N.H. Kelappan vs Food Inspector, Cannanore

V. Khalid, J.—The accused in CC. No. 219 of 1976 on the file of the Additional Judicial First Class Magistrate, Tellicherry, is the petitioner. The Food Inspector, Cannanore Municipality, Cannanore is the respondent. The petitioner was prosecuted by the respondent for an offence u/s 16 (1) (a) (1) and 7 (1) of the Prevention of Food Adulteration Act, for short the Act, in that he carried with him buffalo milk which was adulterated with 46% of water. At the first instance the petitioner was convicted of the offence charged and sentenced to undergo R.I. for six months and to pay a fine of Rs. 1,000/-. In appeal, the Sessions Judge, Tellicherry, acquitted him on the ground that rule 18 of the rules framed under the Act was not complied with. The respondent filed an appeal before this Court as Criminal Appeal No. 48 of 1978. This Court set aside the order of acquittal passed against the petitioner on the ground that rule 18 of the Rules was not mandatory and remanded the case to the Sessions Court directing the Sessions Judge to consider the matter afresh. Thereafter, the Sessions Judge confirmed the conviction and sentence awarded to the petitioner. Hence this revision. The revision petitioner has, in his challenge against the conviction and sentence, raised various grounds; non-compliance with rule 14 of the rules, rules 20 and 21 of the rules, rule 15 and 17 of the rules and also section 10 (7) of the Act. In addition to these grounds, he contends that the prosecution against him is bad for non-compliance with rule 9 (j) of the rules. I am not convinced that any of the grounds raised in the revision, except the ground under rule 9 (j) needs consideration at my hands because the conclusions arrived at by the learned Sessions Judge on the other grounds have to stand.

The counsel for the respondent contends that it is not open to the petitioner at this stage to canvass the correctness of the conviction and sentence on this new ground since it was not raised, at any time either before the trial Court or before the appellate Court or even before this Court at the first instance. According to him, the fact that the objection based on rule 9 (j) was not so raised is indicative of the fact that no prejudice was caused to the petitioner.

I am not impressed with this plea. In my view, rule 9 (j) imposes a mandate on the Food Inspector to adhere to the conditions laid down therein. It will be open to the accused even at the revisional stage to challenge the conviction if he is able to satisfy the Court that the said rule was not complied with. Therefore, I proceed to consider whether the challenge based on this rule is well-founded or not.

The petitioner, who is a man aged 67 years, is proceeded against for sale of buffalo milk which was found to be adulterated with 46% water. Rule 9 of the Rules has undergone Changes at various stages. The Act came into force on 1-4-1955. Rule 9(j) was for the first time introduced on 8th July 1968, that is, 13 years after the present statute came into existence. Rule 9 (j) as it originally stood read as follows:

Duties of Food Inspector. - It shall be the duty of the Food Inspector-

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(i) to send by hand or registered post: a copy of the report received in Form III from the public analyst to the person from whom the sample was taken, in case it is found to be not conforming to the Act or Rules made thereunder; as soon as the case is filed in the Court.

The first change was in 1973, after which it read:

Duties of Food Inspector - It shall be the duty of the Food Inspector

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(j) To send by hand or registered post, a copy of the report received in Form III from the public analyst to the person from whom the sample was taken, in case it is found to be not conforming to the Act or Rules made thereunder, within 10 days of the receipt of the report from the Public Analyst.

Thus, while the original rule required the report to be sent as soon as the case was filed in Court, the changed rule imposed a time-limit of 10 days from the date of receipt of the report from the public analyst. On 13-5-74 the rule underwent a further change and the rule then read as follows:

It shall be the duty of the Food Inspector.-

(j) 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 provision of the Act or rules made there under, then the person may be informed of the same and report need not be sent.

By this change the freedom to send the report by hand was taken away, thus ensuring the fact of service, to the benefit of the accused. In 1977 this rule was deleted and in its place rule 9 A was inserted, which read:

A. Local (Health) Authority to send report to person concerned. -

A. Local (Health) Authority to send report to person concerned:- section 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 u/s 14A of the Act.

