed ice-cream, ice-candy, dahi and gur in liquid or semi-liquid form shallbe the liquid commonly known as 'formalin' that is to say a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of 0.1 ml (two drops) for 25 mls or 25 grams.'
The question that has been strenuously contended before me is that the use of the preservative in prescribed strength and proportion is imperative, having regard to the use of the word 'shall' in Rule 20 and the legislative intent. Now, Rule 20 prescribes the preservative to be used in respect of specified articles, namely, any milk including toned, separated and skimmed milk, standardized milk, channa, skimmed milk channa, cream, ice-cream, mixed ice-cream, ice-candy, dahi and gur. The preservative prescribed for use or addition in the articles of food enumerated in the rule, is a liquir commonly known as 'formalin'. The purpose of addition of preservative to the sample to be found in Rule 19 aforesaid is to maintain it in a condition suitable for analysis. The addition is intended to retard or arrest the process of decomposition. The quantity of sample of the articles of food specified in Rule 20 requires to be sent or supplied to the public analyst for analysis is the approximate quantity specified in Rule 22. Rule 20 as amended defines 'formalin' as a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of '0. 1 ml (two drops) for 25 ml. Or 25 grams'. The proportion originally provided in the rule was 'two drops for one ounce of the sample'. The amendment appears to have been necessitated as a consequence to the change in the system of Weights and Measures and is only as regards the proportion to be used and is made by GSR 74 dated 31st December 1964. It follows that the old quantity of one ounce has been equated with 215 ml or 25 grams. But as regards the proportion of the liquid to be added to the quantity, two alternative measures are now provided in the rule, namely, 0.1 ml or two drops. Again, the use of the qualifying word 'about' in relation to the strength and proportion of the liquid appears to me to be meaningful when considered in the context of the purpose of the rule which as aforesaid is to retard or arrest the process of decomposition so that the sample is maintained in a condition suitable for analysis. The use of the word 'about' indicates that the percentage of formaldehyde to be used may be 40% or near-about. Now, a drop may slightly vary in measure or volume for another depending upon the method used for adding the drop and the human agency employed. Sections 10 and 11 of the Act do not enjoin that any preservative is required to be added to the sample taken by the Food Inspector, a part of which is to be sent to the public analyst for analysis. The addition contemplated by the Rule is only to maintain the sample in a condition suitable for analysis. There may conceivably be cases where the samples might be delivered in the public analyst and analysed by him at the soonest, during which time the sample might be kept in a refrigerator and in such cases, addition of a lesser strength or proportion of the preservative may not matter and the sample may be in a condition suitable for analysis. Again Cl (i) of sub-section (1) of Section 23 which gives power to the Central Government to make rules in the matter provides that the Central Government may after consultation with the committee make rules specifying the list of permissible preservatives other than common salt and sugar, which alone shall be used in preserved fruits, vegetables or their products or any other article of food as well as the maximum amounts of each preservative. Thus, the Central Government under Section 23 of the Act has power to specify permissible preservatives to be used in an article of food and also the power to prescribe the maximum amounts of such preservative to be used. The scheme of the Act indicates that a sufficiently high proportion is prescribed so as to ensure as long an immunity as possible from decomposition.
19. In the block 'Food Inspection and Analysis' by Leach and Winton, 4th Edition at pages 162 and 163 under the caption 'preservatives' are to be found the following useful passages:-
'In most States and municipalities where pure food laws are in force preservatives in milk are regarded as adulterants. Their use, however, seems to be on the decrease of 6.186 samples of milk examined by the Massachusetts State Board of Health during one year (1898) 71 samples or 1.2% were found to contain a preservative. Of these 55 were found with formaldehyde, 13 containing boric acid, borax or a mixture of the two, and 3 contained carbonate of soda.
Comparative tests were made of the keeping qualities of these common preservatives, the milk being kept during the experiment at the temperature of the room, which at that season of the year (February) was about 20 decree C. The preservatives were added about five hours after milking. The samples were titrated nor acidity each morning, the acidity being expressed by the number of cubic centimetres of decinormal sodium hydroxide necessary to neutralize 5 mm cc of the milk.
The proportions of preservatives used in this experiment, as shown in the table at page 164, were intended to cover a wide range, from the weakest that could aid in preserving the milk upto a strength limited only by being perceptible to the taste. The results obtained appear in the table.'
Then occurs the following material passage also at p. 163 of the book:-
'formaldehyde, the most commonly used preservative for milk, is sold to the trade under various names, such as 'preservaline', 'freezing', 'ice-line' etc., all being dilute acqueous solutions of formaldehyde containing from 2 to 6 per cent of the gas being nearly always diluted from the 40% solution known as formalin. These preparations are usually accompained by directions, which specify the amount to be used, varying from a table-spoonful of the solution in 5 to 10 gallons of the milk. It is commonly used in the strength of 1 part of the gas in 20,000, and rarely less than 1 part in 50,000. The antiseptic power of formaldehyde increases in a marked degree as the strength of the preservative is increased. Milk treated with 1 part in 10,000, for instance, according to the table was found to keep sweet 5 1/2 days. In the strength of 1 part of 5,000 the milk did not curdle for 10 1/2 days, while 1 part of formaldehyde to 2500 parts of milk kept the milk from curdling for 55 days, the acidity upto that time being nearly normal.'
