Allahabad High Court
Ram Kishore vs State Of U.P. on 23 July, 2018
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on:- 10-07-2018 Judgment delivered on:-23-07-2018 Court No. - 1 Case :- CRIMINAL REVISION No. - 422 of 1980 Revisionist :- Ram Kishore Opposite Party :- State Of U.P. Counsel for Revisionist :- Satish Trivedi Counsel for Opposite Party :- A.G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Ramesh Sinha, J.)
1. Heard Sri Rajiv Lochan Shukla, learned Amicus Curiae and Sri S. K. Pal, learned Government Advocate assisted by Ms. Manju Thakur, learned AGA for the State.
2. While deciding the aforementioned criminal revision, the learned Single Judge has been pleased to frame following questions for consideration by a larger bench;
"(i) Whether the provisions of Section 13(2) read with Rule 9-A of the Prevention of Food Adulteration Act and Rules are mandatory or directory in character?
(ii) Under what circumstances, if ever, non-compliance with the provisions of Section 13(2) and Rule 9-A has the effect of exonerating the accused?
(iii) What is the effect of service of intimation required by Section 13(2) with the Public Analyst Report a few days before the institution of the prosecution?"
3. Vide order of the Hon'ble Chief Justice dated 20.05.2018, the present reference has been assigned to be considered by this bench.
4. The facts in brief relating to this matter are as follows :-
According to the prosecution case, the revisionist (accused) was found in possession of the adulterated liquor at his shop on 12.12.1977 at about 4:00 p.m. Ranjit Singh (PW1), the Food Inspector had purchased sample of coloured wine from the shop of the accused on 12.12.1977 at 4:00 p.m., which was 600 grams in quantity, and the same was divided in three phials and was seized and, thereafter, one phial was sent to Public Analyst for being examined. The Public Analyst had sent his report dated 31.1.1978 (Exhibit 3), which contained prohibited Coaltar Dye (Malachite Green). A copy of this report was sent by registered post on 25.02.1978 to the accused with a direction that the prosecution was being launched and he could move the court for test by the Central Food Laboratory (CFL). The complaint was actually filed on 13.03.1978. The prosecution examined Ranjit Singh (PW1). The accused was put on trial who pleaded not guilty and explained that he was a salesman at a licensed vendor's shop for selling liquor from Government godowns, but did not examine any witness in defence. Ranjeet Singh (PW1) proved all the facts alleged by the prosecution and stated that he himself had sent a copy of Public Analysis report to the appellant by registered post no. 731 dated 25.02.1978 and that the Chief Medical Officer of Bareilly sanctioned the prosecution after examining all the documents and facts. The learned trial court convicted the accused under Section 7/16, Prevention of Food Adulteration Act, 1954 (to be referred in short as 'Act of 1954' from here onwords) and awarded him punishment of 6 months rigorous imprisonment with a fine of Rs. 1,000/- and further in case of default, he was directed to further undergo four months rigorous imprisonment in Special Case no. 140 of 1978, State vs. Ram Kishor, P.S. Haphizganj, District Bareilly. Feeling aggrieved, the accused preferred Criminal Appeal No. 313 of 1979, Ram Kishor vs. State of U.P., in which the learned Sessions' Judge, Bareilly dismissed the appeal and upheld the conviction and sentence awarded by the trial court. Thereafter, the accused preferred the present revision before this court.
5. The learned Single Judge of this Court vide judgment and order dated 22.1.1981 has mentioned that it was argued on behalf of the accused that the conviction was unsustainable because of non-compliance by the prosecution of Section 13(2) of the PF Act and Rule 9-A of the PF Rules, and also recorded that it was not necessary to go into the defence of the accused and on the preliminary basis only aforementioned point was discussed by him at great length, in the said judgment. The facts and arguments as mentioned by him in the said judgment are that Rule 9-A had come into force on 04.01.1977, hence there was no question that it would be applicable in the present case pertaining to a sample taken on 12.12.1977. As regards, factual position regarding compliance, it is mentioned that in the present case prosecution was launched on 13.3.1978 through complaint, Exhibit Ka-7 dated 11.03.1978. The Food Inspector deposed that he had sent a copy of the Public Analysis report by registered post along with the intimation Ex. Ka.4, to the accused, which purports to forward the attached copy of the Public Analysis report for his information and he further stated that if the accused desired, he could have the other sample analysed under Section 13(2) by applying to the court within 10 days. It was also intimated to him as to in which court the prosecution was being conducted. The said intimation is purported to be dated 25.2.1978 but the Food Inspector stated in his evidence that the date of registration was 2.3.1978, therefore, it would be noticed, in less than 11 days prior to the launching of the prosecution, the said intimation was sent to the accused. The Section 13(2) requires forwarding of a copy of the Public Analyst report and sending of an intimation to the accused that he may have the sample analysed by the Central Food Laboratory (CFL) by applying to the court within ten days of the receipt of information "after the institution of the prosecution........" and "in such manner as may be prescribed". The above mentioned manner is found in Rule 9-A which requires the Local (Health) Authority to immediately, after the institution of the prosecution, forward a copy of Public Analyst report by registered post or by hand to the accused person or persons. Both Rule 9-A and section 13(2) use the imperative word "shall". It is further mentioned in this judgment that obviously in the present case the copy of the Public Analyst report and the intimation were forwarded to the applicant before the institution of the prosecution in violation of Rule 9-A as well as section 13(2), which required the Public Analyst report and intimation to be forwarded to the accused after institution of the prosecution. It was argued before him that albeit some, what technical, the said violation of the provision vitiated the conviction because the provision of section 13(2) and the ancillary Rule 9-A were mandatory.
