Kunhikannan v. Food Inspector — 1994 DIGILAW 265 (KER)

Judgment :- K. Sreedharan, J. This revision petition has come before us on a reference order passed by a learned Single Judge of this Court doubting the correctness of the decision in Kanaran v. State of Kerala, (1991(2) K.L.T 908). The question that is to be considered by us is whether the Magistrate who sends a sample to the central Food Laboratory for analysis should comply with the provisions contained in R.4 of the Prevention of Food Adulteration Rules, hereinafter referred to as the Rules 2. The short facts necessary for the disposal of this revision petition are as follows: - On 9-10-1987 at about 3 P.M. Food Inspector, Kanhangad Circle inspected the grocery shop of the accused and purchased 750 gms of Thovara from the stock exposed for sale, for the purpose of analysis. He sampled the same after observing all the formalities. (There is no contention that the Food Inspector violated any of the provisions of the Prevention of Food Adulteration Act or the Rules in sampling or in sending the sample to the Public analyst). One of the samples was analysed by the Public Analyst, The Public Analyst reported that the sample does not conform to the standards under the Rules and therefore adulterated. On the basis of the report of the Public Analyst, complaint was filed before the Court. Copies of the Public Analyst's report and intimation as required under S.13(2) of the Prevention of Food Adulteration Act, hereinafter referred to as the Act, were sent to the accused. Accused filed Crl.M.P.236/88 for sending one of the samples to the central Food Laboratory. The sample was. accordingly sent by the Magistrate to the central Food Laboratory. After analysis, the Director, central Food Laboratory, Pune sent Ext. P13 certificate. That certificate, showed that the sample contained 1.44% of Inorganic matters by weight and 0.41% of Organic matter. 0.83% by weight was found to be damaged grains. 60.94% by count was Insect damaged. Uric Acid mgs/100 gms was found to be 300.12.57% by weight was the Moisture content. Director also found presence of living and dead insects in the sample. Consequently he opined that the sample does not conform to the standard of food grains as per the Rules. 3. On the side of the prosecution, P.Ws.1 to 5 were examined and Exts. P1 to P25 were marked. Director also found presence of living and dead insects in the sample. Consequently he opined that the sample does not conform to the standard of food grains as per the Rules. 3. On the side of the prosecution, P.Ws.1 to 5 were examined and Exts. P1 to P25 were marked. No evidence oral or documentary was let in by the accused. While cross-examining P. W.S, the Circle Food Inspector who purchased the article of food from the accused and sampled the same, questions were asked whether Ext. P13 certificate of the Director, central Food Laboratory showed that the seal on the sample and that in the outer cover tallied with the specimen seal sent separately. He gave the reply in the negative. 4. On the basis of the evidence, the learned Magistrate found the accused guilty of the offence punishable under S.16(1)(a)(i) read with S.7(i)(iii) and S.2(ia)(a)(f) and (m) of the Act and Rule 5 appendix B of the Rules. Thereupon he was sentenced to undergo simple imprisonment for six months and also to pay a fine of Rs. 1000/-. This conviction and sentence were challenged in Crl. Appeal No.43/80 before the Sessions Court. Learned Sessions Judge dismissed the appeal and hence this revision petition. 5. The only question that was urged before us was that while sending the second sample to the central Food Laboratory, provisions contained in R.4 of the Rules were not complied with. The non-compliance of the mandatory provisions contained in R.4, according to counsel, is fatal to the prosecution. R.4 contains certain safeguards for the accused. They are meant for making sure that the sample that was sent by the Court was infact analysed by the central Food Laboratory without it being altered or tampered with. The provisions of R.4 which are to safeguard the interest of the accused must be strictly complied with. The compliance with that provision should be clearly established by the prosecution. The failure on the part of the prosecution to establish the same is fatal to its case. In the instant case, according to counsel, the prosecution has not cared to place before court the records to establish the compliance with R.4. In the absence of such records, the court should not have acted upon the certificate, Ext. P13 sent by the central Food Laboratory. 6. In the instant case, according to counsel, the prosecution has not cared to place before court the records to establish the compliance with R.4. In the absence of such records, the court should not have acted upon the certificate, Ext. P13 sent by the central Food Laboratory. 6. As stated earlier, while cross-examining the Food Inspector, learned counsel representing the accused put the question as to whether Ext. P13 contained an endorsement that the seal on the sample and the outer cover tallied with the specimen seal sent separately. Ext. P13 does not state that the seal of the sample and that of the container tallied with the specimen seal sent separately. What Ext. P13 states is "the seal were intact". That was the entry against item 2 namely, the condition of seal on the container and the outer covering on receipt. The question is whether R.4 is to be complied with by the Magistrate when he sends the second sample to the central Food Laboratory for analysis. 