A table under the caption 'Action of Various Preservatives on Milk' which has been referred to earlier and is found at p. 164 of the book shows the number of days during which the milk treated with particular proportion of formaldehyde keeps sweet. The table relates the action of various preservatives including formaldehyde on milk. It shows that if one part of formalin is added to 10,000 parts of milk it would (keep) sweet for 5 1/2 (days) and if one part is added to 5,000 parts of milk, it would remain sweet for 10 1/2 days. In the passage aforesaid, it is stated that if one part of formaldehyde is added to 2500 parts of the milk, it would remain sweet for 55 days. The milk would not curdle for the stated period in each case. In my opinion, this reaction indicates that the requirement as to two drops is approximate and the compliance to the letter of the law is not intended.
20. In the book 'Milk and Milk Products' by Rekles, Combs and Macy at page 375 occurs the following passage:
'Formalin 40 per cent solution of formaldehyde is a very effective antiseptic and preservative. Since formation comes in a liquid form, it is very convenient to handle. Approximately 1 mili-litre or 28 drops will serve as a preservative for a quart of milk for a week or more.'
This view is supported by the observations of Edward R. Ling in his book 'A text book on Dairy Chemistry', where the learned author has pointed out that formalin should be added at the rate of one mili-litre per quart sample. Now, one quart of milk is equivalent to 946-33 ml. On this calculation, two drops would be sufficient as a preservative for about 67 ml, of milk for a week or more. Again, in the aforesaid passage, one ml is stated to be equivalent to 28 drops, whereas in Rule 20, 0.1 ml is stated to be equivalent to two drops. This also indicates that the requirement as to the addition of two drops for 25 ml in Rule 20 is approximate and is a sufficintly high proportion.
20-A again, it may here be remembered that no period is prescribed in the Act or the rules for the public analyst to examine the sample sent to him for analysis. After the public analyst has examined the sample, which it may be assumed he will do at the soonest, the formalities relating to the obtaining of the sanction of the competent authority for the prosecution have to be gone through and then the prosecution for an offence under the Act may be instituted by the Food Inspector. Thereafter, both the milkvendor and the complainant have a right under Section 13(2) to make an application to the Court for sending the part of the sample to the Director of the Central Food Laboratory for a certificate and the Director is given a period of one month from the date of the receipt of the sample by him to submit his report. Having regard to the nature and design of the statute, when the rules, which, under Section 23, are required to be framed in consultation with the expert committee constituted under Section 3 of the Act provide for addition of two drops per 25 ml. Of milk, it may be assumed that the rule making authority was aware of the time that is likely to be taken before the report of the Director which is made under the Act final and conclusive is available and during that period the sample must be maintained in a condition suitable for analysis as contemplated by Rule 19. The scheme of the Act, therefore, indicate that two drops of formalin per 25 ml would not be the minimum but must be much higher than the minimum
21. I may here say that in support of his submission that Rule 20 is directory Mr. G. T. Nanavaty, learned Assistant Government Pleader, has invited my attention to the decision in (1967) 8 Guj LR 588 = (AIR 1968 Guj 88), and to certain observations to be found in the report at pages 604 and 605 (of Guj LR) = (at p. 98 of AIR), wherein Mr. H. K. Thaker, learned Advocate now appearing to support the view also canvassed by Mr. P. D. Desai was an advocate appearing for the accused-vendor Mr. H. K. Thakor appears to have contended in that case that no weight can be attached to the report of the public analyst as the formalin added was not in the prescribed quantity. Mr. H. K. Thakor appears to have also contended therein that the rule as to the percentage of formaldehyde must also be strictly complied with, failing which no reliance can be placed on the report of the public analyst. In support of his view, Mr. H. K. Thakor had therein relied on certain passages from the book called 'Milk Production and Control' by Harvey and Hill quoted in the decision of the Nagpur High Court in dattappa v. Buldana Municipality, AIR 1951 Nag 191. The passages relied upon which are at pp. 11, 13, 16 and 177-178 and 359 of the book under the subject 'Bacteria found in Milk' show that milk contains acid producing organisms, that they cause an alteration in the character of the milk which ends in putrification, that the bacteria multiply more rapidly at high temperature and the bacteria most commonly found in milk grow rapidly at temperatures above 60 F and at that temperature milk would become sour in 53 hours and at lesser temperature it will take lesser for the milk to sour. It is pointed out by the authoors, the milk thus undergoes a rapid change unless it is either pasteurised or is sent to the analyst under refrigeration. This appears to be the reason why the addition of a preservative is desired or prescribed to maintain the sample of milk in a condition suitable for analysis. It appears that elaborate arguments were addressed to Sarela, J., on the point and the learned Assistant Government Pleader appearing for the State had placed reliance on the aforesaid passages to be found in the Bool 'Food Inspection and Analysis', 4th Edition, by Leach and Winton at pages 163 and 164, in order to canvass the view that what was expected in the matter was substantial compliance with the R. 20 and not a right compliance. Sarela, J., has accepted the contention and observed that having regard to the scheme of the Act and the indication from the text books on the subject, it is reasonable to conclude that when Rule 20 prescribes 2 drops, it provides for a fairly high degree of immunity and what is expected tis that the rule be substantially complied with. I am ini respectful agreement with this view.
