Sabu Ram vs The State of Punjab

Koshal, J.—This petition for revision involves the interpretation of Sub-section (2) of Section 13 of the Prevention of Food Adulteration Act, 1954 (hereinafer referred to as the Act) and has arisen in the following circumstances. A quantity of milk was purchased from the Petitioner by a Food Inspector at Abohar on the 22nd of February, 1968. It was divided into three parts, each of which was separately sealed. One of these parts, when analysed by the Public Analyst, was found deficient in milk solids not tat to the extent of 19 per cent. A complaint for an offence u/s 7 read with Section 16 of the Act was instituted against the Petitioner on the 29th of May, 1968, although it appears to have been drafted on the 16th of May, 1958, which date it bears. The Petitioner appeared before the trial Court on the 6th of July, 1968, but the proceedings were adjourned. When the case was taken up on the 29th of August, 1968, the Petitioner made an application to the trial Court praying that the sealed bottle handed over to him by the Food Inspector be sent to the Director. Central Food, Laboratory, Calcutta (hereinafter to be called the Director) for his report on the analysis of its contents. Notice of the application was given to the Food Inspector for the 31st of August, 1968, and in the meantime the Petitioner deposited the requisite fee of Rs 40/ into the Treasury. On the date fixed the trial Court refused to accept the application with the following order:

Present: The applicant with counsel. Heard File has been presented. The sample in this case was seized on 22nd February, 1968 and the complaint was lodged in the Court on 16th May, 1968. Since then 4 adjournments have been granted in this case. The accused also appeared in the Court on 6th July, 1968. He did not avail of first opportunity to apply for sending the sample to the Director. Central Food Laboaratory, Calcutta. The simple has also become old of six months, and as such there will be no use in sending the same for analysis. The application is, therefore, rejected after consideration.

The Petitioner went up in revision to the Sessions Court at Ferozepore and Shri Shanti Swarupa, Additional Sessions Judge, Ferozepore, has recommended that the bottle containing the sample of milk, which was handed over in a sealed condition to the Petitioner, be ordered to be sent to the Director for analysis and report. This recommendation is based on the view that under Sub-section (2) of Section 13 of the Act the trial Court "has to ascertain that the mark and seals of fastening are intact and then has to despatch the sample under its own seal to the Director.

The recommendation just above set out, in my opinion, merits acceptance. Sub-section (2) of Section 13 of the Act runs thus:

After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee make an application to the Court for sending the part of the sample mentioned in Sub-clause (i) or Sub-clause (iii) of Clause (c) of Sub-section (1) of Section 11 to the Director of the Central Food Laboratory for a certificate ; and on receipt of the application the Court shall first ascertain that the mark and seal of fastening as provided in Clause (b) of Sub-section (1) of Section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis.

In so far as the mark and seal of fastening are concerned, it is obvious that the trial Court is duty bound to ascertain that they are intact- This is made clear by the use of the word ''shall" in relation to the relevant clause of the Sub-section. A little difficulty, however, arises when the next clause, which uses the word "may" in relation to despatching that part of the sample which was retained by the Food Inspector or made over to the accused to the Director, is to be interpreted. Ordinarily the word "may" does not connote a duty but signifies the conferment of an option. Cases, however are not wanting when by the word "may" the Legislature really issues a mandate and enjoins upon the authority concerned a duty to be compulsorily performed. In each particular case it will be a question depending upon the context in which the word is used as to whether it casts a duty on or gives an option to the authority concerned. In this connection guidance is available from State of Uttar Pradesh Vs. Jogendra Singh, which deals with the interpretation of the word "may" in Sub-rule (2) of Rule 4 of the U. P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947. That sub-rule is to the following effect:

The Governor may, in respect of a gazetted Government servant on his own request, refer his case to the Tribunal in respect of matters referred to in Sub-rule (1).

In holding that the word "may" in this sub-rule means "shall", their Lordships observed:

Rule 4 (2) deals with the class of gazetted Government servants and gives them the right to make a request to the Governor that their cases should be referred to the Tribunal in respect of matters specified in Clauses (a) to (d) of Sub-rule (1). The question for our decision is whether like the word ''may'' in Rule 4 (l) which confers the discretion on the Governor, the word ''may'' in Sub-rule (2) confers the discretion on him, or does the word ''may'' in sub rule (2) really mean ''shall'' or ''must''. There is no doubt that the word ''may'' generally does not mean ''must'' or shall''. But it is well settled that the word ''may'' is capable of meaning ''must'' or ''shall'' in the light of the context. It is also clear that where a discrection is conferred upon a public authority coupled with an obligation, the word ''may'' which denotes discretion should be construed to mean a command. Sometimes, the Legislature uses the word may'' out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed In the present case, it is the context which is decisive. The whole purpose of Rule 4 (2) would be frustrated if the word ''may'' in the said rule receives the same construction as in sub rule (1). It is because in regard to Gazetted Government servants the discretion had already been given to the Governor to refer their cases to the Tribunal that the rulemaking authority wanted to make a special provision in respect of them as distinguished from other Government servants falling under Rule 4 (1) and Rule 4(2) has been prescribed, otherwise Rule 4 (2) would be wholly redundant. In other words, the plain and unambiguous object of enacting rale 4(2) is to provide an option to the gazetted Government servants to request the Governor that their cases should be tried by a Tribunal and not otherwise. The rule-making authority presumably thought that having regard to the status of the gazetted Government servants, it would be legitimate to give such an option to them Therefore, we feel no difficulty in accepting the view taken by the High Court that Rule 4 (2) imposes an obligation on the Governor to grant a request made by the Gazetted Government servant that his case should be referred to the Tribunal under the Rules. Such a request was admittedly made by the Respondent and has not been granted.

These observations apply fully to the Sub-section now under consideration. An option is given to an accused person to have recourse to what I may call an "appeal" to the Director''s judgment from that of the Public Analyst. Now, if it was left to the Court either to send the sample or to decline to do so, the whole purpose of the Sub-section would be defeated. In thy context in which the word "may" occurs in the Sub-section, therefore, it must be held to mean "shall" or "must" This being so, the trial Court had no power to decline the application which the Petitioner made on the 29th of August, 1968, in accordance with the Sub-section.

I am alive to the consequences which may flow from the delay with which the application was made and also to the circumstance that the Petitioner can perhaps be not absolved from responsibility in that connection. However, his right to have the sample sent to the Director is unqualified and it would be for the Director to say whether the sample is or is not fit for analysis and that if it is not, whether the delay with which it was sent to him has been a responsible factor. It Will then be for the trial Court to see what value it will attach to the Director''s report, to the delay, if any, for which the Petitioner was responsible and to that which has been occasioned by reason of the pendency of the revision proceedings before the learned Additional Sessions Judge and this Court.

For the reasons stated, I accept the recommendation made by the learned Additional Sessions Judge, set aside the impugned order and direct the trial Court to have the sample sent in accordance with the application dated the 29th of August, 1938, above-mentioned.