Kerala High Court
The Food Inspector, Cannanore ... vs M. Gopalan on 4 February, 1991
Equivalent citations: AIR1991KER240, 1991CRILJ1783, AIR 1991 KERALA 240, 1991 (1)FAC143, (1991) 1 KER LT 520, 1991FAJ447, ILR(KER) 1991 (2)KER555, (1991) 2 EFR 110, (1991) 1 FAC 143, (1991) 1 KER LJ 486
JUDGMENT Sukumaran, J.
1. The Food Inspector, Cannanore filed before the Judicial First Class Magistrate there a complaint against two persons for offences punishable under Section 16 (la) and (ii) read with Section 2(1 a) and (m) and Rules 44 and 50 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and the Rules framed thereunder. Cows milk was the food involved in the case. The first accused was convicted and sentenced, while the second one was acquitted. The appeal of the first accused was successful. The Sessions Judge upset the conviction and sentence solely on the ground that there was not a rigorous adherence to the requirements of Rule 7(3) of the Rules. The factual details of the finding are : a sample was taken on 24-11-1981 and forwarded to the public analyst who received it on 26-11-1981. The report of analysis dated 23-12-1981 was received by the Local Health Authority on 11-1-1982. Reckoning the period from 26-11-1981, the date of receipt of the sampel by the Public Analyst, stretching up to 11-1-1982, when the report was delivered to the Local Health Authority, the period comes to 46 days. As the Rule stood at that time, the time stipulated for delivery of the report of analysis was only 45 days. Even if it be a delay of one day, according to the Sessions Judge, it was fundamentally fatal to the prosecution.
2. The view was challenged in appeal. A learned Judge of this Court, who heard the appeal, noted a conflict in the views expressed by this Court on the issue. The appeal was accordingly referred for the decision of the Division Bench.
3. The Division Bench, in turn, indicated desirability of an authoritative pronouncement on the question. On a reference made in that behalf, the matter has come up before the Full Bench.
4. Rule 7(3) as it stood at the relevant time may only be extracted :
"The Public Analyst shall, within a periof 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" :
5. The duel between 'Directory' and 'Mandatory' is to be witnessed in this case as well. Similar scenes were there earlier and in other places. Many are the landmarks bearing inscriptions of the fight and the emergence of the victorious view. They are too numerous to be recounted.
6. The High Court of Bombay has been uniformly taking a view that the rule is mandatory. The later decisions of that court, however, merely declare the consistency and continuity of the view taken by that court. It is good enough for that court but not necessarily for other High Courts where the decisions do not operate as binding authorities. Sustalnable and strong logic alone would appeal to this Court. Such of the recent discourse on the topic as is available from the earlier decision would be considered in its proper setting. Observations of the Supreme Court, in similar but different statutory contexts are available from the following decisions : Tulsiram v. State of M.P., AIR 1985 SC 299 : (1984 Cri LJ 1731), dealing with the interpretation of Rule 9A, and with the delay on the part of the local authority vis-a-vis its duties in the context of Sections 11(2) and 13(1). S.T. Officer, Ponkunnam v. K.I. Abraham, AIR 1967 SC 1823 is yet another. Shambhu Dayal v. State of U.P., AIR 1979 SC 310 : (1980 Cri LJ 809) is one such decision. Another decision is Dalchand v. Municipal Corporation, Bhopal, AIR 1983 SC 303 : (1983 Cri LJ 448). A fairly recent one interpreting Rules 17 and 18 (packing and sending of samples and memorandum) is State of Maharasthrav. Rajkaran, 1988 SCC (Crl) 47.
7. As for Kerala, there is a confusing scene about the victorious view, demonstrating as it were, the accuracy of Antole France's statement that what is good in the opinion of one Judge is bad in that of another. Many decisions have taken the view that Rule 7(3) is only directory. Many have taken the other view. Some of the learned Judges have embraced both the views. It is desirable that confusion is cleared and certainty is declared. That is the role of the Full Bench.
8. There is no pronouncement on this question by the apex court. Observations, helpful indications, of course, are there, identifying the chartered waters and facilitating cruising along the correct channels.
