JUDGMENT 1. - This appeal by way of special leave to appeal is directed against the judgment, dated April 21, 1975, . of learned Chief Judicial Magistrate, Alwar, acquitting the accused of the charge, punishable tinder section 7/16 of the Prevention of Food Adulteration Act, 1954 (Act No. 37 of 1954) (hereinafter referred to as 'the Act'). 2. The prosecution story, in nut-shell, is that on January 8, 1975, PW 1 Shambu Datt Vijay, Food Inspector, inspected and checked the shop of accused-respondent. At that time the respondent was selling Ghee. Having disclosed his identity to the accused-petitioner, the Inspector served him with a notice in Form No. 6 (Ex P.1) and purchased 450 grams of ghee for Rs. 9/-. The ghee was divided into three parts, each of which was filled in three bottles. All the three bottles were sealed in the presence of the respondent. A memorandum containing details of the action taken by the Food Inspector was prepared. It has been marked Ex. P.2. It bears the signatures of the Food Inspector PW. 1 Shambhu Datt Vijay and two attesting witnesses, namely, PW 2 Shiv Charan and PW. 3 Prithvi Raj. It also bears the signature of the accused-respondent Bharat Bhushan. One sample in bottle was given to the accused-respondent and the other was sent to the Public Analyst. The third sample bottle was retained by the Food Inspector. The sealed bottle was received by the Public Analyst on 8-1-1974. On the report Ex. P.3 specimen of the seal was given and it was also mentioned therein that the "bottle was properly sealed and fastended and that the seal was intact and unbroken". The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a tit condition for analysis. The Public Analyst examined the contents of the bottle and declared the result as under: "This sample of 'Deshi Ghee' is adultered as its moisture content exceeds the prescribed maximum limit by 0.39%." In the opinion of the Public Analyst the sample of the ghee was adulterated as the moisture contents exceeded the prescribed maximum limit by 0.39%. The prescribed maximum of moisture contents for ghee being 0.3% according to the old Rules and 0.5%, according to the new Rules. The prescribed maximum of moisture contents for ghee being 0.3% according to the old Rules and 0.5%, according to the new Rules. The Food Inspector filed a complaint in the court of the Chief Judicial Magistrate, Alwar, against the accused respondent for his prosecution under section 7/16 of the Act. The accused denied his complicity in the crime. The prosecution, in support of its case, examined 4 witnesses, namely, PW 1 Shambhu Datt Vijay, Food Inspector, PW 2 Shivcharan, PW 3 Prithviraj Motbir and P N 4 Shri B L. Saxena, Public Analyst. The accused, in his statement, stated that the sample of 'Deshi Ghee' was purchased from his shop, but the Food Inspector took out the ghee from the bottom of the tin and filled in a bottle, which was washed. He examined two witnesses in his defence. The trial court held that PW 3 was not declared hostile witness as the ghee was filled in a bottle which was washed on the spot, it cannot be said that the sample was taken strictly in according to law. He further held that it was the requirement of law that the sample must he filled in dry bottles and as it was not done, the accused was entitled to the benefit of doubt On the basis of the above findings, the learned Judge acquitted the accused vice his judgment, dated April 21, 1975. 3. Mr. Goyal, appearing on behalf of the Municipal Council, Alwar, urged that the ghee purchased from the accused has to be recorded as adulterated due to excess moisture in it and that its sale to the Food Inspector for analysis is covered by the definition of 'sale' as given in section 2(xii) of the Act He further urged that it was the duty of the accused to question the Food Inspector as to whether the ghee was filled into the wet bottles or dry ones. More over, the Public Analyst in his cross-examination stated that if drops of water would have teen found in the bottle containing the sample of ghee, he would not have analysed the article & would have rejected the sample. That the variation found in the moisture contents exceeding 0.39% cannot be said to be a marginal one and the learned Magistrate was wrong in travelling in the realm of imagination for acquitting the accused. 4. Mr. Sharma and Mr. That the variation found in the moisture contents exceeding 0.39% cannot be said to be a marginal one and the learned Magistrate was wrong in travelling in the realm of imagination for acquitting the accused. 