Rameswar Rathi and Another v. State of Assam — 1993 DIGILAW 15 (GAU)

U.L. Bhat, C.J.— A trading firm (fifth accused) and its partners were tried for an offence under section 16 read with section 7 of Prevention of Food Adulteration Act, 1954 (for short the Act). The trial Court convicted first accused (vendor - partner) and the fifth accused (firm) and sentenced the former to undergo RI for six months and to pay fine of Rs. l.000/-and in default to undergo RI for two months and the later to pay fine of Rs. 1,000/-. The appellate Court confirmed the judgment of the trial Court. Hence this revision by accused Nos. 1 and 5. 2. PW 1 the Food Inspector, Golaghat inspected the grocery shop of the firm and in the presence of PW 2 purchased samples of chillies powder and turmeric powder kept in the shop for sale and dealt with the same as required by the Act and the Prevention of Food Adulteration Rules. 1955 (for short the Rules). One part of each sample was duly sent to the Public Analyst and the remaining parts were duly sent to the Local (Health) Authority (for short LHA) in accordance with the statutory requirements. Public Analyst reported the sample of chillies powder to be adulterated and the sample of turmeric powder to be not adulterated. Accordingly, prosecution was initiated against the firm, the vendor partner and the other three partners. On the application of the accused, the trial Court sent for one part of the sample from the LHA and duly examined it and forwarded it to the Director of Central Food Laboratory (for short CFL) who issued a certificate that the sample was adulterated within the meaning of section 2 (ia) (m) of/ the Act. Presence of two of the partners could not be secured. The accused raised various defences. The trial Court held the firm and the vendor - partner guilty and acquitted the other partners. 3. The certificate of the Director of CFL shows that the sample was adulterted within the meaning of section 2 (ia) (m) of the Act, ie, it did not conform to the standards prescribed for chillies powder in A. 05.05.01 of Appendix B to the Rules. That was because of presence of coal tar dye and pulse structure and the presence of total ash in excess of the permitted percentage. 4. That was because of presence of coal tar dye and pulse structure and the presence of total ash in excess of the permitted percentage. 4. Learned counsel for revision petitioners urged the following contentions :- (a) Violation of Rule 17 (b) of the Rules which is mandatory. (b) Violation of Rule 18 of the Rules which is mandatory. (c) Delay in sending a part of the sample to the Director of CFL which is an infraction of section 13 (2 A) of the Act. (d) Violation of section 10 (7) of the Act which is mandatory. (e) Defective questioning under section 313, Code of Criminal Procedure (for short the Code). 5. Violation of Rule 17 (b) and Rule 18 : Rules 17 and 18 elaborate the provision in clause (c) of sub-section (1) of section 11 of the Act. Section 11 (l)(c) requires- the Food Inspector to send one of the threevparts of the sampte for analysis to the public Analyst intimation to the LHA and the remaining two parts to the LHA for the purpose of section 11(2) and 13 (2A) (2B). Rule 17 deals with manner of despatching containers of samples to Public Analyst and LHA. The sealed container of one part of the sample and one copy of Form VII Memorandum are required to be sent in a sealed packet to the Public Analyst and the sealed containers of two parts of the sample and two copies of Form VII Memorandum are required to be sent in a sealed packet to the LHA immediately but not later than the succeeding working day by any suitable means. Rule 18 requires a copy of the Memorandum and specimen impression of the seal used to seal the packet to be sent, in a sealed packet separately to she Public Analyst by suitable means immediately but not later than the succeeding working day. 6. Revision petitioners rely on the decisions in State of Maharashtra ts. Raikaran, (1987) SCC Supplement 183, the decision of a learned Single judge of this Court in Government Criminal Appeal Nos. 48-49 of 1982 and a few decisions of Bombay, Rajasthan, Madhya Pradesh and Punjab & Haryana High Courts to contend that Rules 17 and 18 are mandatory and non-compliance should lead to presumption of prejudice and acquittal, Learned Public Prosecutor relies on decisions of Allahabad and Kerala High Courts to contend that the Rules are directory. 48-49 of 1982 and a few decisions of Bombay, Rajasthan, Madhya Pradesh and Punjab & Haryana High Courts to contend that Rules 17 and 18 are mandatory and non-compliance should lead to presumption of prejudice and acquittal, Learned Public Prosecutor relies on decisions of Allahabad and Kerala High Courts to contend that the Rules are directory. The judgment of the Supreme Court in Rajkaran's case does not set out the facts of the case, the contents of Public Analyst's report and does not indicate that the accused applied to the Court to send a part of the sample to the Director of CFL. The judgment was based on a concession of the appellants' counsel that Rules 17 and 18 are mandatory. The judgment does not reflect any decision of Supreme Court that these Rules are mandatory. 