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Allahabad High Court · body

1984 DIGILAW 309 (ALL)

PREETAM CHAND JAIN v. STATE OF U. P.

1984-04-12

K.C.AGRAWAL

body1984
K. C. AGRAWAL, J. ( 1 ) THIS criminal revision has been preferred by Preetam Chand Jam against the Judgment of the Sessions Judge, Lalitpur, passed in Criminal Appeal No. 74 of 1979, upholding the conviction and sentence of the applicant awarded to him under Sections 7/16 of the Prevention of Food Adulteration Act. ( 2 ) ON 30/10/1976 at about 10. 00 A. M. Ram Prakash, Food Inspector, went to village Buragaon of district Lalitpur and inspected the shop of the applicant Preetam Chand Jam. He found the applicant selling ground-nut oil. Suspecting it to be adulterated, the Food Inspector disclosed his identity and purchased 375 grammes of oil for test by the Public Analyst. He performed the formalities needed under the Prevention of Food Adulteration Act and the Rules framed thereunder to be complied with for obtaining the sample and thereafter sent the same to the Public Analyst. On report of the Public Analyst, the ground put oil obtained from the shop of the applicant was found to be deficient being not in accordance with the standards prescribed by the Act and the Rules. ( 3 ) ON 21/12/1976, the Food Inspector sent a copy of the report of the Public Analyst along with a covering letter to the applicant stating that the report of the Public Analyst indicated that the ground nut oil of the applicant, the sample of which was taken on 30/10/1976 was adulterated. It was further mentioned in this letter that in case the applicant doubted the correctness of the report of the Public Analyst, he could send the second foil of the sample to the Central Food Laboratory, Calcutta, for examination and checking. ( 4 ) ON 23/12/1976, sanction was obtained from the Chief Medical Officer, Lalitpur, for lodging a complaint against the applicant. In pursuance of such sanction, a complaint was filed in the court of the Chief Judicial Magistrate. Lalitpur, on 5th January, 1977, on which the applicant was summoned on 2/2/1977. ( 5 ) THE applicant pleaded not guilty and asserted that no sample of ground-nut oil had been obtained from his shop by the Food Inspector on 30/10/1976. He also denied that the ground nut oil was deficient or was not in accordance with the prescribed standards. Lalitpur, on 5th January, 1977, on which the applicant was summoned on 2/2/1977. ( 5 ) THE applicant pleaded not guilty and asserted that no sample of ground-nut oil had been obtained from his shop by the Food Inspector on 30/10/1976. He also denied that the ground nut oil was deficient or was not in accordance with the prescribed standards. ( 6 ) THE Chief Judicial Magistrate, Lalitpur convicted the applicant for the offence under Section 7 read with Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act. The appeal preferred by the applicant to the Sessions Judge was dismissed. Hence, this revision. ( 7 ) BEFORE the High Court, learned counsel appearing for the applicant mad three submissions. As in my opinion the revision is entitled to succeed on the point of non-compliance of Section 13 (2), it is not necessary to mention other points. Section 3 (2) was inserted in the Act by Act No. 34 of 1976, which came into force on 1st April, 1976. The said, section reads as under: 13 (2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may - be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of- the report to get the sample of the Article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. It has now been provided by Section 13 (2) that Public Analyst will deliver the report to the Local (Health) Authority instead to the Food Inspector, as was provided in the old section. It has now been provided by Section 13 (2) that Public Analyst will deliver the report to the Local (Health) Authority instead to the Food Inspector, as was provided in the old section. On receipt of the report, the Local (Health) Authority shall, after the institution of the prosecution against the person from whom the sample was taken and the person, if any, whose name, address and other particulars have been disclosed by the vendor, forward a copy of the report of the result of the analysis to the vendor informing that he may, if he so desired, make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. When such an application is made to the court, on an order being made, the Local (Health) Authority shall forward a part of the sample in his possession to the court within a period of five days from the date of, receipt of such requisition. In such a case, the court shall not continue with the proceedings pending before it until it receives the report of the result of the analysis by the Director of Central Food Laboratory. ( 8 ) THE requirement now is that after the institution of the prosecution, the Local (Health) Authority is required to send a letter along with a copy of the analysis to the person concerned informing that within a period of ten days he could get it analysed by the Central Food Laboratory. The information has thus to be given after the institution of the proceedings. ( 9 ) IN the instant case, the facts disclosed above would indicate that no information was sent to the applicant after the, institution of the prosecution. The Food Inspector wrote a letter on 21. 12. 