4. Mr. Sharma and Mr. Rao, appearing for the accused respondent, supported the judgment of the trial court. Mr. Sharma urged that it was the duty of the Food Inspector to stir the contents of the tin and thereafter to take the sample. He, however, failed to do so and as such it cannot be said that the sample was taken in the manner provided by the Rules. It was further urged that the existence of the moisture in the sample of ghee taken from the accused, was not the result of an act of the accused, but it was the creation of the Food Inspector because he filled the Ghee in the wet bottles and naturally the sample on analysis contained more moisture than the actual moisture contents of the ghee lying in his own shop. Learned counsel further submitted that the provisions of Rule 9(j) was mandatory in nature and the same ought to have been strictly complied with. The copy of the report of the Public Analyst Ex. P.3 was neither delivered nor sent by registered post. This non-compliance has not only caused infraction but also injustice. On the facts of the case in hand, it cannot be said that compliance of Rule 9 (j) was not made by the prosecution. The report of the Public Analyst Ex. P.3 is dated January 21, 1974. Ex P.5 reveals that a copy of the report was dispatched No. 10636, dated January 25, 1974 and the same was received by the accused on January 28,1974. 5. The provisions of Rule 9(j), as amended by Notification, dated February 13, 1974, also cannot be said to be mandatory. P.3 is dated January 21, 1974. Ex P.5 reveals that a copy of the report was dispatched No. 10636, dated January 25, 1974 and the same was received by the accused on January 28,1974. 5. The provisions of Rule 9(j), as amended by Notification, dated February 13, 1974, also cannot be said to be mandatory. By the amendment the previous Rule was substituted by a new one & the provisions relating to sending of the report of the Nub is Analyst by hand or by registered post was substituted by the word "sent by the registered post copy of the report received in Form III from the Public analyst to the person from whom the sample was taken within 10 days of the receipt of the said report." Thus in the new rule the words 'by hand' hive been omitted and the word ten days' have been substituted in place of words as soon as the case is filed in the Court'. Rule 9(j) provides an opportunity to the accused to take the benefit of Section 13(2). If he doubts the correctness of the report of Public Analyst, he can move an application to the concerned Court and the Court thereupon may ask the local authority to produce the sample of the article i.e. the third bottle and upon such requisition being made, the authority is bound to produce the same before the Court. On receipt of that part, the Court is required to ascertain the mark any seal and fastening of the bottle as provident in clause (b) of sub-section 11. After being satisfied that the sample has not beer. tampered with, the Court can dispatch the third bottle to the Director of the Central Food Laboratory and ofter examination he is required to send a certificate to the Court in the prescribed form showing the result of the at analysis. The certificate so issued by the Director of the Central Food Laboratory superseds the report given by the Public Analyst. The accused, who does not move an application to the Court for sending the third bottle of the sample to the Director, the Central Food Laboratory, cannot be allowed to make grievance that his case has been prejudiced by not sending a copy of the report of the Public Analyst by registered post to him within ten days. The accused, who does not move an application to the Court for sending the third bottle of the sample to the Director, the Central Food Laboratory, cannot be allowed to make grievance that his case has been prejudiced by not sending a copy of the report of the Public Analyst by registered post to him within ten days. The Rules of an enactment are required to subscribe the purpose for which they are made. The provisions of the Prevention of Food Adulteration Act are very statuary. The Act itself has been enacted with the object of eradicating the anti social civil and for ensuring purity in the article of food. The rule lays down no penally for its non-compliance. When a statute requires that a thing shall be done in a prescribed manner or form, but does not set out the consequence of non-compliance, the question whether the provision is mandatory or directory, has to be judged in the light of the intention of the Legislature as disclosed by the purpose and scope of the Act. It is the duty of the Court of justice to try and get at the real intention of the Legislature by carefully attending to the whole scope of the statute. Reference in this connection my be made with advantage to the following observations made by me in Shakoor vs. Stare of Rajasthan, 1976 WLN 697 , "In the face of repeated declaration made by the Parliament to stamp out food offences by severe sentence, it cannot be said that the intention of the rule-making authority was to allow the offenders punishable under the Act to get away simply because it suited a negligent officer to neglect his duty after the filing of the complaint in the court. Once the cognizance of a case against an accused is taken by the court, the judicial discretion whether