Gaj Raj Mahajan vs State of Rajasthan

Guman Mal Lodha, J.—Adulteration of ghee is subject matter of this legal debate in this revision petition. The Sessions Judge, Bundi by judgment dated 27-8-1983 confirmed the conviction of the accused u/s 7/16 of the Food Adulteration Act and the sentence of six months with a fine of Rs. 1,000/- was imposed.

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 divided 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 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 u/s 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 another infirmity 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 the 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 ( j ) is concerned is directory and not mandatory. Reliance was placed upon the judgment of this court 1976 WLN 697, 1987 Cri. LR 106 . Mr. Shrimal submits that the Hon''ble Supreme Court in Dalchand Vs. Municipal Corporation, Bhopal and Another, has made this position very patent, clear and now there is no doubt. According to Mr. Shrimal the earlier judgment of 1980 RCC 241 and 982 Raj. Cr. Cases 268 should be treated as not laying down good law now in view of the judgment of Apex Court.

5 Mr. Shrimal submits that all this has been discussed in the latest judgment of this court in 1987 Cri. LR 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 v. Nopa Ram, a Single Bench of this court 1980 5 RCC 241 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 has been taken, and then in a particular case the prosecution may say 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 be acquitted if the prosecution adduced 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 entitle 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.

The court has discussed the cases under Rule 9(j) in para 16 and particular reference to the Andhra Peadesh High Court and this preceded to Bombay High Court. The court noticed the judgments of Chhoga Ram where the provision was held mandatory. In that case the court acquitted the accused. The judgment of Public Prosecutor Hyderabad v. J. Murlidhar 977 Cri. LJ 1634 ) has been relied upon by the Hon''ble Justice Agrawal in this case but the Hon''ble Supreme Court in Dalchand Vs. Municipal Corporation, Bhopal and Another, has expressly over ruled 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 The Public Prosecutor Vs. J. Murlidhar, Bhola Nath Nayek Vs. The State and Another, 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 over ruled by the Hon''ble Supreme Court or declared as not laying down good law. Similarly the judgment of this court Velji v. State of Rajasthan 1982 RCC 268 which is based Noparam''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 longer be treated as good law as Velji''s judgment is based on Noparam''s judgment and Noparam''s judgment is based on Andhra Pradesh case, which has been expressly over ruled by the Supreme Court.

It may be mentioned that this court even earlier in Shakoor v. State of Rajasthan 1976 WLN 697 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 affected 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 eat 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.

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.

This judgment unfortunately was not noticed in the two judgments of Velji and Noparam mentioned above. What was said by this court in 1976 in Shakoor''s case is precisely the same which has now been laid down by the Hon''ble Supreme Court Dalchand Vs. Municipal Corporation, Bhopal and Another,

12 In Sanwar Mal v. State of Rajasthan 1987 Cri. LR 106 Section 13(2) and Rule 9(j) have been examined at length and they have been held to be directory.

It is important to notice that in the case of Sanwar Mal mentioned above the delay was quite substantial. The sample was taken on 12-9-1976 in that case. The public analyst examined it on 21-10-1979. Complaint was filed on 5-2-1977 The copy of the report was given to the accused on 8-6-1977. Thus there was almost delay of 8 months or so. Even then court observed that it was reasonable time the copy of the public analyst was furnished to the petitioner and after that within 10 days thereafter he did not exercise right u/s 13(2) of the Act therefore he cannot say that his case has been prejudiced.

Obviously in the instant case the delay is of about 3 weeks i.e. between 21 August and 11th September and this delay never can be said to be fatal irrespective of the fact that whether the provision held to be directory or mandatory.

In view of the above I find that there is no substantial non-compliance and the directory provisions of 13(2) & Rule 9(j) have been complied with.

Thus, viewed I find that there is no force in this revision. Mr. Tikku thereafter made request that sentence may be reduced to already undergone as the accused has undergone about one month sentence and the case is of 1976. He also pointed out that the adulteration is also not of serious type as in a tin of Dalda all that was found was ghee having some contents of Vanaspati.

Mr. Shrimal on the contrary submitted that after the amendment the minimum sentence of six months & so far as the present case is concerned there are no extenuating circumstances to take a lenient view and the court below had already given the minimum sentence.

It is true that there has been considerable time lag between the taking of the sample and decision of this revision petition, but that is inherent in a procedure, where after filing of the complaint the trial takes place and then appeal is provided and the revision is filed and the accused obtains bail every time to his benefit.

Merely on that ground the sentence cannot be reduced because the minimum sentence is six months.

I am also of the view that in case where minimum sentence has been prescribed by the Legislature and the adulteration is of ghee the minimum sentence cannot be reduced any more. The fact that it was contents of vanaspati in ghee in a Dalda tin would not in any manner improve the position of the accused. Adulteration is adulteration and adulteration of all types are great danger to society as a whole and they must be dealt with seriously, as held in Pyarali K. Tejani Vs. Mahadeo Ramchandra Dange and Others,

In view of the above I am unable to reduce the sentence any more and the accused having been given only minimum sentence there is absolutely no scope for reducing the same. Consequently, the revision petition is dismissed.