V.P. Bhatnagar, J.
1. The short question which falls for determination in this Criminal Revision is whether the provisions of R. 7(3) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) are mandatory or directory.
2. The brief facts of the case are that a sample of Ajwain was taken from respondent-accused, Punnu Ram, from his shop at village Gerna on July 19,1982 by the Food Inspector. After completing the legal formalities, it was sent to the Public Analyst who found it to be adulterated. This resulted in the launching of prosecution against the respondent.
3. At the stage of framing of the charge-sheet, a preliminary point was raised that the Public Analyst had not complied with the mandatory provisions of R. 7(3) ibid inasmuch as his report of the result of analysis was not delivered to the Local (Health) Authority within a period of 45 days from the date of receipt of the sample and that the said violation was fatal. This objection found favour with the learned Sub Divisional Judicial Magistrate, Dalhousie, who vide his order dated Oct. 15, 1983, discharged the respondent of the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). Aggrieved from the aforesaid decision, the State of Himachal Pradesh has preferred the present revision petition.
4. Sub-rule (3) of R. 7 of the Rules reads:
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.
The above Rule is as it was substituted by Notification No. GSR 4(E) DA Jan. 4, 1977. Before the amendment, it was in the following terms:
After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in Form. Ill within a period of 60 days of the receipt of the sample.
The word 'he' obviously refers to the Public Analyst since R. 7 pertains to the duties of a Public Analyst.
5. The comparison of R. 7(3) as it stood before the amendment and as it emerged after the amendment shows that the alteration made was to reduce the period of 60 days for sending the report of the Public Analyst to 45 days for delivering the said report to Local (Health) Authority. It also throws some light on the intendment of the rule-making authority inasmuch as it was considered necessary to bring forward the amendment referred to above thereby reducing the period in which the analysis was required to be made and the report sent to the Local (Health) Authority. In other words, a statutory requirement was introduced so as to hasten the process of analysis and the communication of the report to the Local (Health) Authority to facilitate the expeditious launching of the prosecution, if called for.
6. The duty entrusted to the Public Analyst vide R. 7(3) is controlled by the word 'shall' which, in legal parlance, means that the requirement is imperative. However, the word 'shall' need not be given that connotation in each and every case and it can be interpreted as directory instead of being mandatory depending upon the purpose which the legislature wanted to achieve as disclosed by the scheme of the Act and the Rules.
7. Adulterating an article of food is undoubtedly a heinous crime. It is a hazard to the health of consumers, that is, the people at large. The motive obviously is to make a quick buck and amass illegal wealth. No society can condone such an act of perfidy. The elected representatives of the people have taken note of this compulsion in enacting the Prevention of Food Adulteration Act, 1954 in order to curb and, if possible, eradicate the widespread evil of food adulteration so much so that deterrent minimum punishments have been prescribed for those found guilty. The laudable object enunciated above cannot and should not be permitted to be defeated through imparting non-existent meaning to some mere technicality found here and there in the Act or the Rules.
8. The object of the Act was also considered by the Hon'ble Supreme Court in Municipal Corporation of Delhi v. Kacheroo Mai : 1976CriLJ336 , wherein the following observations were made in para 4 thereof:
The Act has been enacted to curb and .remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It is well settled that wherever possible, without unreasonable stretching or straining, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention...
9. It has also to be borne in mind that the provisions of a-statute creating public duties are, generally speaking, directory. The purpose is to incorporate certain procedural instructions for strict compliance by public functionaries. Nevertheless, non-compliance of these instructions per se cannot render the acts done as null and void. It will have to be shown that such non-compliance has caused prejudice and failure of justice. The above principles pertaining to the interpretation of statutes are well settled by now.
10. When sub-rule (3) of R. 7 is examined in the light of observations made above, the determination of the question raised in this case presents no problem.
11. Subrule (3) of R. 7 merely lays down the time limit (45 days) within which the Public Analyst has been directed to complete the analysis and deliver the report to the Local (Health) Authority. It is one step forward to achieve the object of the Act by bringing the culprit to book as speedily as possible. If the Public Analyst neglects to perform this statutory duty within the prescribed time and takes a few days more, he can certainly be hauled up by way of departmental action but it is difficult to understand much less appreciate a single good reason how such breach of the Rule creates a vested right in the accused entitling him to be discharged or acquitted on this short ground.