6. Thereafter, the learned Single Judge has recorded that reliance was placed on Chhatrapal v. State of U.P. (1980 A.L.J. 348), in which the view was taken that if a copy of the Public Analyst report had been forwarded to the accused after launching of the prosecution without any intimation to the accused that if he so desires, he could apply to the court within ten days of receipt of the report, to get the sample analysed by Central Food Laboratory, the case must fail.
"After the prosecution has been instituted, a mandatory duty is cast upon the local (Health) Authority to send a copy of the report to the person from whom the sample was taken. This report has to be dispatched by registered post or by hand, immediately after the institution of the prosecution to the person from whom the sample of food was taken by the Food Inspector and also to the person, if any, whose address or other particulars had been disclosed under Section 14(A) of the Prevention of Food Adulteration Act. Along with this report, an intimation has also to be given to such person that if he so desires he may apply to the Court within 10 days of the receipt of the report for getting his sample kept with the Local Health Authority analysed by the Central Food Laboratory. The report of the Public Analyst would merely give the result of the analysis, but the intimation which is sent to him along with it would obviously convey to him information of the fact that the prosecution has been launched against him as also the court where he can make an application, within a period of ten days, for reanalysis of his sample. The Period of ten days, prescribed is a limited period within which he must exercise his right provided under Section 13(2). If the details of the information as required under this section is not supplied to him, it may in several cases lead to unavoidable delay, with the result that the applicant would be deprived of his valuable right provided under the Act of getting his sample of Food reanalysed by the highest authority namely, the Central Food Laboratory.
Under the unamended Act this right could be exercised by the accused at any time till such date as the judgment was pronounced by the Court, but now when that period has been curtailed to the extent that he loses his right on the expiry of 10 days from the receipt of the report of the Public Analyst, it is but fair and just to the accused that he should be supplied the requisite information, so that he can, if necessary take legal advise in the matter and make up his mind, whether it would be proper for him or not to exercise this right, and if so he can avail of the procedure prescribed by law. Rules of procedure are hand-maid of justice. They are prescribed for the purposes of facilitating the administration of justice. When such a limited period has been given to the accused to exercise his right, then the rest of the procedure prescribed under the section, whereby the requisite information is to be tendered to the accused, so that he does not unnecessarily lose time and suffer the penal consequences, should also be followed and the information made available to him. When law enjoins upon an Authority the power to do a particular act in a particular way then it should be either done in that particular way or not at all. Thus, I am of the opinion that it is not only necessary to send a copy of the report of the Public Analyst to the person from whom the sample was taken but the requisite information as required under Section 13(2) must also be sent along with the report so that the accused might have a full and complete opportunity of putting up his defence by getting his sample reanalysed by the proper Authority within the stipulated time."
In view of above the revision was allowed in the said case and the conviction was quashed.
7. It is also recorded in the judgment, that a similar view was taken by a Division Bench of Kerala High Court in P.K. Murthy v. Kamba Konam Municipality (1980 Cr.L.J. 51).
8. The learned Single Judge has further held in the judgment that he does not agree that the provision of Section 13(2) and Rule 9-A were mandatory so imperatively that the least departure therefrom would vitiate the conviction. It is well settled that the use of the word "shall" or "may" in statutes is not conclusive for deciding whether the provision is mandatory or statutory.
9. It was held in Raza Buland Sugar Co. Ltd. v. Rampur Municipality (A.I.R. 1965 S.C. 895) that this question depends on the fact of each case and in deciding such a question the object of the statute in making the provision is the determining factor. In other words the purpose for which the provision has been made and the nature, the intention of the Legislature in making it, the general inconvenience or injustice to person resulting when the provision is read one way or the other, the relation of the particular provision with the other provision dealing with the same subject and other consideration which may arrive on the facts of the particular case in choosing the language of the provision, have all got to be taken into account. Further it is mentioned that in Govind Lal vs. Agricultural Produce Market Committee (A.I.R. 1976 S.C. 263) also it is stated that intent of the Legislature is the governing factor and it should be gathered not merely from the words but from a variety of other circumstances and considerations. Use of 'shall' or 'may' is not conclusive. The court, however, cautioned that the circumstance that the Legislature has used the language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory. Applying these general principles, the court may proceed to consider the Provision of Section 13(2) and Rule 9-A.
