ORDER D.S. Mathur, J. - I agree with brother Lokur, J. that both rules 7 and 18 of the Prevention of Food Adulteration Rules (to be referred hereinafter as the Rules) are not mandatory, but are merely directory. 2. The above question can be considered from two angles : (1) the competence of the Central Government to make Rules 7 and 18 under the rule-making power of the Central Government as detailed in Section 23 of the Prevention of Food Adulteration Act (to be referred hereinafter as the Act) ; and (2) the intention of the legislature as disclosed by the object, purpose and scope of the statute. 3. The rule-making power of the Central Government is confined to the subjects detailed in Section 23 (1) of the Act. It does not have the power to Make rules for the purpose of giving effect to the provisions of the Act in matters not falling within the purview of Section 23. This shall be evident on comparison of the wordings of Sections 23 and 24 of the Act. .The Rules were framed by the Central Government and hence if any of these piles does not fall within the rule-making power of the Central Government, the rule shall have no legal effect, though it may be treated as direction or instruction for the guidance of the authorities concerned. A rule not within the tide-making power of the Central Government cannot be deemed to be mandatory. 4. Clause (h) of Section 23 (1) is the only provision under which Rule 18 can be said to have been framed; but it shall be found that this clause contemplates rules "specifying the manner in which containers for samples of food purchased for analysis shall be sealed up or fastened up." Sealing of the sample is distinct from actual despatch to the Public Analyst. In other words, the Central Government has no power under Section 23 to make rules for the despatch of the samples to the Public. Analyst. In this view of the matter, Rule 18 prescribing that "a copy of the memorandum and specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by registered post or delivered to him or to any person authorised by him, shall not be within the competence of the Central Government and hence cannot be held to be mandatory. 5. 5. Even otherwise Rule 18 must be held to be directory. Whether a provision is mandatory or merely directory has to be judged in the light of the intention of the legislature as disclosed by the object, purpose and scope of the statute. However, generally speaking, the provisions of a statute creating public duties are directory and those conferring private rights are imperative. See Dattatraya Moreshwar v. The State of Bombay, A.I.R. 1952 SC 181. With regard to the provisions of a statute relating to the performance of a public duty, it has often been laid down that where the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the legislature, it is the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done. 6. From Section 13 (5) of the Act it shall be evident that the report of the Public Analyst is merely a piece of evidence which is admissible without the Public Analyst being examined in the case; but the certificate of the Director of the Central Food Laboratory is final and conclusive evidence of the facts stated therein. Where the evidence is final and conclusive, there may be difficulty in testing the accuracy of the evidence by examining or cross-examining the person whose evidence or report is final or conclusive; but where it is a mere piece of evidence, that person can easily be summoned to make a statement before the Courts of law. Rules 17 and 18 apply to the sending of samples to the Public Analyst whose report is merely an evidence of facts stated therein. Hence where the Courts of law do not feel satisfied as to the identity of the sample analysed by the Public Analyst, they can examine the Public Analyst either on commission or personally in Court as may be necessary. Minor irregularities or departure from the rules not affecting the correctness of the sample need not, therefore, be given much weight. Hence where the Courts of law do not feel satisfied as to the identity of the sample analysed by the Public Analyst, they can examine the Public Analyst either on commission or personally in Court as may be necessary. Minor irregularities or departure from the rules not affecting the correctness of the sample need not, therefore, be given much weight. In, this connection, it may also be observed that under Section 13 (2) of the Act the accused has the right to have the other part of the sample sent to the Director of the Central Food Laboratory for analysis and report, and the certificate of the Director so given supersedes the report of the Public Analyst. By the disregard of Rule 18, no injustice can be caused to the accused as he can always avail of the benefit of Section 13 (2) of the Act. 7. The sending of the specimen impression of the seal separately from the sealed packet containing the sample appears to be by way of abundant caution, though such restriction has been imposed only when the sample and the specimen impression are being sent by registered post. Rule 17 provides that the container of sample for analysis shall be sent to the Public Analyst by registered post or railway parcel or air freight, or by hand in a sealed packet, enclosed together with a memorandum in Form VII in an outer cover addressed to the Public Analyst. Under Rule 18 a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by registered post or delivered to him or to any person authorised by him. It is true that Rule 17 does not specifically lay down that the container of sample for analysis can be sent to the Public Analyst by delivery to a person