Murlidhar - (1.) THE applicant Balji has been convicted under section 7/16 Prevention of Food Adulteration Act, and sentenced to six months R. I. and a fine of Rs. 1000/-. in default further R. I. for three months.
(2.) THE prosecution case was that on 3-11-1978 at about 2 P. M. a sample of turmeric whole (Sabit Haldi) was takan from the applicant's Kirana shop in village Korni. THE applicant's case was that the Haldi was not for sale and the sample was not taken from a shop. He claimed that he had no shop in the village and the only shop in the village belonged to his enemy Sagar Koeri. He also stated that when he was taking the Haldi for his personal use he was intercepted by the Food Inspector in front of the shop of Sagar Koeri and a sample was taken from him presumably at the instance of Sagar Koeri, his enemy. THE prosecution examined the Food Inspector about the sample taking and Panna Lal, Food Clerk in the office of the Local Health Authority, about the despatch of the notice Ex. Ka. 7 under section 13 (2) after the [institution of the case. THE applicant examined D. W. 1 Rajendra Prasad who was shown in the complaint as one of the witnesses to the sample taking and D. W. 2 Babu Ram. THE courts below believed the prosecution case and convicted the applicant. The first point urged in revision was that the finding about sample being taken from the applicant's shop and the Haldi being found to have been for sale was unsustainable. This is a finding of fact based on legitimate evidence on record. The view of the courts below that the Food Inspector's evidence was preferable to that of the two co-villagers examined in defence cannot be regarded as perverse. It was only a question of weighing evidence on the two sides and the view of the courts below must be accepted in revision. The next contention was that the applicant's right under section 13 (2) of the Act was prejudiced because he did not receive the notice alleged to have been sent by the Local Health Authority. Quaj this the unrebutted testimony of Panna Lal, Food Clerk, shows that on 3-12-1979 the notice Ex. Ka. 7 along with a copy of the Public Analyst report had' been forrwarded to the applicant per registered cover vide registration receipt Ex. 1. The applicant denied its receipt but under section 13 (2) the Local Health Authority is only responsible for sending the intimation. The requirement is not of service. If the notice is correctly addressed and sent by registered post, section 13 (2) must be taken to have been complied with. This was obviously done in the present case. It may be added that although the accused appeared in the case on 23-2-1978 there was no attempt at any stage to have the second phial with the Local Health Authority sent to the Director, Central Food Laboratory for analysis. Therefore, this point is of no avail to the applicant.
(3.) THIRDLY it was urged that there has been a breach of section 11 (3) of the Act and Rule 17, and hence the conviction is vitiated. The foundation for this argument is that the Food Inspector admitted that although he took the sample on 3-11-1978 he forwarded one phial of the sample to the Public Analyst on 6-11-1978. A reference to the calendar for that year shows that though 5-11-1978 was a Sunday, 4-11-1978 was a working day. Section 11 (3) requires the Food Inspector to send the sample to the Public Analyst by the immediately succeeding working day and it is emphasised that the imperative 'shall' is used by the statute. Rule 17 also uses the categorical language 'shall send..................immediately but not later than the succeeding working day.' Learned counsel has relied upon Bhaskar v. State of Mahrashtra, 1980 AFJ 258 and another case reported in 1976 AFJ 230 in which Sec. 13 (2) was held to be mandatory as the provisions used the word.'shall'. These decisions about the accused, right to secure Central Food Laboratory opinion cannot, in my opinion, bear upon the question whether the time limit prescribed by Section 11 (3) and Rule 17 about forwarding of the sample by the Food Inspector to the Public Analyst is mandatory. It is a well settled principle of law that the word 'shall' is by it self not conclusive on the question whether the provision is mandatory or directory and the matter has to be considered in the light of the whole scheme of the Act. The object to be secured by the provision, the mischief that is sought to be prevented and the relative mischief that is likely to result from the breach of the provision. While looked at in this way there does not appear to be any particular sanctity behind the time limit of next working day. The time which is itself flexible for if a number of holidays intervene this time limit may well extend to beyond that number of days after the date of sample taking. The only intention is that the Food Inspector should officially be as prompt as possible and should not take thing easy. Maxwell on Interpretation of Statutes, 11th Edn. at page 369 has observed : "It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done. That the Act was directory only and might be complied with after the prescribed time.'' On these principles the time limit under section 11(3) or Rule 17 cannot be held to be mandatory because a breach of the strict time limit does not affect any right of the accused nor lead to any general inconvenience or injustice. Therefore, the provision has to be regarded as only directory and in the absence of negligence or prejudice a breach of this time limit must be held as not vitiating the conviction. Lastly it was stressed that although in this case the sample was taken on 3-11-1978 the "prosecution was launched on 115-11-1979 more than one year later notwithstanding the fact [that the Public Analyst report was dated 7-12-1978 which must have been received in the second week of December 1978. The Public Analyst found the Haldi adulterated as insect infested Haldi was 18.7% against the maximum 2.5% besides it also contained living and dead insects. It has been urged that the late institution of the prosecution has itself prejudiced the applicant's right of securing Central Food Laboratory opinion pending the trial. There is no basis for contending that a delay of one year in launching a prosecution about adulterated Haldi makes the Central Food Laboratory analysis futile. The applicant never having made an attempt to secure the opinion of the Central Food Laboratory cannot be allowed to argue that the prosecution having been delayed the Central Food Laboratory analysis would have been meaningless. In fact while certain decisions about milk samples have sat a time limit when the milk is likely to deteriorate no such decision about Haldi or for that matter any other spieces has been cited. Therefore, the theory of presumed deterioration and consequent deprivation of the right under section 13 (2) cannot even be regarded as argueable in regard to Haldi when the delay is only of the order of one year.;