M.L. Shrimal, J. - (1.) THIS appeal by way of special leave to appeal is directed against the judgment, dated April 21, 1975, of learned Chief Judicial Magistrate, Alwar, acquitting the accused of the charge, punishable under section 7/16 of the Prevention of Food Adulteration Act, 1954 (Act No. 37 of 1954) (hereinafter referred to as 'the Act'). The prosecution story, in nut -shell, is that on January 8, 1975, PW 1 Shambu Datt Vjjay, Food Inspector, inspected and checked the shop of accused -respondent. At that time the respondent was selling Ghee. Having disclosed his identity to the accused -petitioner, the Inspector served him with a notice in Form No. 6 (Ex. P. 1) and purchased 450 grams of ghee for Rs. 9/ -. The ghee was divided into three parts, each of which was filled in three bottles. All the three bottles were sealed in the presence of the respondent. A memorandum containing details of the action taken by the Food Inspector was prepared. It has been marked Ex. P. 2. It bears the signatures of the Food Inspector PW 1 Shambhu Datt Vijay and two attesting witnesses, namely, PW 2 Shiv Charan and PW. 3 Prithvi Raj. It also bears the signature of the accused -respondent Bharat Bhushan. One sample in bottle was given to the accused -respondent and the other was sent to the Public Analyst. The third sample bottle was retained by the Food Inspector. The sealed bottle was received by the Public Analyst on 8 -1 -1974. On the report Ex. P. 3 specimen of the seal was given and it was also mentioned therein that the "bottle was properly sealed and fastended and that the seal was intact and unbroken". The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a fit condition for analysis. The Public Analyst examined the contents of the bottle and declared the result as under: This sample of 'Deshi Ghee' is adultered as its moisture content exceeds the prescribed maximum limit by 0.39%. In the opinion of the Public Analyst the sample of the ghee was adulterated as the moisture contents exceeded the prescribed maximum limit by 0.39%. The prescribed maximum of moisture contents for ghee being 0.3% according to the old Rules and 0.5% according to the new Rules. The Food Inspector filed a complaint in the court of the Chief Judicial Magistrate, Alwar, against the accused respondent for his prosecution under section 7/16 of the Act. The accused denied his complicity in the crime. The prosecution, in support of its case, examined 4 witnesses, namely, PW 1 Shambhu Datt Vijay, Food Inspector, PW 2 Shivcharan, PW 3 Prithviraj Motbir and PW 4 Shri B.L. Saxena, Public Analyst. The accused, in his statement, stated that the sample of 'Deshi Ghee' was purchased from his shop, but the Food Inspector took cut the ghee from the bottom of the tin and filled in a bottle, which was washed. He examined two witnesses in his defence. The trial court held that PW 3 was not declared hostile witness as the ghee was filled in a bottle which was washed on the spot, it cannot be said that the sample was taken strictly in according to law. He further held that it was the requirement of law that the sample must be filled in dry bottles and as it was not done, the accused was entitled to the benefit of doubt on the basis of the above findings, the learned Judge acquitted the accused vide his judgment, dated April 21, 1975.
(2.) MR . Goyal, appearing on behalf of the Municipal Council, Alwar, urged that the ghee purchased from the accused has to be recorded as adulterated due to excess moisture in it and that its sale to the Food Inspector for analysis is covered by the definition of 'sale', as given in section 2(xii) of the Act. He further urged that it was the duty of the accused to question the Food Inspector as to whether the ghee was filled into the wet bottles or dry ones. More over, the Public Analyst in his cross -examination stated that if drops of water would have been found in the bottle containing the sample of ghee, he would not have analysed the article & would have rejected the sample. That the variation found in the moisture contents exceeding 0.39% cannot be said to be a marginal one and the learned Magistrate was wrong in traveling in the realm of imagination for acquitting the accused. Mr. Sharma and Mr. Rao, appearing for the accused -respondent, supported the judgment of the trial court. Mr. Sharma urged that it was the duty of the Food Inspector to stir the contents of the tin and thereafter to take the sample. He, however, failed to do so and as such it cannot be said that the sample was taken in the manner provided by the Rules. It was further urged that the existence of the moisture in the sample of ghee, taken from the accused, was not the result of an act of the accused, but it was the creation of the Food Inspector because he filled the Ghee in the wet bottles and naturally the sample on analysis contained more moisture than the actual moisture contents of the ghee lying in his own shop. Learned counsel further submitted that the provisions of Rule 9(j) was mandatory in nature and the same ought to have been strictly complied with. The copy of the report of the Public Analyst Ex. P. 3 was neither delivered nor sent by registered post. This non -compliance has not only caused infraction but also injustice. On the facts of the case in hand, it cannot be said that compliance of Rule 9(j) was not made by the prosecution. The report of the Public Analyst Ex. P. 3 is dated January 21, 1974. Ex. P. 5 reveals that a copy of the report was dispatched No. 10636, dated January 25, 1974 and the same was received by the accused on January 28, 1974.
