Patna High Court
Jamshedpur Notified Area Commite vs Niranjan Paul And Ors. on 18 April, 1975
Equivalent citations: 1976CRILJ421
JUDGMENT S.P. Sinha, J.
1. These matters have been referred to Division Bench. A common question arising in all these matters is whether or not on the facts of the respective cases the legal presumption under Section 114 Illustration (e) of the Evidence Act could be taken in aid. In the criminal appeals such legal presumption has not been taken in aid but In the criminal revision it has been applied. Since the arguments in all these matters have been heard together and since the contentions are common, I proceed to decide all of them together by this judgment
2. In Criminal Appeal No. 108 of 1968 the respondent had been punished under Section 16 (1) (a) of the Prevention of Food Adulteration Act (Act 34 of 1954), for violating Section 7 of the Act by storing for sale adulterated turmeric. He was convicted by the trial court to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- (one thousand), in default to suffer rigorous imprisonment for a further period of six months. On appeal the appellate court acquitted the respondent because it found that the provisions of Rule 18 of the Act had not been complied with and consequently it could not be said with certainty that the sample of the turmeric which was analysed by the Chemical Analyst was the same one which had been collected from the respondent's shop. The argument on behalf of the State that the legal presumption under Section 114 of the Evidence Act should be taken in aid for maintaining the conviction was rejected, because according to the appellate court the facts did not warrant the aid to such a presumption.
3. In Criminal Appeal No. 20 of (1969 the punishment under Section 16 (1) (a) of the Act was rigorous imprisonment for six months with a fine of Rs. 1,000/-, in default further rigorous imprisonment for six months for contravening Section 7 of the Act by storing adulterated Haldl sticks. The appellate court found that there was non-compliance with the provisions of Rules 7 and 18 of the Rules under, the Act. Relying upon a decision of this Court in the case of Gopal Sao v. State of Bihar. (1968 B. L. J. R. 308), the appellate court did not take aid of the legal presumption under Section 114 of the Evidence Act and acquitted the respondent.
In Criminal Appeal No. 109 of 1969 the respondent was charged with offence under Section 7 and was prosecuted under Section 16 (1) (a) of the Act for selling adulterated coconut oil. The trial court acquitted the respondent on the ground that the prosecution had failed to prove that the sample sent to the chemical analyst was the one which had been collected from the shop of the respondent and further there was gross irregularity in the chemical analyst's report because the quantity of coconut oil sent to the chemical analyst was below the required minimum.
The complainant in all these three appeals is Jamshedpur Notified Area Committee which had preferred these appeals under Section 417 (3) of the Coda of Criminal Procedure. 1898.
4. The criminal revision is against the conviction and sentence passed against the petitioner. He has been sentenced to undergo rigorous imprisonment for three months under Section 16 (1) (a) of the Act for storing for sale adulterated mustard oil. The conviction and sentence have been upheld by the appellate court. The contention on behalf of the petitioner is that since the provision of Rule 18 of the Rules under the Act had not been complied with, the conviction was unsustainable. It has been urged that the appellate court had committed an error of record in holding that the specimen impression of the seal which had been used for sealing the packet of sample had been separately sent to the Chemical Analyst, According to learned Counsel for the petitioner, it had not been sent as was evident from the forwarding letter of the Food Inspector to the Public Analyst {Ext. 2).
5. Now the argument on behalf of the appellants in the criminal appeals and the opposite party in the criminal revision, firstly, is that the provisions of Rules 7 and 18 of the Rules framed under the Act were not mandatory but directory, so that even if there was non-compliance with the said rules it would not affect the conviction of the accused for storing or selling adulterated articles. The further argument Is that in terms of Section 114 of the Evidence Act. a court may presume that judicial and official acts have been regularly performed.
The argument on behalf of the respondents in the criminal appeal and the petitioner m the criminal revision is to the contrary, namely, that the provisions of Rules 7 and 18 were mandatory and that unless all the necessary steps required for performing an official act were proved to have been duly taken, no legal presumption under Section 114 of the Evidence Act could be taken in aid.
