Krishnapada Ghorui vs The State and Anothers

A.M. Bhattacharjee, J.—The point urged before the Courts below and re-interested before us is that the prosecution u/s 16 of the Prevention of Food Adulteration Act, 1954, is vitiated because of noncompliance with or violation of the provisions of Rule 9A of the Rules framed under the act. Rule 9A as it stood at the material time, provided that "the Local (Health) Authority shall immediately after the institution of the prosecution forward a copy of the report of the result of analysis to the person from whom the sample of article was taken by the Food Inspector...". The report in this case was sent 5 days after the institution of prosecution. We have no double that the same could not amount to non-compliance with the Rule or at least such non-compliance as would vitiate the prosecution. We must import a little bit of common sense in construing laws and legal instruments. Laws being made by and for human beings cannot be expected to require the doing of something which is humanly impossible. Lex non cogit ad impossibilia. The Local (Health) Authority, the Food Inspector and the Court are three different entities at three different places and, notwithstanding all reasonable expedition by all concerned, the Local (Health) Authority may not be able to know about the institution of the prosecution in the Court by the Food Inspector before a couple of days or more after such institution. Therefore, the expression "immediately", which lexically may mean ''at once'' also, cannot be taken to bear that meaning in Rule 9A; all that it can reasonably mean is ''as early as possible'' or ''without unreasonable and avoidable delay''. If the time-gap between the initiation of the prosecution by the Food Inspector and the forwarding of the report by the Local (Health) Authority is reasonable, the report must bee held to have been forwarded without delay and, therefore, ''immediately'' within the meaning of Rule 9A

In Rule 9A, as it now tands after the Amendment in 1984, the words "within ten days" have been substituted for the word "immediately". Whether the Amendment, having been made subsequently, would apply to this case ex priprio vigore is a different matter. But the Amendment, to our view, clearly indicates that according to the Law-making authority also, a period of ten days may reasonable be required for forwarding the report of analysis by the Local (Health) Authority after coming to know about the institution of the prosecution by the Food Inspector. And as already stated, if the report has been forwarded after such time as is reasonably required therefore, the same must be taken to have been without delay and, therefore, immediately.

The decision of the Supreme Court in Dalchand Vs. Municipal Corporation, Bhopal and Another, may not be a direct authority on the point as the provision of Rule 9(j) of the Rules, which fell consideration in that case and which was the predecessor of the present Rule 9A, also, at the relevant time, provided for a period of ten days, as is provided by Rule 9A after its Amendment in 1984. But even though the expression "immediately" was not being considered in that case, the ratio of the decision would go a long way to fortify the view that we propose to take. The ratio is that though the fixation of the period of ten days under Rule 9(j) might apparently look or sound to be mandatory, it was not and could not be peremtory or sound to be mandatory, it was not and could not be peremtory in substance and any delay even beyond the period of ten days would not by itself, vitiate a prosecution, unless it could further be shown that as a result of the delay, the accused was virtually deprived of his right u/s 13(2) of the Act of challenging the report of the Public Analyst by applying to the Magistrate to send the other sample to the Central Food Laboratory for analysis.

One word of caution. The dictum of the Supreme Court in Dalchand (supra) to the effect that "Rule 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory" must not be treated as an authority for the view that the present Rule 9A, in its entirety, including the forwarding of the report of analysis, is merely directory and not mandatory. The decision in Dalchand (supra) only centered round the question as to whether forwarding the report within the fixed period of ten days was mandatory and it was ruled that the forwarding within that period was not mandatory, and not that even the forewarding itself of the report could also be dispensed with.

It has next been urged before us that, as pointed out by the trial Court also, in the report of the Public Analyst it has been noted that "the provisions of Rules 16(b) and 16(c) were not followed". These provisions relate to packing and wrapping and sealing of the samples of food. Assuming these rules to be" directory and not mandatory, we have nothing on record to show whether those were complied with substantially or not at all. While mandatory provisions going to the root of the matter must be strictly complied with, directory provisions are not surely framed for the mere fun to be disobeyed at pleasure and with impunity. As pointed by the Supreme Court in Thakur Pratap Singh Vs. Shri Krishna Gupta and Others, even though directory provisions may not wan ant a strict or rigid compliance like those which are mandatory, there must be at least substantial compliance thereof. As already indicated, there is nothing on record to show to what extent, if at all, those provisions were complied with. With the note in the prosecution''s own document, the report of the Public Analyst, clearly to the contrary, it was for the prosecution to prove that there was nevertheless substantial compliance.

It is universally accepted that Milk products are subject to speedy decomposition and a proper analysis may not be possible unless done at the earliest. The report of the Analyst is dated 26th March, 1981; but there being nothing on record to show that the sample was analysed earlier, we may presume, as pointed out in the Full Bench decision of the Kerala High Court in Food Inspector, Chalakudy Municipallity vs. Prabhakaran (1982 Criminal Law Journal 81 at 93), that the same was analysed on the date of the report. The sample was taken on 9th March, 1981, and we have nothing on record, whether from the Public Analyst or any other witness, expert or lay, to ascertain the effect of this delay on the analysis of a milk product like Curd. We have already noted that the Analyst''s Report clearly indicated that the sample of food was not packed and wrapped in accordance with the provisions of Rule 16 and we do not know whether those were packed and wrapped at all and what effect such non-compliance could have on the result of analysis of a sample of Milk product. It is, therefore, not possible to hold beyond reasonable doubt, as to whether the Curd was already not according to the standard prescribed at the time when the sample was taken. Even according to the Analyst''s Report adulteration if any, was marginal as Milk Fat was more than the minimum prescribed and non-fatty solid was 7.7 i.e. deficient only by 1.3, the minimum prescribed being 9. Not with standing the patent sermon to the effect that adulteration of food is a reprehensible offence and poses a serious threat to the national health, we cannot convict a person and sentence him to imprisonment under our prevailing jurisdictional set-up, unless we are quite clear about the commission of the offence. We therefore accept the revision, reverse the order of conviction and sentence passed by the Trial Court and affirmed by the Court of Appeal and acquit the accused and direct that he shall stand discharged from the bail-bond. Records, with a copy of our judgment, to go down at once.

Amula Kumar Nandi, J.

I agree.