10. The learned Judge went on to a scrutinise the object of the provision by entering into its legislative and judicial history and mentioned in the judgment that prior to 1/4/1976 when the present Section 13 (2) was introduced by the amending Act of 1976, the earlier Section 13 (2) conferred a right upon the accused to apply to the court, after the institution of the prosecution, to have the sample analysed by the Central Food Laboratory without prescribing the stage for applying for the analysis and hence the said right remained available to the accused till end of the trial. According to Section 11 as it stood then, a phial of the sample used to be given to the accused; Rule 9 (j) required a copy of the public analysts report to be forwarded to him by registered post within ten days of the receipt of the report. An argument used to be raised at times that if on account of the conduct of the prosecution or otherwise the institution of the prosecution gets delayed, that would prejudice the right of the accused to get an authoritative opinion from Central Food Laboratory. It was held in Municipal Corp of Delhi vs Ghisa Ram , AIR 1967 SC 970, that where the food inspector had not added preservative in the sample as a consequence of which the Central Food Laboratory finds the sample to be decomposed and incapable of analysis, the valuable right of the accused under Section 13 (2) would stand denied. In Babulal vs State of Gujarat, AIR 1971 SC 1277 the argument made was that the right of the accused was prejudiced on account of delay in launching the prosecution. The Supreme Court observed that the said plea was not available because there was evidence on record that the preservative had been added and because the accused had never made an application to send the sample to the Director, Central Food Laboratory. The test for determining as to whether there was a denial of the right to the accused to obtain analysis report from Central Food Laboratory as laid down in Ghisa Ram's case (supra) was dependent upon the fact as to whether the conduct of the prosecution had caused any prejudice to the accused. Further the test of prejudice was, whether the Central Food Laboratory analysis was aborted due to delay in launching of the prosecution. The learned Judge went on to say that in large number of cases said plea continued to be raised despite above legal position, mainly because in most of the cases the sample decomposed or deteriorated. It acted as an incentive to the accused to delay applying for sample to be sent to Forensic Science Lab for being tested in the hope that he might get plea of prejudice on account of deterioration of the sample which would ultimately result in his acquittal. Thus the delay tended to cause harm to the prosecution only.
11. The learned Single Judge went on to infer that in the above background it was but natural for the Legislature to plug this loophole and to avoid delay in securing Central Food Laboratory's report expeditiously by bringing Amendment Act 34 of 1976, whereby Section 11(3) provided for sending the sample phial for analysis to the public analyst the very next day after taking of the sample. Soon after the new Rule 7(3) which was in force with effect from 4/1/1977, it stipulated that the public analyst would submit his report within 35 days of the receipt of sample. It is curious to note that the period between the receipt of the public analyst report by the Health Authority and the institution of the prosecution was left untouched by the Amending Act, however extensive changes were brought about in Section 13. Section 13(2) read with Rule 9-A stipulated that immediately after institution of the prosecution, the Local (Health) Authority would forward to the accused, by registered post, a copy of Public Analyst's report along with an intimation to apply to the court within 10 days from the date of receipt of the copy of the report, for sending the sample to the Central Food Laboratory, if he so desired. Further, Section 13 (2-A) mandated that the court shall call for the sample phial from the Local (Health) Authority and send it to the Central Food Laboratory when an application is made to court under sub-section (2). Thus it would reveal that Section 13(2) did not create any new right for the accused person nor did it confer any privilege upon him, rather it was a step in the direction of regulating and limiting the exercise of right by the accused, namely, option of getting the sample tested by the Central Food Laboratory to secure a more authoritative opinion. The object in bringing the amendment was to eliminate the excuse of delay on the part of the accused in exercise of his option once the prosecution had been launched. This objective was attained by introducing the procedure that the Local (Health) Authority, immediately after institution of the case would forward a copy of the public analyst report along with information that the accused could apply within ten days of the receipt of the report, to the court, for analysis by Central Food Laboratory, if he so desired. After such a notice, delay in applying for Central Food Laboratory analysis whether on the ground of delay in service of summons or otherwise, became inexcusable. A belated application on the part of the accused could be disallowed by court. Even if allowed, no benefit could be given to the accused on account of the decomposition of the sample due to his own latches. But the learned Judge went on to add that the critical point remains that Section 13 (2) does not create any right to Central Food Laboratory analysis. The right was obviously, there in the earlier provision. However, he went on to say that the right to get Central Food Laboratory analysis done can be regarded as part of the general right of the accused to defend himself by disputing the authenticity of the public analyst report inter alia by producing another expert report. When