6. Before I consider the rival contentions. I may observe that these contentions have no bearing on Criminal Appeals Nos. 108 and 109 of 1969. inasmuch as they have been decided on facts and not on the basis of non-compliance of the rules. Since the acquittal in these two appeals have been made on the consideration of the evidence on the record, unless the acquittal is shown to be perverse, this Court will not be justified In interfering with the acquittal. Even if two conclusions are possible on the basis of the same evidence, one in favour of the accused and the other against, the judgment of acquittal cannot be Interfered with, if the Inferior court has taken the view in favour of acquittal.
7. In Criminal Appeal No. 108 of 1969 the appellate court has found that in absence of the original postal receipt it was not known whether the packet containing the sample collected from the shop of the respondent; had actually been despatched through the agency of post office, In other words the appellate court was not convinced that the sample which had been analysed by the Chemical Analyst was the sample which had been collected from the shop of the respondent.
learned Counsel for the appellant has not been able to show any material on which I could come to a conclusion that the doubt created in the mind of the appellate court was an unreasonable or a perverse doubt. It cannot, therefore, be said that the appellate court came to an erroneous or perverse conclusion in acquitting the accused Criminal Appeal No. 108 of 1969 has. therefore, to be dismissed.
8. Similarly In Criminal Appeal No. 109 of 1969 the respondent has been acquitted because the prosecution had failed to prove that the sample which had been sent to the Public Analyst was the same sample of coconut oil which had been collected from the shop of the respondent and also the quantity of sample sent was the required minimum.
learned Counsel for the appellant has failed to show as to whether these findings were based on no evidence or that the conclusion arrived at on such findings was perverse. This appeal has also, therefore to be dismissed.
9. In Criminal Appeal No. 20 of 1969 a somewhat similar situation obtains as in Criminal Appeal No. 108 of 1969, namely, that here also the appellate court has come to the conclusion that there was non-compliance with the mandatory provisions of Rules 7 and 18 of the Rules, but with this difference that in this case over and above the said finding, the appellate court has observed by reference to the case of Gopal Sao v. State of Bihar. 1968 BLJR 308 (Supra) that the presumption under Section 114 of the Evidence Act would not be available.
10. Now, therefore, the two questions: (i) Whether Rules 7 and 18 of the Rules under the Act were mandatory or directory; and (id) whether the legal presumption under Section 114 (e) of the Evidence Act could be taken in aid in the facts and circumstances of the two cases (Criminal Appeal No. 20 of 1969 and Criminal Revision No. 2856 of 1970), arise for consideration.
11. I will first take up the contentions relating to the nature of Rules 7 and 18.
Rule 7 prescribes the duties of a Public Analyst and the part which is relevant for the purposes of these cases reads as under:
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. Rule 18 of the Rules requires the memorandum and impression of seal to be sent separately. It reads A copy of the memorandum and specimen impression of the seal used to steal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him.
In terms of Rule 7, after analysing the sample, the Public Analyst is required to send two copies of the report of the result of analysis in Form III. This form, as it originally stood, did not contain any provision for a certificate that the seal on the container of the sample tallied with the specimen impression on the seal separately sent by the Food Inspector and the sample was in fit condition for analysis. The said form has since been amended on the 8th of July. 1968, under which a certificate to the above effect is also to be given by the Public Analyst. Prior to this amendment the only certificate that the Public Analyst was required to give with regard to the seal on the container and on its outer cover was that it was "properly sealed and fastened.
