JUDGMENT 1. - All these petitions have been filed under section 482 Cr. P. C. for quashing the proceedings in criminal cases No. 15, 16, & 17 of 1979 pending in the Court of Chief Judicial Magistrate, Jhunjhunu. 2. Brief facts leading to these petitions are that Dr. Babu Lal Gupta, Food Inspector and Deputy C. M. & H. O. Jhunjhunu at the relevant time inspected the [ premises of Rani Sati Mandir, Jhunjhunu on June 24, 1976 at about 6.15 P. M. On inspection he found 20 Kg. wheat-flour (Aata), 2 Kg. chillies, 10 Kg. Besan, 20 Kg. Ghee, 10 Kg. Suji, 10 Kg. Dalda and 105 Kg. Milk-powder in the store. These goods were kept for preparation of food which used to be supplied at 3/- per head. The Food Inspector prepared a report on the spot and wanted to take samples, of Suji and milk-powder but Kanhiya Lal Manager expressed his inability to give the samples without the permission of the trustees and requested for 15 days time in this regard. The Food Inspector in these circumstances seized Suji and milk-powder and gave the same in the superdagi of Kanhiya Lal, Manager himself. The Food Inspector sub-sequnetly sent a notice by registered post on June 25, 1976 to Kanhiya Lal Agrawal requesting him to inform the time and the person who would deliver the samples with in 15 days. Thereafter the Food Inspector went on the spot on July 14, 1976 and took 600 gram of Suji and 600 grams of milk-powder byway of sample. Kanhiya Lal Agrawal however, refused to accept any price of the said commodities. The Food Inspector then put the aforesaid Suji and the milk-powder in three bottles and sealed the same. A memo of these articles was prepared on the spot which was signed by Kanhiya Lal Agrawal and other persons on the spot. One of these bottles each of Suji and milk-power was given to Kanhiya Lal Agrawal and another bottle w+s sent for examination to Public Analyst at Sikar as prescribed under Form No. 7. The Public Analyst sent his report on July 26, 1976 and found that the Suji and milk powder were adulterated as the same were insect infested. It appears that the two reports of the Public Analyst were forwarded by the C. M. & IT. O., Jhunjhunu on August 3, 1976 to Dr. The Public Analyst sent his report on July 26, 1976 and found that the Suji and milk powder were adulterated as the same were insect infested. It appears that the two reports of the Public Analyst were forwarded by the C. M. & IT. O., Jhunjhunu on August 3, 1976 to Dr. B. L. Gupta, Deputy C. M. & H. O. It was mentioned in the forwarding letter that the report of the Public Analyst Sikar was sent along-with this letter and a copy of the report of the Public Analyst should be sent to the vendor within 10 days as required under rule 9 J. It was further mentioned that information may also be sent to the office of C. M. & H. O , Jhunjhunu of obtaining consent from Collector, Jhunjhunu and of filing the complaint in the court, so that action could be taken under Section 13 (2) of the Prevention of Food Adulteration Act (herein after referred to as "the Act"), and vendor could be informed in this regard within appropriate time. Thereafter the record shows that no consent for filing complain was given by the Collector and as such the matter remained pending at that level of Food Inspector but subsequently the powers for giving sanction were delegated to the C. M. & H. O., and sanction for filing the complaint was obtained from the C. M. and H.O. as late as February 17, 1979. In these circumstances Dr. B. L. Gupta filed three complaints in the Court of Chief Judicial Magistrate, Jhuajhuuu om March 3, 1979. 3. Case No. 15/79 relates to the adulteration milk-powder, case No. 16/79 relates to the adulteration found in suji and case No. 17/79 relates the complaint that the accused persons had no licence of keeping these food articles in the stock nor any board was put on the store. 4. It may also be mentioned at this stage that complaint in these cases has been filed against 10 persons out of whom Mool Chand Sharma is alleged to be servant, Kanhiya lal Agrawal as manager, 7 others as trustees of Rani Sati Mandir and 10th accused has been named as Rani Sati Mandir Jhunjhunu trust itself. Out of aforesaid 7 trustees Biharilal and Jai Narain have died during the pendency of these proceedings. Out of aforesaid 7 trustees Biharilal and Jai Narain have died during the pendency of these proceedings. A perusal of the record shows that so far as remaining five trustees are concerned, they have not been served so far and have not appeared before the trial court. Only Mool Chand and manager, of the temple have been served. Statement of Dr. B. L. Gupta has been recorded and the prosecution closed its evidence prior to the framing of charge. The case was then heard for framing charge against accused Mool Chand only. Learned Chief Judicial Magistrate, by order, dated April 26, 1983, found that charge against him was groundless and as such Mool Chand has been discharged for offences under Section 7/16 of the Act. A revision filed by the State against the said order was also dismissed by the learned Sessions Judge, Jhunjhunu by his order, dated September 21, 1983. In these circumstances the remaining accused persons have now filed the present petitions for quashing the proceedings pending against them in all the three cases. 