12. Here it would be pertinent to consider the effect of delay in the performance of public duties of the nature envisaged in sub-rule (3) of R.7.
13. Sub-section (2) of Section 13 of the Act does confer a valuable right on the accused. He may make an application to the court within a period of ten days from the receipt of the copy of the report of Public Analyst to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. In case this sample is found by the said Laboratory to be unfit for analysis due to decomposition by passage of time or any other reason attributable to the conduct of the prosecution, the valuable right referred to above would stand denied. This would constitute in itself sufficient prejudice to the accused so as to entitle him to acquittal. The Supreme Court has held so in Municipal Corpn. of Delhi v. Ghisa Ram (1975) 1 FAC 186 : 1967 Cri LJ 939. Delay, in such cases, has plainly come to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis hi spite of the delay, the accused is certainly not prejudiced on the merits of the case notwithstanding any such delay. In short, an accused in food adulteration cases has an inviolable right to get the sample re-tested by the Central Food Laboratory. The denial of this right would be fatal to the prosecution but then it will have to be shown that the delay has lead to the aforesaid denial of right.
14. It, therefore, follows that the violation of the time limit given in sub-rule (3) of Rule 7 per se is not a complete answer to a charge of food adulteration under the Act.
15. No direct ruling of the Supreme Court On the above point has been cited before me but the ratio of Dalchand v. Municipal Corporation Bhopal : 1983CriLJ448 fortifies me in the conclusion arrived at. In that case, the question raised was whether the failure to supply a copy of the report of the Public Analyst within the period of 10 days stipulated by R. 9(j) of the Rules, as it was in force at the relevant time, was fatal to the prosecution. The Supreme Court made the following observations:.. 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 non-compliance 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. R. 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 the 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(j) of the Prevention of Food Adulteration Rules was directory and not mandatory. The decisions in Public Prosecutor v. Murli Dhar 1977 Cri LJ 1634 (Andh Pra) and Bhola Nath v. State 1977 Cri LJ 154 (Cal) to the extent that they hold that Rule 9(j) was mandatory are not good law....
16. In the State of Himachal Pradesh v. Thakur Dass (1983) 2 FAC 1 : 1983 Cri LJ 1694, a learned single Judge of this High Court considered the question whether provisions of R. 9-A of the Rules are directory or mandatory, R. 9-A reads:
9-A. The Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of R. 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 (2E) 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 particulars have been disclosed under Section 14-A of the Act, within 10 days from the receipt of the report from the Public Analyst.
The learned single Judge discussed the scheme of the Act and the Rules in depth as also the import of the ratio of Dalchand's case (1983 Cri LJ 448) (SC) (supra) and came to the conclusion that the provisions of R. 9-A were directory and, therefore, their infraction in itself could not result in acquittal unless it was also established that prejudice has been caused to the accused thereby.
17. No doubt, various High Courts have been taking different views pertaining to the interpretation of sub-rule (3) of Rule 7 of the Rules. The Andhra Pradesh High Court in Food and Sanitary Inspector v. Koppu Subbaratnam (1984) 1 FAC 4 : 1983 Cri LJ 1801 has held that the aforesaid provisions are directory and not mandatory. The decision of the Punjab and Haryana High Court in Om Parkash v. State of Punjab (1984) 2 FAC 136 is, however, diametrically opposite. In that case, the High Court permitted the accused to take benefit of the violation of the provisions in question and acquitted him. There are a number of other High Courts as well who have held likewise. The impugned judgment is, in fact, based on the law laid down in State of Maharashtra v. Chandanmal Bhanindwal (1979) 1 FAC 235 (Bom). However, the decisions in Om Parkash's case (supra) as well as in Chandanmal's case (supra), with all respect, are not good law.
18. In the above view of the matter, it is clear that the learned Sub-Divisional Judicial Magistrate, Dalhousie has fallen into an error in discharging the respondent merely on the ground that the time limit prescribed in R. 7(3) had not been strictly adhered to. As a result, this revision petition is accepted, the impugned order is set aside and the case remanded to the trial Court with the direction to proceed with the trial of the case in accordance with law from the stage it was left.
19. The parties are directed to appear in the Court of the Sub-Divisional Judicial Magistrate, Dalhousie on Feb. 22, 1985 after the winter vacation. The learned Court below is directed to complete the trial at an early date.