1976 before the institution of the prosecution which was done on 5/1/1977. The prosecution, therefore, did not comply with Sub-section (2) of Section 13. The letter sent by the Food Inspector to the applicant was for complying with the old provision, Rule 10 (f ). He did not appear to have any knowledge of Section 13 (2) when he did so. Section 13 (2) had come into operation much before the sample was taken from the applicant. The letter sent by the Food Inspector to the applicant was for complying with the old provision, Rule 10 (f ). He did not appear to have any knowledge of Section 13 (2) when he did so. Section 13 (2) had come into operation much before the sample was taken from the applicant. ( 10 ) THE next question that arises is whether non-compliance of Section 13 (2) has made the conviction of the applicant illegal. The language of Section 1312) leaves no room for doubt on its correct interpretation that compliance of the same is a necessary condition and failure to do so would render it invalid. The expression institution used in Section 13 (2) means after the commencement of the proceedings. The proceedings commenced when the complaint was filed, before the Chief Judicial Magistrates court. Under Subsection (2) of Section 13 since a right is conferred on a person to get the sample of the article sent for analysis by the Central Food Laboratory, he would be deprived of the right if the analysis is sent to him before filing of the complaint. This question has been a subject matter of decision in a number of cases. All the Courts have taken the view that the institution of prosecution under Section 13 (2) means filing of the complaint after complying with the prerequisites of Section 20 (1) of the Prevention of Food Adulteration Act. In Jyoti Kumar Sen v. The State, a Division Bench was called upon to consider a similar controversy. The Bench held that the compliance of Section 13 (2) has to be made - after the prosecution has been instituted. ( 11 ) THE argument of the learned counsel for the State that Section 13 (2) was directory in nature and, as such, non-fulfilment or noncompliance of the same would not render the prosecution of the application invalid. He urged that the letter written and the copy of the report of the Public Analyst sent even before the institution of the prosecution would be in accordance with Section 13 (2) and, as such, no prosecution can fail on that ground. The submission made is not correct. He urged that the letter written and the copy of the report of the Public Analyst sent even before the institution of the prosecution would be in accordance with Section 13 (2) and, as such, no prosecution can fail on that ground. The submission made is not correct. Under Section 13 (2) a right has been given to the person who is being prosecuted to get the sample of the article sent to the Central Food Laboratory by applying within ten days of the receipt of the letter. This right an accused would not be entitled to -exercise if the report is sent before the institution of the prosecution. ( 12 ) IN Dal Chand v. Municipal Corporation, Bhopal the Supreme Court was called upon to consider whether Rule 9 (1) (j) of the Prevention of Food Adulteration Act was mandatory or directory. Holding the said rule to be directory, the Supreme Court observed that no tests or invariable formulae to determine whether a particular provision in a Statute is mandatory or directory can be laid down. In order to consider whether a particular provision is directory or mandatory, the broad purpose of the Statute is important. In this connection, the Supreme Court observed: The weighing of the consequences of holding a provision to be mandatory I or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory Where the effect of non-compliance, was such as to wholly deprive the right of the person to challenge the Public Analysts report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. In this case, the Supreme Court found that non-compliance of Rule 9 (j) of the Prevention of Foodadulteration Act merely instructed the Food Inspector to send copy of the report to the person from whom sample was taken within ten days. The requirement of sending the report within ten days did not cause any prejudice to that person. The period bad been laid down with a view to expedition to the person from whom the sample was taken to challenge the report of the Analyst by giving him time to make such arrangements as he may like to do. The requirement of sending the report within ten days did not cause any prejudice to that person. The period bad been laid down with a view to expedition to the person from whom the sample was taken to challenge the report of the Analyst by giving him time to make such arrangements as he may like to do. ( 13 ) THUS, it would be seen that if no prayer for examination by the Central Food Laboratory is made within ten days, that right is destroyed once for all. The accused would not be entitled to apply for the examination of the sample by the Central Food Laboratory thereafter. Rule (9) (f) has now been deleted and in its place Rule 9-A was substituted. Although this rule 9-A had come into force on 4/1/1977, but that does not whittle away the requirement of Section 13 (2), which became operative on the date when it came into force. ( 14 ) FOR these reasons, the revision succeeds and is allowed. The conviction and sentence of the applicant awarded to him by the courts below are set aside and he is acquitted of the charge under Section 7/16 of the Prevention of Food Adulteration Act. The applicant is on bail. He need not surrender. His bail bonds are discharged. Revision allowed. .