7. The approach of the Court in deciding whether a statutory provision is mandatory or directory has been laid down by the Supreme Court in a number of decisions. These decisions have been considered by Full Benches of this Court in Bijoy Kumar Cboudhury & another vs. The State of Asrfwn, (1992)2 GLR283 [1992(2) GLJ 327] and in Criminal Revisioa No. 261 of 1982 and 262 of 1985 Ratanlal Agarwala vs. State of Assam {1993 (1) GLJ 296]; The object of the Act is prevention of public mischief, that is, adulteration of food. The general purpose of Rule 17 (a) and 18 is to ensure that the part of the sample reaches the Public Analyst safely and without delay. This is to protect public interest as it ensures that sample is untampertd and fit for analysis; this also safeguards the interest of the accused. Role 18 is intended to ensure that the Public Analyst, under Rule 7 (1) of the Rules, compares the seals on the container and the outer cover with specimen impression of the seal received separately and notes the condition of the seals. The purpose of Rule 18 is also to promote public interest and safeguard the interest of the accused by enabling the Public Analyst to satisfy himtelf tjut the container and the packet are not tampered with and to conduct analysts without delay. The purpose of Rule 18 is also to promote public interest and safeguard the interest of the accused by enabling the Public Analyst to satisfy himtelf tjut the container and the packet are not tampered with and to conduct analysts without delay. Requirement of Rule 17 (b) that the two coateiaars along with two coipids of Form VII Memorandum are sent in a separate packet serves as an additional precaution to avoid confusion that may be caused by the two containers, if not smt in one sealed packet, getting mixed up with other containers on route or in the office of LHA. It has to be noticed that LHA is not instructed not to open the sealed packet immediately. LHA must necessarily open the sealed packet to send one container to the Court under section 13 (2A) of the Act. There is no specific duty on the LHA, as in the case of Public Analyst, to compare seals on the container or the outer packet. The Court under section 13 (2B) of the Act is not required to compare seals on the container or outer packet with any specimen impression of the seal of Food Inspector. Even if the seal is not intact, the paper slip referred to in Rule 16 (c) of the Rules would ensure against tampering. To hold Rule 17 or Rule 18 to be mandatory would lead to mischievous consequences and incovenienCe as-any deliberate omission or carelessness on the part of the Food Inspector would render useless the earlier act of taking the sample. The enforcement, literally to its very letter, of the duty of Food Inspector entrusted with the statutory duty for public benefit will tend to defeat the design of the statute. The use of the expression 'shall* is not decisive in the context. To hold the Rules to be directory would not prejudice the accused. Having regard to all these circumstinces, we hold Rules 17 and 18 to be directory and not mandatory. Substantial compliance is sufficient. Mere non-compliance or defective compliance cannot lead to any consequence as long as it is not shown that defence of the accused has been thereby seriously prejudiced. Accused, if he does not apply to the Court to cause a part of the sample to be analysed at the CFL, cannot plead prejudice. Substantial compliance is sufficient. Mere non-compliance or defective compliance cannot lead to any consequence as long as it is not shown that defence of the accused has been thereby seriously prejudiced. Accused, if he does not apply to the Court to cause a part of the sample to be analysed at the CFL, cannot plead prejudice. If he so applies, the Court has the opportunity, in terms of section 13 (2-B) to ascertain that the mark and seal or fastening as provided ia section 11 (1) (b) of the Act are intact and the signature or thumb impression is not tampered with. This also would ensure that defence of the accused is not seriously prejudiced. The decision in Govt. Criminal Appeal Nos. 48-49 of 1982 does not lay down correct law. 8. PW 1 deposed that two containers of samples were duly sent to LHA. Ext. 4 report shows that the LHA received the same (Code No. and other particulars are mentioned) in good condition. The contention of the revision petitioners is that PW 1 did not depose and Ext. 4 does not show that the two containers were sent in a sealed packet and this amounts to non-compliance with Rule 17 (b) of the Rules. The Rule is directory and not mandatory. There is substantial compliance with the retirement of the Rule. On the application of the accused, Court sent for one of the samples in the custody of LHA and sent it to the Director of CFL. The Court had opportunity to ascertain that the teal mod mark on the container were intact and the signature of the vendor was not tampered with. Tbua> k can be seen that accused were not prejudiced in there defence and they are not entitled to acquittal on the ground of violation of Rule 17 (b). 