the Central Food Laboratory analysis under the law supersedes the public analyst report and has the characteristic of finality, there is all the more reason for the accused to seek analysis from Central Food Laboratory. The learned Judge has also drawn attention to the provision which deals with the Central Food Laboratory, wherein it is provided that it has duty to analyse samples forwarded by authorised officers and authorities, which is of course done on payment of fees. Therefore much can be said in favour of the view that the accused has the right to see report of analysis from Central Food Laboratory. The language used in Section 13(2) fortifies this view. There is a command to the Local (Health) Authority to send intimation to the accused but there is no command to the accused to obey the intimation. There is also no bar against permitting the Central Food Laboratory analysis beyond described time limit, as no such explicit bar has been stipulated and the same cannot be treated to be there impliedly. Section 13(2) does not obligate the Local (Health) Authority to effect service. In cases, where the intimation is forwarded but not served upon the accused, the ten days deadline cannot be held to be binding. In fact it is not even described that the ten days deadline operates only from the date of receipt of public analyst report. This also supports the view that the present Section 13(2) assumes the existence of right to obtain Central Food Laboratory analysis because it cannot be possible to contend that the accused, who does not receive the intimation forwarded to him, will not be able to exercise his right to seek Central Food Laboratory report analysis on appearance in the trial subject of course to the usual judicial control of the proceedings by the court. There is no sound reason for distinguishing the cases of no intimation or incomplete or irregular intimation from those cases where intimation has been duly forwarded but not received by the accused, with respect to accruing a right in favour of the accused in the Central Food Laboratory analysis. In all such cases, the accused similarly placed have a right to apply to the court for Central Food Laboratory analysis on their appearance in court, subject to the court's control to avoid any abuse of process of court on the ostensible ground of existence of such right. Mentioning as above, the learned Judge held that it is not correct to hold that the accused's right to Central Food Laboratory analysis arises on the compliance by the Local (Health) Authority of Section 13(2) and Rule 9-A, nor the scrutiny bear the view that the right is confined to the deadline of ten days from the date of service of intimation under Section 13(2), even where the intimation has been served. The deadline has no rationale behind it because it is a fluctuating deadline as neither the time limit for institution of the prosecution nor for service of intimation under Section 13(2) has been fixed. Further it is mentioned that, there may be genuine cases where the accused is prevented for good reasons from seeking the Central Food Laboratory analysis within ten days of service. If such limit be treated to be irrevocable, an accused would be doomed, being deprived of strong hope of seeking favourable opinion from Central Food Laboratory. This would be unreasonable. Dealing with various contingencies, the learned Judge held that there does not appear to be any justification for holding the Provisions of Section 13(2) or Rule 9-A to be mandatory to the prejudice of the prosecution. He has mentioned that the essence of Section 13(2) and Rule 9-A is merely to provide the accused an opportunity to expedite getting analysis report from Central Food Laboratory, in case he wished to challenge the public analyst report for which he was being prosecuted. He is bound to learn about the public analyst report and of the option of having a second opinion as well, as soon as he appears in a case, as invariably he would be represented by the counsel. Moreover under Section 208 Cr.P.C. the prosecution documents including the public analyst report are to be specifically supplied to him on his appearance. Therefore, no harm would be caused to the accused by non-compliance of Section 13(2) or Rule 9-A. He can still apply for Central Food Laboratory analysis after his appearance before court and that such an application cannot be resisted merely on the ground that he had come after ten days. Another reason for not treating the said provision to be mandatory is that the said provision is procedural and that treating them mandatory would tantamount to placing a veto in the hands of Local (Health) Authority with the role of the court reduced to finding out whether such a veto had been exercised or not. All this would point to the conclusion that the provisions are directory and can lead to acquittal only if it is made out that the accused had suffered prejudice due to such non-compliance, the test of prejudice being the same as elaborated in Ghisa Ram's and Babu Lal's cases (supra).
12. Thus, after having given a lucid description of the provisions of the amended and unamended Act as well as its legislative history, apart from the application of these laws in various cases and the opinions expressed therein by the Apex court and the High Court, it is concluded by the learned Single Judge that he was of the opinion that Section 13(2) and Rule 9-A both were directory and not mandatory. Their non-compliance by the Local (Health) Authority could not benefit the accused unless he was able to make out a case of prejudice and in the final paragraph of the judgment he expressed that since his view runs counter to review of another Hon'ble Judge in Chhatrapal's case (supra), it was appropriate for him to refer the afore-mentioned questions for consideration by a larger Bench. This is how this case has come to be considered by this Bench.