5. Mr. Ranjan, appearing on behalf of the petitioner, raised the following submissions: 1. The goods taken from the store were not meant for sale and the Food Inspector was not authorised to take any sample from the store. 2. The report of Public Analyst can not be relied as the goods were seized on June 24, 1976 but no preservative was added and the sample was taken on July 14, 1976 and analysis was done on July 26, 1976. 3. There is long delay in launching the prosecution. The inspection was done on June 24, 1976 while the complaint had been filed on March 3 1979. 4. The provisions of Section 13 (2) of the Act are mandatory and there is a clear non-compliance of the provisions of this Section. No report of Public Analyst has been furnished to the accused persons. 5. Sanction for prosecution was not granted by Collector and subsequently C.M. & H.O. had no jurisdiction to make a review and grant fresh sanction. 6. Sanction has been granted into the name of Dr. B.L. Gupta as Food -Inspector/Ex. Deputy C.M. & H.O, on February 17, 1979, when he was no longer Food Inspector and as such the sanction itself is bad in law. 6. I shall deal with the above objections in seriatum :Point No. 1 : 7. 6. Sanction has been granted into the name of Dr. B.L. Gupta as Food -Inspector/Ex. Deputy C.M. & H.O, on February 17, 1979, when he was no longer Food Inspector and as such the sanction itself is bad in law. 6. I shall deal with the above objections in seriatum :Point No. 1 : 7. On the first point the argument of the learned counsel for the petition is that suji and milk-powder were not meant for sale and the Food Inspector was not authorised to take any sample of such goods from the store. As these goods were not stored for sale, no offence is made out under Section 7/16 of the Act. 8. On the other hand, it was submitted by learned Public Prosecutor that suji and milk-powder were used for preparing food which used to be sold at Rs. 3/- per head. In these circumstances even if suji and milk-power as such were not sold by the accused persons, the same were meant for sale after preparing meals. It was also argued that the scope of any argument made by the learned counsel for the accused persons is ruled out after the addition of explanation to Section 7 by Act No. 34 of 1976 which came into force on April 1, 1976. The explanation to section 7 reads as under : "For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such for the manufacture there from of any article of food for sale". 9. The following cases have been cited at the bar on the above point: 1. Municipal Corporation of Delhi v. Ram Nivas and another : 1975 FAC 305 2. Mukand Lai v. The State : 1975 (1) FAC 281 3. State of Maharashtra v. Udayram Rupram Oza : 1977 (2) FAC 213. 4. Punnu Ram v. M. C. D. and the State : 1971 (II) FAC 76 5. A. K. Chakravarti & Anr. v. The State : 1978 (1) FAC 9. 6. M/S Hindusthan Lever Ltd. & another v. The Chief Food Inspector and another : 1979 (1) FAC 44. 7. State of Haryana v. Ramesh : 1979 (I) FAC 140. 8. Municipal Corporation of Delhi v. Bhagat Singh : 1980 (I) FAC 192 10. A. K. Chakravarti & Anr. v. The State : 1978 (1) FAC 9. 6. M/S Hindusthan Lever Ltd. & another v. The Chief Food Inspector and another : 1979 (1) FAC 44. 7. State of Haryana v. Ramesh : 1979 (I) FAC 140. 8. Municipal Corporation of Delhi v. Bhagat Singh : 1980 (I) FAC 192 10. State of Maharashtra v. Jamnadas Vansimal Paryan : 1981 (II) FAC 92, 11. Municipal Corporation of Delhi v. Laxmi Narain Tandon etc. 1975 (II) FAC 444. The leading case on the point is Municipal Corporation of Delhi v. Laxmi Narain Tandon etc. (supra) decided by their Lordships of the Supreme Court. In the above case it was held that the word store in section 7 means storing for sale and consequently storing of an adulterated article of food for purposes other than for sale would not constitute an offence under Section 16 (1) (a) of the Act. On another point the view taken by Full Bench of Delhi High Court was reversed. It was held that supply or offer of