The question as to whether these rules were mandatory or directory in nature came up for consideration even earlier before this Court. In the case of Daitari Mahto v. The State 1969 Pat LJR 529 :1971 Cri LJ 129 this Court held that the said rules were mandatory in nature and any non-compliance with the same would vitiate the conviction. The reason which impelled their Lordships to come to that conclusion was that the requirement of sending the specimen impression of the seal used by the Food Inspector in a separate packet was to safeguard the interest of the prosecutor and the prosecuted both. It was a guarantee against tampering and sure guide to the Public Analyst that the sample before Mm was the self same sample which the Inspector had collected from the accused. The same question cropped up in the case of District Board. Patna v. Baiioo Sao (1974 BBCJ 772) which was a case decided by me. Being convinced of the correctness of the view expressed by this Court in the case of Daitari Mahto, 1971 Cri LJ 129 (Pat) (Supra), I followed it.
Rules 7 and 18 do not expressly declare as to what shall be the consequence of non-compliance therewith. The expression 'shall' has no doubt been used in both the rules, but that by itself cannot be a true guide to the exact nature of the rules; as to whether mandatory or directory, it is. however, one of the cardinal principles of interpretation of statutes that when the statute requires that something shall be done, or done in a particular manner or form without expressly declaring what shall be the consequence of non-compliance, the question often arises: what intention is to be attributed by inference to the Legislature ? The following passage from Maxwell on the Interpretation of Statutes Twelfth Edition page 314 serves as a useful guide in this regard:
The first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or _ permissive) ? in some cases, the conditions or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it, and the omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to penalty, if any were imposed, for breach of the enactment. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.
It has further been observed in the same treatise at the same page that ... No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be constructed....
In doing so, one "must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory."
The majority view of the Supreme Court in the case of State of Uttar Pradesh v. Babu Ham Upadhya. concerning rules of interpretation is .... When a statute uses the word "shall" prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.
12. Bearing these salubrious rules of interpretation, when I now look at the Act, and the Rules framed thereunder, the object of the Act, as is obvious from the title and its preamble, is to prevent adulteration of food. With that end in view, the Act has given very wide meaning to the expression "adulterated". It has also given wide powers to the Food Inspectors (Section 10), but at the same time being conscious of the misuse of such power and to safeguard the interest of persons dealing in 'food', laid down the procedure to be followed by Food Inspector in taking of sample of food for analysis (Section 11). In terms of this section the Food Inspector is required to give notice in writing then and there to the person from whom he has taken the sample, of his intention to have the sample analysed; separate the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits; deliver one of the parts to the person from whom the sample had been taken; send another part for analysis to the Public Analyst; and retain the third part for production in case any legal proceedings are taken or for analysis by the Director of Central Food Laboratory under Section 13 (2).
Specific rules have been framed concerning the duty of a Public Analyst concerning the sample received by him; and on the duties of the Food Inspector after sending the sample to the Public Analyst. Under Rule 18. the Food Inspector is required to send a copy of the memorandum and specimen impression of the seal, which seal has been used on the sample packet, to be sent separately by registered post or delivery by hand to the Public Analyst. In terms of Rule 7 a duty is cast upon the Public Analyst to compare the seals on the container and the outer cover with the specimen impression of the seal received separately and to note the conditions of the seals thereon. The legislature has further authorised the person from whom the sample has been taken to challenge the report of the Public Analyst and to make an application to the court for sending the part of the sample delivered to him by the Food Inspector when collecting the sample, to the Director of Central Food Laboratory for his report (Section 13 (2)). The report of the Director of Central Food Laboratory shall supersede the report given by the Public Analyst (Section 13 (3)). The importance of the intactness of the seal is ascertainable also from the latter part of Section 13 (2) of the Act wherein on receipt of the application by the accused-vendor, the court is required, first, to ascertain that the mark and seal on the container was intact.