13. We considered this matter initially on 28.5.18 and looking to the likely impact of the afore-mentioned legal points/questions raised in the present case on larger number of cases which might be pending and to the fact that the learned counsel for the revisionist did not appear, we decided to take assistance from Shri Rajiv Lochan Shukla by appointing him as an Amicus Curiae to assist the court and posted the matter for another date giving him adequate opportunity to prepare the arguments and finally the matter was heard on 10/7/2018.
14. The learned Amicus Curiae took us through the judgment, by which reference was made, word by word right to the end, after opening the arguments with the categorical view that the afore-mentioned provisions were mandatory. The crux of the argument on behalf the learned Amicus Curiae was that in the present case there was no compliance made of Section 13(2) that "after the institution of prosecution" against the persons from whom the sample of the Article of food was taken, the Local (Health) Authority is mandated to send a copy of report of the result of the analysis to such person, informing him that if he so desired, he could make an application in 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, analysed by the Central Food Laboratory. In violation of this, in the present case a copy of report is alleged to have been sent prior to institution of the prosecution, hence this would be treated to be violation of the mandatory provision and would cause prejudice to the accused. He further argued that period of ten days may not be interpreted to mean strictly ten days only, as it may be few days on the higher side also, but necessary thing is that the accused must establish that a prejudice was caused to him by providing a copy of the report with delay, for getting any benefit in a prosecution. He further drew attention of the court towards the settled position of law that if an act is required to be done in a certain manner under law, the said act should be done in the same manner. He also argued that if any breach is made by accused in not sticking to the ten days deadline in moving court to get the other sample analysed, he will have to show prejudice to have been caused to him by that and that there could be no presumed prejudice in his favour against the prosecution, because there is no time limit fixed for institution of prosecution. He did argue that all these factual positions would have to be proved by adducing evidence to prove prejudice to have been caused in case any breach is committed either on the part of the prosecution in sending intimation to the accused about the public analyst report and about the prosecution being initiated and also by the accused in case he chooses to ask for sending the other sample to Central Food Laboratory after the lapse of period of ten days as to under what circumstances he could not stick to the time limit so as to cause prejudice to the prosecution. These things need to be decided by the court on the basis of evidence adduced. Hence the above mentioned provision of Section 13(2) and Rule 9-A have to be treated to be mandatory coupled with the prejudice claused. He has also relied upon Rameshwar Dayal vs State of U.P., 1992 Law Suit (SC) 354 in which following is held:-
"The matter arises under Prevention of Food Adulteration Act. The sample taken was found to be adulterated. On the record it appears that the report of the Public Analyst is not supplied to the accused as required under sections 13 (2) of the Act. Consequently, he could not get his own sample examined by the Central Laboratory. It is a very valuable right given to him. Rules also provide that such a report shall be supplied to the accused within a certain period. The question arose in a similar case whether this rule is mandatory or directory. We need not launch into the discussion in this case. We are satisfied that serious prejudice has been caused to the appellant because of non-supply of the public analyst's report as required under sections 13 (2) of the Act. The High Court had noticed this, yet rejected the plea on the mere ground that such an objection was not raised before the trial court. It is not a question of an objection, but it is a question of prejudice. Such a point can be raised even at a later stage if material on record supports the same. In the result the conviction and sentence are set aside. The appeal is allowed accordingly."
Citing above ruling it was argued that even if no such plea of prejudice has been taken by the accused before trial court, the same can be taken subsequently, which is nothing but a pointer that the said provision is mandatory one.
15. Thereafter the learned Amicus Curiae took us through the entire provision of Section 13 of the Act of 1954 so as to give an overall picture and tenor of the language and after having read that, stated that its minute scrutiny would reveal that at every stage time limit has been fixed for compliance by the prosecution of the provisions, although what would follow in case of breach of them, has not been specifically indicated, but it reveals that the legislature meant to fame that Section only with an intention to have it mandatorily followed. The Section is quoted herein below for the sake of convenience: -
"13. (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. --(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 (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons 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 14A, 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 analysed by the Central Food Laboratory.
(2A) When an application is made to the court under sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the court within a period of five days from the date of receipt of such requisition.
(2B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), 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 the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the 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 part of the sample specifying the result of the analysis.
(2C) Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub-section (2B), the court shall, as soon as practicable, return the remaining part to the Local (Health) Authority and that Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court:
Provided that where the part of the sample sent by the court to the Director of the Central Food Laboratory is lost or damaged, the court shall require the Local (Health) Authority to forward the part of the sample, if any, retained by it to the court and on receipt thereof, the court shall proceed in the manner provided in sub-section (2B).
(2D) Until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory, the court shall not continue with the proceedings pending before it in relation to the prosecution.
(2E) If, after considering the report, if any, of the food inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by the public analyst under sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article of food is adulterated, the provisions of sub-sections (2) to (2D) shall, so far as may be, apply.