food by a hotelier to a customer when a consolidated charge is made for residential accommodation and other amenities, including food, amounts to a sale of article of food for the purpose of the Food Act. I would not like to discuss those cases where the Food Inspector had taken the sample before April 1, 1976 when explanation to section 7 was added by Act No. 34 of 1976. In State of Haryana V, Ramesh : (supra) a Division Bench of Punjab and Haryana High Court considered a case where a sample of Khandsari sugar was taken from a Halwai on August 16, 1976. Following Laxmi Narain Tandons case (supra) it was held that where a person does not store a particular commodity for sale in normal course of his business which he does not voluntarily sell it would not be open to the Food Inspector to insist that the said person should sell apart of that commodity to him for the purposes of the Act. Even if such a commodity is found to be sub standard, the penal consequences of the Act shall not visit him. 10. Though in this case sample was taken after April 1, 1976 but it appears that the explanation added to Section 7 was not considered in the above case. Even if such a commodity is found to be sub standard, the penal consequences of the Act shall not visit him. 10. Though in this case sample was taken after April 1, 1976 but it appears that the explanation added to Section 7 was not considered in the above case. That apart in my view the ratio of Laxmi Narain Tandons case was not properly followed in the above case. A Single Bench of the Delhi High Court in Punnu Ram VMCD. and the State (supra) considered a case where the Food Inspector visited the shop of the accused in the main bazar on September 17, 1976. The accused had about 8 litres of milk without indication in a "Bhagona". The Food Inspector 600 took mililitres of milk as sample and on analysis was found to be adulterated. The defence taken was that the milk was not sold at his shop and that he used the milk only for preparation of tea which is sold to the customers. The accused relied on Laxmi Narain Tandons case and State of Maharashtra v. Udayram Rupram Oza (supra) for the argument that milk was not stored for sale. It was held that such argument had been repelled in earlier cases i.e. The Food Inspector, Calicut Corporation v. Charukattil Gopal and another 1972 FAC 9 and Madan Lal v. State : 1972 FAC 481 and A. K. Chakravarty & Anr. v. The State : (supra). It was held that Laxmi Narain Tandons case did not help the accused. So far as State of Maharashtra v. Udayram Rupram Oza (supra) is concerned it did not lay down correct law, It was further held that the court was bound by the decisions reported in the Food Inspector, Calicut Corporation v. Charukattil Gopalan and another (supra) and A. K. Chakravarty & Anr. v. The State (supra). 11. A single Bench of the Allahabad High Court in Mohanlal Verma v. Nagar Swasthya Adhikari, Kanpur & State of U. P. (Supra) considered a case where a Canteen was run by U, P. Government Employees Welfare Corporation, Kanpur. The Food Inspector inspected the Canteen on July 8, 1976 and took sample of milk from the canteen. The milk was found to be adulterated on analysis by the Public Analyst. The Food Inspector inspected the Canteen on July 8, 1976 and took sample of milk from the canteen. The milk was found to be adulterated on analysis by the Public Analyst. It was argued on behalf of the accused that milk was not stored for sale but was meant for preparation of tea and coffee. It was held that the appeared to have been set at rest by addition of explanation to Section 7 by Act No. 34 of 1976 which came into force on April 1, 1976 and which applied to the case. 12. I am in agreement with the view taken in Mohan lal Verma v. Nagar Swasthya Adhikari (supra) by the Allahabad High Court and Punnu Ram VMCD and the State (supra) by the Delhi High Court. Laxmi Narain Tandons case decided by the Supreme Court was a case where the sample was taken by the Food Inspector on July 25, 1966. The Food Inspector of the Municipal Corporation of Delhi got samples of ice-crem, milk, curd and butter for the purpose of analysis from Oberoi Maidens Hotel, Alipur Road, Delhi. On examination the samples were found to be adulterated. The Magistrate accepted the defence plea that the samples had been taken in the absence of the accused and there had been no breach of the law on that score. He further held that the food article of which samples were taken are not been stored for sale. In the result, the Magistrate acquitted both the respondents and against the acquittal the Municipal Corporation of Delhi carried an appeal to the High Court. The Division