authorised by him: it merely says that it can be sent by hand in sealed packet in an outer cover addressed to the Public Analyst. The container addressed to the Public Analyst can be taken delivery of by him. It can also be taken delivery of by a person duly authorized. The container addressed to the Public Analyst can be taken delivery of by him. It can also be taken delivery of by a person duly authorized. In the circumstances, the container of the sample and also the copy of the memorandum and specimen impression of the seal can be delivered to the same per son authorised by the Public Analyst to receive them. 8. When the same person can take delivery of the two sets of articles, namely, the container of sample and the specimen impression of the seal, why should undue importance be attached to non-delivery to the same person when the container of sample is sent by registered post, and not by hand ? If the rules laid down that the specimen impression of the seal could not be delivered to the same person who had taken delivery of the sealed container of the sample, it could be said that sending of the specimen impression separately was a mandatory provision; but when in certain circumstances the same person can receive both the container and the specimen impression of the seal, the rule must be held to be merely directory. 9. Availability of unadulterated food is for the benefit of the general public, and hence it can be said that the non-detection of such offences would cause great inconvenience and injustice to the general public, who can have no control over the Food Inspectors. Consequently, if, for some reason, Food Inspectors do not comply with Rule 18, to declare the taking of the sample null and void, shall cause great inconvenience and injustice to the general public. At the same time the offender shall not, in any way, be prejudiced as he can have the other part- of the sample supplied to him sent to the Director of the Central Food Laboratory for examination and report. 10. To sum up, from whatever aspect the matter is looked into Rule 18 must be held to be directory, and not mandatory. 11. Under clause (e) of Section 23 (1) of the Act the Central-Government has the power to make rules defining the powers and duties of the Public Analyst. Sub-rules (I) and (2) of Rule 7 lay down the duties of the Public Analyst and hence are with-4- in the rule-making power of the Central Government. Sub-rule. (3) is ancillary to sub-rules (1) and (2) . Sub-rules (I) and (2) of Rule 7 lay down the duties of the Public Analyst and hence are with-4- in the rule-making power of the Central Government. Sub-rule. (3) is ancillary to sub-rules (1) and (2) . After all a person analysing the sample received from the Food Inspector must send a report to that authority. In the circumstances, Rule 7 can be held to be valid. However, this rule must, on a proper interpretation, be also regarded to be directory. 12. A perusal of Form III shall make it clear that it is not complete and exhaustive such as to apply to all the articles examined by the Public Analyst or which may come before him for analysis and report. Where simple physical methods are adopted for analysing the sample, it is not necessary to indicate the nature of the test conducted for adjudging the article to be adulterated or not; but where chemical methods are used and there exist more than one method for analysing the sample, it is necessary to indicate in the report which test had been adopted. The Courts of law require this information to lay down what weight to attach to the report of the Public Analyst. At many occasions, the report without containing the nature of the test applied has been regarded to be inadmissible in evidence. 13. The Public Analyst cannot, therefore, be held to be acting illegally when he enters additional information in his report in Form No. III. The provision contained in sub-rule (3) of Rule 7 must, in the circumstances, be deemed to be directory. 14. When Rule 18 is not mandatory, not sending the specimen impression of the seal separately, will not render the proceeding null and void. Hence no undue importance can be attached to the word "separately" used in sub-rule (1) of Rule 7. 15. In the circumstances, sub-rule (1) can also be held to be directory, though the Public Analyst, or an officer authorised by him, shall naturally compare the seal on the container and the outer cover with specimen impression of the seal, and shall not only make a note of the conditions of the seals thereon, but analyse the sample if the seals are found not to have been tempered with. Had word "separately" not been used in sub-rule (1) , it could be said and, may add, rightly, that non-compliance of this rule would cause great hardship to the general public, and hence the provisions thereof be held to be mandatory. 16. Sub-rule (2) of Rule 7 is clearly not mandatory. It is not necessary for the Public Analyst to analyse each and every sample. The container or the outer cover of some sample may be damaged in transit, or the seals on the container and the outer cover may not correspond to 'the specimen impression of the seal, where the seals do not tally, analysis by the Public Analyst shall not serve any useful purpose and the Public Analyst can refuse to analyse such sample. When the Public Analyst can, in certain circumstances, decline to analyse the sample, the provision cannot be held to be mandatory. 17. Rule 7, as it at present stands, must, therefore, be held to be directory such that non-compliance thereof shall not invalidate the action taken by the Public Analyst. Lokur, J.