Satyanarain Patwari vs The State of Bihar

M.P. Varma, J.—These two applications have been heard together, in which prayer has been made to set aside the order taking cognizance in both the cases under Prevention of Food Adulteration Act (hereinafter referred to as the Act) by the Sub-divisional Judicial Magistrate, Patna City and for quashing of the proceedings. Criminal Misc. No. 1570 of 1975 has been filed by Bharat Kasera and Criminal Misc. No. 4163 of 1975 has been filed by Satyanarayan Patwari. Common question of law is involved in both the applications and they have been heard together and this judgment will govern both the cases. Petitioner Satyanarayan Patwari in Cr. Misc. No. 4163/75 carries on his business in the name and style of a firm known as M/s. Jaishree Biscuit Company. On 23.11.74, the Food Inspector Shri I.C. Bhusan purchased 600 grams of SUJJI (kept for the purpose of manufacturing Biscuits) from Ram Sunder Das, Managar of the said firm, and after observing all functions of sealing, one such sample was sent to the Public Analyst Bihar, Patna, for analysis. On receipt of the report, that it was adulterated, the Food Inspector filed a petition of complaint in the court of the Sub-divisional Judicial Magistrate, Patna City, against this petitioner Satyanarayan Patwari and the Manager of the Firm for prosecution on which the learned Sub-divisional Judicial Magistrate took cognizance of the offence u/s 16(1) of the Act and the petitioner was thus put on trial.

In the other case, Cr. Misc. 1570 of 1975 petitioner Bharat Kasera was found selling Haldi in his business premises known as ''Kasera Trading Company.'' The Food Inspector took sample of Haldi after observing the formalities, from his shop which was sent to the Public Analyst, who found Haldi to be adulterated and it contained excess of lead-chrome. The Food Inspector filed a complaint before the Sub-divisional Judicial Magistrate, who took cognizance u/s 16(1) of the Act by order dated 1.3.75 and thus this petitioner also has been put on trial. The prosecution in this case has been challenged on the ground that the case does not fall within the ambit and scope of Section 16 of the Act and there being no allegation in the petition of complaint that the petitioner was either incharge or responsible for the conduct of the business of the company and the offence was committed with his knowledge, consent or connivance.

I have heard the learned counsel for the petitioners and have seen the counter-affidavit filed by the Inspector. I have also carefully examined the petition of complaint. In my opinion, it cannot be said that the complaint has been filed only against the firm and it does not constitute any offence against the petitioner. A copy of the petition of complaint is Annexure-2 and on perusal whereof, I find that this complaint has been filed on a prescribed form in which column-1 is meant for mentioning the name of the accused, in column-2 of it, the father''s name of the accused is to be noted, in column-3 his address and in column-8 brief description of the offence is to be filled in. There are other columns also which are not relevant for the purpose of deciding the question raised in this petition. From the complaint it is clear that the petitioner himself sold Haldi which was found to be adulterated. In column no. 4 only his address has been noted as M/s. Kasera Trading Corporation, Marrofganj, Patna City, but he was present at the time when sample was taken which will be clear from Annexure-1. Thus, it cannot be held that the petitioner was not responsible for sale and conduct of the business of the concerned articles. There is no force in this submission.

A common question of law has been raised in both the applications that the Food Inspector failed to comply with the provision as contained in Rule 9(j) of the Prevention of Food Adulteration Rules, 1955 (hereinafter called the Rules). It has been contended that the rule is a mandatory and non-observance thereof vitiates the proceedings. Rule 9(j) as amended reads as follows:

It shall be the duty of the Food Inspector to send by registered post, a copy of the report received in Form 3 from the public analyst to the person from whom the sample was taken within 10 days of the receipt of the said report. However, in case the sample confirms to the provisions of the Act or rules made there under, then the person may be informed of the same and report need not be sent.

In both the cases copies of the reports of the Public Analyst has not been sent to the petitioners till the date of launching the prosecution against them. In fact, such copies have not been sent till today. Shri S.B. Sanyal, learned counsel has, therefore, urged that since the copies of the report have not been sent to the petitioners, they have been deprived of their valuable rights and could not avail of the advantage of getting the other part of sample tested and examined by the Central Laboratory and in such an event, the Court has no right to look into the report of the Public Analyst, and if this report is ignored, the Sub-divisional Judicial Magistrate would not have taken cognizance and, therefore the prosecution is fit to be quashed in both the cases.

Now the point for consideration is whether failure on the part of the Food Inspector to comply with the provision of Rule 9(j), prior to amendment stood this.

It shall be the duty of the Food Inspector 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 same 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.