Bench, before which that appeal came up for hearing, referred three ques ions to a Full Bench for opinion. Thereafter, the Division Bench, merely on the basis of the answers returned by the Full Bench, upheld the acquittal and dismissed the appeal. The matter was taken to the Supreme Court by the Municipal Corporation Delhi. Their Lordship of the Supreme Court held that the Full Bench of the High Court had rightly answered the question that the expression "Store" in Section 7 means "storing for sale" and consequently storing of an adulterated article of Food for purposes other than for sale would not constitute an offence under Section 16 (1) (a) of the Act. Their Lordship of the Supreme Court held that the Full Bench of the High Court had rightly answered the question that the expression "Store" in Section 7 means "storing for sale" and consequently storing of an adulterated article of Food for purposes other than for sale would not constitute an offence under Section 16 (1) (a) of the Act. Thereafter their Lordship considered the main question, whether food made available to a resident customer in a hotel by a hotelier against a consolidated charge for all the services and amenities and food amounted to a sale of an article of food for the purposes of the Food Act ? In this regard was it held as under : "The High Court has adopted two main criteria for holding the transaction or the arrangement, in question not to be a Sale of an articled food. First, under such an arrangement, there is no transfer of the property in the food to the customer unless it is actually consumed by him. Second, the predominant character which the transaction bears if not that of a sale of an article of food but of a contract for work or services and the food supplied by the hotelier pursuant to such a transaction, is only a part of the amenities or services rendered to the customer. In our opinion, neither of the reasons holds good, if the matter is considered in the context of the Food Act. For a proper of the points for determination. It is important to bear in mind in distinction between the definition of the term sale in the Sales Tax Act am the Food Act and also the fact that the purpose, scheme and the of the two Acts are entirely different". Thereafter a comparative study of the definition of sale for purpose of to Food Act and the Sales Tax Act was made. It was held that definition of sale in Section 2 (viii) of the Food Act was wider even then its dictionary meaning. It m thus held that the mere fact that the property in the food article does not pass to to customer before he eats it, does not take it out of the definition of sale under to Food Act. In the case of food actually consumed, property does pass to the customer. It m thus held that the mere fact that the property in the food article does not pass to to customer before he eats it, does not take it out of the definition of sale under to Food Act. In the case of food actually consumed, property does pass to the customer. In other cases, even when the resident customer does not eat the food offered to hit by the hotelier, such an offer by itself would be sufficient to constitute a sale e article of food within the templation of section 2 (xiii) of the Food Act. The above authority thus clearly goes against the contention raised by the learned coun1 for the accused petitioners in the present case. 13. That apart the explanation added to section 7 of the Act now clearly lays down that for the purposes of this section, a person of shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture there from of any article of food for sale. So far as suji and milk powder are concerned, they fall within clause (iii) being articles of food for the sale of which a licence is prescribed. The case of the prosecution in the present case was that suji and milk-powder had been stored for the manufacture therefrom of meals for sale. In view these circumstances point No. 1 is decided in the negative and it is held that the article taken from the store were meant for sale and the Food Inspector was authorised to take the samples of suji and milk-powder.Point No. S. 2 & 3. - 14. The admitted facts of the case are that the goods were seized on June 24, 1976 and the same were kept in the custody of the Manager Kanhiyalal Agrawal as he was not prepared to give the samples without the permission of the trustees and had requested for 15 days time in this regard. No preservative was added and sample was taken thereafter on July 14, 1976 and the report of the Public Analyst was given on July 26, 1976. No preservative was added and sample was taken thereafter on July 14, 1976 and the report