S.H. Seth, J.
1. The facts of the case briefly stated are as under. The complainant is a Food Inspector. The accused is a milk-vendor having a shop at Baroda. On May 20, 1974 at about 8.00 A. M. the Food Inspector visited the shop of the accused with the intention of taking a sample of milk. Panch witnesses were called. Notice was served upon him declaring his intention td take a sample of the milk. 660 mis. of cow milk was purchased by the Food Inspector. It was sealed in three bottles. 18 drops of formalin were added to the milk as a preservative. One of the three bottles was sent to the Public Analyst on the same day. The Public Analyst made his report on June 1, 1974 and it was received by the Food Inspector on the same day. The Food Inspector served a copy of the report upon the accused on June 24, 1974.
2. After obtaining sanction to prosecute the accused, the Food Inspector filed a complaint before the learned Judicial Magistrate, First Class (Municipal), Baroda. The learned Magistrate found that the milk which the Food Inspector had purchased from the accused was adulterated. The findings which were recorded were that the fat content of the milk was 3.3 per cent whereas the minimum fat content ought to be 3'.5 per cent. He also found that milk solid non fat was 6.9 per cent as against 8.5 per cent which was the minimum requirement. Next he found that the milk contained extra water to the extent of 17%. He, therefore, convicted the accused under Section 16 of the Prevention of Food Adulteration Act and sentenced him.
3. The accused appealed against that order to the Sessions Court. The learned appellate Judge acquitted the accused on the ground that the peon who had carried the memorandum to the Public Analyst and the peon who carried the specimen seal impression to the Public Analyst were not examined as witnesses. It is that order which is challenged by the Fodd Inspector in Criminal Appeal No. 312 of 1975. It is challenged by the State in Criminal Appeal No. 353 of 1975. The appeals were heard by a Division Bench of this Court consisting of Surti and Ahmadi JJ. and since a question of very great public importance relating to the interpretation of Rule 9(j) of the Prevention of Food Adulteration Rules arose, they referred them to the Full Bench. It is under these circumstances that these appeals have been placed before this Full Bench.
4. The question which we are required to answer is whether a copy of the report of the Public Analyst received by the Food Inspector should be sent or given to the accused within ten days from the date of its receipt as required by Rule 9(j) and if it is not supplied to the accused within that period, what is the effect thereof on the prosecution? In other words, is the prosecution vitiated on account of the late supply of a copy of the report of the Public Analyst to the accused
5. In order to examine this question it is necessary to turn to Rule 9 of the Prevention of Food Adulteration Rules. Rule 9(j) provides as follows:
9. It shall be the duty of the Food Inspector-
XXX XXX XXX XX(j) to send by registered post, a copy of the report received in Form III from the Public Analyst to the persons from whom the sample was taken within ten days of the receipt of the said report. However, in case the sample conforms to the provisions of the Act or rules made thereunder, then the person may be informed of the same and report need not be sent.' The question which has been raised for our consideration is whether the requirement of sending or giving a copy of the Public Analyst's report to the accused within ten days is mandatory in absolute terms or whether it is directory.
6. Our attention has been invited to the history of Rule 9(j). The Prevention of Food Adulteration Act came into force on June 1, 1955. Until July 18, 1968 there was no rule which required the Food Inspector to supply a copy of the report of the Public Analyst to the accused, In other words, for a period of thirteen years an accused had no right to receive a copy of the report of the Public Analyst. On July 18, 1968 Rule 9(j) was enacted. It required the Food Inspector to send a copy of the report by hand or registered post to the person from whom sample was taken, in case it was found to be not conforming to the Act or, the Rules made thereunder, as soon as the case was filed in the Court. It appears, therefore, that when Rule 9(j) was made in 1968, the only obligation which was cast upon the Food Inspector, was to send or give a copy of the report of the Public Analyst to the accused as soon as the case was filed in the Court. It did not lay down any time limit within which a copy was required to be supplied or given by the Food Inspector to the accused. In 1973, Rule 9(j) was amended. For the first time, amended Rule 9(j) laid down that a copy of the report shall be sent or given to the accused by the Food Inspector within ten days from its receipt from the Public Analyst. In 1974 Rule 9(j) was further amended. However, so far as the time limit of ten days was concerned, it was maintained. We are concerned with the interpretation of Rule 9(j) as it was in 1974. We may, however, state that Rule 9(j) was altogether deleted and replaced in 1977 by Rule 9-A. It lays down that the Local (Health) Authority shall after the institution of prosecution forward a copy of the report of the result of analysis to the accused. It is not necessary to reproduce the new Rule as it is in force since January 4, 1977. It is sufficient for the purpose of this case to state that with effect from January 4, 1977 the requirement as td time limit within which a copy of the report of the Public Analyst was to be given or supplied by the Food Inspector to the accused has been deleted.
