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Nanak Ram and ors. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1983CriLJ1229
AppellantNanak Ram and ors.
RespondentState of Rajasthan
Cases ReferredDal Chand v. Municipal Corporation
Excerpt:
.....to send the other sample, to the director of central food laboratory for analysis. i am clearly of the view that rule 9 (i) of the prevention of food adulteration rules was directory and not mandatory......of this court in state of rajasthan v. noparam 1980 raj cri c 241 has held that rule 9 (j) of the rules is mandatory. 2. a single bench of this court to which one of us was a party in shakoor v. state 1977 (2) fac 83 : 1977 cri lj noc 238 by detailed discussion after making reference to the observations made in maxwell's interpretation of statutes, 9th edition vol. i. passe 379 and other cases held:a close reading of rule 9 (i) would reveal that, the object behind the rule was to give notice to the accused that a complaint has been filed against him under the act, and if he so desires to take advantage of section 13(2) of the act, he should keep the sample bottle given to him well preserved.the object of this provision is to promote the private interest of an individual and the person.....
Judgment:

M.L. Shrimal, J.

1. A complaint under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') was filed against Nanak Ram. On Oct. 17. 1977 the Assistant Public Prosecutor filed an application to implead Jaman Dass and Gurnamal. On the application filed by the Food Inspector, Kota. the Chief Judicial Magistrate. Kota took cognizance against accused Nos. 2 and 3 also. An application was filed before the learned Magistrate on behalf of the accused for quashine the proceedings on the ground that compliance of the provisions of Clause (i) of Rule 9 of -the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the Rules') was not made. Learned Chief Judicial Magistrate held that the objections raised before him could be decided after recording of the evidence at the time of final arguments of the case and rejected the application. He subsequently framed charge against the accused for selling adulterated 'Kali Mirch'. Being aggrieved of the order dated August G. 1980 and framing of the charge the accused filed an application under Section 482, Cr. P.C. 1973 in this Court, which came up for decision before Hon'ble Mr. Justice M. B. Sharma (as he then was). Learned Judge, referred the application to the larger Bench for decision, because in his view the provisions of Rule 9 (i) of the Rules are directory, whereas a single Bench of this Court in State of Rajasthan v. Noparam 1980 RaJ Cri C 241 has held that Rule 9 (j) of the Rules is mandatory. 2. A single Bench of this Court to which one of us was a party in Shakoor v. State 1977 (2) FAC 83 : 1977 Cri LJ NOC 238 by detailed discussion after making reference to the observations made in Maxwell's Interpretation of Statutes, 9th Edition Vol. I. passe 379 and other cases held:

A close reading of Rule 9 (i) would reveal that, the object behind the rule was to give notice to the accused that a complaint has been filed against him under the Act, and if he so desires to take advantage of Section 13(2) of the Act, he should keep the sample bottle given to him well preserved.

The object of this provision is to promote the private interest of an individual and the person affected can always waive it. For this reason also, this rule cannot be held to be mandatory.

The Rule 9 (j) in itself does not create a right in favour of an. accused in a case to earn his acquittal simply because the Food Inspector in a particular case was negligent in not sending the report to the accused. The conviction and the acquittal of the accused in a case involving the health of the community at large cannot be made dependent on the alterness or negligence of a Food Inspector. The rules of an enactment are required to subserve the purpose for which they are made. They cannot, be allowed to set up the main enactment and defeat the very purpose of the Act for which they have been framed. The liberty of a citizen is no doubt, important, but the very maintenance and upkeeping of society cannot be allowed to be jeopardised by the sweet, will of a negligent officer. If the interpretation given by the learned Counsel for the accused-petitioner is accepted. Section 13(2) will become otiose.

3. A Full Bench of the Punjab High Court, in Kashmiri Lai v. State of Haryana AIR 1982 NOC 126 : 1982 Cri LJ 311 held Rule 9 (ii) of the Rules to be directory and not mandatory. Their Lordships observed as under:

R. 9 (j) is directory though obviously the Food Inspector upon whom the duty is enjoined is obliged to follow the same. Even though the word 'shall' has been employed in the opening part of Rule 9 it cannot, be said that the use of this word by itself is decisive. A statutory provision even though couched in mandatory terms may in essence be directory. The exceeding of time limit in supplying to the accused a copy of report of the public analyst by a day or two or a few days would not necessarily or gravely prejudice an accused person in his defence during the course of the trial. On principle, therefore, it seems difficult to hold that the time limit mentioned in Rule 9 (j) is so strict. rigid and inflexible that, the very non-compliance thereof must entail a vitiation of the whole proceedings.

4. A single Bench of this Court in Nagar Parishad. Alwar v. Bharat Bhushan (Criminal Appeal No. 355 of 1976. decided on July 9, 1982) affirming its earlier view has held the provisions of Rule 9 (j) of the Rules as directory.

5. Rule 18 of the Rules came up for decision in Shambhoo Narain v. Motilal 1971 Raj. L. W. 528 : 1971 Cri LJ 1650 before Single Bench of this Court, which held Rule 18 of the Rules as directory. The main point of the case has been summed up very lucidly in the headnote (a), which reads as under:

All that the spirit of the rule needs is that copy of the memorandum and the specimen impression of the seal should reach the Public Analyst, Whether they reach him by post or otherwise will hardly make any difference. A mere omission to send the samp, by registered post would only be a technical irregularity which will not affect the merits of the case.

6. Now this matter stands conclusively determined by Supreme Court decision in Dal Chand v. Municipal Corporation, Bhopal 1982 LJ (Supreme Court) 559 : 1983 Cri LJ 443. wherein his Lordship observed as under:

There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that, design, the provision must, be held to be directory, so that proof of prejudice in addition to noncompliance of the provision is necessary to invalidate the act complained of. It. is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that, every prescription of a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period. Rule 9 (j) of the Prevention of Food Adulteration Rules, as it then stood merely instructed the Food Inspector to send by registered post copy of the Public Analyst's report, to the person from whom the sample was taken within 10 days of the receipt of the report. Quite obviously the period of 10 days was not, a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time. to the person from whom the sample was taken to make such arrangements as he might like to challenge the report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample, to the Director of Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint. as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint. I am clearly of the view that Rule 9 (i) of the Prevention of Food Adulteration Rules was directory and not mandatory.

7. Accordingly, we hold that the provisions of R 9 (j) of the Prevention of Food Adulteration Rules are directory and not mandatory. The petition under Section 482. Cr. P.C. 1973 is dismissed. Let record of the lower Court be sent for deciding the case in accordance with law.


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