-The following question has been referred to this Division Bench at the instance of B. D. Gupta, J. :- "Are the provisions incorporated in Rules 7 and 18 of the Rules framed under the Prevention of Food Adulteration Act (Central Act )(XXVII of 1954) mandatory or merely directory ?" 2. The need for the reference arose in view of conflict in the views expressed by two Single Judges of this High Court, In Kamal Singh v. State, 1957 ALJ 89, V. G. Oak, J. (now Chief Justice) held that Rules 7 and 18 of the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules) are directory and not mandatory and that, accordingly, if any of these titles was not followed, that would not be sufficient for interference with a conviction under the Act. D. D. Seth, J. however, took a contrary, view in Ramji Dass v. State of U.P., Criminal Revision No. 1595 of 1967 decided on 18th September 1968. 3. The question has been considered by several other High Courts, who too have expressed divergent views. While the High Courts of Bombay and Kerala have held the two rules to be directory, the High' Courts of Gujarat and Mysore have held them to be mandatory. The Jammu and Kashmir. High Court has held Rule 18 to be directory. 3. The question has been considered by several other High Courts, who too have expressed divergent views. While the High Courts of Bombay and Kerala have held the two rules to be directory, the High' Courts of Gujarat and Mysore have held them to be mandatory. The Jammu and Kashmir. High Court has held Rule 18 to be directory. There appears to be a difference of opinion in the Orissa High Court. While the decision of that High Court in State v. Uma Charan, A.I.R. 1966 Orissa 81 seems to indicate that Rules 7 and 18 are mandatory, the decision in State v. Madhusudhan Ram, A.I.R. 1966 Orissa 188 has regarded Rule 18 to be mandatory. 4. The tests to be applied in determining whether a legislative provision is mandatory or directory has been laid down by the Supreme Court on several occasions. Where a statute requires that a thing should be down in the prescribed manner. or form but does not set out the consequences of non-compliance, the question whether the. provision was mandatory or directory hag to be adjudged in the light of the intention of the legislature as dis closed by the object, purpose and scope of the statute. If the statute is mandatory, the thing done not in the manner or form prescribed can have no effect or validity: if it is directory, penalty may be inclined for non-compliance but the act or thing done is regarded as good0. To ascertain the intention of the legislative authority, the court has to examine carefully the object of the statutes, the consequences that may follow from insisting on strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a part10. The following observations of Lord Campbell in Riverpool Borough Bank v. Turner, (1860) 30 LJ Ch. 379 :- "No universal rule can be laid down as to whether the 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 construed." 5. 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 construed." 5. The question whether the aforesaid Rules 7 and 18 are mandatory or directory has N; thus to be determined in the light of the intentions of the rule-making authority in the context of the object of the Prevention of Food Adulteration Act and the effect of non-compliance of the two rules in achieving the purpose of the Act. 6. The Prevention of Food Adulteration Act is directed for the purpose of securing purity of food and of punishing adulteration of food. Provision is made for detection of adulterated or misbranded food by empowering, under Section 10 of the Act, the Food Inspectors to obtain samples of food for analysis and for causing the sample of food so obtained to be analysed by an expert called the Public Analyst. Section 11 requires that the sample so obtained shall be separated into three parts, marked, sealed and fastened up and one of the parts shall be delivered to the person from whom the sample has been taken, another part shall be sent for analysis to the Public Analyst and the third part shall be retained for production in case legal proceedings are taken against the person. If the result of the analysis disclosed that the sample of food is adulterated or misbranded, the person from whom the sample has been taken can be prosecuted and the report of the Public Analyst containing the result of the analysis can be used, under Section 13 (5) of the Act, as evidence of the facts stated therein the proceedings. The accused is given a right under Section 13 (2) to apply to the court for sending the part of the sample given to him or retained for production in legal proceedings to the Director of Central Food Laboratory for analysis and the certificate given by the Director is to be final and conclusive evidence of the facts stated therein. The accused is given a right under Section 13 (2) to apply to the court for sending the part of the sample given to him or retained for production in legal proceedings to the Director of Central Food Laboratory for analysis and the certificate given by the Director is to be final and conclusive evidence of the facts stated therein. Section 23 enables the Central Government to make rules on specified matters including definition of the powers and duties of the Food Inspectors and Public Analysts while Section 24 enables the State Government to make rules for the purpose of giving effect to the provisions of the Act in matters not falling within the purview of the Central Government under Section 24. 