Andhra HC (Pre-Telangana)
The Food Inspector, Kovur, Hyderabad vs Jaladanki Fajamma And Ors. on 16 July, 1984
JUDGMENT
1. This appeal is preferred by the State against the order made by the Additional Judicial Magistrate of First Class, Kovur in C.C. No. 17 of 1982 on his file acquitting the accused therein of the charge framed against them under Section 2(i)(a)(1) read with Secs. 7 and 16(1) of the Prevention of Food Adulteration Act, on a complaint filed by the Food Inspector, Nellore.
2. The meterial facts giving rise to the above appeal preferred by the State lie in a narrow compass and do not admit of any controversy. The 1st respondent is the wife of the 2nd respondent. The 2nd respondent is a dealer in red gram dal at Bedavaluru in Kovur Taluk. On 20-5-1980 at about 10 a.m. the Food Inspector of Nellore, P.W. 1 along with his Sanitary Maistry, P.W. 2 visited the shop of the respondents and purchased a sample of red gram dal from a bag containing the commodity exposed for sale, after observing the necessary formalities. On analysis by the public analyst the same was found to be adulterated. Though the sample was received by the public analyst on 26-5-1980 it was only on 16-7-1980 he despatched his report of the result of the analysis of the sample. A copy of his report was also not supplied to the respondents immediately after institution of the complaint against them.
3. The learned Magistrate acquitted the respondents mainly on the ground that the provisions of Section 13(2) of the Act read with Rules 7(3) and 9-A of the Rules were violated.
4. The effect of contravention of Rule 7(3) of the Rules was considered and decided by me in State v. Shaik Nisar Ahmed, (1981) 1 APLJ (HC) 392, I held :
"The object of Rule 7(3) of the Rules is that within the stipulated time, the report of the public analyst should be despatched, as otherwise the weight or sanctity attached to his report would not be there. In my view the provisions of R. 7(3) of the Rules are mandatory in character and any infraction or violation thereof does not justify acceptance of the report of the Public Analyst to sustain conviction of an accused person under the Act."
5. It is however brought to my notice that Ramaswamy, J. took a contrary view in Public Prosecutor v. Subbaratnam, (1983) 2 APLJ (HC) 212 : (1983 Cri LJ 1801), as he felt that he was bound by the decision of the Supreme Court in Dalchand v. Municipal Corporation, . The following observations made by the Supreme Court are extracted in his judgment.
"There are no ready tests of invariable formulae to determine whether a particular provision in a statute 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 of 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."
The observations made by the Supreme Court, it must be noted, are of a general character and have absolutely no bearing on the effect of contravention of R. 7(3) of the Rules framed under the Act. Only some guidelines are indicated by their Lordships of the Supreme Court for determining the effect of contravention of a particular provision in a given statute. No other decision of the Supreme Court was referred to by Ramaswamy, J. In the circumstances, I stick to my earlier view and reiterate that the provisions of R. 7(3) of the Rules framed under the Act are mandatory, contravention of which or violation whereof necessarily vitiates the prosecution. I therefore, sustain the order of acquittal of the respondents.
6. In the view I have taken, it is unnecessary to advert to the other question whether the provisions of Section 13(2) of the Act are mandatory or directory.
7. In the result the appeal is dismissed. A fee of Rs. 100/- shall be paid to Sri T. Gopalakrishna, Advocate, appointed to defend the 2nd respondent.
8. Appeal dismissed.