to act, of the Particular evidence adduced at the trial, is vested in the Court. The judicial discretion vested in the court of law to rely upon or not to rely upon a particular type of evidence in the case should not he allowed to he hampered by the future action of the Food Inspector, who is nothing more than a witness in a case. The judicial discretion vested in the court of law to rely upon or not to rely upon a particular type of evidence in the case should not he allowed to he hampered by the future action of the Food Inspector, who is nothing more than a witness in a case. Reference may be mace to the following observations made by Lord Black Burn in the case, The Justices of the Peace for Middlesex vs. The Queen, 1975 (3) SCC 375 at page 778 "a condition as to which the responsible persons may be blamable and punishable if they do not act upon it, but their not acting upon it, shall not be validate what they have done, third person having nothing to do with that." "13. It will be too dangerous a proposition of law to accept that the accused is entitled to an acquittal, merely because the Food Inspector has not given a copy of the report of the Public Analyst to him, though the same was given to the accused by the Court in which he was prosecuted. If it were so, it would be possible for any guilty person to escape punishment for reporting to the device. A dishonest officer would always be able to make such a mistake to allow the accused to get away from the clutches of law and defeat the very purpose of the Act and the Rule to punish such offender. It would not promote the main object of the legislature. The prescription of the statute relate to the performance of public duty, the neglect of which may be penal for the public officer and decision of a competent court. Maxwell in his bock "The Interpretation of Statutes" (Ninth Edition) at page 379, while dealing with the effect of neglect of duty by a public officer, observed as under: "On the other hand, where the prescription of statute relate to the performance of a public duty and when. the invalidation of acts in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions gems to be generally understood as mere instructions for the guidance and Government of those to whom the duty is imposed, or in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to he done by a Public body or public officers and pointed out the specific time when it was to be done, that Act was directory only and might be complied with after the prescribed time. Thus, the' Hen IV (c.7), which required Justice to try rioters "within a month" after the riot, was held not to limit the authority of the Justices to that space of time, but only to render them liable to a penalty for neglect. To hold that an Act which required an officer to prepare and deliver to another officer a list of voters on or before a certain day, under a penalty made a list not delivered till a later day invalid, would, in effect put it in the power of the person charged with the duty of preparing it to disfranchise the elector, a conclusion too unreasonable "or acceptance."(1976 WLI Page 697) Rule 22 of the Rules of 1955 came up for consideration before a bench of five Judges of the "supreme Court in case of State of Kerala vs Alassery Mohd, AIR 1978 SC 933 , Their Lordships while over-ruling their previous judgment in Rajaldas Gurnnamal Panmani vs. State of Maharashtra, 1975 (3) SCC 375 , held the rule to he directory and not mandatory. On the parity of reasoning Rule 9(j) aced to be declared directory. 6. The purpose of Rule 9(j) is to inform the accused that the article purchased from him was found to be adulterated and if' he can move the (2) AIR 1978 SC 933 (3) 1975 (3) SCC 375 court to forward the sample for being analysed by the Director of the Central Food Laboratory. The purpose of the Rule is not to give a licence to the Food Inspector to get any body acquitted against whom a serious offence of adulteration is pending by making a deliberate lapse in not sending the sample to the accused by registered post within ten days. Once the court is seized of a ease, its duty is to see whether the accused has been prejudiced by the particular act of the Food Inspector. Once the court is seized of a ease, its duty is to see whether the accused has been prejudiced by the particular act of the Food Inspector. The subsequent amendment of section 13, made on April 1, 1976, also supports the view that the provisions of Rule 9(j) were 'directory'. The amended section 13 provides that the authority after the institution of the prosecution against the person from whom sample of the article of food was taken, should forward in such manner as may he prescribed, a copy of the result of the analysis to such person or persons as the case may be. A close reading of section 13, as it stood on the date of the commission of the crime. reveals that a person accused of on offence could make an application for forwarding the same to the Director of Food Laboratory only after filing the challan and not prior to it, and as such the Legislature could not have intended that a technical mistake on the part of a non vigilant Food Inspector should earn an acquittal. No doubt, the Food Inspector was bound to comply with the Rules and it did not give a licence to the Food Inspector to violate the Rule because breach of any directory rule may make the Food Inspector answerable to the higher authority. The case of Allesserry ( AIR 1978 SC 933 ) was followed by the Supreme Court in Ramdas Bhikaji Chaudhari vs Sandanand and others, AIR 1980 SC 126 . Reference with advantage be made to Dalchand vs. Municipal Corporation Bhopal and Anr., 1982 LLJ SC 559 . 