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2002 DIGILAW 1184 (PNJ)

S. S. Brar v. State Of Punjab

2002-11-12

ADARSH KUMAR GOEL

body2002
Judgment Adarsh Kumar Goel, J. 1. This petition seeks quashing of complaint under the provisions of the Prevention of Food Adulteration Act, 1954 (for short `the Act). Case set out in the complaint is that on 27.1.1999, sample of Vanaspati Ghee was taken from M/s. Daljeet Sales Corporation in the form of three flexible packs of one litre each of Angan Vanaspati in the same sealed condition. The said packs were wrapped in a thick strong paper separately and one part of the sample was sent to public analyst who in his report opined that free fatty acid was 0.34% against maximum prescribed standard of 0.25%. 2. It is contended that the petitioner who was Quality Control Manager of M/s. Suraj Solvent & Vanaspati Industries Limited could not be proceeded against as the Company was not arraigned as accused. Reliance is placed on judgment of the Apex Court in State of Madras v. C.V. Parekh and others, AIR 1971 SC 447. It is also contended that taking of the sample in packed condition and putting the same in a wrapper was violative of Rule 14 of the Prevention of Food Adulteration Rules, 1955 (for short `the Rules) as interpreted by Full Bench of this Court in State of Punjab v. Raman Kumar, 1997(4) RCR(Criminal) 772 and on this ground alone, proceedings are liable to be quashed. 3. Learned counsel for the State opposed the prayer for quashing and submitted that the view of the Apex Court in C.V. Parekhs case (supra) has been disapproved in subsequent decisions and mere fact that sample was taken in a thick strong paper, which was held not to be a suitable container within the meaning of Rule 14 of the Rules by the Full Bench could not be per se a ground for quashing the proceedings in absence of prejudice to the accused being shown. It was also contended that the present case may fall under Rule 24-A and not under Rules 14 to 16. 4. I have considered the rival submissions and am unable to accept the contentions on behalf of the petitioner. The view taken in C.V. Parekh (supra), was explained in Sheoratan Agarwal and another v. State of Madhya Pradesh, 1985(1) RCR(Criminal) 53 (SC) : AIR 1984 SC 1824 and also in Anil Handa v. Indian Acrylic Limited, 2000(1) RCR(Criminal) 1 (SC) : AIR 2000 SC 145. The view taken in C.V. Parekh (supra), was explained in Sheoratan Agarwal and another v. State of Madhya Pradesh, 1985(1) RCR(Criminal) 53 (SC) : AIR 1984 SC 1824 and also in Anil Handa v. Indian Acrylic Limited, 2000(1) RCR(Criminal) 1 (SC) : AIR 2000 SC 145. The first contention raised on behalf of the petitioner is, thus, rejected. 5. Next question is whether proceedings are liable to be quashed for the alleged violation of Rule 14. The said Rule is as under :- "14. Manner of sending samples for analysis :- Samples of Food for the purpose of analysis shall be taken in clean dry bottles or Jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed." 6 A perusal of the Rule shows that "suitable containers" has been prescribed to prevent "leakage evaporation", and in the case of a dry substance, "to prevent moisture." The Rule making authority has not statutorily laid down any particular container for taking a sample and only provision made is for taking the same in "bottles", "jars" or other "suitable containers". A Full Bench of this Court in Raman Kumars case, 1997(4) RCR(Crl.) 172 (supra) observed as under :- "The expression other suitable container used in Rule 14 of the Rules cannot be defined as such and this expression suitable container cannot be confined in a strait-jacket. There may be scores of suitable containers as defined in the Rules and as such it is difficult to furnish with exactitude the list of such suitable containers. The only point to be determined is as to whether a polythene container or a wrapper of strong thick paper can be called suitable container as defined in Rule 14 of the Rules. Rule 14 provides that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers, which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. Rule 14 provides that samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers, which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. A reading of the rule gives us a clear impression that other suitable containers mentioned in the Rule connotes that it should be as hard as bottles and jars and also could be closed sufficiently tight to prevent leakage, evaporation and in the case of dry substance entrance of moisture. The words bottles and jars are generally understood as closed bottles or glass jars. When interpreting other suitable containers, the provisions contained in Rule 14 of the Rules have to be read as a whole and the words suitable container take the hue from the words used in the Rule itself. The words bottles or jars mentioned before other suitable container in Rule 14 itself indicates that a suitable container should be as hard as a closed bottle or as a glass jar. The expression used in Rule 16(a) which reads as under: 16(a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit is also indicative of the fact that the container stipulated in Rule 14 will have a stopper also. With the advancement of the time some other containers are also available which are as hard as closed; though they may be made of some other hard substance like tin, hard plastic or other material like the one in which we get tooth paste, cream etc. In sum and substance a suitable container as defined in Rule 14 should be of an impervious character which should be closed sufficiently tight and carefully sealed to prevent leakage, evaporation or entrance of moisture. In our considered view, polythene containers or a wrapper of strong thick paper cannot conform to a definition of container as contained in Rule 14 of the Rules. The polythene bags or a thick paper have got a chance of being pierced. They are most susceptible to moisture, rodents, pests and can even burst with a little more pressure put on them. Such type of containers are not in a position of being closed tightly to prevent leakage etc. The polythene bags or a thick paper have got a chance of being pierced. They are most susceptible to moisture, rodents, pests and can even burst with a little more pressure put on them. Such type of containers are not in a position of being closed tightly to prevent leakage etc. A thick paper packet has the chance of even being completely wet and again is unable to prevent entering moisture into it. There are every chances of such types of containers being affected as stated above not by design but even by chance when in transit i.e. after the sample is taken by the Food Inspector in such containers and thereafter it reaches the laboratory for final analysis." 