9. We shall, at the outset, view the framework of the statute and its larger background illumined by the helpful earlier pronouncements.
10. The statute we have to grapple with is the Prevention of Food Adulteration Act. It is a social legislation intended to promote a social objective; preserving for the people, pure and edible food. A modern man may not live by bread alone. He may not be one who lives to eat but eats to live. Even then, the food packet is indeed important. Ensuring the purity and edibility of the food has, therefore, been undertaken as a prima duty of the State. The community is not made of people who, like the imaginary divine swan, could separate milk from its mixture with water (matter in vernacular omitted -- Ed.) Measures restrictive and regulatory in relation to the distribution of the food in its widest form had been undertaken by the State. The legislation under consideration is one intended to achieve this larger and nobler goal.
11. The community with which the case is concerned may also be referred to, to indicate its imperious importance. To the larger sections of people, the cow is important and to some, it is even sacred. Milk is a universal and sustaining food. Anything which is good is likened to milk. Utopia of one's dream is a country where milk and honey flow in unceasing strain. Political philosophers and historians may make debates as to whether agriculture was not the starting point of civilisation as distinct from the times when men strolled along as shepherds with their folk. Law, in a sense, recognises dairy as part of agriculture itself.
12. Modern innovations make milk appear in different forms and shapes. Earlier days, produced by simple process, butter and cheese. Modern methods of science brought in other forms as well. We now get milk in a variety of moulds and forms, boiled, pasteurised, toned, mixed or chilled. Sophistry in developed tastes heralded the arrival of new beverages with additives in colour and flavour.
13. A clear enough intention of the legislature is that the man who buys the milk must have his money's worth, and with essential ingredients well within the statutory standards. Elaborate provisions have been indeed made to achieve this basic object. The analysis of the statute would illustrate the point clearly and even exhaustively.
14. The social object behind the enactment has been given its thrust in the basic decisions. The definition section takes care to furnish the dictionary of the statute on such expressions like 'adulteration', 'food analysis', 'local authority', and the like. Adulteration is expressly prohibited under Section 4. Even certain combinations of food are prohibited in the larger public interest as is seen from Section 7. The working of the enactment is entrusted with the local authority. Detailed provisions are made in relation to every step that is to be taken by the authority and the officers. That is for a good reason.
15. The Act and its implementation has its effect on the avocation carried on by large number of persons in the Indian society, which still remains agrarian in its essence. Their right to trade, a Fundamental Right, is inviolable except when, in larger public interest, reasonable restrictions are imposed with necessary safeguards. A balancing of the citizen's right to trade, on the one hand and the State's anxiety to protect the purity of the food on the other hand is thus attempted by the enactment. A provision in the Act or Rule should receive such construction as would subserve public interest and promote the legislative intention. An interpretation which wrecks the public interest in the name of technicality should be eschewed. At the same time, a citizen has to be insullted against harassment and prejudice which can arise when a statute is implemented inadequately or imperfectly through human agencies with all their frailties and weaknesses. Whether, in a given context, a statute should be termed mandatory or directory would depend upon the larger aspect of public interest, nicely balanced with the precious right of the common man. Whether the accused in a particular case had been prejudiced to such a degree of delay as to liberate him from the unabated agony resulting from delay is a matter for decision in the individual case. The 25 sections of the Act cover areas which include matters of routine such as the cognisance and trial, offences by Companies, applicability of Probation of Offenders Act and the like. Section 8 deals with Public Analysts and Section 9 with Food Inspectors.
