The State of Punjab vs Deboo

Madan Mohan Punchhi, J.—Whether Section 13(2) of the Prevention of Food Adulteration Act, 1954 is mandatory or directory in nature is the question in abstract which has been referred for an authoritative decision by a Full Bench in these two Criminal Appeals Nos. 66-DBA and 90-DBA of 1982 ? Yet it has to embed on some facts.

A broad outline of the case against Deboo Respondent in Criminal Appeal No. 66-DBA of 1982 is this:

On December 21, 1978, whiie carrying a drum of cow''s milk he was intercepted by Food Inspector K. D. Malhotra PW-1 and the later purchased 660 Millilitre of cow''s milk for analysis in the prescribed manner. Three samples were prepared as required under the law. One of such samples was sent to the Public Analyst, Chandigarh, as required, and the remaining two were deposited with the Local (Health) Authority, Kapurthala On receipt of the report of the Public Analyst, the Respondent was put to trial. At the defence stage, he raised the plea that Section 13(2) of the Prevention of Food Adulteration Act, 1954 (for short, the Act) had not been complied with, in as much as the report of the Public Analyst had not been sent to him by the Local (Health Authority as statutorily required Bagicha Ram PW-4, however, had stated that the report was sent through registered post but the registered letter was received back with the report that no person of such name was living in Bharo Majra, the address given by the vendor. In defence, the Respondent examined some defence witnesses and was able to persuade the learned trial Magistrate to take the view that the prosecution had not sent a copy of the report of the Public Analyst to him. Taking the view that Section 13(2) of the Act was mandatory as held in various judicial precedents, he acquitted the Respondent not only for the non-compliance of Section 13(2) hut on other grounds as well The Bench hearing the appeal against acquittal, finding there was conflict in judicial opinion about the nature and character of section of the Act, referred the question itself and not the appeal as such for decision by a Full Bench And this is how the matter is before us.

In Criminal Appeal No. 90-DBA of 192 the broad outline of the case is this:

On April 19, 1979, Dalip Singh Respondent was found exhibiting for sale a container of curd in his shop at village Badbar, where from Dr. Sun rider Kumar, Government Food Inspector, purchased 600 grams of curd in the required manner, which was divided into three equal parts in bottles for sampling after adding 16 drops of formaline in each bottle. One sample bottle was sent to the Public Analyst and the remaining two were deposited with the Local (Health) Authority. On receipt of the Public Analyst''s report of the curd being adulterated the Respondent was prosecuted and convicted by the trial Magistrate. On appeal, the Additional Sessions Judge, Barnala, acquitted him, inter alia, taking the view that the inordinate delay caused in analysis and of the lodging of the complaint as also the inordinate delay, if not an omission, in supplying the report of the Public Analyst to the Respondent had caused prejudice to him, and the mere fact that the accused had not made an application for getting the other sample analysed was of no avail to the prosecution. It is against the appellate order that the State of Punjab had tiled Criminal Appeal No. 90-DBA of i982 which likewise was sent to the Full Bench for decision of the said point as in the earlier case.

It is now time to take stock of Section 13(2) of the Act, which reads as follows:

(2) On receipt of the report of the result of the analysis under Sub-section (1)to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and, the person if any, whose name address and other particulars have been disclosed u/s 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

The scheme and intendment of the provision, of necessity with the aid of other provisions of the Act, can be attempted to be understood and analysed in this way:

(i) The Food Inspector having taken sample of food for analysis u/s 1l(1)(c)(ii) sends one of the three parts for analysis to the Public Analyst under intimation to the Local (Health) Authority and sends under subclause (ii) the remaining two parts to the Local (Health) Authority for the purposes of Sub-sections (2), 2-A) and (2-E) of Section 13.

(ii) The Public Analyst u/s 13(1) delivers his report to the Local (Health) Authority of the result of the analysis of the-article of food submitted to him for the purpose. Initially no time was set for the purpose but with effect from January 4, 1977, Rule 7(3) of the Prevention of Food Adulteration Rules 1955 (for short, the Rules) prescribed a period of forty-five days but with effect from July 8, 1984, a period of forty days from the date of receipt of the sample.