(3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2B) shall supersede the report given by the public analyst under sub-section (1).
(4) Where a certificate obtained from the Director of the Central Food Laboratory under sub-section (2B) is produced in any proceeding under this Act, or under sections 272 to 276 of the Indian Penal Code (45 of 1860), it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis.
(5) Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code (45 of 1860).
(6) Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub-section (1A) of section 16 shall be final and conclusive evidence of the facts stated therein.
(7) Explanation.--In this section, and in clause (f) of sub-section (l) of section 16, "Director of the Central Food Laboratory" shall include the officer for the time being in charge of any Food Laboratory (by whatever designation he is known) recognised by the Central Government for the purposes of this section."
16. On the other hand the learned Government Advocate relied upon AIR 1985 Supreme Court 299, Tulsiram vs State of Madhya Pradesh, in which it is held that the expression "immediately" in Rule 9-A is intended to convey a sense of continuity rather than urgency. What must be done is to forward the report to the person from whom the sample was taken at the earliest opportunity, so as to facilitate the exercise of a statutory right under Section 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance Rule 9-A is not fatal. It is a question of prejudice. Rule 9-A, as amended, carefully refrains from mentioning any definite limit of time such as that found in old Rule 9 (j) which gave rise to the controversy whether the rule was mandatory or directory, and instead uses a general expression "immediately". The Local (Health) Authority is now required to forward to the person from whom the sample was taken in the manner prescribed, a copy of report of the Public Analyst immediately after the institution of the prosecution. While describing the manner in which the report may be forwarded the opening words of Rule 9-A, "the Local (Health) Authority shall (immediately) after the institution of the prosecution forward" are borrowed verbatim from Section 13 (2) with the word "immediately" inserted in between. The rule making authority could never have intended to amend the statute by superseding the word "immediately" as indeed it was not competent to do. Rule 9-A has to be interpreted so as to keep it in tune with and within the bounds of Section 13 (2). The departure from the previous rule of refraining from mentioning a definite period of time as was done in the old rule, makes it evident that the expression ''immediately' is used to convey a sense of continuity rather than a sense of urgency. It is not to be understood to mean the very next instant, the very next hour, and very day or the very next day. It must be construed in its setting. It is no use turning to dictionaries. Dictionaries give variegated meaning to words. What meaning is to be adopted depends on the context, Rule 9-A is made in the context of the amended Section 13(2) which provides for forwarding of the public analyst's report to the person from whom the sample was taken after the institution of prosecution and enables that person to apply to the court to have analysed by Central Food Laboratory the sample kept with the Local (Health) Authority. In the context the expression ''immediately' is only meant to convey ''reasonable dispatch and promptitude' and no more. The idea is to avoid dilatoriness on the part of officialdom and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to provide technical defence. First to construe ''immediately' as meaning ''advance' or ''forthwith' and next to hold delay to be fatal to the prosecution would perhaps be, to make Rule 9-A ultra vires Section 13(2). It is not permissible to interpret Rule 9-A in such a way. The real question is, was the public analyst's report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the court to send one of the samples to the Central Food Laboratory for analysis. If after receiving the public analyst's report he never sought to apply to the court to have the samples sent to the Central Food Laboratory, as in the instant case, he may not be heard to complain of the delay in the receipt of the report by him, unless of course, he is able to establish some other prejudice. Citing this ruling the learned G.A. argued that both the provisions of Section 13(2) as well as Rule 9-A are not mandatory and that any breach in respect of timely supplying the copy of the public analyst's report to the accused would not by itself give any benefit to the accused unless the accused proves the prejudice to have been caused to him by such delay.
17. After having heard both the sides as well as the learned Amicus Curiae and having gone through a gamut of rulings which have been cited by the learned Single Judge in the judgment itself as well as the citations relied upon by the learned counsel, we are of the view that the questions raised by the learned Single Judge in the present matter has already been taken up by the High Court of Punjab and Haryana full bench in the State of Punjab vs Deboo (MANU/PH/0562/1988) before which the similar question for consideration had been referred "whether Section 13(2) of the Prevention of Food Adulteration Act, 1954 is mandatory or directory" and after consideration at length it was held that "neither is Section 13(2) of the Prevention of Food Adulteration Act wholly mandatory and nor is it only directory, but is directory and mandatory, as spelled out here in before." How it has been held to be both directory and mandatory would require this court to refer to those relevant paragraphs which helped the full bench come to that conclusion.
"5. The scheme and intendment of the provision, of necessity with the aid of other provisions of the Act, can be attempted to be understood and analysed in this way:
(i) The Food Inspector having taken sample of food for analysis under Section 1l(1)(c)(ii) sends one of the three parts for analysis to the Public Analyst under intimation to the Local (Health) Authority and sends under subclause (ii) the remaining two parts to the Local (Health) Authority for the purposes of Sub-sections (2), (2-A) and (2-E) of Section 13.