7. In Kanaran v. Stale of Kerala, 1991(2) KLT 908, a learned single judge of this Court took the view that R.4(2) and (3) must be held to be mandatory and non-compliance would render the certificate of the Director inconclusive. The learned judge went on to observe that when there is a statutory prescription for doing an acj in a particular manner, and it is mandatory, it has to be done in the manner prescribed and that failure could not be executed or condoned even in spite of failure to prove prejudice to the party sought to be affected by the Act. The learned judge who held so himself has doubted its correctness and hence the matter has come before us. 8. Section 11 of the Act deals with procedure to be followed by the Food Inspectors when he takes a sample of food for analysis. When a sample of article of food is taken by the Food Inspector, as per clause (3) of S.11, he shall send a sample of the article of food in accordance with the Rules prescribed for sampling to the Public Analyst for the local area concerned. As per this section, how the Food Inspector shall send the sample of food to the Public Analyst should be as prescribed by Rules. As per this section, how the Food Inspector shall send the sample of food to the Public Analyst should be as prescribed by Rules. When the procedure is prescribed by the Rules, the Food Inspector has to comply with the same. The manner of despatching containers of sample is prescribed in R.17 of the Rules. R.18 of the Rules mandates that a copy of the memorandum and specimen impression of the seal send to seal the packet shall be sent in a sealed packet separately to the Public Analyst by any suitable means immediately but not later than the succeeding working day. So the Food Inspector while sending the sample to the Public Analyst should follow Rules 17 and 18. Whether the provisions of R.17 and 18 are mandatory or directory came up for consideration before courts. According to learned counsel representing the petitioner those provisions are mandatory and any violation is fatal to the prosecution. In support of this contention, he. relies on the decision in State of Maharashtra v. Rajkaran, 1987 (Supp.) SCC 183. In that case, the trial court convicted the accused for selling an article of food in which a prohibitory coal tar dye was present. The appellate court acquitted him. The High Curt confirmed the acquittal. When the matter was taken up before the Supreme Court by the State, it was contended that acquittal on the ground that the requirement of R.18 is mandatory and non-compliance affects the prosecution was untenable. Their Lordships observed: - "The Appellate court took the view that when the prosecution came with the story that the material has been despatched by registered post, it was to establish its case of such despatch and did not accept the version of the prosecution in the absence of the postal receipt. What the appellate court has found is that the prosecution has failed to establish that the documents referred to in R.18 had been separately sent. That led to the conclusion that there was non-compliance with the scheme covered in Rules 17 and 18 of the Rules. Counsel for the appellant does not dispute that it is mandatory to have the materials in Rules 17 and 18 separately sent to the Public Analyst. We accept that there is a purpose behind this requirement and when there is non-compliance, the prosecution is to fail. Counsel for the appellant does not dispute that it is mandatory to have the materials in Rules 17 and 18 separately sent to the Public Analyst. We accept that there is a purpose behind this requirement and when there is non-compliance, the prosecution is to fail. We are satisfied that in the present case the acquittal is based on the finding that the prosecution has failed to establish despatch of the materials referred to in R.18 separately by registered post. We are of the view that the acquittal was thus justified." From the above passage, it is clear that the appellant before the Supreme Court proceeded as if Rules 17 and 18 are mandatory. Therefore Their Lordships had no occasion to consider whether those Rules are mandatory. Consequently it cannot be held that the above decision is authority for the proposition that Rules 17 and 18 are mandatory. This view was taken by a Bench of this Court in Kunhamu v. Food Inspector, 1989(1) KLT 707. That Bench took the view that R.17 is not mandatory in the sense that mere failure to observe all formalities required in R.17 would lead to acquittal without showing prejudice to the accused. The accused certainly is entitled to take advantage of the non-compliance with the provisions if he satisfies the court that he was thereby prejudiced. We are in respectful agreement with the view expressed by the Bench. 9. Public Analyst after analysing the sample received by him from the Food Inspector should deliver a report of the analysis to the Local (Health) Authority. That report is to be in the form prescribed by the Rules. On receipt of the report of the result of the analysis to the effect that the article of food is adulterated, the Local (Health) Authority should after the initiation of the prosecution forward a copy of the report of the result of the analysis to the person against whom prosecution has been launched. The manner in which that report is to be sent to the person against whom prosecution is launched is the one as prescribed in the Rules. The manner in which that report is to be sent to the person against whom prosecution is launched is the one as prescribed in the Rules. He must be informed that if he so desires, he may make an application to the court within a period of 10 days from the date of receipt of the copy of the report to get the sample of the article of food analysed by the central Food Laboratory. When the accused makes an application to the court as required in Cl. (2) of S.13, the court shall require the Local Health Authority to forward the part or parts of sample kept by it. On getting such a requisition, the Local Health Authority should forward the samples to the court within a period of 5 days. On receipt of the part or parts of the sample from the Local (Health) Authority, the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of S.11 are intact and the signature or thumb impression is not tampered with. When the court is satisfied that the seal and the signature or thumb impression are not tampered with, one of the parts of the sample shall be despatched to the Director of central Food Laboratory under its seal. The Director of central Food Laboratory shall then analyse the same and send a certificate to the court in the prescribed form within one month from the date of its receipt. 