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State of Himachal Pradesh Vs. Loki Nand - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1984CriLJ1272
AppellantState of Himachal Pradesh
RespondentLoki Nand
Excerpt:
- .....was sent to the public analyst for purposes of analysis and the other two parts were sent to the local (health) authority in terms of section 11 of the act.' the report of the public analyst showed that the sample was adulterated and hence the respondent was prosecuted.3. the learned trial court acquitted the respondent on the short ground that the mandatory provisions of section 13(2) of the act read with rule 9-a of the rules framed thereunder had not been complied with in this case, inasmuch as the local (health) authority had never sent a copy of the report of the public analyst to the respondent nor informed the respondent of his right to get the other part of the sample kept by the local (health) authority analyzed from the central food laboratory through court. this.....
Judgment:

T.R. Handa, J.

1. This appeal by the State is directed against an order of acquittal recorded by the Judicial Magistrate, Chamba vide which the learned Magistrate acquitted the respondent Loki Nand, of the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, (hereinafter called 'The Act').

2. The facts of this case show that a sample of mustard oil was purchased by the Food Inspector from the respondent for purpose of analysis. This sample was purchased on 17th Dec, 1977. It was purchased and dealt with in accordance with the provisions of the Act and Rules framed thereunder. The sample after its purchase was made into three parts and each part was sealed in a separate bottle. One part of the sample was sent to the Public Analyst for purposes of analysis and the other two parts were sent to the Local (Health) Authority in terms of Section 11 of the Act.' The report of the Public Analyst showed that the sample was adulterated and hence the respondent was prosecuted.

3. The learned trial court acquitted the respondent on the short ground that the mandatory provisions of Section 13(2) of the Act read with Rule 9-A of the Rules framed thereunder had not been complied with in this case, inasmuch as the Local (Health) Authority had never sent a copy of the report of the Public Analyst to the respondent nor informed the respondent of his right to get the other part of the sample kept by the Local (Health) Authority analyzed from the Central Food Laboratory through Court. This non-compliance of the provisions of Section 13(2) of the Act read with Rule 9-A, according to the learned Magistrate had vitiated the trial and entitled the respondent to acquittal.

4. The learned Assistant Advocate General appearing for the State has raised only one contention in this appeal. His simple contention is that the provisions of Section 13(2) of the Act as also of Rule 9-A are only directory and not mandatory. Non-compliance of such provisions would not by itself vitiate the trial or entitle the accused vendor to acquittal. The trial, according to the learned Asstt. Advocate General, would be treated as vitiated only where it can be shown that non-compliance of such provisions has resulted in prejudice to the accused. The respondent, in the instant case, having pleaded no such prejudice, the order of has acquittal is bad and deserves to be quashed.

5. The question whether the provisions found in Section 13(2) and Rule 9-A are mandatory or directory, is to be answered in view of the broad purpose and the object which these provisions are intended to serve. Where non-compliance of a particular provision would defeat the very purpose for which it was enacted, it must be treated as mandatory and in such a case non-compliance would certainly vitiate the trial irrespective of the fact whether prejudice is pleaded by the accused or not. Section 13(2) of the Act which was introduced after the Act was amended in 1976 reads:

13. Report of Public Analyst. (1)...

(2) On receipt of the report of the result of the analysis under Sub-section (1) 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 the 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 receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analyzed by the Central Food Laboratory.

Rule 9-A which prescribes the manner in which a copy of the report of the result of the analysis is to be sent by the Local (Health) Authority to the concerned person under the aforesaid provisions is in the following term:

9-A. Local (Health) Authority to send report to person concerned:

The Local (Health) Authority shall immediately after the institution of prosecution forward copy of the report of the result of analysis' in Form III 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, if any, whose name, address and other particulars have been disclosed under Section 14-A of the Act:

Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under Sub-section (2) or no action is intended under Sub-section (2-E) of Section 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under Section 14-A of the Act, within 10 days from the receipt of the report from the Public Analyst.

Section 13(2) of the Act thus gives a mandate to the Local (Health) Authority to forward in the manner prescribed under Rule 9-A, a copy of the report of the result of the analysis to the person from whom the sample was taken. It further casts a duty on the Local (Health) Authority to inform such vendor that if he so desires, he can apply 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 of the food-article kept by the Local (Health) Authority analyzed from the Central Food Laboratory. Under Section 13(2A) a duty is enjoined upon the Local (Health) Authority to forward the part or parts of the sample to the court within a period of five days from the date of the receipt of requisition from the court to that effect.

6. Now in order to appreciate the object of the legislature behind the enactment of the abovementioned provision, it would be expedient to have a look into the language of Section 11 of the Act which lays down the procedure to be followed by the Food Inspector in taking samples of food articles under the Act. Section 11 inter alia, provides that after the sample is divided into three parts, each part is separately packed, marked and sealed, the Food Inspector shall obtain the signatures or thumb impression of the vendor on each part of the sample. The vendor is thus associated in the process of taking and dealing with the sample up to this stage. After this is so done, the role of the vendor is over. It is thereafter enjoined upon the Food Inspector to send one part of the sample to the Public Analyst and the remaining two parts to the Local (Health) Authority. The vendor who is not supposed to be present when such samples are despatched by the Food Inspector to the Public Analyst and the Local (Health) Authority, would thus remain ignorant of the fact whether the samples despatched by the Food Inspector were genuine samples.

7. Again Section 4 of the Act provides for the establishment of one or more Central Food Laboratory or Laboratories. One of the functions of the Central Food Laboratory is to conduct analysis of the samples of food articles sent to it for the purpose by the Court under Sub-section (2-B) of Section 13 of the Act. The Central Food Laboratory after conducting such analysis is required to issue a certificate to the court in the prescribed form specifying the result of the analysis. Sub-section (3) of Section 13, then declares that such certificate of the Central Food Laboratory shall supersede the report of the Public Analyst. It is thus apparent that the report of the Public Analyst is not final and can be challenged by getting the other parts of the sample analyzed from the Central Food Laboratory, the report of which would supersede the report of the Public Analyst.

8. It was in this background that the legislature appears, to have considered it necessary to provide the vendor accused under the Act an opportunity of satisfying himself that the Food Inspector had despatched genuine samples as also to specifically confer a right on such vendor to challenge the report of the Public Analyst by getting another part of the sample analyzed from the Central Food Laboratory through the Court and also to lay down the procedure for the exercise of that right. Section 13(2) of the Act is obviously intended to achieve the aforesaid object of providing a right to the accused vendor of challenging the report of the Public Analyst by getting the sample analyzed from the Central Food Laboratory after satisfying himself with respect to the genuineness of the sample. Total non-compliance of this provision would certainly defeat the very object for which it has been enacted and looking from this aspect this provision must be held as mandatory and not merely directory. In case of total non-compliance of this provision, the vendor accused need not specifically plead prejudice as in such a case prejudice to the vendor is writ large, Of course, different considerations may prevail where there is substantial though not strict compliance with the provisions of Section 13(2) of the Act and Rule 9-A, e.g., where the Local (Health) Authority delays the despatch of the copy of the report of the result of the Analysis to the vendor after the institution of the prosecution. In such like cases, a question of prejudice to the vendor may have to be considered depending upon the facts and circumstances of each case. In the instant case, however, there was total non-compliance with the provisions of Section 13(2) of the Act inasmuch as the Local (Health) Authority never despatched a copy of the report of the result of the analysis, to the respondent who was thereby deprived of his valuable right of challenging the report of the Public Analyst. His acquittal is thus well founded and calls for no interference.

9. This appeal is accordingly dismissed.


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