7. In this context we may make a brief reference to Section 13 of the Prevention of Food Adulteration Act. It provides for the analysis of the food article which a Food Inspector forwards to the Public Analyst. It inter alia provides that on receipt of the report of the result of the analysis to the effect that the article of food is adulterated, a copy of the report of the Public Analyst shall be forwarded to such person or persons informing him or them that if any or all of them so desire, they might make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory, Section 13 makes the certificate issued by the Director of the Central Food Laboratory final and conclusive and supersedes the report made by the Public Analyst.
8. It has been argued by Mr. Thakore on behalf of the accused that, the lauguage in which Rule 9(j) was worded made it absolutely obligatory on the part of the Food Inspector to send a copy thereof td the accused within a period of ten days and that, if he did not do so, the report would be non est. He has relied in that behalf upon a couple of decisions to which we are shortly referring. However, it would be appropriate at this stage to refer to the principles which the Supreme Court has laid down in the matter of interpretation of statutes.
9. In Raza Buland Sugar Co. Ltd. V. Rampur Municipality : 1SCR970 , in the context of certain provisions of the U.P. Municipalities Act, 1916, the Supreme Court has observed that the question whether a particular provision of a statute which on the face of it appears mandatory inasmuch as it uses the word 'shall' or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case. The Supreme Court has further observed that for the purpose of deciding such a question, the object of the statute in making the provision is the determining factor. In other words, the purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise On the facts of a particular case including the language of the provision, have all got to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. We are aware of the fact that these observations were made by the Supreme Court in the context of a civil statute which uses the expression 'shall'. Section 131(1) of the U.P. Municipalities Act, 1916 provided that the Board shall publish in the manner prescribed in Section 94 the proposals framed under Sub-section (1) and the draft rules framed under Sub-section (2) along with a notice in the form set forth in Schedule III.
10. In Govindlal v. Agricultural Produce Market Committee : 1SCR451 , it has been observed by the Supreme Court that the meaning and intent of the legislature are the governing factors and that they should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations. According to the Supreme Court, the use of the word 'shall' or 'may' is not conclusive on the' question whether the particular requirement of law is mandatory or directory. However, the circumstance that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. Mr. Thakore has relied upon the last mentioned observation of the Supreme Court and argued that unless there is something contrary in the context indicating that the permissive, interpretation is permissible, Rule 9(j) ought to be construed as peremptory. The question which arose before the Supreme Court related to the use of the word 'shall' in Rule 5 of Gujarat Agricultural Produce Markets Rules in the context of publishing the notification in a Gujarati newspaper.
11. The next decision to which our attention has been invited is in Babulal v. State of Gujarat : 1971CriLJ1075 , It was a case under the Prevention of Food Adulteration Act. The material principle which the Supreme Court has laid down is that it is not open to the accused to plead that he was deprived of his right under Section 13(2) of the Act to send the sample in his custody to the Director, Central Food Laboratory, due to delay in launching the prosecution when he had not filed an application to that effect under Section 13(2) during the trial.
12. Bearing these principles in mind, we proceed to examine a few decisions which have a direct bearing on the interpretation of Rule 9(J).