(iii) If the result discloses that the food is adulterated, the Local (Health) Authority shall launch a prosecution, but in case it is not, the Local (Health) Authority can be persuaded to have resort to Section 13(2-E) and seek another result from another Public Analyst and if the latter report is that the article of food is adulterated, then prosecution can be launched.

(iv) No time is set for launching the prosecution but it is expected to be done expeditiously.

(v) The Local (Health) Authority shall after the institution of prosecution against the person from whom the sample of article of food was taken, and the person, if any, whose name, address and other particulars have been disclosed u/s 14-A forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be. The stress is on forwarding a copy of the report to the person concerned and it is an essential requirement so that he becomes aware of it at the threshold. The time set for the purpose and its non-observance under the Rules has, however, been subject of judicial debate which would be noticed at a later stage.

(vi) Besides forwarding a copy of such report, the other essential requirement is that such person or persons need also be informed that if it is so desired, either or both of them, can make an application to the Court within a period of ten days from the date of the receipt of the copy of report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. The stress here is on simultaneous pointed information and in not having the accused to fend for himself and know his law.

(vii) On such application being made by the person or persons concerned, the Court shall send a requisition to the said Authority who shall place before it the part or parts of the sample retained within a period of five days from the date of receipt of such requisition u/s 13(2-A) of the Act.

(viii) u/s 13(2-B), the Court, after ascertaining the genuineness of the part or parts of the sample, is required to send it under its own seal to the Director of the Central Food Laboratory who on his part is required to send the result of the analysis within one month from the date of receipt of the part of the sample.

(ix) Under proviso to Sub-section (5) of Section 13 the certificate signed by the Director of Central Food Laboratory shall be final and conclusive evidence of the facts stated therein and such certificate shall supersede the report given by the Public Analyst. This is the result absolute under Sub-section (3) of Section 13 of the Act.

(x) And finally u/s 13 (2-D) until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory the Court shall not continue with the proceedings pending before it in relation to the prosecution.

Every step envisaged under the variegated provisions of Section 13 of the Act is either time-bound or result-oriented and sometimes both. The deliberations and report of the Joint Committee on the Prevention of Food Adulteration (Amendment) Bill. 1974, published at page 10 of the Gazette of India (Extraordinary) Part-II Section 2 dated January 5, 1976, which fructified in the present Section 13 with effect from April 1, 1976, make instructive reading. They expressed as follows their views:

The Committee is of the opinion that the existing provision regarding prosecution of offences under the Act is very cumbersome. Though a large number of prosecutions had been instituted many of them had either not ended in convictions or had to be withdrawn mostly on the ground that the samples taken were not proved to be adulterated or misbranded, and in the process not only a lot of valuable time of the Courts must had been wasted but the vendors also were subjected to avoidable harassment. The Committee has, therefore, changed the whole scheme of prosecution with a view to punish only those whose samples have been found to be adulterated by the report of the public analyst, thus, minimising the chances of harassment of vendors and reducing the number of prosecutions.

The views of the Joint Committee are enlightening indeed to gauge the character of the provision under scrutiny as to whether it is mandatory or directory-whole or in part. The thrust of the provision, as is evident, is towards speedy trials by giving an expeditious, time-bound and result-oriented package, avoiding harassment to vendors and reducing the number of prosecutions in the otherwise crowded courts.

The analysis above made shows that some part of the provision is expected to be carried out expeditiously, like institution of the prosecution Delay in launching the prosecution is per se not fatal but if prejudice is caused to the accused thereby, it may become fatal. It depends upon a case and a case. Some parts of the provision expect a time schedule to be observed, such as, sending to the person concerned a copy of the report of the Public Analyst (varying prescribed times apart through amendments), the accused making an application to the Court to have the other sample sent to the Central Food Laboratory within ten days of the receipt of the report and the information, the Court requiring the sample from the Local (Health) Authority within the time given, analysis to be done within a certain time etc, etc., all requiring observance of a time schedule. Case law has arisen on some of these aspects on the non-observance of the time schedule on the anvil of prejudice to the accused. The consensus of the courts is that mere non observance of the time schedule is per se not fatal to the prosecution. Whether in a particular case, there was prejudice or not, was left to the Courts to determine. The remaining part pertains to the result-orientation in asmuch as it is required of the Local (Health) Authority to positively take two steps ; (i) to forward a copy of the report of the result of the analysis to the person concerned ; and (ii) informing that person that if it is so desired, he may make an application to the Court within a period of ten days from the date of the receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. The mandate of the provision is that the accused must be made aware not only of the adverse report but also of his right to have the report of the Public Analyst superseded by obtaining a report from the Central Food Laboratory. No judicial precedent can let the prosecution get away with its non-observance. A belated observance thereof, however, is on a different footing and again would have to stand the test on the anvil of prejudice to the accused.