7. Part IV of the Rules made by the Central Government, entitled "Public Analysts and Food Inspectors", contains Rules 6 or S which prescribe the qualifications of Public Analysts and Food Inspectors respectively and Rules 7 and 9 which define the duties of Public Analysts and Food Inspectors respectively. Rules 14 to 18 appear in Part V of the Rules captioned "Sealing, Fastening and Despatch of Samples". Rule 14 describes the manner of sending a sample for analysis, Rule 15 requires the bottles or containers to be labelled with specified particulars and properly addressed, Rule 16 prescribes the manner in which the samples are to be packed, fastened and sealed, Rule 17 provides for the mode of sending the containers of sample to the Public Analyst, and Rule 18 requires memorandum and an impression of the seal to be sent separately. 8. Rules 7 and 18, which are under consideration, read as follows :- "7. Duties of Public Analyst : (1) On receipt of a package containing a sample for analysis from the Food Inspector or any other person the Public Analyst or an officer authorised by him shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. (2) The Public Analyst shall cause to be analysed such samples of food as may be sent to him by the Food Inspector or by any other person under the Act. (3) After the analysis has been completed he shall forthwith supply to the person concerned a report in form III of the result of such analysis." "18. (2) The Public Analyst shall cause to be analysed such samples of food as may be sent to him by the Food Inspector or by any other person under the Act. (3) After the analysis has been completed he shall forthwith supply to the person concerned a report in form III of the result of such analysis." "18. Memorandum and impression of seal to be sent separately : A copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by registered post or delivered to him or to any person authorised by him." 9. It is also relevant at this stage to reproduce Section 11 (3) of the Act which reads :- " (3) When a sample of any article of food is taken under sub-sec. (1) or sub-sec. (2) of Section 10 the Food Inspector shall send a sample of it in accordance with the rules prescribed for sampling to the Public Analyst for the local area concerned." 10. It is contended before us that the rules in Part V of the Rules make provision for sealing, fastening and despatch of the sample and they are intended to ensure that the sample taken by the Food Inspector is not tempered with in the process of despatch to the Public Analyst and the various safeguards prescribed in Part must be taken to achieve the object in view. Rules 18 requires the Food Inspector to send a copy of the memorandum accompanying the container of the sample as provided in Rule 17 and the specimen impression of the seal used to seal the packet separately by post out of abundant caution so that the Public Analyst may satisfy himself that the seal of the packet received by him is identical with the seal, the impression of which is sent separately. It is further contended that Rule 7 (1) enjoins the Public Analyst to compare the seal on the container and the outer cover of the packet with the specimen impression of the seal sent to him separately under Rule 18 and satisfy himself that the container and the packet are not interfered with in transit. It is further contended that Rule 7 (1) enjoins the Public Analyst to compare the seal on the container and the outer cover of the packet with the specimen impression of the seal sent to him separately under Rule 18 and satisfy himself that the container and the packet are not interfered with in transit. These obligations cast on the Food Inspector and the Public Analyst are, it is argued, of, imperative nature, for, the report of the Public Analyst regarding the result of the analysis of the sample forms an important piece of evidence on the basis of which an accused can be convicted. It is pointed out that Section 11 (3) specifically provides that the Food Inspector shall send the sample in accordance with the Rules. 11. In our opinion, the report of the Public Analyst on the analysis of the sample sent to him, under Section 13 (5) of the Act, has no special probative value and may or may not be accepted as proof of the facts stated in the report; it has to be treated as any other piece of evidence and it is for the court to decide whether it can or cannot be relied upon. It is for the prosecution to establish that the sample analysed by the Public Analyst is in all respects the sample sent by the Food Inspector. The rules prescribing the manner of despatch of the sample to the Public Analyst are more in aid of the prosecution than in interest of the accused. The burden of proving that the sample sent by the Food Inspector has not undergone any change in the course of its despatch to the Public Analyst lies squarely on the prosecution and if that burden of proof is not adequately discharged by the prosecution. the court would clearly be entitled to reject the report of the Public Analyst. The prosecution is bound to prove, apart from the Rules, that the sample sent by the Food Inspector and the sample analysed by the Public Analyst are identical. In that view, the rules of despatch including Rule 7 (1) and Rule 18, ought to be regarded as merely directory and the nonobservance thereof cannot by itself be fatal to the prosecution. In that view, the rules of despatch including Rule 7 (1) and Rule 18, ought to be regarded as merely directory and the nonobservance thereof cannot by itself be fatal to the prosecution. If, for example, the Food Inspector chooses to deliver the sealed sample personally to the Public Analyst-a course to which no exception can be taken-it cannot be successfully contended that the report of the Public Analyst should not be accepted in evidence as the rules of despatch have not been followed. 