(3.) THE provisions of Rule 9(j), as amended by Notification, dated February 13, 1974, also cannot be said to be mandatory. By the amendment the previous Rule was substituted by a new one & the provisions relating to sending of the report of the Pubic Analyst by hand or by registered pose was substituted by the word "sent by the registered post copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within 10 days of the receipt of the said report." Thus in the new rule the words 'by hand' have been omitted and the word ten days' have been substituted in place of words' as soon as the case is filed in the Court'. Rule 9(j) provides an opportunity to the accused to take the benefit of Section 13(2), If he doubts the correctness of the report of Public Analyst, he can move an application to the concerned Court and the Court thereupon may ask the local authority to produce the sample of the article i.e. the third bottle and upon such requisition being made, the authority is bound to produce the same before the Court. On receipt of that part, the Court is required to ascertain the mark and seal and fastening of the bottle as provided in clause (b) of sub -section 11. After being satisfied that the sample has not been tampered with, the Court can dispatch the third bottle to the Director of the Central Food Laboratory and after examination he is required to send a certificate to the Court in the prescribed form showing the result of the analysis. The certificate so issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst. The accused, who does not move an application to the Court for sending the third bottle of the sample to the Director, the Central Food Laboratory, cannot be allowed to make grievance that his case has been prejudiced by not sending a copy of the report of the Public Analyst by registered post to him within ten days. The Rules of an enactment are required 10 sub -serve the purpose for which they are male. They provisions of the Prevention of Food Adulteration Act are very statutory. The Act itself has been enacted with the object of eradicating the anti social evil and for ensuring purity in the article of food. The rule lays down no penalty for its non -compliance. When a statute requires that a thing shall be done in a prescribed manner or form, but does not set out the consequence of non -compliance, the question whether the provision is mandatory or directory, has to be judged in the light of the intention of the Legislature as disclosed by the purpose and scope of the Act. It is the duty of the Court of justice to try and get at the real intention of the Legislature by carefully attending to the whole scope of the statute. Reference in this connection may be made with advantage to the following observations made by me in Shakhor vs. State of Rajasthan : 1976 WLN 697, In the face of repeated declaration made by the Parliament to stamp out food offences by severe sentence, it cannot be said that the intention of the rule -making authority was to allow the offenders punishable under the Act to get away simply because it suited a negligent officer to neglect his duty after the filing of the complaint in the court. Once the cognizance of a case against an accused is taken by the court, the judicial discretion whether to accept the particular evidence adduced at the trial, is vested in the Court. The judicial discretion vested in the court of law to rely upon or not to rely upon a particular type of evidence in the case should not be allowed to be hampered by the future action of the Food Inspector, who is nothing more than a witness in a case. Reference may be made to the following observations made by Lord Black Burn in the case. The Justices of the Peace for Middlesex vs. The Queen at paga 778. a condition as to which the responsible persons may be blamable and punishable if they do not act upon it, but their not acting upon it, shall not invalidate what they have done, third person having nothing to do with that. 13. It will be too dangerous a proposition of law to accept that the accused is entitled to an acquittal, merely because the Food Inspector has not given a copy of the report of the Public Analyst to him, though the same was given to the accused by the Court in which he was prosecuted. If it were so, it would be possible for any guilty person to escape punishment for reporting to the device. A dishonest officer would always be able to make such a mistake to allow the accused to get away from the clutches of law and defeat the very purpose of the Act and the Rule to punish such offender. It would not promote the main object of the legislature. The prescription of the statute relates to the performance of public duty, the neglect of which may be penal for the public officer and decision of a competent court. Maxwell in his book "The Interpretation of Statutes" (Ninth Edition) at page 379, while dealing with the effect of neglect of duty by a public officer, observed as under: On the other hand, where the prescription of statute relate to the performance of a public duty and where the invalidation of acts in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duly without promoting the essential aims of the Legislature, such prescriptions seems to be generally understood as mere instructions for the guidance and government of those to whom the duty is imposed, or in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. 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 that Act was directory only and might be complied with after the prescribed times Thus, the Hen IV (c. 7), which required Justices to try rioters "within a month" after the riot, was held not to limit the authority of the Justices to that space of time, but only to render them liable to a penalty for neglect. To hold that an Act which required an officer to prepare and deliver to another officer a list of voters on or before a certain day, under a penalty made a list not delivered till a later day invalid, would, in effect put it in the power of the person charged with the duty of preparing it to disfranchise the elector, a conclusion too unreasonable for acceptance. (1976 WLN Page 697) Rule 22 of the Rules of 1955 came up for consideration before a bench of five Judges of the Supreme Court in case of State of Kerala vs. Alassery Mohd. : AIR 1978 SC 933. Their Lordships while over -ruling their previous judgment in Rajaldas Gurnnamal Pamnani vs. State of Maharashtra : 1975 (3) SCC 375, held the rule to be directory and not mandatory. On the parity of reasoning Rule 9(j) need to be declared directory.;