16. Two sections with which the rule in question has a direct nexus are Sections 11 and 13. Matters of details are necessarily left out from the compact framework of the statute. It has necessarily to be so; details are looked after by the rules. Section 23 confers on the Union, power to frame the rules in generality and with particular reference to enumerated heads. In certain limited areas, the State too has the rule making power as is sketched in Section 24. Three Clauses of Section 26 are particularly relevant while considering the scope and character of Rule 7(3). They are Clauses (e), (h) and (hh). The first one deals with the qualification, powers and duties of Food Inspectors and Public Analysis. The second one is about specifying the manner in which containers shall be sealed or fastened up. The methods of analysis are brought under Clause (hh). Questions have arisen whether in the absence in the enactment of an express authorisation in relation to time limit, rules could deal with the same. In certain contexts, rules have been declared invalid for transgressing into the unauthorised area of time stipulation, (vide AIR 1967 SC 1823 (supra)). We arc not called upon to consider such a contention. The reaction of the court to such a situation, however, would give a useful clue in the interpretation that is to be placed on the rule. A rigour and inflexibility in the rule ascribed by an attribute of mandatory character may make the rule so vulnerable as to be absolutely annihilated even. It is then better to avoid such hazards and make the working of the Act and Rules a harmonious one, facilitating achievement of the statutory object along a course of least resistance.
17. Let us now start with the first step in the action of a local authority in relation to a given situation where there is an apprehension about adulteration in a food item. Taking of the sample is the very first step; segregating it into viable quantity and secure receptacles is the next step. When those who deal with the sample do not have sophisticated equipments to have an on-the-spot analysis, a time consuming process is inevitable and unavoidable. That leads to the necessity for details touching the responsibility for sending samples for analysis with all the care and all the attention which the process richly deserves. The analysis has to be done accurately; it is to be done at the earliest; the sample shall not undergo any material change during the interlude between the time it is taken and theme of analysis. Further action -- whether a prosecution should be launched or not -- depends on the data as emerging on the analysis. The dealer from whom the sample was taken by the Food Inspector has a say and a right at that juncture. So too is the case with the local authority. It is on receipt of the analysis that the course of further action is decided by it. Mark that the statute does not indicate any time limit for such action. If the vendor of the article is not satisfied with the result of the analysis, he has a valuable right to approach the Director of the Central Laboratory. The Director's report has a statutory finality. This too has its prominence, its significance and emphasis in the scheme of things. It is in sharp contrast with the results of the analysis of the Food Analysts, which do not enjoy a privileged protection as in the case of the Director's report. In the larger interpretation of the character of the statutory provision, this aspect too has its crucial and controlling effect.
18. There is one contingency which is statutorily covered, which, though not easily noticeable, throws considerable light on the interpretational exercise. That is provided in Section 13(2). In the event of one of the samples being lost, the section enables a despatch of the available sample for further analysis. In the ordinary course of events, a realisation about the loss or unavailability of the earlier sample for analysis would arise only at a comparatively later period. It is likely to be much beyond a period of forty or forty five days in the normal course. Yet, it is permissible. The analysis obtained in relation to that sample has equal efficacy as the analysis obtained in relation to the first sample itself. This provision would be rendered meaningless, if, by an interpretationaloperation, the time limit in relation to the despatch of the results of the analysis with reference to the first sample is made inviolable and inflexible, as is the case when it is impressed with a mandatory thrust.
19. The clear guidelines available on the examination of the statutory frame are therefore to show that inflexibility is inconsistent with the basic aim of the enactment. Reasonable despatch is certainly the desirable and laudable pattern. When delay has caused prejudice to the accused, the Court would rightly take note of the same. Human agencies have their role in the entire process of prevention of food adulteration -- those of the local authority who have their close vigil over the vendors of food in the area, those who attend to ministerial acts such as packing, sealing and despatching the sample, those who do the analysis and compile the reports and those who attend to the delivery of the report to the authorities to enable decision in the matter. Human nature being what it is, perfunctoriness or delay may intervene or even be induced. These human factors shall not, by themselves, be permitted to frustrate a meaningful social action intended to safeguard hygiene of the community and preserve the health of the people. A delay marginal or trivial in the circumstances would not be permitted to scuttle the entire 'operation --Adulteration Prevention' and thus defeat the very object of the enactment. The considerations justify the Court to interpret Rule 7(3) as a directory one and not as a mandatory mechanism.
20. We shall now briefly refer to some of the earlier decisions on the point. Some contain only abrupt conclusions or cursory reasoning. We do not allude to them.