9. PW 1 deposed that one copy of Form VII Memorandum containing specimen impression of seal was forwarded separately by registered post to PubKc Analyst. Revision petitioners contend that the forwarding letter and postal receipt were not produced and hence it must be taken that the document was not sent to Public Analyst. It is also contended that PW 1 did not depose that the document was placed in 'sealed packet' as required by Rule 18 of the Rules. PW 1 was not cross-examined with regard to these aspects. It is also contended that PW 1 did not depose that the document was placed in 'sealed packet' as required by Rule 18 of the Rules. PW 1 was not cross-examined with regard to these aspects. This contention was not raised in the trial Court. Public Analyst's report in this case has been superseded by the certificate of the Director of CFL. Hence any defect in the procedure adopted for sending the document to the Public Analyst can have no impact on the success or failure of the prosecutor or the proof of the guilt of the accused. The Court is concerned only with the result of analysis conducted at the CFL arid the result stated in the certificate. Though the Court charge may refer to adulteration as revealed in the Public Analyst's report, the Act does not require the charge to be formally amended in the light of the certificate of the Director of CFL and the Court has to decide the guilt of the accused in the light of the certificate. The position will not be different even if the accused had not applied to the Court to obtain opinion of the Director of CFL. That is because the Public Analyst stated in his report that he received the sample properly sealed and fastened and the seal was intact and unbroken and that the seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector. By virtue of section 13 (5), the Public Analyst's report (if not superseded by certificate of Director of CFL) may be used as evidence of the facts stated therein. Thus the facts stated in the report would establish substantial compliance with Rule 17 (b) and Rule 18 of the Rules in case where the report is not superseded by the certificate. Further, no attempt is made to show that the alleged non-compliance or defective compliance with Rule 18 of the Rules has caused any serious prejudice to the defence of the accused. Hence revision petitioners are. not entitled to accquittal on the ground of alleged non-compliance with Rules 17 and 18 of the Rules. 10. Infraction of section 13 (2.A) of the Act : Accused, on 17.11.1982 applied to the Court to cause a part of the sample to be sent to the Director of CFL. Hence revision petitioners are. not entitled to accquittal on the ground of alleged non-compliance with Rules 17 and 18 of the Rules. 10. Infraction of section 13 (2.A) of the Act : Accused, on 17.11.1982 applied to the Court to cause a part of the sample to be sent to the Director of CFL. The Court on 17.11.1982 passed order directing LHA to produce a part of the sample to the Court. It is not known when the requisition was made. LHA produced the sample in Court on 7.5.1983. The Court, on hearing both parties and conforming to requirement of section 13(2-B) sent the sample to the Director of CFL who received it on 19.5.1983. The certificate is dated 9.6.1983. It is contended by learned counsel for revision petitioner that there was delay on the part or LHA to produce in Court the part of the sample and this was in violation of section 13(2-A) of the Act which requires the LHA to forward it within five days, from the date of receipt of the requisition of the Court. 11. In Bijoy Kumar Choudhury & another vs. State of Assam, (1992) 2 GLR 283 [1992 (2) GLJ 327] (FB) this Court analysed the provisions of the Act and the Rules relating to various steps to be taken in the statutory process, indicated that periods have been fixed only in regard to a few of the procedure and no time limit has been fixed in regard to other procedures and held that this would clearly indicate the intention not to regard the prescription of period as mandatory. Period is fixed to ensure expedition in initiating prosecution and completion of trial. We hold that the period of 5 days fixed in section 13 (2B) of the Act for the LHA to forward to the Court the part of the sample is not a period of limitation and is directory and not mandatory. Substantial compliance would be sufficient. It is open to the accused to prove that the delay on the part of the LHA has caused serious prejudice to him. Unless prejudice is shown, prosecution cannot fail. In the present case in spite of the delay, Director of CFL found the sample fit for analysis. Revision petitioners made no attempt to show that they were prejudiced in any manner. Unless prejudice is shown, prosecution cannot fail. In the present case in spite of the delay, Director of CFL found the sample fit for analysis. Revision petitioners made no attempt to show that they were prejudiced in any manner. Hence the contention based on the infraction of section 13 (2B) of the Act fails. 