- (1.) THE learned Chief Judicial Magistrate, Jaipur under his judgment dated February 27, 1979 convicted each of the accused-petitioners Sanwarmal and Jitendra Singh under Section 7/16 (l) (a) of the Prevention of Food Adulteration Act, 1954 (for short the Act') and sentenced each of the accused-petitioner to undergo one year rigorous imprisonment and to pay a fine of Rs. 2000/- In default of payment of fine, each of the accused-petitioner was further to suffer six months simple imprisonment. THE accused-petitioners filed an appeal in the Court of learned Sessions Judge Jaipur City, Jaipur which was transferred to the Court of learned Additional Sessions Judge, Jaipur City, Jaipur. THE said judge under his judgment dated June 10, 1981 dismissed the appeal so far as the conviction of the accused-petitioners is concerned but reduced the sentence to six months rigorous imprisonment and to pay a fine of Rs. 1000/- and in default of payment of fine to further suffer three months simple imprisonment.
(2.) THERE is a coffee house in Ksheer Sagar Hotel, Jaipur which is situated near Polo victory, not for away from the Railway Station Jaipur City. Accused petitioner No. 2 Jitendra Singh is the licence of that shop and a licence No. 1037 was issued to him on November 17, 1976 by the Health Officer, Municipal Council, Jaipur, who was the licencing authority. The licence was granted for the manufacture of tea, namkin, dausa etc. and for the purpose of running a restaurant. The licence Ex. D. 1 was valid for the year 1975-76. On October 12, 1976 Ram Gopal Sharma (P. W. 1), the Food Inspector, Municipal Council, Jaipur who had been notified as such under Gazette Notification (Ex. P. l), went to the coffee house at about 5 P. M. At that time, accused-petitioner No. 1 Sanwarmal was present in the restaurant and was working in the shop. He gave out that the Jitendra Singh was the owner of the restaurant and on demand refused to produce the licence. The Food Inspector Ram Gopal Sharma noticed that there was curd (Dahi) in an earthen pot and it was kept on the counter and there was no indication on it as to whether the curd was of buffalo milk or of cow milk or of any other animal milk. He suspected the curd to be adulterated and purchased 600 gms. of curd by paying Rs. 2. 10 paise as its price for analysis The curd was taken in a clean and dry porcelain cup was churned. It was divided in three parts. Each part was filled in a clean dry bottle and to each of the bottle 16 drops of formalin was added. Each bottle was wrapped, labelled and sealed. The lable in the outer cover of each sample was signed by the Inspector and the accused. A form No. 6 was prepared at the spot and the sample duly sealed was sent to the Public Analyst. It reached in the office of the public analyst on October 13, 1976, was analysed on October 21, 1976 and the Public Analyst under his report (Ex P. 8) dated November 13, 1976 found that sample is adulterated as it does not conform to the prescribed standards of purity. The result of the analysis is as follows: Fat content 3. 8% Solids non fat 8. 6% Cane Sugar & Starch Nil After obtaining the sanction under section 20 of the Act, a complaint was filed by the Food Inspector against the accused-petitioners and the learned Chief Judicial Magistrate after trial convicted and sentenced the accused-petitioners as afore said. The appeal of the accused as stated earlier was partly allowed conviction, was maintained but the sentence was reduced. The case is post April, 1976 case and as such the provisions of the Act as amended by Act No. 34 of 1976 will be applicable. By that Act. Section 13 was substituted by Section 10 of that Act w. e. f. April, 1976 and similarly other changes were also made to the Act including in Section 16 of the Act. Item A-l1-02-04 of Appendix-B of the Prevention of Food Adulteration Rules, 1955 (for short the Rules) lays down the standard for curd (Dahi ). Dahi or Curd means the product obtained from pasteurised or boiled milk by souring natural or otherwise, by a harmless lactic acid or other bacterial culture. Dahi may contain added cane sugar. Dahi shall have the same minimum percentage of milk fat and milk solids-non-fat as the milk from which it is prepared. Therefore, one has to look to the standards prescribed for buffalow milk as there being no indication on the earthen pot in respect of the kind of milk whether it was buffalow milk or cow milk, it has to be taken as buffalow milk. We will have to go for the standard prescribed for buffalow milk. Item No. A l1-01-11 of Appendix B of the Rules lays down the standard for different classes and designations of milk. So far as the buffalo milk is concerned, in Rajasthan milk fat should he minimum 50 per cent and milk solids-non-fat should be 90 per cent. A comparison of these standards with those found by the Public Analyst in his report (Ex. D 8) dated November 13, 1976, will leave no manner of doubt that the curd (Dahi), sample of which was taken by the Food Inspector Shri Ram Gopal Sharma from the restaurant of which accused-petitioner No. 2 was the owner and at the time of taking the sample the accused-petitioner No. 1 was selling it, was adulterated as it does not conform to the prescribed standard of purity. Mr. Tibrewal, learned counsel for the petitioners has contended that there has been non-compliance of Sub-Section (2) of Section 13 read with Section 9-A of the Rules. He has also contended that the sample of curd (Dahi) was taken on October 12, 1976 at 5. 