Onkar Chand vs State of Punjab

S.S. Dewan, J.

In this Criminal revision, Onkar Chand petitioner assails his conviction under S. 161(1)(a)(i) read with S. 7 of the Prevention of Food Adulteration Act, 1954, (for short, the Act). The learned Magistrate sentenced him to 9 months rigorous imprisonment and a fine of Rs. 1000/. On appeal, the learned counsel Additional Sessions Judge, Sangrur, by an elaborate and lucid judgment not only upheld his conviction but affirmed his sentence.

The broad outline of the prosecution case is that on June 19, 1973, Dr. Gurdarshan Singh Moonga, Government Food Inspector, accompanied by Dr. M.K. Bhalla and two peons visited the business premises of the petitioner and purchased 450 grams of Haldi powder on payment of Rs. 5.25 P. vide receipt, Exhibit P.S. After completion of the necessary formalities, a sample was sent to the Public Analyst, who found the same to be adulterated. Vide his report, the Public Analyst opined that metanil yellow, which is an unpermitted acid calter dye, was found in the contents of the sample.

The case against the petitioner rests primarily on the testimony of Dr. Gurdashan Singh Moonga and Dr. M.K. Bhalla. The petitioner denied the prosecution allegations and pleaded that the Haldi purchased by the Food Inspector was not for human consumption and that the scale with which the Haldi was weighed, was smudged with colours and it was not deaned before the Haldi was weighed. Besides tendering into evidence a bill, Exhibit P.I., three witness were examined in defence.

The first point raised by the learned counsel for the petitioner was that in this case, the Food Inspector made no attempt to join any independent witness from the locality and, therefore, the provisions of S. 10(7) of the Act were not complied with and, therefore, the petitioner had been prejudiced. Section 10(7) of the Act provides that when the Food Inspector takes action under clause (a) of subsection (2); subsection (4) or subsection (6), he shall call one or more persons to be present. This would mean that when a sample is taken by a Food Inspector atleast one or more persons have to be called by him as a witness. This provision has been interpreted to mean that one or two independent witnesses should be called by the Food Inspector when he takes the sample. In this case, the Food Inspector purchased the sample of Haldi for analysis in the presence of Dr. M.K. Bhalla. There was, however, no effort on the part of the Food Inspector to particularly join any witness from the locality in which the sample was taken. But it cannot at all be said that Dr. Bhalla was an unreliable witness. He was a man of status and was not in any manner interested in making out a false case against the petitioner. The Food Inspector Dr. Gurdarshan Singh Moonga is no doubt a colleague of Dr. Bhalla, but it cannot at all be said that the latter was under any kind of influence of the Food Inspector. It cannot, therefore, be said that Section 10(7) of the Act has been breached. In this view I am fortified by a Division Bench decision of this Court in State of Haryana v. Ram Sahai, (Crl. Appeal No. 654 of 1977, decided on August 27, 1979).

It is next contended on behalf of the petitioner that there was noncompliance with the requirement of rule 22 of the Prevention of Food Adulteration Rules, 1955 (hereinafter called the Rules) framed under the Act and, therefore, the trial was vitiated. I do not agree with this submission. Even in regard to Rule 22, many High Courts have taken the view that the rule was directory and not mandatory as the use of the word approximate in one of the columns of the rule indicates. The object of the rule was to secure evidence as to whether the article of food sold was adulterated or not. If the quantity sent by the Food Inspector to the Public Analyst was sufficient for analysis caused no prejudice to the accused, then the very fact of his sending a lesser quantity than that prescribed could not vitiate the evidentiary value of the report of the Public Analyst or the conviction based thereupon. In State of Kerala etc. v. Alaserry Mohammed etc. etc., 19511979 Supreme Court on Prevention of Food Adulteration Cases 461, it has been observed in the following terms :

"That whether the rule is recommendatory or mandatory, it should be observed by the Food Inspectors concerned. We may add that the decisions of the Courts holding that the Rule is merely directory and if the quantity sent by the Food Inspector is sufficient for the purpose of analysis, the report of the Public Analyst should not be thrown out merely on the ground of the breach of the Rule, are not meant to give a charter of a licence to the Food Inspectors for violating the Rule. They must remember that even directory Rules are meant to be observed and substantially complied with. A Food Inspector committing a breach of the Rule may be departmentally answerable to the higher authorities. He should, therefore, always be cautions in complying with the Rules as far as possible and should not send a lesser quantity of sample than prescribed to the Public Analyst unless there be a sufficient reason for doing so. * * * *

Held further, that the use of the word `shall'' in subsection (3) of the Section 11 and in Rule 22 would, on its face, indicate that an imperative duty has been cast upon the Food Inspector to send a sample in accordance with the prescribed Rules. But it is wellknown that the mere use of the word `shall'' does not invariably lead to this result. The whole purpose and the context of the provision has to be kept in view for deciding the issue. The object of the Act is to obtain the conviction of a person dealing in adulterated food. The whole object the section 11 and Rule 22 is to find out by a correct analysis, subject to further verifications and tests by the Director of the Central Laboratory or otherwise, as to whether the sample of food is adulterated or not. If the quantity sent to the Public Analyst, even though it is less than that prescribed, is sufficient and enables the Public Analyst to make a correct analyst, then merely because the quantity sent was not in strict compliance with the Rule will not result in the nullification of the report and obliterate its evidentiary value. If the quantity sent is less, it is for the Public Analyst to see whether it is sufficient for his analysis or not. If however, he finds it sufficient but due to one reason or the other, either because of further tests or otherwise, it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt, the case may fail. In other words, if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst, it is obvious, that the case may end in acquittal. But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt, then it will endanger public health to acquit offenders on technical grounds which have no substance. In our considered judgment the Rule is directory and not mandatory. But we must hasten to reiterate what we have said above that, even so, Food Inspector should take care to see that they comply with the Rules as far as possible."

In the present case, 150 grams of Haldi powder was sent to the Public Analyst for analysis. The Public Analyst has not made a grievance that the quantity was insufficient for purposes of analysis nor has he stated that the quality of the sample sent to him had deteriorated. The allegation of the petitioner that insufficient quantity of Haldi was supplied to the Public Analyst does not seem to be well founded.

None of the points raised, therefore, prevail. The learned counsel has prayed for reduction in the sentence. Emphasis is laid on the fact that the occurrence took place in the year 1978. Thee is marginal scope for reduction in the sentence keeping in view that the case is now an old one. I accordingly reduce his sentence of imprisonment to 6 months. The sentence of fine with its default clause shall, however, remain. With this modification in the sentence, the revision petition fails and is herein dismissed.