12. Violation of section 10 (7) of the Act: According to the revision petitioners, the Food Inspector did not call independent person to witness his action has violated the mandatory provision in section 10 (7) of the Act. All laws are mandatory in the sense that they impose the duty to obey on those who come within its purview, but it does not follow that every departure from it is fatal to the proceedings. In Babulal Hargovindas vs. State of Gujarat, AIR 1971 SC 1277 the Supreme Court held that the trial is not vitiated on account of non-compliance with section 10 (7) of the Act. It may only affect the weight to be attached to the evidence of the Food Inspector in appropriate cases. The evidence of Food Inspector alone, if believed, can be relied on for proving that the sample was taken as required by law. The Food Inspector may call independent witness, but they may not be willing to co-operate. Whether the evidence of the Food Inspector could be acted upon, in case of non-compliance, would depend upon the facts and circumstances of each case. This is the principle laid down by the Supreme Court in Babulal Hargovindas's case. This principle has been followed in Baidyaoath Sah vs. State of Assam, 1980 (1) FAC 222, where Sharma, J. held that mere non-compliance without showing prejudice to the accused cannot lead to acquittal. In State of Assam vs. Sumermal Jain, (1990) 2 GLR 99 [1990 (2) GLJ 4] Saraf, J. after referring to decisions in Ramlabhaya's and Babulal Hargovindas's case, observed that: " It is clear that the provision is mandatory in so far as it relates' to the duty of the Food Inspector to 'call' one or more independent persons ...... In State of Assam vs. Sumermal Jain, (1990) 2 GLR 99 [1990 (2) GLJ 4] Saraf, J. after referring to decisions in Ramlabhaya's and Babulal Hargovindas's case, observed that: " It is clear that the provision is mandatory in so far as it relates' to the duty of the Food Inspector to 'call' one or more independent persons ...... and if he fails to do so, the Court would be careful, cautious and circumspect in dealing with his evidence -- It may weaken and sometimes even destroy the evidence." The learned Judge did not hold that non-compliance violates the action of taking the sample or the trial or leads to the presumption of prejudice; but held that it may have impact on the appreciation of evidence. This has been reiterated by Sangma, J. in State of Assam vs. Jagat Slngh, (1992) 1 GUI 6)[1992 (I) GLJ 32]. The learned Judge further indicated that non-production of inspection note provided under Rule 9 (e) of the Rules leads to an adverse inference against the prosecution following the view expressed by Lahiri, J. in State of Assam vs. Radha Oil Industries, (1987) 1 GLR 134. We are not in the present case concerned with Rule 9 (e) of the Rules or the production of the inspection note in Court. In case of non-compliance with section 10 (7) of the Act, the Court must scrutinize the evidence of the Food Inspector and other witnesses, the documentary evidence in the light of facts and circumstances of the case to decide whether the evidence can be accepted; there is no question of sampling or trial being vitiated or prejudice being presumed. In this view, section 10 (7) of the Act is directory and not mandatory. 13. PW 1 deposed that he enquired in the neighbourhood but could not find any person. There were two persons present in the shop and on his requesting them to witness his action, they refused. PW 2 Peon in the office of Chief Medical and Health Officer, witnessed his action PW 2 cannot be said to be a person dependant on the Food Inspector. It was not suggested in cross-examination of PWs 1 and 2 that there were any persons outside, in the immediate neighbourhood of the shop. Hence it cannot be said that the Food Inspector failed to observe the requirements of section 10 (7) of the Act. It was not suggested in cross-examination of PWs 1 and 2 that there were any persons outside, in the immediate neighbourhood of the shop. Hence it cannot be said that the Food Inspector failed to observe the requirements of section 10 (7) of the Act. The two Courts which considered the evidence of PW 1 and other evidence and the facts and circumstances of the case, chose to act on the same. We do not find anything unreasonable, perverse or improper in the finding. 14. According to learned counsel for revision petitioners, prejudice hat been caused in the present case inasmuch as the accused had a case that chillies powder had deteriorated and was kept out for being destroyed, and Food Inspector was so informed and if independent witnesses were present, the truth would have come out in Court. Such a suggestion was put to but denied by PW 1. Ext. 1 recites that five kilogram of chilli powder in a container was kept for sale. There is some discrepancy in the evidence of PWs 1 and 2 regarding the place where the article was kept, that is, whether in the shop or attached godown. This discrepancy has no significance in the light of the recitals in one of the contemporaneous documents, namely, Ext. 1. Accused did not adduce evidence to show that the article was meant to be destroyed; it is unlikely that the article would have been kept in the shop dr godown if it was really meant to be destroyed and not meant for sale. Even assuming that there was non-compliance with the requirement of section 10(7) °f the Act, accused have not shown prejudice and it has not affiected the value of the evidence of PWs 1 and 2. The contention based on alleged non-compliance with section 10 (7) of the Act fails. 15. Defective questioning under section 313, CfPC : It appears the contents of the certificate of the Director of CFL were not put to the accused during examination under section 313 of the Code. It is contended that revision petitioners are therefore entitled to acquittal relying on some decision? of Orissa and Punjab & Haryana High Court. 