(ii) The Public Analyst under Section 13(1) delivers his report to the Local (Health) Authority of the result of the analysis of the-article of food submitted to him for the purpose. Initially no time was set for the purpose but with effect from January 4, 1977, Rule 7(3) of the Prevention of Food Adulteration Rules 1955 (for short, the Rules) prescribed a period of forty-five days but with effect from July 8, 1984, a period of forty days from the date of receipt of the sample.
(iii) If the result discloses that the food is adulterated, the Local (Health) Authority shall launch a prosecution, but in case it is not, the Local (Health) Authority can be persuaded to have resort to Section 13(2-E) and seek another result from another Public Analyst and if the latter report is that the article of food is adulterated, then prosecution can be launched.
(iv) No time is set for launching the prosecution but it is expected to be done expeditiously.
(v) 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. The stress is on forwarding a copy of the report to the person concerned and it is an essential requirement so that he becomes aware of it at the threshold. The time set for the purpose and its non-observance under the Rules has, however, been subject of judicial debate which would be noticed at a later stage.
(vi) Besides forwarding a copy of such report, the other essential requirement is that such person or persons need also be informed that if it is so desired, either or both of them, can make an application to the Court within a period of ten days from the date of the receipt of the copy of report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. The stress here is on simultaneous pointed information and in not having the accused to fend for himself and know his law.
(vii) On such application being made by the person or persons concerned, the Court shall send a requisition to the said Authority who shall place before it the part or parts of the sample retained within a period of five days from the date of receipt of such requisition under Section 13(2-A) of the Act.
(viii) Under Section 13(2-B), the Court, after ascertaining the genuineness of the part or parts of the sample, is required to send it under its own seal to the Director of the Central Food Laboratory who on his part is required to send the result of the analysis within one month from the date of receipt of the part of the sample.
(ix) Under proviso to Sub-section (5) of Section 13 the certificate signed by the Director of Central Food Laboratory shall be final and conclusive evidence of the facts stated therein and such certificate shall supersede the report given by the Public Analyst. This is the result absolute under Sub-section (3) of Section 13 of the Act.
(x) And finally under Section 13 (2-D) until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory the Court shall not continue with the proceedings pending before it in relation to the prosecution.
6. Every step envisaged under the variegated provisions of Section 13 of the Act is either time-bound or result-oriented and sometimes both. The deliberations and report of the Joint Committee on the Prevention of Food Adulteration (Amendment) Bill. 1974, published at page 10 of the Gazette of India (Extraordinary) Part-II Section 2 dated January 5, 1976, which fructified in the present Section 13 with effect from April 1, 1976, make instructive reading. They expressed as follows their views:
The Committee is of the opinion that the existing provision regarding prosecution of offences under the Act is very cumbersome. Though a large number of prosecutions had been instituted many of them had either not ended in convictions or had to be withdrawn mostly on the ground that the samples taken were not proved to be adulterated or misbranded, and in the process not only a lot of valuable time of the Courts must had been wasted but the vendors also were subjected to avoidable harassment. The Committee has, therefore, changed the whole scheme of prosecution with a view to punish only those whose samples have been found to be adulterated by the report of the public analyst, thus, minimising the chances of harassment of vendors and reducing the number of prosecutions.
7. The views of the Joint Committee are enlightening indeed to gauge the character of the provision under scrutiny as to whether it is mandatory or directory-whole or in part. The thrust of the provision, as is evident, is towards speedy trials by giving an expeditious, time-bound and result-oriented package, avoiding harassment to vendors and reducing the number of prosecutions in the otherwise crowded courts.
8. The analysis above made shows that some part of the provision is expected to be carried out expeditiously, like institution of the prosecution Delay in launching the prosecution is per se not fatal but if prejudice is caused to the accused thereby, it may become fatal. It depends upon a case and a case. Some parts of the provision expect a time schedule to be observed, such as, sending to the person concerned a copy of the report of the Public Analyst (varying prescribed times apart through amendments), the accused making an application to the Court to have the other sample sent to the Central Food Laboratory within ten days of the receipt of the report and the information, the Court requiring the sample from the Local (Health) Authority within the time given, analysis to be done within a certain time etc, etc., all requiring observance of a time schedule. Case law has arisen on some of these aspects on the non-observance of the time schedule on the anvil of prejudice to the accused. The consensus of the courts is that mere non observance of the time schedule is per se not fatal to the prosecution. Whether in a particular case, there was prejudice or not, was left to the Courts to determine. The remaining part pertains to the result-orientation in as much as it is required of the Local (Health) Authority to positively take two steps ; (i) to forward a copy of the report of the result of the analysis to the person concerned ; and (ii) informing that person 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 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. The mandate of the provision is that the accused must be made aware not only of the adverse report but also of his right to have the report of the Public Analyst superseded by obtaining a report from the Central Food Laboratory. No judicial precedent can let the prosecution get away with its non-observance. A belated observance thereof, however, is on a different footing and again would have to stand the test on the anvil of prejudice to the accused."