22. I must say that Mr. P. D. Desai has relied upon a part of the very observations from the Text Book 'Food Inspection and Analysis' under the caption 'Formaldehyde' at p. 163 which I have set out earlier, namely, 'Formaldehyde .............. being nearly always diluted from the 40% solution known as formalin. These preparations are usually accompained by directions, which specify the amount to be used, varying from a table-spoonful of the solution in 5 to 10 gallons of the milk ................', and argued that the very opinion of the authors expressed therein indicates that in order that the preservative may effectively serve its purpose, it must be used in a particular strength and particular proportion. He contended that the Expert Committee which amended Rule 20 in so far as it relates to the proportion to be used must be presumed to have intended the particular proportion to have a scientific basis. Now, the amendment is merely consequential to the change in the system of weights and measures as aforesaid. The proportion is not changed. The very observations of the leaned authors in the book show that the directions which usually accompany such preparations of formalin specify the amount to be used, the amount varying from a table-spoonful of the solution in 5 to 10 gallons of the milk. It is clear from the immediately succeeding observations of the learned authors that the formalin is commonly used in the strength of 1 part in 20,000, and rarely less than 1 part in 50,000. Thus the amount to be used is a variable one and not necessarily a fixed one. Mr. P. D. Desai had also invited my attention to some information to be found at p. 73 of a diary for the year 1966, a pocket diary which was distributed by one pharmaceutical company named, Teddington Chemical Factory, Bombay, Madras and was with the learned instructing advocate Mr. Adhyaru. It contains some useful information in the earlier part before the first blank page of the diary relating to January 1, 1966. At p. 73 of the said diary are given different weights and measures under the caption 'Weights and Measures and Domestic Measures'. Equivalents of measures - drop, tea-spoonful, table-spoonful, tea-cupful and tumblerful are given therein. One drop is stated to be equivalent to 1/15 ml (cc) 1 m. (Minim). Relyhing on this particular information Mr. P. D. Desai has urged that the measure one drop is a scientific measurement and not variable from person to person. Apart from the fact that the diary is not a standard text-book which can be consulted and relied upon in the matter, the information relied upon by Mr. Desai is not definite and is not of much assistance in the matter. On the contrary, the very equivalent which is relied upon by Mr. Desai indicates that the proportion of 0.1 ml (two drops) for 25 ml or 25 gms. Referred to in Rule 20 of the Rules is not the minimum proportion to be used, having regard to the purpose for which the preservative is to be used, namely, to maintain the specified article of food in a condition suitable for analysis. I will not, however, place any reliance on such information.
23. It was urged by Mr. P. D. Desai that serious consequences are likely to follow from construing Rule 20 one way or the other and the Court must consider the prejudice that would be caused to an accused person in the event of the Rule being held not mandatory, but directory. I am alive to this. That truly is one of the aids to the interpretation of a rule and I have given my anxious consideration to the question and in the end, I do not find any cause for any apprehension that an accused would be prejudiced in the event of the rule being held directory. In my approach to this question, I have kept in mind the whole scope and purpose of the Act and the rules including Rule 20. I have also kept in mind the general rule that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment is obeyed or fulfilled substantially. In the event of the rule being held directory, it would involve no injustice to the accused because of the built-in-guarantees which are to be found in sections 11(1) (a) and (c) and 13(2) of the Act and in Rules 7 and 18 of the Rules. The accused has a remedy under Section 13(2) of the Act. Under Section 13(2) of the Act, a right is given to the accused-vendor to have a part of the sample mentioned in sub-clause (i) or sub-clause(ii) of Cl (c) of sub-section (1) of S. 11 sent by the Court to the Direcotr of Central Food Laboratory for a certificate. The Director is required to send a certificate to the Court in the prescribed form within month of the date of receipt of sample. The certificate signed by the Director of Central Food Laboratory supesedes the report of the public analyst given under sub-section (1) and is made final and conclusive evidence of the facts stated therein as provided in Secs. 13(3) and 13(5). It may be that, in a given case, a sample sent to the Director of the Central Food Laboratory might be found to have decomposed or not fit for analysis. In such an event, it will be for the Court trying the accused to consider the question as to whether by the act of not adding formalin in a particular proportion or strength, prejudice has, in fact, been caused to the accused. All relevant facts will be before the Court while assessing the evidence on the question as to whether the article of food is an adulterated one or not and in adjudging the guilt or innocence of the accused person. To take a different view of the matter, namely, that the rule is mandatory would amount to giving undue advantage to those guilty without promoting the real aim and object of the enactment. It would defeat the very object of the enactment. Such an intention cannot be attributed to the legislature. Having regard to the subject-matter of the rule, the importance of its provision and the relation of that provision to the general object intended to be secured by the Act, the rule must be held to be directory. The apprehension of Mr. P. D. Desai that in the event of the rule being directory, a food inspector may not add a preservative at all, is, in my opinion, not well founded. In such an event, the Court would consider whether the process of acidification or fermentation has started and the article of food is decomposed, thus making the analysis of the article of food impossible and will adjudge the case on its merits. In my opinion, it would not make any difference even if the sample had been taken by a private purchaser who wants the sample to be analysed under Section 12 of the Act. In each case, the Court will have to consider whether Rule 20 has been substantially complied with, which will be a question of fact to be decided on the merits of the case. Thus, non-compliance with the part of Rule 20 which states that the formalin to be used as a preservative in the articles of food specified in Rule 20 should be of a particular strength and should be used in a particular proportion is not likely to cause any prejudice to the accused and there is no cause for any reasonable apprehension.
