T.R. Handa, J.
1. 'Whether the non-compliance of the provisions of Rules 7 and 18 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules), would vitiate the conviction Under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act)' is the main question which falls for consideration in this Criminal Revision Petition. This question has arisen in the following circumstances :
2. The petitioner runs a petty shop in village Nangal Khurad. On 4-8-1980, PW Prem Chand, Food Inspector visited the petitioner's shop and after disclosing his identity and the purpose of his visit, he purchased a sample of sweet-balls from the petitioner. This sample was purchased and dealt with on the spot in the manner prescribed under the Act and the Rules. One part of the sample was later sent to the Public Analyst along with form-VII bearing the specimen impressions of the seal used in sealing the sample. The other two parts of the sample were deposited with the Local (Health) Authority. On being analysed by the Food Analyst, one of the sweet-balls contained in the sample was found to contain a red-coal tar dye, other than that permitted under the Rules. On account of the presence of such un-permiued coal-tar dye, the sample was declared adulterated. A complaint Under Section 16 read with Section 7 was accordingly filed against the petitioner. On the basis of that complaint, the petitioner was charged and tried for the said offence and ultimately convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- by the trial court. On appeal, the learned Sessions Judge refused to interfere either with the conviction or with the sentence as recorded by the trial court.
3.The petitioner has now invoked the revisional jurisdiction of this Court to seek the quashing of the order of his conviction and sentence.
4. Though various grounds had been mentioned initially in the revision petition, Shri S.S. Kanwar, learned Counsel appearing for the petitioner, at the time of hearing, restricted his attack against the conviction of the petitioner to the solitary ground that in the absence of proof of compliance of the provisions of Rules 7 and 18, the conviction was vitiated and could not be sustained. According to the learned Counsel both the aforesaid Rules are mandatory in character and unless there is satisfactory proof on the record showing the compliance of such mandatory provisions, the report of the Public Analyst would have no evidentiary value and since the conviction is founded on such report, the same would be vitiated in law.
5. At this stage it would be expedient to read the language of the Rules 7 and 18 which may be extracted.
7. Duties of a 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 the Food Inspector or by any other person under the Act.
(3) The Public Analyst shall, within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form-III.
Provided that where any such sample does not conform to the provisions of the Act or these rules, the Public Analyst shall deliver four copies of such report to the said Authority.
Provided further that the Public Analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis Under Section 12 of the Act.
18. Memorandum and impression of seal to be sent separately.-- A copy of the memorandum and 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.
6. It may further be observed that there is no evidence on the record to suggest if in the instant case the Food Inspector sent a copy of the memorandum and a specimen impression of the seal used to seal the packet to the Public Analyst separately either by registered post or delivered to him or to any person authorised by him. In other words there is no proof of compliance of the provisions of Rule 18. Inasmuch as the compliance of the provisions of Rule 7(1) on the part of the Public Analyst depends upon the compliance of the provisions of Rule 18 on the part of the Food Inspector, it would not be reasonable to say that in this case there is no satisfactory proof on the record to show compliance of the provisions of Rule 7(1) either. The question, therefore, which assumes importance is with regard to the effect of the non-compliance with these Rules. The answer to this question would naturally involve the issue whether these Rules are mandatory or directory in character.
7. As has been recognized time and again by the Courts, no general rules can be laid down for determining whether a statutory provision is mandatory in the sense that its non-compliance would entail the consequences of invalidity or it is Only directory in the sense that its non- compliance would not result in invalidity whatever other consequence it may entail.
8. In each case the predominant factor would be the intention of the Legislature or the Rule-making authority, as the case may be, in inserting the particular provision. It, however, appears to be a proposition of universal application that where a particular requirement in a provision is insisted on as a protection for the safeguard of the right of liberty of a person, which the action might involve, such a provision would only be mandatory.