Thus the Act, the Rules and the Forms prescribed under the Rules constitute on the one hand an elaborate code against contravention of Law on adulteration of food, on the other it provides sufficient safeguards and checks against the vexatious and wrong acts of the Food Inspectors. The Act lays down the rights end obligations, and the Rules channelise them, This method of check and verification is a sure guarantee against tampering and is a definite source of confidence, both to the prosecutor, the prosecuted and also to the court, whether things have been done in the proper manner. All these parties are sure that the sample analysed was the very same sample which had been collected from the vendor-accused, submitted by the Food Inspector for analysis and it was the report thereon by a Public Analyst which was before the court. In fact the report of the Public Analyst is of great vital importance, because it virtually concludes the case against the accused-vendor, one way or the other. When such is the importance of the checks and safeguards prescribed under the Act and the Rules. I think it cannot but be said that it is an absolute statutory duty which the Legislature expects from the Food Inspectors, It does not leave the duty at the will and pleasure of the Food Inspector. It cannot. therefore, be gainsaid that when the Act prescribes a particular mode for achieving an end, the end achieved without undergoing the prescribed modes cannot be a valid achievement and more so when It concerns the liie and liberty of a citizen. The report achieved from the Public Analyst in violation of the rules prescribed under the Act, will not be a worthy piece of evidence for the purpose of criminal prosecution.
13. Thus, in my opinion, having (regard to the intention of the Legislature, as evidenced by the various provisions of the Acts and the Rules, the provisions contained in Rules 7 and 18 are mandatory in nature, I once again, therefore, reiterate the view expressed by this Court In the cases of Daitari Mahto. 1971 Cri LJ 129 (Pat) and District Board. Patna. 1974 BBCJ 772 (Supra).
14. I now come to the next question as to whether notwithstanding absence of evidence about the procedure prescribed under Rules 7 and 18 of the Rules having been duly observed, the presumption under Section 114 (e) of the Evidence Act should be applied to the cases and it should be held that the Analyst's report was a valid piece of evidence, in other words, the Analyst had regularly performed his act.
There has been diversity of opinion on this issue. In the following cases it has been held that unless it was proved that all the steps required to be taken before the Public Analyst gave his report, had been duly taken, the presumption under Section 114 of the Evidence Act would not be available: Gopal Sao v. The State of Bihar. 1968 BLJR 308. Daitari Mahto v. State. 1969 Pat LJR 529 :1971 Cri LJ 129); Badri Sah v. State of Bihar 1969 Pat LJR 217 :1970 Cri LJ 649) and District Board, Patna v. Baidoo Sah, (1974 BBCJ 772).
In the following oases the view expressed to the contrary is that notwithstanding the absence of evidence regarding due performance of the obligation under Rules 7 and 18 of the Rules, the legal presumption under Section 114 of the Evidence Act could be taken in aid: The State v. Uma Charan Ram. ; Subhayyan Muthu Komaram v. State of Kerala. AIR 1968 Ker 330 :1968 Cri LJ 1554): Dilo Sao v. State of Bihar, 1970 BLJR 899 :1971 Cri LJ 1047). In the case of State of Madhya Pradesh v. Chhotekhan Nanne-khan a Full Bench of the Madhya Pradesh High Court has observed that "the presumption under Section 114 of the Evidence Act and illustration (e) thereunder in relation to regular performance of official acts applies to the report of Public Analyst. It is. however, a re- buttable presumption. Thus such a report is not rendered inadmissible only because it has not been specifically established by evidence aliunde that the requirements of Rules 7 and 18 of the Prevention of Food Adulteration Rules. 1955, were duly complied with."
With great respect to the view so expressed, I think it proceeds on a confusion with regard to the obligations embodied under Rules 7 and 18 of the Rules. The analysis report is on the sample contained within the container. The Rules 7 and 18, though indirectly have a bearing on the content of the container, concern the proper fastening of the container itself, so that if the container has not been sealed in the manner as reauired, there is no guarantee that the sample analysed by the Public Analyst was the very same sample which had been collected from the vendor-accused. Thus, whereas the Public Analyst report will be a report upon a sample which he analysed, but it cannot be said in the absence of evidence of due performance of the obligations prescribed under Rules 7 and 18 that the sample which the Public Analyst analysed was the very same sample which had been collected from the vendor-accused. Moreover on the discussions which I have made above, I have come to the conclusion that the formalities required to be performed under Rules 7 and 18 of the Rules were of a mandatory character and, therefore, in absence of evidence of due performance of those requirements even according to this Full Bench decision, the principles embodied in illustration (e) of Section 144 of the Evidence Act will not be available.