10. As per S.13, the Local (Health) Authority is to forward the report of the Public Analyst in the manner prescribed by the Rules. This shows that the manner in which the Local (Health) Authority is to act is prescribed in the Rules. While one comes to clause (2-B) of S.13, it is seen that the court is enjoined to despatch one of the parts of the sample under its own seal to the Director of central Food Laboratory. It is not stated that the despatch is to be in the manner prescribed. In other words, the manner in which the court is to despatch the sample to the Director of central Food Laboratory is not as prescribed in the Rules. The court need not only send it under its own seal. It is not stated that the despatch is to be in the manner prescribed. In other words, the manner in which the court is to despatch the sample to the Director of central Food Laboratory is not as prescribed in the Rules. The court need not only send it under its own seal. When the section prescribes the particular mode in which the article is to be sent to the central Food Laboratory and there is nothing to the contra in the Act, the Rules cannot prescribe a separate procedure or manner. It is tritle law that the subordinate legislation cannot vary or alter the specific provision contained in the Statute. 11. Rule 4 of the Rules is the following terms: - 4. Analysis of food samples:-(1)(a) Samples of food for analysis under sub-section (2) of S.13 of the Act shall be sent either through a messenger or by registered post in a sealed packet, enclosed together with a memorandum in Form I in an outer cover addressed to the Director. (b) Samples of food for analysis under sub-section (2) of S.6 of the Actor under clause (a) of R.3 shall be sent either through a Messenger or by registered post in a sealed packet enclosed together with a memorandum in Form IA in an outer cover addressed to the Director. (2) The container as well as the outer covering of the packet shall be marked with a distinguishing number. (3) A copy of the memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director. (4) On receipt of a package containing a sample for analysis the Director or an officer authorised by him, shall compare the seals on the container and the outer covered with specimen impression received separately and shall note the condition of the seals thereon. (5) After test or analysis, the certificate thereof shall be supplied forthwith to the sender in Form II. (6) The fees payable in respect of such a certificate shall be Rs. 40 per sample of food analysed. (7) Certificates issued under these rules by the Laboratory shall be signed by the Director. (5) After test or analysis, the certificate thereof shall be supplied forthwith to the sender in Form II. (6) The fees payable in respect of such a certificate shall be Rs. 40 per sample of food analysed. (7) Certificates issued under these rules by the Laboratory shall be signed by the Director. Clause (3) states that while sending the sample a memorandum is to be prepared and it should be sent separately together with a specimen impression of the seal used to seal the container and the cover. Clause4 of the Rules mandates that the Director of central Food Laboratory or an officer authorised by him should compare the seals on the container and the outer cover with the specimen impression received separately and shall note the condition of the seals thereon. This is an entirely new procedure vis-a-vis that prescribed in clause (2-B) of S.13 of the Act. According to us, the provision contained in cl.(2-b) of S.13 cannot in any way be varied or altered by the Rules which is only a subordinate legislation. In this view of the matter, various clauses of R.4 can never be considered as mandatory the non-compliance of which will be fatal to the prosecution. 12. As per S.13(2-B) of the Act on receipt of the sample from the Local (Health) Authority, the Court should first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of S.11 are intact and the signature or thumb impression, as the case may be, is not tampered with. Once when the magistrate come to the conclusion that they were not tampered with, then he need despatch one part of the sample under the seal of the court to the Director of central Food Laboratory. Has the learned Magistrate complied with this provision in the instant case? Crl.M.P.236/88 was filed by the accused before the Magistrate under S.13(2) of the Act for sending one sample to the central Food Laboratory. On that petition the Magistrate made the following endorsement: - "Second sample produced by the, Cannanore. I have verified and satisfied that the mark and seals are intact and the signature is not tampered with. Forward the second sample to the C.F.L., Poona and deposit of necessary fees forthwith." This endorsement proves beyond any doubt that the learned Magistrate did comply with the mandate contained in S.13(2-B) of the Act. I have verified and satisfied that the mark and seals are intact and the signature is not tampered with. Forward the second sample to the C.F.L., Poona and deposit of necessary fees forthwith." This endorsement proves beyond any doubt that the learned Magistrate did comply with the mandate contained in S.13(2-B) of the Act. He ordered the court to forward the second sample to the central Food Laboratory. In compliance with that order, the office forwarded the sample to the central Food Laboratory. When it reached the central Food Laboratory, the Director found that the seals were intact. Thus it is crystal clear that the procedure prescribed by the Statute has been strictly complied with in this case. 13. While sending the sample in the instant case to the Director of