24. Thus, on a careful consideration of the nature and design of the Act and the Rules, the nature of the rule and its relation to the general object to be secured by the Act, the consequences which would follow from construing it one way or the other, the impact of the other provisions of the Act whereby the necessity of complying with the provisions of the Act to the very letter is avoided and the object the legislation wants to be furthered, in my considered opinion. Rule 30 is in its nature directory and not mandatory. The true intention of the Legislature which ultimately depends upon the context leads to this conclusion irrespective of the use of the word 'Shall' in the rule.
25. Mr. P. D. Desai had urged that even if Rule 19 and 20 are held to be directory, having regard to the definition of the word 'sample' in Section 2(14) read with Rules 19 and 20 of the Rules, the 'sample' of milk cannot be said to have been taken in accordance with the provisions of the Act and the Rules made thereunder, if the preservative is not added to the sample in the prescribed proportion and is not of the prescribed strength and in such a case, the report of the public analyst is not admissible in evidence. Mr. P. D. Desai's submissions seems to be that the 'sample' sent to the public analyst must necessarily be a 'sample' within the meaning of the word in Section 2(xiv) read with Rr. 19 and 20. At one stage, it was contended by Mr. P. D. Desai that there was an implied prohibition in the Act which made it obligatory on the Court to treat the Rule 20 as mandatory and this was implicit in the definition of the word 'sample' in Section 2(xiv). Mr. P. D. Desai has urged that a s the word 'sample' is defined in Section 2(xiv) as meaning 'a sample of any article of food taken under the provisions of this Act or of any rules made thereunder', the adding of the preservative must of necessity be in the prescribed manner. Now, the definition in Section 2(xiv) has reference to the act of taking of the 'sample' under the provisions of the Act or the rules and has no such reference to the manner of dealing with it after it is 'taken'. The 'taming' is dealt with in Section 10 of the Act and to some extent in Section 11(a) of the Act and in the rules relevant to these provisions. To be a sample 'taken' within the meaning of this Act and the rules, what is required is that it must be an article of food which is 'taken' from the persons falling in sub-clauses (i), (ii) and (iii) of sub-clause (a) of S. 10 of the Act. Such taking is to be done in the manner prescribed by sEction 11(1)(a) of the Act read with R. 12. Sending of a part of the three separated parts of the sample which are marked and sealed or fastened up in such a manner as its nature permits is an act subsequent to the 'taking' of the sample and is to be done in the manner provided in Rule 17 and 18 of the Rules. Rule 19 may, in a given case be complied with in order to maintain the sample in a condition suitable for analysis. Rule 20 has to be complied with substantially in case of articles of food specified in the rule. Thus, the scheme of the Act and the rules indicates that the taking of the sample within the meaning of Section 2(xiv) has reference to the initial stage when the sample is taken by the Food Inspector from the vendor etc., after due intimation. There is no provisions in the Act giving any indication that the sending of the sample for analysis to the public analyst has any such relevant to the taking of the sample and that the sample so sent must necessarily have formalin added therein as a preservative of the prescribed strength and in the prescribed proportion. Therefore, irrespective of the fact whether a preservative is added or not, the article remains a 'sample' within the meaning of the word as defined in Section 2(xiv) of the Act. It would follow that simply because preservative is not added or if added, not in a prescribed proportion or strength, the report of the public analyst cannot be held to be inadmissible in evidence. I cannot, therefore, accept Mr. P. D. Desai's submissions in this behalf.
26. Mr. P. D. Desai had urged that the report of the public analyst in respect of a specified article of food wherein formalin as a preservative is not added in the manner set out in Rule 20 of the Rules cannot be used as evidence in the case. His submission was that a sample wherein the formalin of particular strength is not added in the proportion prescribed or set out in Rule 20 would be a sample otherwise than in the manner set out in R. 20 and cannot, therefore, be used as evidence in the case. In other words, he wanted to canvass the view that Rule 20 is mandatory. In support of his submissions he has relied upon some of the observations in the majority view of the Supreme Court as expressed by His Lordship J. C. Shah in Ukha Kolha v. State of Maharashtra, AIR 1963 S 1531, which was a case under the Bombay Prohibition Act, 1949 (Bombay Act No. 25 of 1949). The observations relied upon are at pp. 1541 and 1542 of the report and read:
'It is difficult to regard Section 129-B of the Act as so repugnant to Section 510 of the Code as to make the latter provision wholly inapplicable to trtials for offences under the Bombay Prohibition Act. Section 510 is a general provision dealing with proof of reports of the Chemical Examiner in respect of matters or things duly submitted to him for examination or analysis and report. Section 129-B deals with a special class of reports and certificates. In the investigation of an offence under the Bombay Prohibition Act examination of a person suspected by a Police Officer or Prohibition Officer of having consumed an intoxicant or of his blood may be carried out only in the manner precribed by Section 129-A and the evidence to prove the facts disclosed thereby will be the certificate or the examination viva voce of the registered Medical Practitioner, or the Chemical Examiner for examination in the course of an investigation of an offence under the Act of the person so suspected or of his blood has by the clearest implication of the law to be carried out in the manner laid down or not at all. Report of the Chemical Examiner in respect of the blood collected in the course of investigation of an offence under the Bombay Prohibition Act, otherwise than in the manner set out in Section 129-A, cannot therefore, be used as evidence in the ase. To that extent Section 510 of the Code is superseded by Section 129-B. But the report of the Chemical Examiner relating to the examination of blood of an accused person collected at a time when no investigation was pending or at the instance not of a police officer or a prohibition officer remains admissible under Section 510 of the Code.'