12. Section 11 (3) of the Act, on which reliance is sought to be placed, cannot support the proposition that the rules of despatch of the sample are mandatory; the sub-section requires the sample to be sent "in accordance with the rules prescribed for sampling" and does not refer to the rules prescribed for despatch of the sample. 13. Rule 7 places a duty on the Public Analyst to compare the seal on the packet with the impression of the seal sent to him by the Food Inspector separately. He obviously cannot make such a comparison if the Food Inspector in violation of Rule 18 omits to send the specimen impression of the seal. There is also no provision laying down the consequences in the event of the Public Analyst neglecting or failing to make the comparison. The Rules do, not nullify the report of the Public Analyst if either the Public Analyst does not make the comparison or the Food Inspector does not send the specimen impression of the seal. In the event of default on the part of the Food Inspector or the Public Analyst, it will be for the court to judge whether, notwithstanding the default, either by virtue of the presumption under Section 114 of the Indian Evidence Act or on the basis of other evidence, the facts stated in the report should be accepted as reliable evidence. In this view also, compliance with Rules 7 or 18 cannot be regarded as mandatory. 14. It is significant that Form III in which the Public Analyst is expected to send his report of the result of the analysis of the sample does not prescribe a certificate that he had compared the seal on the container and the outer cover with the specimen impression of the seal received separately from the Food Inspector. 14. It is significant that Form III in which the Public Analyst is expected to send his report of the result of the analysis of the sample does not prescribe a certificate that he had compared the seal on the container and the outer cover with the specimen impression of the seal received separately from the Food Inspector. This fact also indicates that Rule 7 (1) and Rule 18, which is complementary to Rule 7 (1) , are directory. 15. We cannot also lose sight of the fact that the possibility of the sample being tempered with in the process of despatch is more hypothetical than real. If the sample reaches the Public Analyst intact in a proper sealed condition and he certifies accordingly, it would be reasonable to assume that the sample was not tempered with. The sending of the impression of the seal separately and comparing the seal on the packet and the container with the specimen impression so sent are ultra-cautious safeguards which could not have been contemplated as obligatory and undue emphasis should not be laid on these highly technical formalities, the non-observance of which would at best be an irregularity and not an illegality. 16. If the report of the Public Analyst is considered doubtful, the accused is given, by Section 13 (2) of the Act, liberty to challenge it asking for a fresh analysis of the sample by the Director of Central Food Laboratory with the aid of the part of the sample given to the accused or with the part of the sample retained for production in legal proceedings. It is only the certificate of the Director of Central Food Laboratory which supersedes the report of the Public Analyst and which is not rendered nugatory on the ground that any of the rules for despatch have not been complied with. (Incidentally, in this connection we may refer to a decision of a Division Bench of this High Court-Municipal Board, Faizabad v. Lal Chand, AIR 1964 Allahabad 199, wherein it has been held that if the accused wanted to challenge the fact that the sample that had been sent to the Public Analyst was not the same that had been taken from them or that the sample that had been sent had been tempered with during the course of transit, they could have sent their own sample for analysis) 17. We may also mention that one of us has held in Nisar Ahmad v. State of U.P., 1963 ALJ 521 that where the sample had been despatched along with the sample of seal with which the Food Inspector had sealed the sample, the non-compliance of the rule requiring the impression of seal to be sent separately cannot be deemed to have occasioned failure of justice. We do not consider that a departure from that view is called for. 18. For all the above reasons, our answer to the question posed to us is that the provisions of Rules 7 and 18 of the Ruls framed under the Prevention of Food Adulteration Act are not mandatory and are merely directory. 19. We have incidentally considered the question whether the Central Government, which has framed the Rules, was competent to make Rules 7 and 18. We have come to the conclusion that Rule 7 (1) which prescribes the duties of the Public Analyst is referable to the rule-making power conferred on the Central Government by clause (e) of Section 23 of the Act and Rule 7 (3) may be said to be incidental to the duties prescribed for the Public Analyst. A Division Bench of this High Court has also held earlier that the Central Government has not exceeded its rule-making authority by enacting Rule 7 (13) . We are, however, extremely doubtful about the power of the Central Government to make Rule 18. The power of the Central Government to make rules is restricted to the matters specified in Section 23 of the Act and the provision in Rule 18 does not appear to be relateable to any matter listed in Section 23. 20. Let the papers of this case with our answer be laid before the Bench concerned.