15. Defective questioning under section 313, CfPC : It appears the contents of the certificate of the Director of CFL were not put to the accused during examination under section 313 of the Code. It is contended that revision petitioners are therefore entitled to acquittal relying on some decision? of Orissa and Punjab & Haryana High Court. It is pointed out that in Uma Sankar Tewari vs. The State of Assam, (1986) 2 GLR 119 and The State of Assam vs. Dhanpat Sahu & another, 1986 (3) FAC 135, this Court remanded the cases for further trial. It is contended that since the case is several years aid, revision petitioners may be relieved of harassment by not remanding the case. These submissions are opposed by learned Public Prosecutor according to whom no prejudice has been caused to the revision petitioners and therefore the Court should not interfere. 16. Section 313 (1) (b) requires the trial Court, at the conclusion of the prosecution evidence, to question the accused generally on the case, for the purpose of enabling him to explain any circumstances appearing against him. Defective or improper or inadequate examination of the accused, is only an error, omission or irregularity which by virtue of section 465 of the Code cannot, lead to reversal or alteration of the order unless, in the opinion of the Court, a failure of justice has, in fact, been occasioned tbereby). The parallel provisions in the Code of 1898 were sections 342 and 537. In a catena of decisions, the Supreme Court has considered the provisions and indicated principles to be followed in case of such error, omission or irregularity It is sufficient to refer to a few of the decision, namely, Tara Singh vs. The State, AIR 1951 SC441; KC Mathew vs. State of TC, AIR 1956 SC 241 ; Moseb Kaka Choudhnry vs. State of West Bengal, AIR 1956 SC 536 ; SS Bobade vs. State of Maharashtra, AIR 1973 SC 2622 and SB Sarda vs. State of Maharashtra, AIR 1984 SC 1622 . The following principles can be culled out from various d cisions of the Supreme Court :- (1) Attention of the accused must be drawn every inculpatory material in the evidence so as to enable him to explain it. This is not an idle formality. The following principles can be culled out from various d cisions of the Supreme Court :- (1) Attention of the accused must be drawn every inculpatory material in the evidence so as to enable him to explain it. This is not an idle formality. As to what is or is not full compliance must depend on the facts and circumstances of each case. (2) Any omission, defect or irregularity in this behalf does not, by itself, vitiate the proceeding. Court must be satisfied that it has caused prejudice to the accused or caused failure of justice. Mere possibility of prejudice is not sufficient. (3) Where any evidentiary material is not put to the accused, the Court must ordinarily eschew it from consideration. (4) Question of prejudice must be raised in the trial Court or in any event in the appellate Court. (5) It is open to the appellate Court to call upon the appellant's counsel to show what explanation the accused has as regards the inculpatory material not put to him. If be is unable to offer and reasonable explanation, Court may assume that no reasonable answer exists and that even if the accused bad been questioned at the proper time, he could not have been able to furnish any good ground to get out of the inculpatory material on which the trial Court had relied on for conviction. In such case no prejudice has been caused to the accused. (6) Accused can ask the appellate Court to place him in the same position as he would have been had he been asked the necessary question ie to consider the explanation he would have given in the trial Court in just the same way as it would have done had it been there all along. (7) If the accused does not raise such a plea in the appellate Court, which is the ultimate Court of fact, and complains of prejudice in later stages, the inference is strong that the plea is an after thought and that there was no such prejudice. (8) If the Court is satisfied that rhere has been failure of justice the conviction has to be set aside. (8) If the Court is satisfied that rhere has been failure of justice the conviction has to be set aside. Whether the accused should be acquitted straightway or whether the case mast be remanded to enable continuance of trial from the stage contemplated is section .-13 (1) (b) of the Code has to be decided by the Court having regard to the facts and circumstances of each case. 17. In the present case, there was omission by the trial Court to put to accuaed the contents of the certificate of the Director, CFL. This contention was not raised in the trial Court or the appellate Court or even in the memorandum of revision. The certificate of the Director of CFL was procured at the instance of the accused themselves and they knew that at that stage presecution rested entirely on the certificate. They cannot therefore be heard to complain that they had no opportunity to offer their explanation or that they have been prejudiced or that there has been failure of justice. Learned counsel for revision petitioners, who raised the contention was not able to state what explanation accused would have offered had the question been put to them by the trial Court. Hence the material cannot be eschewed from consideration. The omission regarding this aspect is only a curable irregularity and cannot affect the conviction since there has been no prejudice or failure of justice. Hence the question of setting aside the conviction or remanding the case does not arise. 18. The revision petition is dismissed.