21. As regards the principles of interpretation, two decisions, which have given serious and detail thought, are those of the Andhra Pradesh High Court in the Food and Sanitary Inspector v. Koppu Subbaratham, 1984 FAJ 80 (1983 Cri U 1801) and of the Himachal Pradesh in the State of H. P. v. Punnu Ram, 1985 FAJ 579 (1985 Cri LJ 1270). Paragraphs 30 to 38 in the Andhra decision detail the reasoning. The well known passages from Maxwell and Craies were extracted; and the approving adoption of those principles by the Supreme Court, though in different contexts were recounted. Reference was made to the early decision of the Supreme' Court in Dattatraya v. State of Bombay, AIR 1952 SC 181 : (1952 Cri U 955) where S. R. Das, J. stated that it has been the practice of the Courts to hold such provisions to be directory only, when they relate to the performance of a public duty and where a declaration about the void character of acts done in neglect of the duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the public duty. Illustrations of adoption and application of the principle as discernible from the decisions of the Supreme Court are R. B. Sugar Co. v. Rampur Municipality, AIR 1965 SC 895, Narasimhiah v. Singri Gowda, AIR 1966 SC 330 and Dulchand v. Municipal Corporation, Bhopal, 1982 (2) FAC 29. (The last one considered Rule 9(i) of the Food Adulteration Rules). After a detailed analysis of the scheme of the Act, the learned Judge observed :
"The object appears to be that the article of food kept with the Local (Health) Authority is likely to decompose or its chemical contents may be deteriorated if the analysis is not done within the permissible time......... Every prescription of a period within which an act must be done is not the prescription of a period of limitation with painful consequence if the act is not done within the period. It does not also follow automatically that if the report is sent after the expiry of the period of forty-five days, ........the prosecution should entail with acquittal....... the Local (Health) Authority, has no control over the actions of the public analyst. The public analyst is enjoined to perform his duty and deliver the result of the analysis within forty-five days. But he may not, under certain circumstances, have any control over his subordinates in charge of despatch or in given circumstances there may be delay in postal or communication transition of the result......."
22. A hypothetical question was posed about the manoeuvring by the adulterer whose food was found on analysis, to be adultered, to successfully see that the report is sent belatedly. The result would be that a person guilty of heinous crime (food adulteration has been rihgtly declared to be so) will have a last laugh at the law's helplessness. An alternative hypothesis was also suggested. There is a provision of a similar despatch by a superior authority, Director, under Section 13(2-B). Imagine that there is similar delay in relation to that report. If the Rule is construed mandatory, the report becomes unreliable. That robs the accused of a very valuable right and the shield of conclusive evidence in the form of the Director's report. Viewed either way, attributing mandatory character to the Rule would promote public inconvenience and defeat the object of the Act.
23. We are wholly in agreement with the reasoning and conclusion of the Andhra High Court in the above case. That judgment referred to the decision in Koppu Subbaratnem's case (vide 1984(1) FAC 4 : (1984 Cri LJ 1801) (AP)) and the reasoning steps Con-tained in the Supreme Court decision in Dalchand's case (vide AIR 1983 SC 303) : (1983 Cri LJ 448). The plurality of the cases taking divergent views had been adverted to. The Court had no doubt that the decisions taking contrary views "are not good law".
24. If the original stipulation of time for despatch of the results of analysis is only directory -- we have so held -- the mere fact that the period was reduced from the earlier provision to 60 to 45 days, would not alter the character of the statute.
25. The decision of the Madliya Pradesh High Court, in State of Madhya Pradesh v. Ghasiram Malviya, 1986(3) FAC 62 and of the Bombay High Court in State of Maharashtra v. Sahaji Gajanan Jadhav, 1989 (1) FAC 107, with great respect, do not give any helpful light by an effective display of strong stands of logic. We do not find any assistance from those decisions. A judicial decision has its strength in the solid foundations of unblastable logic. Acceptability of a view is not based on the counting of heads.