O Chinnappa Reddy, J., while sitting singly in the Supreme Court in Dalchand v. Municipal Corporation, Bhopal 1982 (2) F.A.C.29, took the view that where the effect of non-compliance of rule (9 (j) was such as to wholly deprive the right of the person to challenge the Public Analyst''s report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Then again while sitting in a Division Bench of that Court in Tulsiram v. The State of Madhya Pradesh 1984(2)F.A.C.146, it was ruled that the real question is, was the Public Analyst''s report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the Court to send one of the samples to the Central Food Laboratory for analysis, and that if after receiving the Public Analyst''s report he never sought to apply to the Court to have the sample sent to the Central Food Laboratory, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice.

Here, it is worthy of specific notice that the trials as ordained u/s 16-A of the Act are to be summary in nature and thereunder it is provided that provisions of Sections 262 to 265 (both inclusive) of the Code of Criminal Procedure, as far as may be, are applicable to such trials. u/s 262 the procedure specified in the Code of Criminal Procedure for the trial of summons cases is normally to be followed, exceptions apart. And trial of a summons case u/s 251 of the Code of Criminal Procedure commences when the accused appears or is brought before the Magistrate and particulars of the offence of which he is accused are stated to him, and he is asked whether he pleads guilty or had any defence to make. In such a situation, it is not necessary to frame a formal charge. And on the sub-stance of the accusation, he is asked u/s 252 of the Code of Criminal Procedure to enter his plea whether of guilt or otherwise. It is, thereafter that the stage of recording prosecution evidence etc. arises. Thus in a summary trial to which procedure of summons-cases applies effectively commences when the accused appears or is brought before the Magistrate to face the accusation. It is in this context that a Single Bench of this Court in Balkar Singh v. The State of Punjab (1982) 9 Cri. L. T. 392, took the view that compliance of Section 13 (2)with regard to the sending of the Public Analyst''s report and information of the right of the accused to have a second examination from the Central Food Laboratory had to be made at least by the date on which the accused was required to appear in the Court But the Supreme Court in Tulsiram case (supra) has put the stage a bit beyond. It has ruled that it is to be assumed that the report of the Public Analyst is to be made available to the accused vendor at the commencement of the prosecution, that is to say, before the prosecution starts leading evidence in the case, and in good and sufficient time to enable the accused to exercise his right of having the sample analysed by the Central Food Laboratory if he so desires it. But as it seems to us, the Supreme Court in Tulsiram''s case (supra) v. as laying down the outer limit within which the aforesaid two requirements had to bo met keeping in view the procedure applicable to the trial of offenders under the Act. The earlier stage of his appearance in the Court and facing accusation, much before the recording of the prosecution evidence, is also a stage in which an effective hearing takes place, before which he is to be given the report and made aware of his said right so that the Court machinery can be moved for the purpose. It is in this manner that the outer parameters of the requirement designed to be observed by the Local Health Authority have to be understood and laid.

It is thus evident and plain that the prosecution cannot be allowed to succeed in a prosecution in which the Local (Health) Authority has not observed the essential requirement of forwarding of the report of the Public Analyst to the person concerned and simultaneously expressly informing him of his right to have the second opinion and in any case before the start of effective Court proceedings. The delay attributed to the Local (Health) Authority on any of these particulars may well be fatal to the prosecution if the accused can successfully show prejudice caused to him. But in case of non-observance of these essential requirements altogether prejudice is writ large on the face of it and it per se would be fatal to the prosecution. This is our considered opinion keeping in view the case law on the subject noticed earlier as also hereafter.

