- (1.) THIS revision petition is directed against the judgment of the learned Sessions Judge, Jodhpur. dated July 31, 1972, affirming the judgment dated April 6, 1972, of the learned Municipal Magistrate, Jodhpur, whereby he convited the accused-petitioner under section 7/16 of the Prevention of Food Adulteration Act (No. XXXVII of 1954) (hereinafter referred to as 'the Act') and sentenced him to six months' simple imprisonment and a fine of Rs 1,000/- or in default of payment of fine to further undergo simple imprisonment for a period of six months.
(2.) THE prosecution story, in nutshell is that on August 23, 1968, PW. 1 Maghraj, Food Inspector, saw that the accused was selling milk. Suspecting the milk to be adulterated he gave a notice in from No. VI (Ex. P/l) and purchased 750 Gms. of milk for 37 Paisa THE milk was divided into 3 parts. Each part was then filled in a clean bottle. All the three bottles were sealed in the presence of the petitioner. A memorandum containing the details of the action taken by the Food Inspector was prepared and is marked as Ex. P/2. It bears the signatures of PW. 1 Maghraj, Food Inspector, and those of two attesting witnesses PW. 2 Harumal and P. W. 3 Kewalram. It also bears the signature of Shakoor the accused petitioner. One sample bottle was given to the accused-petitioner and the other was sent to the Public Analyst, Jodhpur, along with the specimen of the seal impressed on Ex. P. /3. THE third bottle was retained by the Food Inspector. THE sealed bottle was received by the Public Analyst on August 24,1968. THE Public Analyst received the bottle for analysis properly sealed and fastened. THE seal was noticed by him to be intact and similar to the seal impression given on the memorandum. THE endorsement to this effect has been made by the Public Analyst in Ez. P/4. He analysed the contents of the bottle and declared the result as under:- Far content. . . . . . . . . . . . . . . . . . . . . . . . . 309% Solid not fat. . . . . . . . . . . . . . . . . . . . . . . . 7 6% In the opinion of the Public Analyst the sample of the milk was found to be adulterated, as it did not conform to the standard of purity, prescribed by the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as 'the Rules' ). The Food Inspector after obtaining sanction filed a complaint in the court of Municipal Magistrate, Jodhpur, against the accused-petitioner for his prosecution under section 7/16 of the Act. The accused denied his complicity in the crime. The prosecution in support of their case examined three witnesses namely P,w. 1 Maghraj, Food Inspector, P. W. 2 'motbirs' which Harumal and P,w 3 Kewalram. The accused in his statement recorded under section 342,. Cr. P. C , stated that the milk was not for sale He was carrying it to distribute it amongst lepers No witness was examined by him in his defence. The trial court, relying on the testimony of the prosecution witnesses, held the accused guilty under sec. 7/16 of the Act. Being aggrieved the accused preferred an appeal against the above verdict in the Court of learned Sessions Judge, Jodhpur, who by his judgment dated July 31, 1972, upheld the conviction and sentence awarded by the Trial Court. Dissatisfied with his judgment, the accused petitioner Shakoor has preferred this revision. The learned counsel for the accused-petitioner has contended that PW. 1 Maghraj (Food Inspector) was examined by the learned Magistrate on, 21-12 68. After framing of the charge u/sec. 7/16 of the Act against the accused-petitioner Shakoor. the witness was resummoned for further cross-examination under section 256, Cr. P. C. (Old) and was cross-examined by the counsel appearing for the accused on 15 3 1969. It is urged that on that date neither the oath was administered to him nor was he made to sign his statement. The learned Magistrate realised this mistake and in order to rectify it, he later on administ-, ered oath to the witness on 15-4-69 and at the same time made him to append his signature to the statement recorded on 15 3 69. To me, this contention appears to be without any substance. The learned counsel for the petitioner admitted at the bar that there is no dispute on the point that this witness was cross examined on 15-3-1969. A perusal of the order-sheet dated 15-3-1969 shows that this witness (PW. 1 Maghraj) was cross-examined on 15-3-1969, and the case was posted for cross-examination of other witnesses on 26-4-1969. As such the question of administering oath to the witness on 15-4-1969 could not have arisen. It appears that on the date of recording the subsequent cross-examination of the witness under section 256, Cr. P. C. the date noted was 15-4-1969 instead of 15-3-1969. The witness, too, while apending his signature, might have noted 15-4-1969 on the basis of what was written above. It is pertinent to note that the Magistrate has noted the date as 15-3-1969 under his signature appended to the very statement. The objection that the oath was not administered to P. W. 1 Maghraj on 15-3-1969 and that he did not also sign it on the date, was not taken in the trial court. It was also not urged at the time of the argument before the trial court which in itself is suggestive of the fact that the accused knew it very well that the oath was administered on 15-3-1969 and not on 15-4-1969 The latter date was thus implicitly taken as an honest error. 