G. M. LODHA, J. - (1.) ADULTERATION of ghee is subject matter of the legal debate in this revision petition. The Sessions Judge, Bundi by judgment dated 27. 8. 1983 confirmed the conviction of the accused under Section 7/16 of the Food ADULTERATION Act and the sentence of six months with a fine of R. 1,000/-was imposed.
(2.) THE accused is not satisfied and has come up in this revision. THE sample was taken up on 21. 8. 1976. It was found that in a Dalda tin was kept there one and a half kg. ghee. Food Inspector purchased 450 gms. of ghee and paid Rs. 10. 50 as price. As usual the sample was devided in three parts and the chemical examination was done by the Public Analyst on 24. 8. 1976. Report dated 11. 9. 1976 opined that the sample of ghee does not conform to the prescribed standard of the purity. THE adulteration was vanaspati. On 9. 10. 1976 a complaint was filed against the petitioner. After recording the statement of the prosecution witnesses and examining the petitioner under Sec. 313 Cr. P. C. the above conviction was recorded. Mr. Tikku learned counsel for the petitioner has submitted that the requirement of Section 10/7 is that the prosecution to take sample before two independent witnesses and motbirs only of the same department were utilised. He then argued that the sample was taken on 21. 8. 1976 and the report was of 11. 9 1976. He finally argued that these infirmities in the prosecution case is that the report of the public analyst was not given within 10 days as required by Rule 9 (J) of the Prevention of Food Adulteration Rules. The reliance is placed on the judgment of this court 1980 Raj. Cr. Cases 241 and 1982 Raj. Cr. Cases 238 in support of this contention. Mr. Kamal Nayan Shrimal, Public Prosecutor has vehemently opposed there revision petition. According to him the recovery of the sample was taken by the Inspector duly authorised in the presence of witnesses which have been believed by the lower courts and there is no infirmity. It was then argued that so far as rule 9 (J) is concerned is directory and not mandatory. Reliance is placed upon the judgment of this court 1976 W. L. N. 697, 1987 Cr. L. R. 106. Mr. Shrimal submits that the Hon'ble Supreme Court in 1983 S. C. 303 has made this position very patent, clear and now there is no doubt. According to Mr' Shrimal the earlier judgment of 1980 Raj. Cr. Cases 241 and 1982 Raj. Cr. Cases 268 should be treated as not laying down good law now, in view of the judgment of Apex Court. Mr. Shrimal submits that all this have been discussed in the latest judgment of this court in 1987 Cr. L. R. 106 and therefore it is not necessary to discuss all these cases again. I have carefully gone through the various facts of the case put up by the learned counsel for the parties. In State of Rajasthan Vs. Nopa Ram, (1), a Single Bench of this court held that 9 (J) is mandatory and in para 14 onwards and 13 also the Hon'ble Judge made emphasis on the requirement of 9 (J ). It was observed that if it is held directory the accused would be deprived of valuable right and it would frustrate the purpose of the said rule. The court at the same time held that it is neither wholly mandatory nor wholly directory and then laid down certain norms. It observed that it would be mandatory in the sense that it is incumbent upon the Food Inspector to send a copy of report to a person from whom the sample have been taken, and then in a particular case the prosecution may so that the failure on the part of the Food Inspector to send the copy of the report has not caused any prejudice to the accused at all. Then it discussed that sending it by registered post within 10 days from the receipt of the report and said it only ensures the delivery of the copy and the essential delivery of the copy. With regard to requirement of 10 days the court observed that even when the report is sent after 10 days the accused is not entitled to acquittal if the prosecution adduced a satisfactory evidence to explain its circumstances in which it was not possible to send the copy of this report within 10 days. Undue long delay in sending the copy of the report should be ordinarily not condoned observed the Hon'ble Judge. Para 15 reads as under: "i, therefore, hold that the provisions of rule 9 (J) as amended by notification dated 13. 2. 1974 were mandatory in the sense that it was incumbent upon the Food Inspector to send a copy of the report of the Public Analyst to the person from whom the sample was taken before the filing of the complaint and the failure to do so would entitled the accused to an acquittal. The requirement in the said Rule that the copy of the report of the Public Analyst should be sent by registered post within 10 days of the receipt of the report is however, directory in the sense that failure to comply with the same will not have any bearing on the trial if it is shown that the said provisions have been substantially complied with and that no prejudice has been caused to the accused as a receipt of the failure to strictly comply with the said requirement"
(3.) THE court has discussed the cases under 9 (J) in para 16 and particular reference to the Andhra Pradesh High Court and this preceded to Bombay High Court. THE court noticed the judgment of Chhoga Ram where the provision was held mandatory. In that case the court acquitted the accused. THE judgment of Public Prosecutor Hyderabad Vs. J. Murlidhar (2) has been relied upon by the Hon'ble Justice Agrawal in this case but the Hon'ble Supreme Court in Dal-Chand Vs. Municipal Corporation Bhopal (3) has expressly overruled this Andhra Pradesh judgment as in the last para it has been mentioned as under: "i am clearly of the view that rule 9 (J) of the prevention of Food Adulteration Act was directory and not mandatory. THE decision in Public Prosecutor Vs. Murlidhar (Super) and Bhola Nath Vs. State (1977 Cr. L. R. 154 cal.) to the extent that they hold the rule 9 (J) was not mandatory was not good law. THE petition is dismissed. " It would thus be seen that the judgment of this court mentioned above and relied upon by Mr. Tikku can no longer provide any guidance as it will be deemed that it has been by implication overruled by the Hon'ble Supreme Court or declared as not laying down good law Similarly the judgment of this court Valji Vs. State of Rajasthan (4) which is based on Nopa Ram's judgment of Hon'-ble Justice Agrawal discussed above also stands impliedly over ruled by the above judgment of the Hon'ble Supreme Court and can no longer be treated as good law as Valji's judgment is based on Nopa Ram's judgment and Nopa Ram's judgment is based on Andhra Pradesh case, which has been expressly overruled by the Supreme Court. It may be mentioned that this court even earlier in Shakoor Vs. State of Rajasthan (5) has held that rule 9 (j) and 13 (ii) are no longer mandatory. The observations are as under:- "a close reading of rule 9 (j) 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, 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 effected can always waive it. For this reason also, 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 an accused in a case involving the health of the community at large cannot be made dependent on the alertness 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 car 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 up-keeping 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. " In the case on hand substantial compliance of rule 9 (j) has been made and the petitioner cannot make any grievance in the absence of any prejudice being caused to his defence. " ;