15. The Supreme Court in the case of Collector of Customs. Baroda v. Dig-vijoy Sinhji Spinning and Weaving Mills Ltd.' has observed:
... The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this where the validity of an order depends upon the fulfilment of a condition, the party relying upon the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the Statute....
This decision is obviously an authority for the proposition that before an official act can be presumed to have been regularly performed, the prosecutor must prove that the steps required to be taken had been duly taken.
In the instant case the steps necessary to be taken by virtue of provisions contained in Section 11 (a) of the Act and Rules 7 and 18 of the Rules must, therefore, be proved to have been duly taken before a legal presumption can be taken that the official act performed by the Public Analyst had been regularly performed. The legal presumption under Sea 114 for cannot, however, be further projected for raising a presumption that even the steps, which were required to be taken by a Public Officer, had been duly taken, I must, therefore, hold that the presumption laid under Section 114 Illustration (e) of the Evidence Act arises only when all the steps required to be taken for obtaining the Public Analyst report are proved to have been duly taken. If there is failure In performing any one of the required steps, the lacuna cannot be filled in by taking the recourse to the aid of Section 114 (e) of the Evidence Act
16. In Criminal Appeal No. 20 of 11969, the appellate court has found that there was non-compliance of the provisions of Rules 7 and 18, inasmuch as evidence was wanting on the facts that the Public Analyst had compared the seal on the container of the sample with the impression seal sent separately, because it was not known whether the impression seal had at all been sent separately. In absence of evidence on these steps having been duly taken, it must be held that the appellate court rightly relied upon the decisions reported in Gopal Sao v. The; State of Bihar. (1968 BUR 308) in acquitting the accused. Criminal Appeal No. 20 of 1969, i9. therefore, dismissed.
17. Coming now to Criminal Revision No. 2856 of 1970, the petitioner has challenged the finding of the appellate court that the copy of the memorandum along with the specimen impression of the seal was separately sent to the Public Analyst and on that finding observing that "it can safely be presumed that while looking to the seal of the cover he must have compared it as required by Rule 7 with the specimen impression of the seal sent to him separately. ..." In other words, the appellate court has taken in aid the legal presumption, having found that all the necessary steps required to be taken under the Rules had been duly taken.
18. learned Counsel for the petitioner has referred me to Annexure 'F' to the petition which is the forwarding letter by the Food Inspector to the Public Analyst and particularly to column 5 thereof. Column 5 reads as under:
Nature and quantity of preservative if any added to the sample.
A copy of this memo and specimen and a specimen impression of the seal used to seal the packet of sample is being sent separately by registered post, Exhibit 2 shows that against the latter part of this column, the Food Inspector had put an 'X' Obviously...it means that he has not sent the specimen impression of the seal used to seal the packet of sample. The Food Inspector has examined himself as P.W. 1 in this case and has stated that he sent one of the samples to the Public Analyst for examination and report along with the memorandum (Ext 2), He does not further state that he sent separately the specimen impression of the seal used to seal the packet of the sample. The evidence of the Food Inspector also being silent on this point, the contention raised on behalf of the petitioner remains unassailed. In such view of the matter it must be held that there was non-compliance with the requirements of Rule 18 of the Rules and consequently the legal presumption taken in aid in this case was not available. It must, therefore, be held that the prosecution has failed to bring home the charge against the petitioner, who must, therefore, be acquitted.
19. In the result the Criminal Appeals Nos. 108 of 1968, 20 of 1969 and 109 of 1969 are dismissed and Criminal Revision No. 2856 of 1970 is allowed. The petitioner is discharged of his bail bond.
R.P. Sinha, J.
20. I agree.