Emphasis was laid by Mr. Desai on the extracted observations of the Supreme Court that in the course of investigation of an offence under the Bombay Prohibition Act, examination of the person suspected by a police officer or prohibition of his blood may be carried out only in the manner prescribed by sEction 129-A or not at all. Now, the observations aforesaid were made by the Supreme Court while dealing with the question that was raised before it, namely, that by the enactment of Section 129-A and S. 129-B of the Act, S. 510 of the Code of Criminal Procedure, 1898, stood repealed in its application to offences under Section 66(1) of the Bombay Prohibition Act, and reliance in this behalf was placed upon Art. 254(2) of the Constitution. The appellant before the Supreme Court was convicted under Section 66(1)(b) of the Bombay Prohibition Act, 1949, on the charge of having consumed an intoxicant against the provisions of the Prohibition Act and was appropriately sentenced by the trial Magistrate. On appeal, the Sessions Judge, being of opinion that the evidence already on record was not sufficient to establish the guilt of the accused, set aside the conviction and sentence pased agianst him and ordered a retrial of the case so that the prosecution might have an opportunity of adducing evidence to connect the report of the Chemical Examiner that was produced at the trial with the blood of the accused person which was taken at 6.00 a.m. of the relevant day, a few hours after the alleged consumption of intoxicant, but before the investigation of the offence commenced. It appears that the blood of the accused was also collected at 11.00 a.m. on the same day after the investigation had commenced, but that report of the Chemical Examiner was not tendered in evidence though the same was demanded, but the report of the Chemical Examiner of the test of blood collected at 6.00 a.m. was tendered in evidence. The High Court rejected the revision application filed by the accused against that order. The accused then obtained special leave from the Supreme Court. It was urged in support of the appeal that as the blood that was taken at 6.00 a.m. of the relevant day was not taken in accordance with the provisions of Section 129-A of the Prohibition Act, no other evidence as regards the contents of that blood was admissible in law for the purpose of Section 66(2) of the Prohibition Act. It was urged that the Legislature having enacted special provisions in Ss. 129-A & 129-B relating to the procedure by which evidence about concentration in bloood is tobe collected, examined and placed before the Court, no other method of establishing concentration of alcoholic content in the blood of a person charged with an offence under Section 66(1)(b) was permissible and the report of the Chemical Examiner in respect of blood collected not in the manner and in the conditions set out in S. 129-A. Cls. (1) and (2) cannot be used as evidence for raising a presumption against the appellant. It was in this context that the Supreme Court examined the scheme of Sections 66(2), 129-A and 129-B which were added by Act 12 of 1959 and observed that there was no warrant for assuming that - it was intended thereby to exclude in trials for offences under Section 66(1)(b) of the Act, the operation of Section 510 of the Code of Criminal Procedure and held that it was also open to the prosecution to rely upon the report of the Chemical Examiner in cases not covered by Section 129-A as provided in Section 510 of the Code. The Supreme Court then examined the question of repugnancy of Sections 129-A and 129-B to the provisions of Section 510 of the Code and made the aforesaid observations, which had been relied upon by Mr. P. D. Desai. Rules 3, 4 and 5 of the Bombay Prohibition (Medical Examination and Blood Test) Rules, 1959, were then referred to by the Supreme Court while considering the contention raised on behalf of the appellant that the blood specimen was not submitted in the manner prescribed by the said rules which were framed under the Bombay Prohibition Act and therefore, it could not be regarded as 'duly submitted' within the meaning of Section 510 of the Code Rule 3 deals with the examination of a person by a registered medical practitioner before whom he is produced under sub-section (1) of Section 129-A. Rule 4 provides for the manner of collection and forwarding of blood specimen and Rule 5 deals with certificates of tests of 'Sample blood'. The Supreme Court has observed that all these rules deal with medical examination of a person who is produced before a registered medical practitioner under Section 129-A(1), and to an examination to which Section 129-A does not apply, the rules would have no application. It has been further observed that the law not having prescribed a particula method of submitting specimen of blood collected from an accused person when blood has been colleced before any investigation has started, it is unnecessary to consider the argument whether the expression 'duly admitted' used in Section 510 of the Code means merely in the manner prescribed by rules in that behalf or after taking adequate precautions for ensuring its safety and for securing against tampering. It is difficult to see how the aforesaid observations of the Supreme Court can assist Mr. P. D. Desai's contention that Rule 20 of the Rules is mandatory a rule which when construed in light of the guide-lines laid down by the Supreme court in AIR 1961 SC 751 (supra), I have found to be directory. It is equally difficult to accept Mr. P. D. Desai's contention that Rule 3, 4 and 5 of the Bombay Prohibition (Medical Examination and Blood Test) Rules are in part materia with Rules 20 of the Rules and that having regard to the observations of the Supreme Court, Rule 20 must be held to be mandatory in nature. Mr. P. D. Desai's contentions in this behalf are, therefore, rejected.
