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P.K. Moorthy Vs. Food Inspector, Kumbakonam Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1980CriLJ51
AppellantP.K. Moorthy
RespondentFood Inspector, Kumbakonam Municipality
Cases ReferredIn Municipal Corporation of Delhi v. Ghisa Ram
Excerpt:
- .....food laboratory. if the local (health) authority fails to send the copy of the report of the food analyst and fails to inform the person from whom the sample was taken that he may make an application to the court within a period of ten days from the date of the receipt of the copy of the report to get the sample analysed by the central food laboratory, the person from whom sample was taken would not be able to make an application to the court (within a period of ten days from the date of receipt of the copy of the report). the object of amending section 13(2) appears to be to not only give the person from whom the sample is taken a copy of the analyst's report but also to draw his attention to his right to have the sample analysed by the central food laboratory by making an.....
Judgment:

Paul, J.

1. This criminal revision case has been posted before us on the orders of the Honourable Chief Justice on the suggestion of one of us (Maheswaran, J.) inasmuch as the question which arises for determination in this case is of considerable importance,

2. The revision petitioner was convicted by the learned Chief Judicial Magistrate of Kumbakonam of an Offence punishable under Section 7(1) read with Sections 16(1)(a) and 2(i)(1) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and was sentenced to R. I. for three months and to pay a fine of Rs. 500 on the ground that on 30-4-1976 at about 6 a.m. P.W. 1, a Food Inspector of Kumbakonam Municipality visited the milk depot owned by the revision petitioner and he purchased 700 ml. of cow's milk for the purposes of analysis and sent one of the sample bottles to the Public Analyst who has given the opinion that the sample was adulterated inasmuch as it was deficient in solids-not-fat content to the extent of 85%. On appeal, the learned Sessions Judge of West Tanjavur Division confirmed the conviction and the sentence.

3. It has been contended before us that the trial and the conviction are vitiated in that the Food Inspector has failed to comply with Section 13(2) of the Act. Therefore, the only question that falls for determination by us is whether non-compliance with the provisions of Sections 11 and 13(2) of the Act vitiates the entire proceedings. In considering that question we have to find out first of all whether the provisions contained in Sections 11 and 13(2) of the Act are directory in nature or are mandatory.

4. Section 13(2) of the Act as it stood before it was amended in 1976 was as follows-

After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to Court for sending the part of the sample mentioned in Sub-clause (i) or sub-clause (iii) 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 intact and may then despatch the part of the sample under its own seal to the Director of 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.

Section 13 after the aforesaid amendment reads as follows:

13. Report of Public Analyst : - (1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under Sub-section (11 to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired either or both of them may make an application to the Court within a period of ten days from the date of his 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.

5. Thus a duty has been cast on the Local (Health) Authority to send a copy of the report of the result of the public analyst to the person from whom the sample was taken informing him at the same time that he should make an application to the Court within a period of 10 days from the date of receipt of the aforesaid copy to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. In the case now before us, the abovesaid provision admittedly has not been complied with. Nevertheless, the learned Public Prosecutor has argued that the aforesaid provision is only directory and not mandatory and any non-compliance with the provisions would not vitiate the trial or the conviction. In support of his contention the learned Public Prosecutor has referred to the ruling in Satyanarain v. Dhura Ram : [1974]3SCR20 where it was observed that the question whether a particular provision in the statute is mandatory or directory has to be decided with reference to the scheme and object of the provisions. Again in the State of M.P. v. Azad Bharat Finance Co. (1967) 1 SCJ 815, the Supreme Court has held that the use of the word 'shall' does not always mean that the enactment is obligatory or mandatory, but it depends on the context in which the word is used and the other circumstances. It is in accordance with the guidelines thus given by the Supreme Court that we have to consider the question now before us.

6. Under Rule 9(j) of the Prevention of Food Adulteration Rules, a duty is cast on the Food Inspector to send by hand or registered post, a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken in case it is found to be not conforming to the Act or Rules made thereunder, as soon as the case is filed in the Court. This Rule was subsequently substituted by S. R. O, No. A. 43/77 as under -

9-A. Local (Health) Authority to send report to person concerned - The Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form II] delivered to him under Sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, it any, whose name, address and other particulars has been disclosed under Section 14-A of the Act.

6-A. This prosecution was launched however before S.R.O. No. A43/77 was passed.

7. By S.R.O. No. A88/74 an amendment was made to Rule 9(j) casting upon the Food Inspector the duty to send within ten days of the receipt of the report from the Public Analyst 'by hand or by registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken.