7. The question which arises is whether taking of sample in a thick strong paper or a polythene container will per se vitiate prosecution and render the proceedings liable to be quashed under Section 482 Cr.P.C. This is not a matter covered by the decision of the Full Bench and has to be examined by applying the principle of interpretation of statutes. The object of Section 11 and the relevant Rules prescribing the procedure for taking samples is to ensure correct analysis as to whether the sample of food is adulterated or not. Mere violation of procedure of taking sample cannot result in nullification of the report of public analyst unless it is shown that the said report is vitiated on account of such violation. If it can be established that result of analysis has been affected causing prejudice of the accused, prosecution case may be liable to be rejected. On the other hand, if it can be shown that result of analysis has not been adversely affected by taking of sample in a thick paper as in the present case, accused cannot be acquitted. No proceedings can be quashed merely on account of the sample having been taken in a thick paper instead of in a bottle or a jar or other suitable container. 8. In Dalchand v. Municipal Corporation, Bhopal and another, AIR 1983 SC 303, the Apex Court observed as under :- "The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. 8. In Dalchand v. Municipal Corporation, Bhopal and another, AIR 1983 SC 303, the Apex Court observed as under :- "The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than 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 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. 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." 9. In State of Kerala v. Alasserry Mohammed, AIR 1978 SC 933, the Apex Court held Rule 22 of the Rules to be directory observing :- "If the quantity sent by the Food Inspector to the Public Analyst was sufficient for analysis and caused no prejudice to the accused, then the mere fact of his sending a lesser quantity than that prescribed could not vitiate the evidentiary value of the report of the public analyst or the conviction based thereupon. In the eleventh edition of the well known treatise, Maxwell on Interpretation of Statutes, are to be found at page 362 onwards certain guidelines laid down for determining whether a particular statute or Statutory Rule is imperative or directory. Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner, no doubt, can be entertained as to the intention; that is to say such a requirement would be imperative. At page 364, it is stated : `The general Rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. At page 364, it is stated : `The general Rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially. A few principles may now be extracted with advantage from the seventh edition of Craies on Statute Law; Page 62 : When a statute is passed for the purpose enabling something to be done, and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential, and may be disregarded without invalidating the thing to be done, are called directory. Page 262 : It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed............that in each case you must look to the subject-matter, consider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory." 10. The question whether prejudice is caused to the accused is a question of fact to be examined in each case on the basis of evidence that may be led during the trial. Prayer for quashing cannot be accepted on the ground that sample was taken in a thick strong paper instead of being taken in a bottle or a jar or any other suitable container in the absence of prejudice being shown. 11. In State of Punjab v. Devinder Kumar and others, 1984(2) RCR(Criminal) 21 (SC) : AIR 1983 SC 545, the Apex Court observed as under :- "Before concluding we should observe that the High Court committed a serious error in these cases in quashing the criminal proceedings in different Magistrates Courts at a premature stage in exercise of its extraordinary jurisdiction under Section 482, Criminal Procedure Code. These are not cases whether it can be said that there is no legal evidence at all in support of the prosecution. The prosecution has still to lead its evidence. These are not cases whether it can be said that there is no legal evidence at all in support of the prosecution. The prosecution has still to lead its evidence. It is neither expedient nor possible to arrive at a conclusion at this stage on the guilt or innocence of the accused on the material before the Court. While there is no doubt that the onus of proving the case is on the prosecution, it is equally clear that the prosecution should have sufficient opportunity to adduce all available evidence." 12. For the purpose of this petition, I have assumed applicability of Rules 14 to 16 as contended by counsel for the petitioner and since prayer for quashing cannot be accepted, even on that assumption, I need not go into the contention that the present case will be governed by Rule 22-A and not by Rules 14 to 16. 13. For the above reasons, the petition is dismissed. The petitioner will be free to contest the matter in the trial Court in accordance with law. The parties are directed to appear before the trial Court on February 3, 2003.