Nathi Ram vs The State of Haryana

K.S. Tiwana, J.—On July, 22, 1974 Nathi Ram petitioner was carrying about 8 Kgs of milk when he was intercepted by Dr. S.B. Madan, Deputy Chief Medical Officer, Gurgaon in the town of Palwal. Dr. Madan who is Ex-Officio Government Food Inspector was accompanied by Shri Mohinder Pal Singh, Tehsildar, Palwal. After disclosing his indemnity, the Government Food Inspector purchased 660 ML of milk from the petitioner on payment of Rs. 1.20 paise against cash receipt. The milk was separated into three equal parts and was put in three dry and clean bottles. 18 drops of formalin were added in each bottle. The bottles were sealed and tied in wrapers. On analysis, the Public Analyst found the sample of milk to be deficient in milk fat by 28% and milk solids not fat by 42% of the minimum prescribed standard. The petitioner was put on trial before the Judicial Magistrate Ist Class, Palwal who accepted the case of the prosecution against the petitioner and sentenced him to undergo rigorous imprisonment for six months and a fine of Rs. 1,000/- in default of payment of fine, he was further sentenced to undergo rigorous imprisonment for six months. Feeling aggreived against the order of conviction, the petitioner unsuccessfully took his appeal to the Additional Sessions Judge, Gurgaon. The present revision has been directed against the affirmation of the order of conviction and the dismissal of the appeal.

The main point urged by the learned counsel for the petitioner is that rule 9(j) framed under the Prevention of Food Adulteration Act has not been complied with, as the report of the Public Analyst was not supplied to the petitioner, at all, as required by the rules. Before the first appellate Court, the Public Prosecutor was frank enough to concede that this report was not supplied to the petitioner. It has been forcefully urged by Shri B.S. Shant, Advocate appearing on behalf of the petitioner that any contravention of rule 9(j) which is mandatory in nature leads to the prejudice of the accused in his defence. Rule 9(j), ibid is as follows:--

To send by registered post a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case the sample conforms to the provisions of the Act or rules made thereunder, then the person may be informed of the same and the report need not be sent.........

The object of the incorporation of this rule by the Legislature is that before prosecution is launched against the accused under the Prevention of Food Adulteration Act for violation of any of its provisions, is to be informed of the contents of the report of the Public Analyst. The idea is that the accused, knowing the defects in the sample of the article of food taken from him, can take steps to get it examined from the Central Food Laboratory or any other expert of his choice as soon as he appears in the Court to answer the charge. The language of the rule shows that the words cannot be interpreted to be directory. The rule is mandatory in nature, imposing a duty on the Food Inspector to comply with the instructions contained in the rules regarding the posting of the report of the Public Analyst to the accused. The law is well settled that whenever a duty is enjoined on a public officer to do a particular act in relation to his public duties, then it has to be done in the manner provided by the rules and the law or it may not be done at all. Rule 9(j) came up for interpretation in Bhola Nath v. State 1977 Cri.L.J. (Cal.) 194 and it was observed as under:--

That very purpose of such amendment will be taken away if the Food Inspector fails to comply with the terms of clause (j) of rule 9 and the accused gets a copy of the report of the Public Analyst long after such report had been sent by the Public Analyst to the Food Inspector.

In this case, the copy was supplied to the appellant late and on facts, it was held that a prejudice had been caused to the accused. A similar case up for decision before this Court in Crl. R. 638 of 1970 Labh Singh v. Union Territory, Chandigarh Cr. R. 638 of 1970 where in observations about the compliance of rule 9 (j) were recorded in the following terms:--

To begin with the petitioner was not served with the copy of the report of the Public Analyst. Had he been served with this report, he would have at least come to know that the authorities are contemplating to take action against him as according to the report of the Public Analyst, the sample of the milk was found to be adulterated.

In this case, coupled with the non-compliance of section 13 of the Prevention of Food Adulteration Act, the non-supply of the report of the Public Analyst was taken to have caused prejudice to the petitioner in his defence.

The net result of the foregoing discussion and the judgments referred to above is that whenever the copy of the Public Analyst is not supplied to the accused, then he is prejudiced in his defence. The recent amendment of this rule in narrowing down the gap between the supply of the copy of the report of the Public Analyst and the examination by him to a maximum period of ten days was not accidental. The legislature made the amendment with a definite purpose. The language in which the rule is couched is definite and clear. It requires to be interpreted strictly in the sense in which the amendment was brought about and the provision was made. It has to be viewed independently of the effect of section 13 (2) of the Prevention of Food Adulteration Act.

In view of the above discussion as the Food Inspector failed to comply with the provisions of rule 9 (j), the judgment in revision cannot be sustained. The revision is accepted. The order under revision is set aside and the petitioner is acquitted of the charge.