27. Mr. P. D. Desai had urged that the question a to whether Rule 20 is mandatory or not was concluded by the decision of a Division Bench of this High Court consisting of J. B. Mehta and A. D. Desai. JJ. In Criminal Appeal No. 752 of 1967 decided on February 17, 1969. The Division Bench was in the case dealing with an appeal against the order of acquittal of the accused for the offence under Section 7(i) read with Section 16(1)(a)(i) of the Act which was passed by the learned Sessions Judge. Bhavnagar, who had set aside the order of conviction and sentence passed against the accused by the learned Judicial Magistrate, First Class, Bhavnagar. The prosecution of the accused was for he having sold adultereated cow's milk to the Food Inspector of the Bhavnagar Borough Municiaplity, the sample having been taken in the presence of the panch witness and after complying with the relevant provisions of the Act and the Rules, the Food Inspector having then added 48 drops of formalin in the 700 ml of milk sample and divided it into three equal parts and filled the parts in three separate bottles and sent a part of the sample to the public analyst with a memorandum letter, which sample on analysis being made was found to contain total solids 9.7% of which fat contents were 3.6 % and solids other than milk fat were 6%. The opinion of the public analyst was that the sample labelled cow's milk did not conform to the prescribed standards laid down under rule No. A.11, 01.01 of the Prevention of Food Adulteration Rules, 1955 and thatit contained extraneous water 28.1%. the learned Sessions Judge had acquitted the accusd on the ground that the panch witness who was trested as a hostile witness did not support the prosecution case and in absence of any independent corroboration, the charge could not be brought home to the accused solely on the evidence of the complainant Food Inspector. The Division Bench disagreeing with this view of the learned Sessions Judge on merits was of the opinion, that the evidence of the Food Inspector was natural and as laid down by the Supreme Court in State of Bihar v. Basawan Singh , AIR 1958 SC 500 and Dalpatsing v. State of Rajasthan AIR 1969 SC 17, page 20, even without any corroboration from the evidence of the panch witness, the evidence of the food inspector can be safely acted upon. The Division Bench referred with approval the observations of Sarela J., in (1967) 8 Guj LR 588 = (AIR 1968 Guj 88) (supra) wherein the learned Judge has considered the scheme of Section 10(7) of the Act and observed that acceptance of the food inspector's story was not by the Act or the Rules made dependent on the person supporting the story in the Court of law that the Court must decide that point on the facts placed before it and if on those facts the Court ame to the conclusion that the food inspector did keep the panch present at the time action was taken as contemplated by Section 10(7) and did take his signature, that sub-section must be held to have been complied with that the proof of these facts or the discharge of that function is not dependent on the readiness and willingness of the panch concerned and cannot rest on his dictates and that having regard to the built-in-guarantee against tampering envisaged by law, the accused is by law furnished with the means of exposing any attempt at tampering. The Division Bench thus took the view that in the case before it they would not agree with the learned Sessions Judge in discarding the evidence of the food inspector on the ground that the panch witness did not support the food inspector. The Division Bench then considered the difficulties which arose in the way of the prosecution in the matter. To use the language employed by the Division Bench:
'The difficulty in the way of the prosecution arises in the present case, however, because the Food Inspector had referred to the rules having been observed only in connection with the labelling and sealing of the bottles. He has not deposed that as per Rule 14, he had used clean, dry bottles in this case so as to exclude the possibility of the moisture remaining in the bottles...............'
In this appeal, I will not be concerned with this part of the observations of the Division Bench which I have set out only with a view to better appreciate the subsequent observations which have been relied upon by Mr. P. D. Desai. The observations are:-
'The said difficulty in the way of prosecution is further aggravated by the fact that in the cross-examination, the food inspector admitted that he had purchased formalin from the bazar and he deposed that the said formalin was of 40% strength only from the labels found on those bottles. His statement that this formalin solution was of 40% is, therefore, based not on his personal knowledge but on the label. Under Rules 19 and 20 this preservative, namely, formalin 40% had to be added so that the sample could be properly preserved.'
The Division Bench then considered the question of labels, or markings and observed that the lables or markings by themselves would be purely hearsay evidence. Relying on the decision of the Privy Concil in Joitabhai Khodabai Patel v. Comptroller of Customs, 1966 AC 356 it was observed by the Division Bench that it was well settled that labels or markings by themselves would be purely hearsay evidence. Relevant observations are to be found at page 8 of the judgment of the Division Bench which are:
'Therefore, the statement of the food inspector, whose assertion that he had added formalin of 40 per cent strength is based on a mere reading of label on the bottle is purely hearsay evidence and we are not in a position to know what was added to the present sample of milk, except that some aqueous solution was added which would clearly explain the presence of higher quantity of water.this question could have an impact both on the presence of extraneous water and also on the preservation of the sample.'
Dealing with the argument of Mr. Mehta, learned Assistant Government Pleader who appeared in the appeal, the Division Bench has observed that:-
'Mr. Mehta vehemently argued that the sample was not found to have deteriorated and it must be presumed to have been in a proper state. When the charge in the present case rested on the fact of extraneous water being 28-1 per cent, this aspect assumes great importance and the prosecution must have proved the fact as to what was added and to what extent. Threfore, in the present case, on both of these grounds that as there is no evidence to show that clean, dry bottles were used and as there was nothing to show that formalin 40% was added as preservative as stated by the food inspector, the charge could not be said to have been brought home to the accused, and the benefit of doubt must go to the accused.'
Now, in the aforesaid decision from which I have quoted the relevant passage in extenso, it would appear that the question whether Rule 19 and 20 of the Rules are mandatory or directory was not raised before the Division Bench. The Division Bench was concerned with the question whether the sample of milk contained 28.1% extraneous water and as such, it was adulterated cow's milk. The charge was confined to that allegation. The Division Bench has not come to take any particular view as regards the proportion in which formalin has to be used. The decision was that formalin of 40 per cent strength was not satisfactorily proved to have been added as a preservative and the evidence of the Food Inspector on the point was hearsay. I may say that both the parties appear to have addressed the Court on an assumption that Rule 20 was mandatory. None of the parties appears to have addressed the Court on the material aspect of the case that arises here, namely, whether Rule 20 is mandatory or not. It appears that it was not urged therein that in the report of the public analyst there occurred a statement that formalin as required was added and that the report be used as evidence of the facts stated therein. In any view of the matter, therefore, the observations of the Division Bench which were given on the special facts and circumstances of the case cannot conclude the point.