"12. In Kashmiri Lal v. State of Haryana :, a Full Bench of this Court had occasion to examine whether transgressing the time limit mentioned in Rule 9(j) (now repealed) was so strict, rigid and inflexible that the very non-observance (termed as non-compliance) thereof must entail a vitiation of the whole proceedings The legislative history of Rule 9(j) was taken stock of. That rule was brought in vogue in July, 1968, prescribing no time limit within which a copy of the report was to be supplied to the accused. That position continued upto the year 1973, whereafter a time limit was prescribed. The Food Inspector was required under the said rule to send a copy of the report within 10 days of the receipt of the report of the Public Analyst and in case the sample conformed to the provisions of the Act or the Rules made thereunder, then the vendor was to be sent an intimation thereof. The time limit of ten days remained in the rule for nearly four years and was omitted on January 4, 1977. On the same day insertion of Rule 9-A was made the obligation whereafter fell on the Local (Health) Authority not only to send the report of the result of the analysis as envisaged to the accused after launching of prosecution but contrariwise, where no prosecution was contemplated, an intimation of the result to the person concerned within ten days from the receipt of the report from the Public Analyst. The Local (Health) Authority was required to send a copy of the report immediately but by a later amendment, with effect from July 9, 1984, the report was required to be sent within a period of ten days instead of sending it immediately. But it was all the same a time bound exercise for either of the two purposes; one being a step to further the trial and the other of stopping harassment of the vendor The prescription and omission of the time limit was in these circumstances considered by the Bench as not basic or integral in the statutory provisions. So in this context it was held that though Rule 9(j) was framed in mandatory terms it yet in substance was directory. Since violation of a mandatory rule inevitably led to vitiation of the trial, the directory nature of the rule conversely did not lead to such a result. This precedent only is a pointer that strict observance of the time-schedule given in the statute in mandatory terms may not be mandatory and Rule 9(j) and its substitute Rule 9 A was interpreted accordingly. But this precedent does not cover a case of total non-observance of the requirements essential for a speedy trial.
13. Another factor which must be taken note of in Kashmiri Lal's case (supra) is that it was the entire case which was before the Full Bench inclusive of the merits thereof. It is in the realm of prejudice to the accused on the suggested infraction of the directory Rule 9(j) that the case was disposed of Obviously, provisions such as those, even though directory, were meant to be complied with even though belatedly and if non-compliance thereof lead to the prejudice of an accused, he was not precluded from appealing to the judicial sense that what was directory in the statute assumed the posture of being mandatory on the prejudice caused to him. That is a settled principle of law, as old as bills, we repeat it here as assertion."
"19 . Thus in our considered view, both the requirements of Section 13(2) of the Act i.e. the sending of the report of the Public Analyst and drawal of specific attention of the accused to his right, are mandatory and non-compliance of both or compliance of one and not the other, would in both events be fatal to the prosecution. So. this part of Section 13(2) of the Act, we hold as mandatory non-compliance of which and in any event up till the commencement of effective Court proceedings would vitiate the proceedings. The other parts of the provision where time schedule is laid or prescribed, or expedition expected, we hold as directory, fatal to the prosecution only if material prejudice can be shown to have been caused to the accused by delayed compliance or observance thereof and in that sense non-compliance. We hold accordingly."
18. In the light of the finding given on this point by the High Court of Punjab and Haryana full bench in State of Punjab vs Deboo, it is no more rest integra that the provisions of Section 13(2) read with Rule 9-A of the Prevention of Food Adulteration Act and Rules, to the extent that sending of the report of public analyst and drawl of specific attention of the accused to his right, are mandatory and non-compliance of both or compliance of one and not of the other, would both be fatal to the prosecution, hence this part of the Section 13(2) of the Act shall be mandatory, non-compliance of which and in any event up till the commencement of the effective court proceedings, would vitiate the proceedings. The other part of the provision where time schedule is laid or prescribed, or expedition expected, shall be directory and may be treated fatal to the prosecution only if material prejudice is shown to have been caused to the accused by the late compliance. We are fully in agreement with the above view taken by the High Court of Punjab and Haryana, in view of above position of settled law all the three questions stand answered.
19. We place on record our deep appreciation for the lucid and in-depth interpretation of laws and rules made by the learned Amicus Curiae.
20. Holding as above, we remit the present revision back to the learned Single Judge for deciding the same accordingly.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)
Order Date :- 23.07.2018
JK Yadav