of the Public Analyst was given on July 26, 1976. Thereafter sanction was refused by the Collector Subsequently sanction for prosection was granted by C.M. & H. O. as late as February 17, 1979 and all the three complaints were filed on March 3, 1979. Learned counsel for the petitioners placed reliance on Mukand Lal v. The State : 1975(1 FAC 281. In this case the Food Inspector purchased sample of Maggajkaddu July 25, 1968. Public Analyst by a certificate, dated August 7, 1968 found the sample adulterated. It wa s held that in Punjab, both these months fall in rainy season. The atmosphere during rainy season is full of humidity in the atmosphere, the bottles in which the sample was taken, must have contained certain amount of moisture. In that season, articles of food when remain lying good many days get infested with small insects. It was further observed that in course of cross-examination Food Inspector had admitted that at the time he purchased the sample, it was not infest with insects. This admission by the Food Inspector reinforces the argument of learned counsel for the accused that the sample got infested with insects later and was not infested at the time it was purchased. It was thus held that in the facts and circumstances of the case the of the article of food recovered having been infested with insects after it purchased by the Food Inspector could not be eliminated. The accused was thus entitled to be given the benefit of doubt. In the cases in band before me in case No. 16/79 the following answer was given to the question put to the Food Inspector. Similarly in case No. 15/79 relating to milk powder, the Food Inspector gave tie following statement : In the present case admittedly the inspection was made on June 24, 1976 and goods were kept under lock without adding any preservative. The sample was thereafter taken on July 14, 1976 and the possibility of the same being infested with insects during this period cannot be ruled out. The benefit of doubt in these circumstances will certainly go in favour of the accused persons. The sample was thereafter taken on July 14, 1976 and the possibility of the same being infested with insects during this period cannot be ruled out. The benefit of doubt in these circumstances will certainly go in favour of the accused persons. The above inference is strengthened by the statement of the food Inspector himself wherein he admits that in case suji and milk powder were kept for long number of days then insects can infest the same. Thus the delay in the facts and circumstance of the present case are fatal to the prosecution case. That apart the complaint in the present case has been filed after about three years and the explanation given by the Food Inspector is hardly of any avail. The only explanation given in this regard by the Food Inspector is that the Collector had not given the sanction earlier and subsequently the C. M. & H. O. gave the sanction on account of which the delay had Accuned. If the Collector who was the sanctioning authority had refused to give the sanction, no advantage can taken by the prosecution for filing the complaint after about three years by obtaining a sanction from the C. M. & H. O. In matters of complaint in food adulteration cases, such long delay of three years cannot be countanced.Point No. 4 15. So far as the question whether provisions of Section 13 (2) of the Act are mandatory or directory, plethora of cases have been cited at the Bar but I do not want to refer those cases. The matter has been considered by the Supreme Court in a resent decision in Dalchand v. Municipal Corporation, Bhopal and another: AIR 1983 SC. 303 . In the above case the question considered was whether Rule 9 (j) was mandatory of directory, it was observed as under : "There are no ready tests or invariable for 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 of ten than not, determinative of the very question whether the provision 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 of ten than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is he avoidance or 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 above statement of law in my view is clear to hold that the provisions of Section 13 (2) of the Act are not mandatory. However, where the fact of non-compliance of the above rule was such as to wholly deprive the right of the accused to challenge the Public Analyst report, there would be just cause for complaint, as prejudice would then be writ large. In the present case admittedly Public Analyst report was not given to the accused person after the filing of complaint and as such there is a clear non-compliance of the provisions