28. Mr. Nanavaty, learned Assistant Government Pleader, has urged and with substance that the intention of the legislature in enacting Rule 20 and 22 of the Rules was to see that a sufficient quantity of the article of food be sent to the public analyst in order to facilitate analysis of the sample and that formalin was to be added only to preserve the original condition of the sample for the purpose of analysis. In support of his submission, he has relied upon the following observations of Mohammad Mirza, J. In Public Prosecutor, Andhra Pradesh v. Pasala Ram Rao, AIR 1967 Andh Pra 49:-
'................. I have observed in a number of cases which have come to me against the order of this learned magistrate, that the Rules are only directory in nature. .................. Rule 20 says that proportion of of formalin to be mixed with the sample. Rule 22 lays down that the quantity of milk to be sent to the public analyst would be 220 millilitre for purposes of analysis. The intention of these Rules is that a sufficient quantity should be sent to the public analyst to facilitate the analysis of the sample sent and formaling has to be added to preserve the original condition of the sample taken. The public analyst has not made a grievance that the quantity was insufficient for purposes of analysis, nor has he stated that the quantity of the sample sent to him had deteriorated.'
The observations fortify the view which I am inclined to take in the matter. In my opinion, in case of a milk sample, the non-mixing of sufficient quantity of preservative might make the sample unfit for analysis and examination in a given case, but that by itself cannot bring about a reduction in the fact or non-fat solid contents of the sample of milk.
29. This will take me to the question as to whether delay in the institution of the prosecution per se cause prejudice to the accused and vitiates the trial. It was urged by M/s. P. D. Desai and H. K. Thakor that delay in instituting the complaint causes failure of justice in so far as a valuable right which is conferred upon the accused-vendor under Section 13(2) to have the sample ssent to the Director of the Central Food Laboratory to be examined and certified is likely to be lost in the event the prosecution being launched after delay. Now, the question whether the delay in the institution of the complaint is reasonable and explainable and has any adverse effect on the right of the accused under sEction 13(2) of the Act is essentially a question of fact to be decided on the merits of each case. Delay per se is no ground to vitiate a trial, for delay may be occasioned because of a variety of explainable reasons. Some delay is inherent in the very nature of things, as the sample has to be sent to the public analyst, his report of the analysis is to be received, and the sanction of the competent authority is to be obtained before the complaint can be instituted. The same question appears to have been considered by Sarela, J. In (1967) 8 Guj LR 588 = (AIR 1968 Guj 88) (supra), where the learned Judge has taken the view that the question was one of fact, Mr. H. K. Thakore had contended therein that the delay in the institution of the prosecution must by itself be treated as fatal because the Act contemplates early prosecution. Mr. H. K. Thakor seems to have relied on Rule 7(3) and Rule 4(5) of the Rules and urged that what was required of the public analyst or the Director of Central Food Laboratory as the case may be was to supply the certificate forthwith and that indicated the anxiety on the part of the legislature to see that the prosecutions are instituted as early as possible. Sarela J., has observed that the point was not raised in the lower Court and no facts were sought to be brought on record which would go to show that the period taken in instituting the prosecution was unreasonable and that it was not possible to hold on the evidence that there has been such a delay in the case as to affect the weight to be attached to the report of the public analyst. Mr. P. D. Desai had here first invited my attention to the decision of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram AIR 1967 SC 970, wherein it has been, inter alia, held that if because of any inordinate delay in launching the prosecution, a sample becomes decomposed and it is impossible to have it analysed by the Director of the Central Food Laboratory, the accused is deprived of a valuable right conferred by Section 13(2), the conviction of the accused cannot be sustained. Relevant observations to be found at page 971 of the report may with benefit be reproduced hereunder:-
'There can be no doubt that sub-section (2) of Section 13 of the Act confers a right on the accused vendor to have the sample given to him examined by the Director of the Central Food Laboratory and to obtain a certificate from him on the basis of the analysis of that sample. It is when the accused exercises this right that a certificate has to be given by the Director of the Central Food Laboratory and that certificate then supersedes the report given by the public analyst. If, in any case, the accused does not choose to exercise this right, the case against him can be decided on the basis of the report of the public analyst. Difficulty however, arises in a case where the accused does exercise the right by making a request to the Court to send his sample for analysis to the Director of the Central Food Laboratory and the Director is unable to issue a certificate because of some reasons including the reasons that the sample of the food article has so deteriorated and become decomposed that no analysis is possible.'
The Supreme Court then observed:-
'It appears to us that when a valuable right is conferred by Section 1393) of the Act on the vendor tohave the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the public analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in, his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution. We think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.'
The Supreme Court then took pains to observe:-
'We are not to be understood as laying down that in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the public analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.'
It was observed:-
'It may be presumed that some delay in the analysis by the public analyst and in his sending his report to the prosecution is bound to occur. Such delay could always be envisaged by the prosecution, and consequently the elementary preccaution of adding a preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector. If such a precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory for a period of four months which would have expired about the 20th of January 1962.'