7. For the reasons mentioned above and the parity of reasoning given in the above noted cases relating to Rule 22 by their Lordships of the Supreme Court it can be safely said that Rule 9(j), as, it then stood on the date of the commission of offence, was directory. 8. According to the Public Analyst's report, Ex. P. 3, there is a variation in the standard of moisture contents of the ghee i.e exceeding. 0.39%, whereas according to the prescribed standard it ought not to have been more than 0.2%, or 0.5%. This variation normally would go to prove adulteration The defence case, how ever, is that the moisture contents in the sample were increased as the bottle in which the sample was taken contained some drops of water. 0.39%, whereas according to the prescribed standard it ought not to have been more than 0.2%, or 0.5%. This variation normally would go to prove adulteration The defence case, how ever, is that the moisture contents in the sample were increased as the bottle in which the sample was taken contained some drops of water. In support of the above contention be has placed reliance on the statement of P.W. 3 Prithiviraj, who stared that the bottles were washed on the shop and the sample of the ghee filled therein. The above noted statement is not sufficient to hold that 0.39% moisture found in the sample of the ghee was the result of washing the bottle in which the sample was taken. 9. The Public Analyst in his examination-in-chief stated that if he would have noticed the water contents in the bottle he would not have analysed the sample and would have rejected the same. The witness further states: " ?kh vxj ,d nks efguk j[kk jgs rks alice acid dh value , 1.2% ls T;knk ugha c<+sxh vxj og sealed gks rksA " 10. For reasons best known to the learned counsel cross-examining on behalf of the accused, the witness was not examined on the point as to whether the existence of 0.39%, moisture could be the result of the bottle being wet. If this question would have been asked, and the witness would have answered the same in positive, then it could be safely stated that the defence set up by the accused is probable. Learned counsel for the accused placed reliance on M/s. Polson Ltd. and ors. vs. Corporation of Calcutta, AIR 1969 Calcutta 247 and submitted that increase of moisture does not lead to the conclusion that the ghee was adulterated. In that case tin containing ghee, from which sample was taken, was brought out of the cold storage. The percentage of variance of moisture contents was 0.7%. In the special facts and circumstances of that case their Lordships of the Calcutta High Court held that the increase in the moisture was within the raise of variance deposed by D.W. 1, examined in that case. In the case on hand the Public Analyst has not stated that variance upto 0.39% was within the permissible limits. In the special facts and circumstances of that case their Lordships of the Calcutta High Court held that the increase in the moisture was within the raise of variance deposed by D.W. 1, examined in that case. In the case on hand the Public Analyst has not stated that variance upto 0.39% was within the permissible limits. In Champalal vs. State of Rajasthan, 1976 RLW 514 argument advanced before me was that the presence of oleic in the mustard oil in excess of the permitted limit was microscopic viz 1.15 and that it could be the result of a marginal error committed by the Public Analyst. Repelling that argument in that case it was held by me as under: "The presence of the constituents of the mustard oil in excess of the quantity prescribed makes the article adulterated according to the definition of the term "adulterated" prescribed in section 2(1)(i). Thus when the prescribed standard is not attained, the provision of the Act treats the article of food as an adulterated one. In my opinion it is beyond the revisional jurisdiction of this Court to embark on an academic discussion whether the variation found in the case on hand is microscopic or not. The standard fixed under the Act is one that is certain. If it is varied to any extent, the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantage or resulting un-predictability, uncertainty and impossibility of arriving at fair and consistent decision are great." In Ms. Polson Ltd. & others vs. Corporation of Calcutta (Supra), relied upon by learned the counsel for the respondent, their Lordships of the Calcutta High Court observed-"variation normally would go to prove adulteration". That unless it is held that the defence set up by the accused is plausible, there is no alternative except to hold that as the sample of the ghee purchased from accused did not talley with the standard prescribed, it was an adulterated article. 