central Food Laboratory, Pune, the Magistrate was performing a legal duty enjoined on him rjy S.13(2-B) of the Act. From the order passed by him in Crl.M.P.236/88, it is seen that he directed the office to forward the second sample to the central Food Laboratory, Pune. On receipt of the sample, the Director of central Food Laboratory certified that the seal was intact. The official act which is shown to have been performed should be presumed to have been regularly performed. The duty that was performed by the Magistrate in this case was one performed in the ordinary course of business. There was no unexceptional circumstances giving room to doubt the regularity of his action. In such circumstances, such an action is entitled to the protection of the presumption under S.114 of Illustration (e) of the Evidence Act. Whether an act performed by the Magistrate in compliance with the mandate of S.13(2-B) of the Act is entitled to the benefit of presumption under S.114(b) of the Evidence Act was considered by a Full Bench of five judges of this Court in Mathukutty v. State of Kerala, 1987(2) K.L.T 867. This Court held: - "Court has to ascertain that the mark, seal or fastening are intact and the signature or thumb impression has not been tampered with and thereafter despatch the same to the Director as indicated in R.4 of the Rules. Sub-section (2-B) does not require the court to certify or make a record of these steps contemporaneously or even subsequently. The official act enjoined on the court is to despatch the sample. Sub-section (2-B) does not require the court to certify or make a record of these steps contemporaneously or even subsequently. The official act enjoined on the court is to despatch the sample. Essential formalities are those mentioned in S.13(2-B) There is no dispute that the official act has been performed in this case. S.114 Illustration (3) enables the court to presume mat the official act has been regularly performed. The superior court may in its discretion presume that the official act of despatching the sample to the Director of central Food Laboratory has been performed regularly, that is, after taking all such steps and precautions as are required to be taken under S.13(2B) of the Act. Since the Authority involved is a Court, we see no reason to hesitate in drawing such a presumption ". In the instant case, after discharging the duty enjoined on him under S.13(2B) of the Act, the Magistrate directed to forward the sample to the central Food Laboratory. None has got a case that in forwarding the sample the Magistrate violated the provisions contained in S.13(2B) of the Act. The sample so forwarded by the Magistrate reached the Director of central Food Laboratory with its seal intact. Therefore the official act of sending the sample to the central Food Laboratory must be taken to have been regularly performed. In the absence of any evidence to dispel this presumption, the court cannot hold that R.4 was violated in this case. That part of the Rule 4 which goes against S.13(2B) of the Act must be held to be ultra vires the Act. 14. Whether a particular pro vision of the Statute is to be regarded as mandatory or directory came up for consideration before the Supreme Court. In Dalchand v. Municipal Corporation, Bhopal, A.I.R 1983 SC 303, the Court held: - "There are no ready tests or invariable formulae 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 often man 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 often man not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief but the enforcement of a particular provision literally to its letter will tend to defeat mat 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. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute." This view has been followed by Their Lordships in the decision in Tulsiram v. Slate of Madhya Pradesh, A.I.R 1985 SC 299. If the provisions contained in R.4 are held as mandatory and the non-compliance of it by the Magistrate when discharging his duties under S.13(2B) of the Act is taken as fatal to the prosecution, that interpretation will, according to us, certainly promote public mischief and defeat the main object of the Statute. It is more so when it is seen that clauses (3) and (4) of R.4 are conflicting with the procedure fixed by S.13(2B) of the Act. Thus we have no hesitation in holding that the revision petitioner is not entitled to challenge the conviction entered against him by the courts below on the ground of violation of the pro visions contained in R.4 of the Act. 15. Learned counsel representing the petitioner tried to bring out a case that the certificate of the Director of central Food Laboratory cannot be accepted on account of the: variation seen from the report of the Public Analyst. This approach made by the, learned counsel is only to be stated to be rejected. 15. Learned counsel representing the petitioner tried to bring out a case that the certificate of the Director of central Food Laboratory cannot be accepted on account of the: variation seen from the report of the Public Analyst. This approach made by the, learned counsel is only to be stated to be rejected. Once the report of the Public Analyst is superseded by the certificate of the Director of central Food Laboratory there is no report of the Public Analyst available in the eye of law for comparison with the certificate issued by the Director. The Court cannot therefore legitimately make any comparison and arrive at any conclusion which will be in variance with the certificate issued by the Director. If any comparison is attempted to be made, it will amount to violation of the provisions contained in Cls. (3) & (5) of S.13 of the Act. In view of what has been stated above, we hold that the law stated by learned Single Judge in Kanaranv. State of Kerala, 1991(2) KLT 908, is not correct and we overrule the same. Crl. Revision Petition fails. It is accordingly dismissed. Petitioner is directed to surrender to the bail bonds to serve the sentence.