In Kashmiri Lal v. State of Haryana (1981) 8 Cri. L. T. 417 : (1982) 84 P.L.R. 1, a Full Bench of this Court had occasion to examine whether transgressing the time limit mentioned in Rule 9(j) (now repealed) was so strict, rigid and inflexible that the very non-observance (termed as non-compliance) thereof must entail a vitiation of the whole proceedings The legislative history of Rule 9(j) was taken stock of. That rule was brought in vogue in July, 1968, prescribing no time limit within which a copy of the report was to be supplied to the accused. That position continued upto the year 1973, whereafter a time limit was prescribed. The Food Inspector was required under the said rule to send a copy of the report within 10 days of the receipt of the report of the Public Analyst and in case the sample conformed to the provisions of the Act or the Rules made thereunder, then the vendor was to be sent an intimation thereof. The time limit of ten days remained in the rule for nearly four years and was omitted on January 4, 1977. On the same day insertion of Rule 9-A was made the obligation whereafter fell on the Local (Health) Authority not only to send the report of the result of the analysis as envisaged to the accused after launching of prosecution but contrariwise, where no prosecution was contemplated, an intimation of the result to the person concerned within ten days from the receipt of the report from the Public Analyst. The Local (Health) Authority was required to send a copy of the report immediately but by a later amendment, with effect from July 9, 1984, the report was required to be sent within a period of ten days instead of sending it immediately. But it was all the same a time bound exercise for either of the two purposes; one being a step to further the trial and the other of stopping harassment of the vendor The prescription and omission of the time limit was in these circumstances considered by the Bench as not basic or integral in the statutory provisions. So in this context it was held that though Rule 9(j) was framed in mandatory terms it yet in substance was directory. Since violation of a mandatory rule inevitably led to vitiation of the trial, the directory nature of the rule conversely did not lead to such a result. This precedent only is a pointer that strict observance of the time-schedule given in the statute in mandatory terms may not be mandatory and Rule 9(j) and its substitute Rule 9 A was interpreted accordingly. But this precedent does not cover a case of total non-observance of the requirements essential for a speedy trial.

Another factor which must be taken note of in Kashmiri Lal''s case (supra) is that it was the entire case which was before the Full Bench inclusive of the merits thereof. It is in the realm of prejudice to the accused on the suggested infraction of the directory Rule 9(j) that the case was disposed of Obviously, provisions such as those, even though directory, were meant to be complied with even though belatedly and if non-compliance thereof lead to the prejudice of an accused, he was not precluded from appealing to the judicial sense that what was directory in the statute assumed the posture of being mandatory on the prejudice caused to him. That is a settled principle of law, as old as bills, we repeat it here as assertion.

In State of Haryana v. Joginder Singh 1983 (1) F. A. C. 80, a Division Bench of this Court went on to maintain the acquittal of an accused in whose case evidence was deficient as to whether the Food Inspector had sent a copy of the report of the Public Analyst to him or not, and observing that it was not disputed that Section 13(2) of the Act was mandatory, it was held that since copy of the report of the Public Analyst had not been sent to the accused, he was deprived of the valuable opportunity of setting up a defence to the charge. The report bears no discussion as to the nature of the provision and it was taken as undisputed that the provision was mandatory. Obviously, the time set for it apart, sending of the report was mandatory.

Then again in State of Haryana v. Har Chand (1983) 10 Cri. L. T. 120, a Division Bench of this Court maintained the order of acquittal of the accused on ground that the report of the Public Analyst was not sent to the accused and the complaint was filed after a delay of seven months indicating that the accused was deprived of the opportunity of having the sample given to him analysed by the Central Food Laboratory. On the ground of the report being not sent, the mandatory nature of the provision could obviously be invoked.