13. In Immadi Ramachandram v. State of Andhra Pradesh 1976 Cri LJ 1832 (Andh Pra), the question arose whether in the absence of any proof of prejudice by the accused on account of non-compliance with Rule 9(j), it would be proper for the Court to throw out a prosecution case only on account of such non-compliance. It was a case in which a copy of the report of the Public Analyst was not supplied to1 the accused at all even though Rule 9(j) required it to be supplied to him. It was not a case of late supply as in the present case. Dealing with the effect of total violation of Rule 9(j) in so far as it required the Food Inspector to supply a copy of the report to the accused, the learned single Judge of the Andhra Pradesh High Court laid down that the mere non-compliance with Rule 9(j) does not entitle an accused to a presumption that he has been prejudiced thereby. It is necessary for the Court to see whether the accused has been prejudiced in his defence by such non-compliance. The learned Judge invoked the doctrine of prejudice and held that unless it was proved that omission on the part of the Food Inspector to supply a copy of the Public Analyst's report to the accused had caused prejudice to him, it was not open to the accused to argue that the prosecution case must be thrown away overboard.
14. A similar question arose in Bhola Nath v. State 1977 Cri LJ 154 (Cal). In that case a copy of the report of the Public Analyst was supplied to the accused more than 101/2 months after it was received by the Food Inspector. The learned single Judge of the Calcutta High Court before whom the question relating to the effect of late supply was raised has observed that the intent of the rule is to give an opportunity to a person from whom sample has been taken to have it examined by an expert of his choice. According to him, such a right is independent of Section 13(2) of the Prevention of Food Adulteration Act and that, therefore, delay of more than 10i months in the supply of the copy of the report of the Public Analyst to the accused must be held to have caused prejudice to the defence. This is the decision upon which Mr. Thakore has placed strong reliance. It may, however, be noted that the learned single Judge of the Calcutta High Court construed Rule 9(j) in the context of the prejudice which the defence of the ac-caused suffered. However, he held that failure to comply with the mandatory provision of Rule 9(j) vitiated the prosecution and rendered it non est.
15. With respect to the learned single Judge of the Calcutta High Court we are unable to agree with his view that the late supply to the accused of a copy of report of Public Analyst renders the report of the Public Analyst non est. If the rule-making authority had intended that the late supply of a copy of the report of the Public Analyst td the accused beyond the time specified in that behalf by Rule 9(j) would render the report non est, the rule-making authority would have made it inadmissible in evidence or would have otherwise declared it invalid.
16. In Shakoor v. State (1977) 2 FAC 83, a learned single Judge of the Rajasthan High Court has laid down that Rule 9(j) of the Prevention of Food Adulteration Rules does not create a right in favour of an accused in a case td earn his acquittal simply because the Food Inspector in a particular case was negligent in not sending a copy of the report of the Public Analyst to him. It was not the case of the accused in that case that the sample lying with him had deteriorated and that, therefore, it was not worth analysis. He invoked the doctrine of prejudice and observed that since the accused had never utilised the right under Section 13(2) of the Prevention of Food Adulteration Act by having the sample sent to the Director of Central Food Laboratory, Calcutta, it could not be said by any stretch of imagination that he had been prejudiced in his defence.
17. In The Public Prosecutor v. Pyare Ali (1976) 2 FAC 51 (Andh Pra), while interpreting Rule 9(j), a learned Single Judge of the Andhra Pradesh High Court also invoked the doctrine of prejudice.
18. In State of Maharashtra v. Jesti Dosa 1973 Cri LJ 427, a learned single Judge of the High Court of Bombay has held that where the report of the Public Analyst was given to the accused by hand instead of by registered post (the only mode of sending the report), the mandatory provision was violated and that the accused was entitled to be discharged. The last mentioned decision did not turn upon the interpretation of later part of Rule 9(j).