11. The other contention raised by the learned counsel for the respondent that ghee was taken without stirring the contents of the tin needs only to mentioned for being rejected. 11. The other contention raised by the learned counsel for the respondent that ghee was taken without stirring the contents of the tin needs only to mentioned for being rejected. The Food Inspector in his examination-in-chief stated that: ihis ds ?kh dks vPNh rjg ls feyokdj sample ds fy, ?kh fy;k FkkA 450 xzke ?kh dks rhu 'kh'kh;ksa esa 150&150 grams HkjkA 'kh'kh;ksa dks cUn fd;kA In cross-examination this witness stated that: " eqyfte us ?kh feykdj ij[kks ls fudkyk FkkA " In both these statements I do not find any contradiction. The first portion of the statement relates to the taking of the ghee and the portion appearing in cross-examination indicates as to who brought it out. In case where the ghee is brought out by the accused, it can be correctly stated that it was purchased by the Food Inspector. No doubt, one of the motbirs, Shivcharan, stated that while taking out the ghee, the contents of the tin were tot stirred and the ghee was taken out from the bottom. In this case the respondent has not been able to point out any provision in the Act of 1954 or the Rules of 1955 from which it can be said that the Food Inspector was duty bound not to take the sample of ghee from the bottom of the container. As such even if it is held that it was taken from the bottom of the container, no violation can be said to have been committed. That presumption of law under illustration (e) of section 114 of the Evidence Act, though rebuttable, is that the action performed by the public servant is done according to law. If the accused really wanted to rely upon the defect in the manner of picking the sample of ghee, he ought to have produced his own bottle before the concerned Magistrate, who after examining the seals, if requested, could have sent it to the Director of the Central Food Laboratory for analysis. If the Director of Central Food Laboratory would have said that the moisture contents were on account of the bottle being wet or that the sample of the ghee was not worth analysis, the accused could have taken the advantage of it, as certificate issued by the Director of the Central Food Laboratory supersedes the report of the public Analyst. 12. 12. Lastly it was urged that the sample of the once was received by the Public Analyst on 8th January, 1474, where as the result of the analysis was given on 21st January, 1974 and this delay in analysing the sample must have affected the moisture contents I find no merit in this argument. 'The report mentions that the bottle containing the sample was received by the Public Analyst properly packed. The Public Analyst was not cross-examined on the point regarding the possibility of moisture being increased in between 8.1.74 to 21.1.74. The acceptance of the contention of the learned counsel for the accused-respondent regarding the possibility of the bottle containing the sample being exposed leading to increase of moisture in the absence of proper evidence on record, will amount to chasing hare possibility without any foundation. Neither mere possibilities nor remote probabilities nor mere doubts which are not reasonable can without danger to the administration of justice be the foundation in discarding the report of the Public Analyst. 13. The net result of the above discussion in that the judgment of acquittal cannot be upheld. I accordingly hold the accused-respondent guilty of the offence punishable under section 7/16 of the Prevention of Food Adulteration Act, 1954. 14. Now remains the question of sentence. Learned counsel for the respondent urged that the Food Inspector took the sample in the year 1974. The accused was acquitted by the trial court in the year 1975. A period of nearly seven years has elapsed after the acquittal and it would hardly be proper at this stage to impose a substantive sentence of imprisonment. He further submits that ends of justice would be met by imposing a sentence of fine only. 15. As regards the imposition of the penalty of fine only, suffice it to say that the Legislature while amending the Prevention of Food Adulteration 'Act, 1954, provided a minimum sentence of six months rigorous imprisonment and a fine of Rs. 1,000/- for 'selling the adulterated food. This is an expression of righteous indignation of the community against the offences