- (1.) A complaint under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') was filed against Nanak Ram. On Oct. 17. 1977 the Assistant Public Prosecutor filed an application to implead Jaman Dass and Gurnamal. On the application filed by the Food Inspector, Kota. the Chief Judicial Magistrate. Kota took cognizance against accused Nos. 2 and 3 also. An application was filed before the learned Magistrate on behalf of the accused for quashine the proceedings on the ground that compliance of the provisions of Clause (i) of Rule 9 of -the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the Rules') was not made. Learned Chief Judicial Magistrate held that the objections raised before him could be decided after recording of the evidence at the time of final arguments of the case and rejected the application. He subsequently framed charge against the accused for selling adulterated 'kali Mirch'. Being aggrieved of the order dated August G. 1980 and framing of the charge the accused filed an application under Section 482, Cr. P. C. 1973 in this Court, which came up for decision before Hon'ble Mr. Justice M. B. Sharma (as he then was ). Learned Judge, referred the application to the larger Bench for decision, because in his view the provisions of Rule 9 (i) of the Rules are directory, whereas a single Bench of this Court in Chas held that Rule 9 (j) of the Rules is mandatory.
(2.) A single Bench of this Court to which one of us was a party in Shakoor v. State 1977 (2) FAC 83 : 1977 Cri LJ NOC 238 by detailed discussion after making reference to the observations made in Maxwell's Interpretation of Statutes, 9th Edition Vol. I. passe 379 and other cases held: A close reading of Rule 9 (i) would reveal that, the object behind the rule was to give notice to the accused that a complaint has been filed against him under the Act, and if he so desires to take advantage of Section 13 (2) of the Act, he should keep the sample bottle given to him well preserved. The object of this provision is to promote the private interest of an individual and the person affected can always waive it. For this reason also, this rule cannot be held to be mandatory. The Rule 9 (j) in itself does not create a right in favour of an. accused in a case to earn his acquittal simply because the Food Inspector in a particular case was negligent in not sending the report to the accused. The conviction and the acquittal of the accused in a case involving the health of the community at large cannot be made dependent on the alterness or negligence of a Food Inspector. The rules of an enactment are required to subserve the purpose for which they are made. They cannot, be allowed to set up the main enactment and defeat the very purpose of the Act for which they have been framed. The liberty of a citizen is no doubt, important, but the very maintenance and upkeeping of society cannot be allowed to be jeopardised by the sweet, will of a negligent officer. If the interpretation given by the learned Counsel for the accused-petitioner is accepted. Section 13 (2) will become otiose.
(3.) A Full Bench of the Punjab High Court, in Kashmiri Lai v. State of Haryana AIR 1982 NOC 126 : 1982 Cri LJ 311 held Rule 9 (ii) of the Rules to be directory and not mandatory. Their Lordships observed as under: R. 9 (j) is directory though obviously the Food Inspector upon whom the duty is enjoined is obliged to follow the same. Even though the word "shall" has been employed in the opening part of Rule 9 it cannot, be said that the use of this word by itself is decisive. A statutory provision even though couched in mandatory terms may in essence be directory. The exceeding of time limit in supplying to the accused a copy of report of the public analyst by a day or two or a few days would not necessarily or gravely prejudice an accused person in his defence during the course of the trial. On principle, therefore, it seems difficult to hold that the time limit mentioned in Rule 9 (j) is so strict. rigid and inflexible that, the very noncompliance thereof must entail a vitiation of the whole proceedings. ;