18-A. In view of the principles of interpretation to which we have referred and in view of what has been laid down in several decisions referred to above, we have to consider the character of Rule 9(j) as it was in force in 1974. It has been argued by Mr. Thakore that Rule 9(j) confers upon the accused a valuable right of knowing within the time specified therein the opinion of the Public Analyst in the matter of the food article purchased from him and sent by the Food Inspector for analysis. There is no doubt about the fact that it confers upon the accused a right. But it is a part of the scheme which the legislature has devised for enabling an accused to effectively defend himself against prosecution. If there is some violation of some statutory provision which causes some prejudice to the defence of the accused, then certainly the rule must be held to be mandatory and it must also be held that non-compliance with such a mandatory provision will be fatal to the prosecution. While defending himself against the prosecution, an accused has many rights. He is entitled to exercise those rights. There are duties cast upon the prosecution. The prosecution must discharge them. However, if any irregularity or breach has been committed by the prosecution and if such a breach or irregularity does not prejudice the defence of the accused or cause any inconvenience to him in defending himself against prosecution, such irregularity or breach has no value and does not render the prosecution invalid nor does it vitiate it. We asked Mr. Thakore to spell out before us what prejudice would be caused by the late supply of a copy of the report of the Public Analyst to the entire class of persons accused of offences under the Prevention of Food Adulteration Act. He could not spell out any general prejudice except stating that the accused would have a general right of producing his own expert evidence and proving that the food article seized from him was not adulterated,
19. So far as the Prevention of Food Adulteration Act and the Rules made thereunder are concerned, the report of the Public Analyst has been made admissible in evidence without its formal proof. However, the accused is entitled to have the Public Analyst summoned for cross-examination. The Act and the Rules nowhere provide that the accused has a right to bring on record the evidence of a private Analyst to rebut what the Public Analyst has stated in his report. Assuming, however, that he has such a right (and we proceed on the assumption that every accused has a right to defend himself in such a manner as he thinks fit), that right is illusory and without any substance because where there is a dispute between the prosecution and the defence touching upon the veracity of the findings recorded by the Public Analyst, it is always open to the accused to move the Court for sending one of the three samples to the Director, Central Food Laboratory at Calcutta for further analysis. The report which the Director makes or the certificate which he issues is final and conclusive and supersedes not only the report of the Public Analyst but on account of the fact that finality and collusiveness have been attached to it, it will supersede the private opinion expressed in that behalf by private Analyst examined by the accused. Therefore, so far as the prejudice is concerned, it can never be said that non-compliance with the time-limit specified in Rule 9(j) will prejudice in their defence the entire community of persons accused of offences under the Prevention of Food Adulteration Act.
20. If on account of lapse of time on the part of the Public Analyst or on the part of the Food Inspector in supplying a copy of report to the accused, the quality of the food article in possession of the accused has deteriorated, it will always work in favour of the accused because a reference to the Central Food Laboratory at Calcutta of such a deteriorated food article will produce a certificate that the food article has been decomposed or has deteriorated and that, therefore, it is not capable of such analysis as is required to be done under the law. We are, therefore, unable to conceive of any situation where the defence of this community of accused will be prejudiced. It is, therefore, difficult for us to hold that the time limit laid down by Rule 9(j) is so strict and rigid that non-compliance therewith necessarily vitiates all prosecutions.
21. It is necessary to note in this context that so far as the offences relating to food Articles are concerned, there is on one hand the requirements of social good or the health of the society and there is on the other hand the requirement of ensuring a fair and just trial to an accused. It is this antithesis between the welfare of an individual and the welfare of the society which must be so resolved as to cause no prejudice to the accused in defending himself without producing any social hazard.
22. However, it is quite probable that in a given case depending upon the facts and circumstances an accused may be prejudiced on account of the late supply of a copy of the report of the Public Analyst to him. It will be open to him in such a case to show what prejudice has been caused to him. If he is able to satisfactorily establish the prejudice caused to him by the late supply of a copy at the report of Public Analyst to him, he will certainly be entitled to vindicate his defence against what the Public Analyst has stated against him.
23. So far as the late supply of a copy of the report is concerned, the delay may consist of a day or a year. Therefore, no hard and fast rule can be laid down in a master of this type. Delay of a day is not likely to cause prejudice whereas the delay of a year may cause an accused some prejudice in defending himself. However, in a given case probability cannot be ruled out that whereas delay of a year may not be fatal, delay of a day may produce fatality for the prosecution case. Therefore, it all depends upon the facts of each case.
24. We are, therefore, of the opinion that the infringement of the time limit of 10 days laid down in Rule 9(j) of the Prevention of Food Adulteration Rules does not necessarily vitiate the prosecution nor does it affect in any manner the validity or admissibility of the report of the Public Analyst. However, it is open to the accused to prove prejudice caused to him by such infringement and if an accused proves it, it is open to the Court to consider its effect on the prosecution launched against him. We answer accordingly the question referred to us.
25. The appeals will now be listed before the Division Bench for final hearing and disposal in terms of the answer which we have given to the reference made to us.