00 P. M. and the complaint was filed against the petitioners on February 5, 1977 and the accused-petitioners put in appearance on June 8, 1977. The delay therefore, is fatal in this case as curd is such a food article that even if preservative is added to the sample it can remain fit for analysis for a maximum period of six months and a look is beyond it. Therefore, the delay has prejudiced the case of the accused-petitioners and no liability can be fastened on them. Mr. Tibrewal has also contended that the curd was not meant for sale and had only been brought there for the purpose of weighing and, therefore no sample could have been taken. So far as the last submission of Mr. Tibrewal learned counsel for the petitioners is concerned, I find no merit in it. It has come in the statement of Ram Gopal Sharma (P. W. 1) the Food Inspector that the accused-petitioner Sanwarmal was present there and was working in the shop and he gave out that Jitendra Singh was the owner of it. There is no dispute that there is a hotel Ksheersagar which also runs a kitchen for its customers who stay in the hotel. The courts below after analysis of the evidence have come to the conclusion that Sanwarmal accused-petitioner was working in the restaurant from where the sample of curd was taken and that Jitendra Singh was the licence of that restaurant. In the revision petition, I find no reason to take a different view then taken by the courts-below.
(3.) DEALING with the argument that there has been contravention of sub-sec-tion (2) of Section 13 of the Act, the learned counsel for the accused-petitioners has contended that the Health Authority did not give a copy of the report of the Public Analyst to say of the accused-petitioners and thereby the accused petitioners were denied their statutory right of getting the sample in the Court or with the Health Authority examined by the Director, Central Food Labora-tory. It is also contended by him that Section 13 (2) of the Act is mandatory and non-compliance with it renders the conviction illegal Section 13 (2) of the Act provides that on receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person if any, whose name, address and other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. After the aforesaid provision was brought on the statutes book w. e. f. April 1, 1976 by Act No. 34 of 1976, Section 10, there was corresponding change in the Rules also and Rule 9-A was inserted by notification No. GSR 4 (E) dated 4-1-1977 (w. e. f. 4-1-1977 ). Rule 9-A provides that the Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand, as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Section 14-A of the Act. Rule 9-A thus was inserted to give effect to the provisions of sub-section (2) of Section 13 of the Act. Prior to April 1 1976 under Section 13 (2) of the Act, as it then stood before its substitution as stated earlier, as, right was given to the accused to apply to the court to send the sample with him or with the Food Inspector to the Director, Central Food Laboratory for analysis. The report of the Director was to supersede the report of the Public Analyst. There was Rule 9-J in the Rules and there was divergent of opinion in the High Courts as to whether Rule 9-J was mandatory or directory. That controversy was resolved by the Supreme Court in the cases of Dal Chand Vs. Municipal Council, Bhopal (1), the learned Court dealing with the question as to whether a particular provision in a statute is mandatory or directory held that: " There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and more often than not, determinative of the very question whether the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, through couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. " The Supreme Court also held that Rule 9 (j) of the Rules was directory and not mandatory. In the case of Tulsi Ram Vs. State of Madhya Pradesh (2) the Supreme Court examined Rule 9-A of the Rules also and after referring to its earlier case of Dal Chand Vs. Municipal Council (Supra) for purity of reasons contained therein held that Rule 9-A of the Rules was directory and not mandatory. The learned Judge of this Court (Hon'ble N. M. Kasliwa J.) in the case of Devki Nandan Vs. The State of Rajasthan (3) examined the question as to whether sub-section (2) of Section 13 of the Act as it stands now after its substitution w. e. f. April 1, 1976 is directory or mandatory. The learned Judge placed reliance on the case of Dal Chand Vs. Municipal Counsel (Supra) and held Section 13 (2) of the Act to be directory. The learned Judge after refering to Dalchand's case and after extracting the relevant portion of that case held as under :- " In my view the provisions of Section 13 (2) of the Act are not mandatory. However, whether the fact of non-compliance of the above rule was such as to wholly deprive the right of the accused to challenge the Public Analys report there would be just cause for complaint, as prejudice would then be writ large. In the present case admittedly Public Analyst report was not given to the accused person after the filing of complaint and as such there is a clear non-compliance of the provisions of Section 13 (2) of the Act and the accused person have lost their right of making application to the Court to get the samples analysed by the Central Food Laboratory. There is a clear non-compliance of Section 13 (2) of the Act and the prejudice to the accused persons is writ large. " ;