9. Now undoubtedly the main object of the Act and the Rules is to control, curb and remedy the widespread malpractice of food adulteration in the country and to ensure supply of pure and wholesome food to the consumer. Various provisions found both in the Act and the Rules are presumed to be in furtherance of this main object. Some of these provisions which a.ppear to be relevant may now be adverted to :
Section 2 of the Act inter alia defines the terms 'food', 'adulterated', 'mis-branded' and 'sample' as used in the Act and the Rules. Section 7 prohibits the manufacture for sale, storage, sale or distribution of any adulterated food, misbranded food, or any article of food in contravention of any of the provisions of the Act and the Rules. Sections 8 and 9 empower both the Central and the State Government to appoint persons of the prescribed qualifications to be Public Analysts and Food Inspectors respectively for such local areas as may be assigned to them. Section 10 defines the powers of the Food Inspectors which inter alia include the power to take sample of any article of food from any person selling the same. The Food Inspectors have been further empowered to send such samples for analysis to the Public Analysts appointed for the relevant local areas. Section 11 mentions the procedure to be followed by the Food Inspector while taking a sample for the purpose of analysis. Section 13 deals with the report of the Public Analyst conducting analysis of the sample sent to him by the Food Inspector. Where the Public Analyst opines that the sample is adulterated, prosecution may be launched against the concerned vendor, dealer or manufacturer as the case may be,. When such prosecution is actually launched the accused person is to be furnished a copy of the report of the Public Analyst and given the option that in case he is not satisfied with the report of the Public Analyst, he may apply to the Court that another part of the sample be sent to the Director Central Food Laboratory for fresh analysis. Where the accused exercises such option, the report of the Director Central Food Laboratory would supersede the report of the Public Analyst. Where, however, the accused does not exercise such option, the report of the Public Analyst may be used as evidence against him of the facts stated therein without the same being formally proved by calling the Public Analyst and it may conclude the offence against the accused and also form the foundation of his conviction. Section 16 of the Act provides for deterrent penalties to be imposed on the person found violating the provisions of the Act and the Rules. Section 23 next empowers the Central Government to make rules to carry out the provisions of the Act. The Rules which have been framed in exercise of this statutory power inter alia prescribe the qualifications of the Public Analysts and the Food Inspectors and also define their duties and powers. They also lay down the procedure to be followed by these authorities in the discharge of their functions assigned to them under the Act and the Rules.
10. It is obvious that the various provisions defining the powers and duties of the authorities entrusted with the job of administration of the Act and also laying down the procedure to be followed by these authorities, were intended to ensure successful prosecution of the persons indulging in the evil practice of food adulteration. At the same time it looks legitimate to presume that while enacting the aforesaid provisions of the Act and making the Rules, the Legislature and the rule making Authority had in view the safeguards against the innocent persons being prosecuted on account of advertent or inadvertent acts of the authorities entrusted with the duties of administering the provisions of the Act.
11. It appears that it was inter alia to achieve this intention and to justify the sanctity and high value attached to the report of the Public Analyst that various provisions were made both in the Act and the Rules to ensure that the report of the Public Analyst not only reflected the correct analysis but also related to the very sample which had been picked up from the accused. This was sought to be done by ensuring that the sample had neither been deteriorated nor tampered with/replaced in the course of transit. Until suitable safeguards are provided, the possibility of the sample having lost its original quality and becoming sub-standard or its having been tampered with or replaced in the course of the transit could not be ruled out. Rules 7 and 18 appear to form part of the set of provisions made to provide such like safeguards. Rule 7(1) requires of the Public Analyst that before he proceeds to analyse the sample, he must compare the seals on the container and the out cover of the packet with the specimen impression of seal received by him separately from the Food Inspector and to note the condition of the seals thereon. The only object behind this rule could be to ensure that the sample which the Public Analyst was required to analyse had not been tampered with and that the Public Analyst was satisfied that he was analysing the correct sample. Rule 18 was obviously framed in order to enable the Public Analyst to discharge his duty as cast upon him by Rule 7(1) which duty he could perform only if he had received a specimen impression of the seal separately. The non-compliance with the provisions of Rule 18 thus in its turn would result in the non-compliance of Rule 7(1) with the result that the Public Analyst would not be in a position to say definitely if the sample analysed by him was the same which had been picked on the spot at the time of taking the sample or that the same had not been tampered with during transit. In such an event the sanctity and the value attached to the report of the Public Analyst Under Section 13 of the Act would lose all its significance and its report cannot be used as evidence against the accused much less to form the foundation of his conviction. Since non-compliance of the provisions of Rules 7 and 18 would render the report of the Public Analyst which is so vital for successful prosecution of the offender, inadmissible in evidence and invalid, the provisions of these Rules must be held as mandatory only. The non-compliance of these Rules would, therefore, vitiate the conviction.
12. Since the onus to prove the charge in a criminal case always rests on the prosecution, it was for the prosecution to prove compliance of Rules 7 and 18 in the instant case. As already observed, no such proof is found on the record. The prosecution thus having failed to prove the compliance of the mandatory provisions of Rules 7 and 18, the conviction of the petitioner is vitiated and cannot be sustained. With these remarks, I accept this petition, quash the order of conviction and sentence as recorded against the petitioner by the courts below and order his acquittal. The amount of fine if already paid, shall be refunded to him. The petitioner being on bail, his bail bond and surety bond are discharged.