of this kind with the object of preserving and promoting the well being of human society. A relaxation from the rigour of the minimum is permitted only for special reasons to be mentioned in the judgment. Such reasons are required to be adequate & sufficiently weighty. This is an expression of righteous indignation of the community against the offences of this kind with the object of preserving and promoting the well being of human society. A relaxation from the rigour of the minimum is permitted only for special reasons to be mentioned in the judgment. Such reasons are required to be adequate & sufficiently weighty. The Court has to further express those reasons in the judgment enabling the superior courts and the society to know the grounds for the grant of indulgence. The court while awarding punishment has to seriously consider the command of the law and the ambit of the judicial discretion conferred by it. It is plain that the object of providing a minimum substantive sentence and substantial pecuniary punishment is to discourage and deter anti-social elements in the society who motivated by avarice cause incalculable harm to human health. In the Municipal Council Jaipur vs. Sita Ram, 1976 WLN 792 , after referring to almost all the cases decided by this Court, regarding the quantum of punishment relating to the offences under the Prevention of Food Adulteration Act, I have held as under: "A proviso has to be considered in relation to the main enactment and should not be permitted to obliterate or allow the enactment itself. In my view, therefore, the proviso cannot be assigned a scope and purpose not contemplated by the main enactment and must always be construed harmoniously with the main enactment. A proviso will not be normally construed as reducing the purview of an enactment to a nullity. The legislature will not at the same time give something by one hand and take back the same thing by another. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating this anti-social evil. In a particular case the adulteration may pinch one individual in a small measure. The legislature will not at the same time give something by one hand and take back the same thing by another. The Prevention of Food Adulteration Act has been enacted with the aim of eradicating this anti-social evil. In a particular case the adulteration may pinch one individual in a small measure. But the adulterator spreads his net wider, and the totality of the gain that he makes becomes enormous when one takes into reckoning the fact that the act is repeated several times a day and continues for years, that is to say, he commits the offence not once but several times a day and goes on doing so till he is detected, but by then also amasses wealth enough to pay any amount of line and has imperilled the health of a large number of persons by providing them with unwhole some food deficient in nutrition. It could never have been intended by the legislature considering the general trend of he enactment that the offender whose case was covered by the proviso could be given the facility to escape with fine alone. On the aforesaid analysis, I am clearly of the opinion that even under the proviso the sentence of imprisonment and fine is binding. The proviso makes provision for reduction of sentence for adequate and special reasons. It does not, however, make the sentence disconjuctive. The conjunctive character of the sentence prescribed in the substantive part of the section remains unaffective." 16. That was also a case of appeal against acquittal. 17. Taking a conspectus of the circumstances of the case and the fact that decision is being given by this Court after seven years of the acquittal of the accused I consider it just and proper to give advantage of proviso to the accused-respondent. 18. In the end I accept the appeal, set aside the acquittal of the accused-respondent and convict him under section 16 rea with section 7 of the Prevention of Food Adulteration Act and sentence him to one month's imprisonment and a fine of Rs. 2,000/-. In default of payment of fine, he shall further suffer simple imprisonment for three months. 19. The appeal is allowed as indicated above. Learned counsel for the accused-respondent prays for leave to appeal to the Supreme Court. The decision of this case has been turned on facts and the position of law is well settled. 2,000/-. In default of payment of fine, he shall further suffer simple imprisonment for three months. 19. The appeal is allowed as indicated above. Learned counsel for the accused-respondent prays for leave to appeal to the Supreme Court. The decision of this case has been turned on facts and the position of law is well settled. It is one of the routine case and no question of public importance is involved herein and, therefore, there is no reason to certify that the case is a fit one for appeal to the Supreme Court. The request for leave to appeal is rejected.Appeal Allowed. *******