It appears that in the case before the Supreme Court, the sample taken was of curd of cow's milk and no formalin was added as preservative to the 'sample'. This decision does not lay down a rule of law that in every case where the right of the vendor to have his sample tested by the Director of Central Food Laboratory is furstrated, the vendor cannot be convicted on the basis of the report of the public analyst.
30. The question is now set at rest by the unreported decision of the Supreme Court in Sukamal Gupta v. Corporation of Calcutta, Criminal Appeal No. 161 of 1966, D/-3-5-1968 (SC) which has been relied upon by Mr. G. T. Nanavaty, learned Assistant Government Pleader. The sample taken in that case was of tea. His Lordship Sikri, J., speaking for the Supreme Court, has, while dealing with the question observed:-
'............. Regarding the third point raised by the learned Counsel, it was held by this Court in AIR 1967 SC 970 (supra) that Section 13(2) of the act confers a valuable right to have the sample given to him analysed by the Director of the Central Food Laboratory but 'the reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution.' In this case, no prejudice of the defence has been shown. It has not been established on the record that the sample of tea which was available with the appellant had deteriorated by the time the summons was received. He never utilised the right under Section 13(2) of the Act of sending the sample to the Director of Central Food Laboratory. In fact, he did not put any question to the Assistant Public Analyst as to whether the tea is capable of deterioration within a year. Accordingly we hold that there is no force in this point.'
The aforesaid observations clearly lay down a rule that in order that the delay in instituting a prosecution under the Act can be said to deprive the accused of the right under Section 13(2) of the Act and to render his conviction illegal, it must be shown (i) that prejudice was caused to the defence (ii) that sample had deteriorated by the time the summons was received by the accused; and (iii) that the accused had utilised the right under Section 13(2) of the Act, of sending the sample to the Director of Central Food Laboratory. In the absence of there being any evidence on the questions involved, it could not be held that the conviction of the accused could not be based on the report of the public analyst. Having regard to the decision of the Supreme Court, Mr. P. D. Desai did not ultimately press the question of delay in this appeal.
31-33. x x x x x
As the sample was taken and the food inspector deposes as to his having divided it into three parts and then marked, sealed and fastened each part, the fact that this was done in such a manner as to comply with the rules in that behalf could be reasonably presumed in the absence of any challenge on the point.
34. x x x x x
35. I must say that Mr. P. D. Desai has contended that chemist Vaghela was not an officer authorized to receive the sample and the memorandum and impression of seal and as such, he had no status to receive the sample and this causes a fatal infirmity in the case. Now, Rule 7(1) of the Rules permits an officer authorised by the public analyst to compare the seals on the container and the outer cover with specimen impression. The package containing the sample for analysis may as well be received by an officer so authorized. Rule 18 enables memorandum and seal to be received by a person authorised by the public analyst. Such an authority to receive the package and compare the seals, etc. Is proved tohave been given to chemist Vaghela by the public analyst as appears from the written authority Ex. 14 dated May 26, 1965 produced by chemist Vaghela. Public Analyst Dr. D. G. Vyas has, in his evidence, stated that chemist Vaghela was an officer appointed by the municipal Commissioner. However Mr. P. D. Desai has made much of an answer elicited in the cross-examination of chemist Vaghela that 'Shri M. K. Joshi is the only officer in our laboratory'. Relying upon this stray statement, it was urged that there was no other officer in the laboratory and chemist Vaghela cannot thus be said to be an officer. But, Chemist Vaghela has stated that he is a Chemist in public health laboratory and was authorised to receive the sample by Ex.14 aforesaid. Vaghela seems to have made some confusion about one being an officer in a laboratory and a chemist. But, it clearly appears that Vaghela was at the relevant time a chemist in the esrvice or pay of the Municipal Corporation and was entrusted with the performance of a public duty, namely, to receive the samples for analysis, to compare the seal etc., and to make analysis of the sample under the supervision of the public analyst. Thus, he satisfies the true test to determine whether a person is an officer. A person holding an office is an officer. Chemist Vaghela thus fulfills the test and must be held to be an officer.he was duly authorised for the purpose by Ex. 14. The receipt of the sample by Chemist Vaghela thus creates no infirmity and Mr. P. D. Desai's contention in this behalf has no merit.
36. The aforesaid were the only contentions raised on merits and for the reasons stated, they are not capable of acceptance. The various points of law raised earlier have been answered by me as aforesaid. In the result, I must maintain the conviction of the appellant. As regards the sentence, although the minimum sentence provided for the offence is one of imprisonment which shall not be less than six months and fine which shall not be less than Rs. 1,000/-, the learned Magistrate appears to have found that there were adequate and special reasons in the case to impose a lesser sentence. The reasons considered are that the milk contained the required percentage of fat and further that the accused was a hawker. The learned Magistrate has accordingly awarded the lesser substantive sentence of one month's R. I. He has, however, imposed the minimum sentence of fine of Rs. 1,000/- and in default R. I. For three months. In my opinion, having regard to the special facts and circumstances of this case and the further fact that the accusd has already undergone seven days' imprisonment before he was released on bail in this appeal, it would be appropriate to reduce his substantive sentence to the period already undergone. Mr. G. T. Nanavaty's objection to the reduction of the sentence has not impressed me as of much substance. Accordingly, I maintain the conviction of the accused as also the sentence of fine and the sentence in default of payment of fine as awarded by the learned City Magistrate, but I reduce the substantive sentence to the one already undergone. Orders accordingly.
37. Orders accordingly.