of Section 13 (2) of the Act and the accused persons have lost their right of making an application to the Court to get the samples analysed by the Central Food Laboratory. There is a clear non-compliance of Section 13 (2) of the Act and the prejudice to the accused persons is writ large.Point No. 5 16. On this point the argument of the learned counsel for the accused persons is that once a sanction was refused by the Collector then subsequently C.M. & H. O. had no jurisdiction to make a review and to grant fresh sanction. I see no force in this contention. In Parmanand Dass v. State of Andhra Pradesh : AIR 1978 SC 1745 it was held under : "It was submitted that having once declined to grant sanction, a subsequent standing Committee cannot grant sanction, on the same facts. It was contended that the grant of sanction by the Special Officer was not bona fide and was due to ulterior motive. We do not see any merit in any of these submissions. It was contended that the grant of sanction by the Special Officer was not bona fide and was due to ulterior motive. We do not see any merit in any of these submissions. Sanction given by the Commissioner was rightly rejected by the Special Judge on the ground that the Commissioner was not competent to grant the sanction being given by the Competent Authority, but the plea of the learned counsel was that the Standing Committee again considered the question but decided to drop the proceedings on the ground that it was an old case and the accused had already been reinstated in service. There could be no objection to the Standing Committee again reconsidering its decision. The validity of the case can only be considered at the time when it is filed before the Special Judge. We find that there could be no legal bar to the sanctioning authority revising its own opinion before the sanction order is placed before the Court." Thus, no valid objection can be raised on behalf of the accused person that C.M. & H.O. was not competent to grant a fresh sanction which was earlier refused by the Collector.Point No. 6: 17. Under this point learned counsel for the accused persons has raised the objection that C.M. & H.O. had granted the sanction on February 17, 1979 in the name of Dr. B.L. Gupta as Food Inspector Ex. Dy. C.M. & H.O. and on this date B.L. Gupta was not Food Inspector/Dy C.M. & H.O. and as such the sanction was bad in law. I find no force in this contention The sanction has been granted in respect of of the cases when Dr. B.L. Gupta had inspected the permises of Rani Sati Mandir and had taken the samples in the capacity of Food Inspector, There is nothing wrong if the sanction was granted subsequently in his name styling him as Food Inspector/Ex. Dy.C.M. & H.O. Dr. B.L. Gupta was the concerned Food Inspector for these cases and sanction to prosecute could have been given in his name even though on the date of sanction Dr. B.L. Gupta was not functioning as Food Inspector. 18. In view of the findings given on the points mentioned above, all these petitions are allowed and the proceedings in criminal case Nos. 15 and 16 of 1979 in the Court of the Chief Judicial Magistrate, Jhunjhunu are quashed. B.L. Gupta was not functioning as Food Inspector. 18. In view of the findings given on the points mentioned above, all these petitions are allowed and the proceedings in criminal case Nos. 15 and 16 of 1979 in the Court of the Chief Judicial Magistrate, Jhunjhunu are quashed. 19. So far as case No. 17 of 1979 is concerned it relates to the complaint that the accused persons had no licence of keeping these food articles in the stock nor any board was put on the store. Suffice to say in this regard that the learned Chief judicial Magistrate while discharging accused Moolchand has held that no licence was necessary for preparing food or ready to serve food on June 4,1976. In Rule 50 item (v) has been added by G.S.R. 1417, dated September 20, 1976 published in The gazette of India, Part, 2 dated October 2, 1976 and a licence became necessary from for preparing food or ready to serve food. It was also held by the learned Chief 'Judicial Magistrate that Dr. B. L. Gupta in his statement first said that the accused persons had no licence and then said that it was not got renewed. He had not seized any licence which according to him was not renewed on June 24, 1976. Learned Public Prosecutor was unable to show that any licence was necessary on June 24, 1976 and in these circumstances the complaint filed in this regard is also liable to be quashed. 20. In the result, the proceedings of case No. 17/79 pending in the court of learned Judicial Magistrate are also quashed.Petition allowed. *******