1 his point was neither raised in the memo of appeal in the first appellate court nor argued before it. The accused is being represented throughout by the same lawyer, why has argued the case before me. Such an objection at a belated stage cannot be entertained in revision In this respect, I stand fortified by the following observation made by Hon'ble Hidayatullah, J , in 'the State of West Bengal vs. Motilal Kanoria (1):- "the objection that he was not named as an accused throughout the complaint and that he was thus not an accused could have been raised at the trial but it was not. On the contrary Kanoria entered a plea of not guilty on his own behalf and also stood examined as an accused. It is obvious that he was regarded as the accused and he understood his own position. The objection could not be entertained in revision in the High Court as it was belated and the defect, if any, had not occasioned a failure of justice. This ground also has no force. " Even if it is held that the mistake pointed out by the learned counsel did take place, the main question still remains whether there had been any prejudice against the accused or whether it had in any way. led to the miscarriage or justice warranting interference in revision. Section 537, Cr. P. C. , is a complete answer 10 the objection of the petitioner. Here are the relevant portions of section 537, Cr. P. C : - "537. Subject to the provisions herein - before contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account - (a) of any error, omission or irregularity in the complaint, summons, warrant, rprocla-mation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code," or (b) xxxx (c) xxxx (d) xxxx Finding or sentence when reversible by reason of error or omission in charge or other proceedings. Explanation.- In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. " 6. Their Lordships of the Supreme Court in Moseb Kaka Chowdhary vs. State of West Bengal (2) while considering the defect in the procedure adopted by the Court and in the method of the recording the statement of the accused in that case under section 342, Cr. P. C. , observed as under: - "we are, therefore, not prepared to accept the argument of the learned counsel for the appellants in this behalf In any case, an argument of this kind which would; if accepted, necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time of the regular appeal in the High Court. " The consistent view of the Hon'ble the Supreme Court of Indian and this Court is that unless some prejudice is established, the decision of a court of competent jurisdiction cannot be reversed on account of irregularities in procedure. The learned counsel for the petitioner has failed to point out any such prejudice. His only contention is that the statement was not recorded according to law and as such the trial has been vitiated. For the reasons already mentioned by me I do not find any merit in this first contention of the petitioner. The second contention of the petitioner, which is of considerable importance, is that a copy of the report of the public Analyst Ex P/4 was neither delivered by hand nor by registered post to the petitioner by the Food Inspector as soon as the complaint was filed against him. The non-compliance of rule 9 ( j) has caused not only infraction of the provision but also injustice. The two courts below did not take into consideration this infirmity of the prosecution case and as such he was entitled to an acquittal. The contention of the learned counsel for the State is that the directions in rule 9 (j) of the Rules are directory and not mandatory and consequently an irregularity in not complying with its terms would not vitiate the whole trial The question which needs determination is whether the accused is entitled to an acquittal, even though the judge in a given case is satisfied that the article of food sold was adultered, simply because the Food Inspector has not made strict compliance of rule9 (j) of the Rules. The question whether noncompliance of the rule 9 ( j) would per se vitiate the trial depends on the answer to question viz (a) whether the provision is mandatory or directory (b) whether the noncompliance has in any way prejudiced the accused-petitioner.
(3.) I shall read rule 9 ( j) of the rules: - "r. 9. Duties of Food Inspector" - It shall be the duty of the Food Inspector - (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx (f) xxx (g) xxx (h) xxx (i) xxx (j) to send by hand or registered post, a copy of the report received in Form III from the public analyst to the person from whom the sample was taken, in case the Act or rules made there under, as soon as the case is filed in the Court. " This rule lays down no penalty for its non-compliance. When a statute requires that a thing shall be done in the prescribed manner or form but does not set out the consequences of non-compliance, the question whether the provision is mandatory or directory has to be judged in the light of the intention of legislature as disclosed by the object, purpose and scope of the Act 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 considered. In the face of repeated declaration made by the parliament to stamp out food offences by sever 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 on not to accept the particular evidence adducedat 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 (3) at page 778, - "a condition as to which the responsible persons may be blame able and punishable if they do not act upon it, but their not acting upon it shall not invalidate what they have done, third persons having nothing to do with that. " 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 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 resorting 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 Rules 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 but can-not affect the validity of the act done by some other 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 prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on 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 the Act was directory only and might be complied with after the prescribed time Thus, the 13 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 electors, a conclusion too unreasonable for acceptance. " ;