8. Now, as we have already pointed out under Section 13 (2) of the Act, as it stood before the amendment, after the institution of the prosecution the accused vendor or the complainant may, ...make an application to the Court for sending the part of the sample to the Director of Central Food Laboratory. Section 13(2) after the amendment requires the Local (Health) Authority to forward a report of the result of the analysis by the Public Analyst to the person from whom the sample was taken, informing him that if it is so desired, he may make an application to the Court within a period of ten days from the date of the receipt at the copy of the report to get the sample of the article of food analysed by the Central Food Laboratory. If the Local (Health) Authority fails to send the copy of the report of the food Analyst and fails to inform the person from whom the sample was taken that he may make an application to the Court within a period of ten days from the date of the receipt of the copy of the report to get the sample analysed by the Central Food Laboratory, the person from whom sample was taken would not be able to make an application to the Court (within a period of ten days from the date of receipt of the copy of the report). The object of amending Section 13(2) appears to be to not only give the person from whom the sample is taken a copy of the analyst's report but also to draw his attention to his right to have the sample analysed by the Central Food Laboratory by making an application to the Court within a fixed time,

9. Rule 9 has also been suitably amended, making it obligatory to send a copy of the report of the Public Analyst to the person from whom the sample is taken. Therefore it appears to us that by the amendment of Section 13(2) a valuable right is given to the accused of receiving such a notice from the Local (Health) Authority giving a copy of the report of the Public Analyst and also telling him that if he so desired he may have the sample analysed by the Central Food Laboratory by making an application to the Court. The scheme and object of the provisions of the Act support the view that the provisions of Section 13(2) are mandatory.

10. In Bholanath v. State it was held that the intent of Rule 9(j) of the Prevention of Food Adulteration Rules as amended, is to give an opportunity to a person from whom sample was obtained to have it examined by an expert of his choice and such a right is independent of Section 13(2) of the Prevention of Food Adulteration Act and the delay of more than 10| months in the supply of the copy of the report of the Public Analyst to the accused has caused prejudice to the defence.

11. In M. B. Risaldar v. C.A. Gandhi : (1978)GLR487 , a Division Bench of the Gujarat High Court was of the view that the provisions of Rule 9(j) of the Rules with regard to the manner in which a copy of the report of the Public Analyst is to be sent to the person from whom the sample was taken, cannot be said to be mandatory despite the use of the word 'shall' in it. We are, however, unable to subscribe to that view.

12. In Public Prosecutor, Hyderabad v. Murlidhar , a Division Bench of the Andhra Pradesh High Court has observed -

It is not possible to lay down any hard and fast rule regarding the delay in sending the report of the Public Analyst to the person from whom the sample was taken. Every case will have to depend on its circumstances. But when the report of the Public Analyst was not sent to the accused even until the filing of the complaint, then, to our mind, in such a case, the accused could be acquitted without his pleading prejudice.

13. In Belgaum Borough Municipality v. Shridhar Shankar AIR 1968 Mys 196, a Bench of the Mysore High Court has observed that Rr. 7 and 18 of the Rules framed under the Act are mandatory and the non-compliance of those rules affects the evidentiary value Of. the report of the Public Analyst and the evidentiary value of the certificate and in the absence of extraneous evidence the conviction is sure to be vitiated.

14. Again in Mangilal Chamnajj v. State : (1974)15GLR852 , a Bench of the Gujarat High Court in considering the language of the provisions of Sub-sections (1), (2) and (5) of Section 13 with the provisions of Rs. 7, 16, 17 and 18, held that the requirements of these provisions are mandatory and that therefore strict compliance with the same is necessary.

15. The decision in Narayana Rao v. State of Andhra Pradesh (1957) 2 Mad LJ (SC) 139, cited by the learned Public Prosecutor would not apply to the case now before us, because there the Supreme Court considered the effect of non-compliance with the provisions of Section 173 (4) read with Section 207-A (3) of the Criminal P. C. 1898, and observed that those provisions were only directory because an omission by a police officer to fully comply with the provisions of Section 173 should not be allowed to have such a far-reaching effect as to render the proceedings including the trial before the Court of Session, wholly ineffective. But, if it is shown, in a particular case, on behalf of the accused person that the omission on the part of the police officer concerned or of the Magistrate, before whom the committal proceedings are pending has caused prejudice to the accused, in the interest of justice, the Court may reopen the proceedings by insisting upon full compliance with the provisions of the Code. The omission was a mere irregularity which could be cured under the provisions of Section 537, Cr. P. C.'

16. In Municipal Corporation of Delhi v. Ghisa Ram : 1967CriLJ939 the Supreme Court has observed as follows:

A right is conferred by Section 13(2) on the accused vendor to have the sample given to him by the Food Inspector, analysed by the Director after the prosecution was launched against him. It is a valuable right, because, he could for his proper defence have that sample analysed by a more competent expert, whose certificate supersedes the report of the Public Analyst under Section 13(3) and is to be accepted by the Court as conclusive evidence of its contents under the proviso to Section 13(5) ... But in a case where there is denial of this right on account of the deliberate conduct of the prosecution, the accused vendor would be seriously prejudiced, in his trial and could not be convicted on the report of the Public Analyst.

Therefore, in our view, the provisions of Sections 11 and 13(2) of the Act are mandatory and non-compliance with the provisions of those sections would vitiate the entire proceedings. Hence this criminal revision petition is allowed and the conviction of the revision petitioner and the sentence imposed on him are set aside and the revision petitioner acquitted of the offence. Fine if paid will be refunded.


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