Provided that where the sample conforms to the provisions of the Act or to the Rules made there under, and no prosecution is intended under sub-section (2), or no action is intended under sub-section (2E) of section 13 of the Act, the local (Health) Authority shall intimate the result to the Vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed u/s 14A of the Act, within 10 days from the receipt of the report from the Public Analyst.

By this change, the Local (Health) Authority was substituted in the place of Food Inspector and the period of ten days was changed to "immediately after the institution of the prosecution", again to safeguard the interests of the accused.

The detection in this case was on 10-6-1974. The Public Analyst''s report Ext. P6, is dated 29-6-1974. The complaint was filed in Court on 13-7-1974. Among the papers submitted along with the complaint, P.W.1, the Food Inspector, has not forwarded the ''acknowledgement receipt signed by the accused to prove that he had received a copy of the public analyst report. However a receipt marked Ext. P7, with a thumb impression, is seen marked among the records. It its not clear from this document as to the date on which the thumb impression, was put by the person whose thumb impression it purports to be; nor the date on which it was produced in Court. It was proved by P.W.I. when he was examined in Court. In rule at the relevant period - quoted above -mandated the Food Inspector to send a report received in form III by registered posit "as soon as ''the case is filed in Court". The only mode of service of the report at the relevant time was to send it by registered post. The question that falls for consideration therefore is whether the provisions contained in rule 9(j) at the relevant time was complied with or not. The answer is No. The report of the public analyst in this case was not sent by registered post. Perhaps, it was sent by other means. This is an allowance that I give to P.W. 1 in view of Ext. P7. But Ext. P7 cannot help the prosecution. I do not think it necessary to consider the circumstances under which Ext. P7 came into existence, the date on which it was signed - if at all it was signed by the petitioner - and the date on which it was produced in Court. Is not ''the accused entitled to the doubt that this aspect of the case creates in the mind of the Court?

The learned counsel for the respondent placed strong reliance upon the Full Bench decision of the Gujarat High Court reported in M.M. Pandey, Food Inspector, Baroda v. Bhagwandas Chiranjilal & Anor. (1980 F.A.J. 184) in which decision the scope of rule 9(j) fell to be considered. The Full Bench considered the various decision dealing with rule 9(j) and held that since there was no proof of any prejudice having been caused to the accused, the prosecution could not be faulted; nor the report of the public analyst declared to be non est in that case. It was further held that the time limit prescribed in the rule was directory and not mandatory. I do not pause to consider the judgment in detail for the reason that the Full Bench in that case was concerned mainly with the question as to whether the delay in supplying the report of the Public Analyse had caused prejudice to the accused or not. The various cases noted by the Full Bench also were dealing with the doctrine of prejudice. The question before me is slightly different. What is contended by the petitioner''s counsel is not in the realm of the doctrine of prejudice. What is contended is the noncompliance with the provision in rule 9 (j) as it stood at the relevant time. The rule as it stood then mandates the Food Inspector to send by registered post a copy of the report of the Public Analyst. This has not been done and there has been a clear violation of rule 9 (j). In Satyanarayan v. State of Maharashtra (1978 (1) FAJ. 189, the Bombay High Court Upheld the plea of the accused based on the non-Compliance with the rule in question. The amendment to rule 9 (j) in 1973 makes it mandatory that the "report must be sent by registered post within 10 days of the receipt of the same". It is evident therefore that the intention of the rule making authority was to recognise the dispatch of the report by registered post to be the only mode of sending the report after 13-5-1974. In this case, what is seen is that there is no proof that the report was sent by registered post at all. The receipt referred above has not been proved. That being so, the question about the delay in sending the report, in contravention of the direction in the rule and the consequent prejudice to the accused, need not be gone into in any detail. Hence it is not necessary for me to examine in detail the principles laid down by the Full Bench decision of the Gujarat High Court. For the purpose of this case, therefore, it is not necessary for me to decide whether the direction in rule 9 (j) is directory or mandatory. Hence I held that the respondent has violated the mandatory provision contained in rule 9 (j) in not sending the report by registered post. According to me, this violation of the rule is a point that could be urged by the accused even in revision.

In the result, I set aside the conviction and sentence of the petitioner and allow the criminal revision petition. Fine, if paid, will be refunded.