Now on comparison of the old and the amended rules there is some difference. Previously there was no time-limit in making over copy of the report to the accused. It was only intended that the report should be sent to the person concerned from whom the sample was collected as soon as the case was filed in the court. But according to the new amended rule, the report is now to be sent to the person concerned from whom the sample is taken within 10 days of the receipt of the said report from the Public Analyst. A dealer or a person from whom the sample is collected may or may not know, rather in most of the cases, he will not know the date of the receipt of the report in the office of the Food Inspector or in the office of the Health Department unless the fact is brought in evidence and the amended rules are that the Food Inspector shall send a copy of the report by a registered post to the person from whom the sample was taken within 10 days of the receipt thereof.

Shri S.B. Sanyal has vehemently argued that it is well settled principles that when statute lays down certain modes or ways of doing an act, it must be done in that way and any departure from it is not permissible. In support of his contention, the learned Advocate has cited AIR 1936 253 (Privy Council) , wherein it has been laid down that when a power is given to do a certain thing in a certain manner, it must be done in that manner. Performance other than as prescribed in the rule is forbidden. Counsels for the State Md. Ismail (in Cr. Misc. 4163/75) and Shri Lala Kailash Behari Prasad (in Cr. Misc. No. 1570/75, fairly conceded that the copies of the reports of the Analyst have not been sent to the petitioners, but at the prime time contended that the impugned rule is only procedural and merely directory and not mandatory. It has been further argued that unless the accused pleads prejudice, non-compliance of provisions of the rule by the Food Inspector will not make the order of taking cognizance bad in, law. In support of this contention, reliance has been placed in the case of (1) The Public Prosecutor, Hyderabad V. J. Murlidhar ( 1977 CLJ, 1634) Rule 9(J) was considered and was held as follows:

We are not laying undue emphasis on the word ''shall'' used in the rules; but we are of the opinion that having regard to the scheme of the Act and the severity of the punishment, (as a reading of Section 16 of the Act would show) the legislatures had insisted on requirement of sending the report of the Analyst to the person from whom the sample was taken as a protection for safeguarding the liability of the subject...from what has been stated above, we should not be misunderstood as having held that even a delay of one day over and above ten days would be enough to throw out the case of the complainant for noncompliance with R. 9(j) of the Rules. Of course, if there is some delay in sending the report, the complainant''s case cannot be thrown out unless the accuse shows that even this slight delay has caused prejudice to him.

While proceeding further their Lordships held as follows;

It is not possible to lay down any hard and fast rule regarding the delay in sending the report of the Public Analyst to the person from whom the sample was taken. Every case will have to depend on its circumstances. But when the report of the Public Analyst was not sent to the accused even until the filing of the complaint, then to our mind in such a case, the accused could be acquitted without his pleading prejudice.

In these two applications, in my hand for a decision, I have already pointed out that the copies of the reports of the Analyst have not been sent at all to the petitioners. It such circumstances, the prosecution against the petitioners is fit to be quashed. However, learned counsel for the State has cited another case of (2) Martand Balvant Risaldar V. Chagnalal Ambalal Gandhi (1978 CLJ 1032) in support of the contention that the provisions as laid down under rule 9(j) is only procedural. In the said case of Martand Balvant Risaldar v. Changanlal Ambalal Gandhi, it has been held that the rule is directory only because no penalty has been provided for non-compliance of the same. With great respect, I am unable to agree with this reasoning. The rule has been made with some purpose and there is reason behind further amendment of the same. It is to safeguard the interest of persons who are naught to be prosecuted. After getting a copy of the report, the other party can also get the sample analysed by another expert and can show to the court that the previous report was not correct. In absence of any such opportunity, it can be very well said that prejudice has been caused to the persona concerned.

Offences committed under this Act are no doubt, anti social but at the same time legislature has also provided safeguard to persona from reckless prosecution. In the case of (3) Bhola Nath Nayak V. State (1977 CLJ 154), it has been held that failure to comply, with the provision of amended Rule 9(j) will vitiate the proceedings. It has been further held that such reports, if not sent in time, will be treated as non-est. Similar observation has been made in the case of (4) the State of Maharashtra V. Jasti Dosa (1978 Cr.LJ 427) wherein Naik J. has held that the amended rule as framed is mandatory.

In the present case the copies of the reports of the Public Analyst have not been sent at all to the petitioners and it appears that a case of flagrant violation of the provisions as laid down in the amended rules. Shri S.B. Sanyal has rightly argued that when the statute provides modes or ways of doing an act, it must be done in that way and departure from it is not permissible.

Thus on a careful consideration of the point raised at the bar, I am of the opinion that the cognizance taken in both the cases is bad in law and fit to be set aside.

I, therefore, set aside the two orders of the learned Magistrate in both the cases taking cognizance u/s 16(1) of the Act and quash the criminal prosecution lodged against them. The applications are accordingly allowed.