26. The generalisation as contained in the later decision of the Bombay High Court, (vide 1989 (1) FAC 107) of an unbroken line of decisions taking the same view -- about Rule 7(2-B) being mandatory, -- does not reflect the correct position. Naik, J. of that Court discussed the question with another facet of Rule 7. After analysing the scheme of the enactment and with reference to Section 13, the learned Judge observed ;
"When so many important safeguards have been provided by the Act itself, it would not be proper to place undue emphasis on one technical safeguard provided in the Rules...."
27. We may now refer to some of the recent decisions of our own High Court.
28. Balakrishnan, J. took the view in Food Inspectorv. Viswanatha Pillai, 1987(2) KLT 761 : (1988 Cri LJ 323) that Rule 7(3) is mandatory, on the following reasoning (at page 324 of Cri LJ 1988):
"The Rule 7(3) is enacted on the basis of certain salutary principles. This is intended not merely to avoid delay in issuing the report when various samples of food items are taken for analysis. Certain food items are likely to get deteriorated even if some preservatives are added to it. In some cases, the sample itself may contain some micro bacteria or other live organism. By the passing of time, the organism may multiply and cause the food item defective for analysis. The time limit of 45 days is prescribed after having regard to all these contingencies. Therefore, from the very nature, it is mandatory and even the delay of few days will cause prejudice to the accused."
The learned Judge further drew support from the decision in Food Inspector v. Moosa, 1984 KLT 80, the Division Bench consisting of Narendran and Fathima Beevi, JJ. The reasoning is contained in paragraph 9. The desirability of doing the analysis as early as possible, before the article becomes unfit for analysis was the prominent reason projected as subserving the cause of publicjustice. The possibility of preventing deterioration of the food before its analysis was indicated as another object prescribing the time limit. The amendment of the Act by Act 34 of 1976 minimising the chances of harassment of vendors and reducing the number of prosecutions, and introducing a time schedule, were other reasons referred to. It was then inferred that whenever a time limit is prescribed, it couid only be the outer limit, and indicating the imperative nature of the obligation. Support was drawn from the decision in Food Inspector v. Moosa, 1982 KLT 37 : (1982 Cri LJ 168). The observations of Janaki Amma, J. in 1982 KLT 37 (supra), supported the view about the rule being mandatory. The preponderance of the view, it was noted, was in favour of upholding the mandatory character of the rule. The decisions of the Madras High Court in State Public Prosecutor v. Meenakshi Achi, 1972 Cri LJ 1684, of the Bombay High Court in State of Maharashtra v. Chandanmal Bharindwal, 1979 (I) FAC 235, State of Maharashtra v. Trilokchand Divraj Jain, 1979 (II) FAC 14, State of Maharashtra v. Ram/.an Abdul Desai, 1980 (1) FAC 158, State of Maharashtra v. Jamandas Vansimal Paryan, 1981 (2) FAC 92 : (1981 Cri LJ 383) of the Punjab High Court in State of Punjab v.Jai Gopal, 1983 (1) FAC 140, of the Patna High Court in Daitari Mahte v. State, 1974 FAC 54 : (1971 Cri LJ 129) and P. P. Azeez v. Food Inspector, 1982 KLT 239 : (1982 Cri LJ 1125) were noticed as falling within the 'preponderance of authorities'. The decision of the Delhi High Court in Municipal Corporation v. Chhote Lal, 1973 FAC 363, and of the Orissa High Court in State v. Satyabadi Jena, 1974FAC261 :(I974 Cri LJ 879) and of the Andhra High Court in C. Chandra Mouli v. State, 1978 Cri LJ 549 were distinguished as not referring to Rule 7(3) after its amendment.
29. There is an exhaustive survey of the case law by a Division Bench of this Court in Kunhamu v. Food Inspector, 1989 (1) KLT 707 ; (1989) Cri LJ 2340). The Division Bench decision in 1987 (2) KLT 761 (supra) (by Balakrishnan, J.) was virtually found to be not good law, and the view taken by Padmanabhan, J. in Cri. R.P. No. 483 of 1981 and Crl R.P. No. 272 of 1981 declaring the directory character of the rule was followed. We hold that the view expressed about Rule 7(3) in 1989 (1) KLT 707 (supra), is correct. However, we must hasten to observe that the interpretation of the rule did not arise for consideration in the case. The discussion in Rule 7(3) commences at page 715. The compression of the content of Rule 7(3) as 'delay in analysis', we are afraid, may be inaccurate. The rule deals with the delay in delivering the report of analysis. Similarly, there is a general statement in paragraph 8 of the judgment. "All these provisions are mandatory in the general sense.....". That also may not be very precise.
30. We have to point out that the accused prejudice arising out of 'the delay in the analysis and the possible deterioration in the quality of the food article consequent on the delay is attributable to a misconception of Rule 7(3). The time limit stipulated in that rule is in relation to the delivery of the report of the analysis. It is possible that the analysis is conducted sufficiently early, and at any rate, well within the period mentioned in Rule 7(3). If that be so, no prejudice can arise attributable to the delay in the analysis of the food; for the analysis has been already done within the stipulated period. The entire super structure of the reasoning based on prejudice resulting from the delay in the analysis would then crumble down.
31. Bhat, J. speaking for the Division Bench in Kunhamu v. Food Inspector, 1989 (1) KLT 707 shought to steer clear of the theory of sample becoming unfit for analysis by observing:
"If on account of delay the sample becomes unfit for analysis or becomes decomposed to any extent, Public Analyst would be able to say so and that will be necessarily reflected in the report."
We have to observe that the report of the analyst can only speak about the impossibility of analysis arising out of the unfitness of the sample for analysis. The report obviously cannot give any indication about the delay in the deliyery of the report of analysis to the local authority. That part of the reasoning may not therefore be sufficient to destroy the argument based on delay rendering analysis impossible and constituting consequential prejudice to the accused. What has to be overcome is the delay in delivering the report as is referred to in Rule 7(3). We feel that the proper and effective way of tackling the problem is to look at it straight in its eyes, and to determine its dominent characteristic whether director or mandatory. On an analysis of the scheme of the Act and Rules, and on an application of the well settled principles of interpretation in relation to mandatory and directory statutory provisions, we have no hesitation to hold that Rule 7(3) is only directory. The declaration of the directory character of the rule, however, does not arm the Food Analysts with a carte blanche to mark their own leisurely pace and to despatch the report in an indolent manner. The delay will certainly expose them to disciplinary action. In any given case, a delay which was found to have caused prejudice will enable the accused to plead successfully for an acquittal. Whether the acquittal is merited in a given case would depend upon the totality of the circumstances. There may be instances where marginal delay is venial and non-consequential. There may be cases where even long spells of delay would not have caused prejudice to the accused though ordinarily, the longer the spell of delay, the more persuasive will be the argument of prejudice. No hard and fast rule can be laid down. The judicial officers who have their accumulated experience could be rightly trusted with the sensible dealing of the fact situation leading to a judgment well insulated from attacks on irrationality, or unreasonableness, The interpretation we have placed on Rule 7(3) and the caution we have indicated in the application of the rule, we trust will hold the scales even between the accused and the prosecution.
In the light of the above discussion, we declare that Rule 7(3) is only directory in character. In conformity with the above view taken on the legal aspect, the judgment of the Sessions Judge has to be upset. We do so. We set aside thejudgment of the Sessions Judge, acquitting the accused. Having regard to the circumstances, the punishment awarded by the trial court appears to be adequate. We restore the conviction and sentence as indicated therein. Accused No. 1 is to undergo simple imprisonment for six months and also to pay a fine of Rs. 1,000/-. In default of payment of fine, he will undergo simple imprisonment for an additional period of two months. The conviction under Section 16(i)(a)(ii) read with Rule 50 of the PFA Rules and Rule 10 of the Kerala PFA Rules, convicting him to undergo simple imprisonment for three months and also to pay fine of Rs. 500/- with a further stipulation for simple imprisonment for one month in default of payment of fine, are also restored. The sentence of imprisonment will run concurrently. The criminal appeal is disposed of as above.