In State of Haryana v. Amar Nath 1983 (1) F. A. C. 234, a Division Bench of this Court, however, allowed an appeal against acquittal, taking the view that every infraction of Section 13(2) would not automatically cause prejudice to the accused and he would not be entitled to acquittal on that ground alone. That was a case in which the prosecution claimed that the copy of the report of analysis had been sent by the Local (Health) Authority to the accused by registered post. The postal receipt showed that it had been sent in the same month in which the complaint was lodged. Relying on Kashmiri Lal''s case (supra) it was opined that there was sufficient compliance of the provisions of Section 13(2) of the Act and Rule 9(j) of the Rules. Proceeding with regard to the additional requirement of pointed drawal of attention to the accused of his right to have the sample lying with the Local (Health) Authority, examined from the Central Food Laboratory by making an application to the Court within 10 days of the date of the receipt of the report of the Public Analyst, it was observed by the Bench as follows:

The only argument advanced by the learned Counsel for the accused was that the accused had not been informed that he could apply within 10 days from the date of the receipt of the report of the analysis for sending the other part of the sample to the Central Food Laboratory. If in view of the above Full Bench authority the first part of Section 13(2) is to be taken as directory then the result would be that the second part would also be taken as directory and the accused would be entitled to acquittal only if he shows that substantial prejudice has been caused to him....

The sweep in which the Division Bench applied the ratio of Kashmiri Lal''s case (supra) and in particular in holding the second part of Section 13(2) of Act as directory does not, with due respect to it, appear to us sound and purposive for which the safeguard has been provided in Section 13(2) of the Act. Though as an abstract statement of law it can be said that everyone is presumed to know the law, yet when the legislature makes a specific departure therefrom, it must be assumed that it expects the law to be focussed and brought out by pointed attention in the manner ordained. The legislature knows the subject and its application. The earlier part of Section 13(2) read with Rule 9-A, as now existing, may or may not require the Local (Health) Authority to observe a time schedule in sending the copy of the report of the Public Analyst to the accused and any infraction in the time schedule may or may not lead to the prejudice of the accused, but it cannot be denied that total non-observance thereof, that is to say, not sending the copy of the report at all, would be a complete violation of the earlier part of Section 13(2), To put it differently, sending of the report is mandatory; observing the time schedule for the purpose may not be mandatory and be directory. Kashmiri Lal''s case (supra) is not a precedent for the proposition that the said report need not be sent at all or that words to that effect in Section 13(2) are phoney and meaningless. If sending of the report by the Local (Health) Authority is mandatory u/s 13(2) of the Act read with Rule 9-A of the Rule a fortiorit sequels that it is mandatory for the Local (Health) Authority simultaneously to expressly inform the accused that if it is so desired an application can be made by him or them to the Court within a period of 10 days from the date of receipt of the copy of the report to get the sample of article of food kept by him analysed by the Central Food Laboratory. And if he sends the report and not draws the required attention of the accused to such statutory right, it would in our view be again fatal to the prosecution.

Basides the Legislature apparently cognizant of the highly mechanical and technical nature of the prosecution under the Act, based mainly on expert evidence regarding adulteration, wanted the accused to be alerted and put to guard by pointed attention that he could have a second and superior opinion from the Director of Central Food Laboratory, which could result either in finishing the prosecution or being the substituted basis of the prosecution thenceforth itself. Had it been otherwise, there was no point in providing u/s 13(2-D) that until the receipt of the certificate of the result of the analysis from the Director of the Central Food Laboratory the Court shall not continue with the proceedings pending before it in relation to the prosecution. It was meant not merely to provide defence to the accused but to abort prosecutions which would become invalid on the receipt of the report of the Director, Central Food Laboratory, and to save Court time And all the exercise is with the aid of the Court designedly to ensure speedy disposal of the matter.

Thus in our considered view, both the requirements of Section 13(2) of the Act i. e the sending of the report of the Public Analyst and drawal of specific attention of the accused to his right, are mandatory and non-compliance of both or compliance of one and not the other, would in both events be fatal to the prosecution. So. this part of Section 13(2) of the Act, we hold as mandatory non-compliance of which and in any event uptill the commencement of effective Court proceedings would vitiate the proceedings The other parts of the provision where time schedule is laid or prescribed, or expedition expected, we hold as directory, fatal to the prosecution only if material prejudice can be shown to have been caused to the accused by delayed compliance or observance thereof and in that sense non-compliance. We hold accordingly.

We do not wish to burden this judgment with other judicial precedents which were cited at the bar. What needed to be held and explained away has been done Kashmiri Lal''s case (supra), however, in parting needs some more attention. The Bench''es emphasis there was on marginal transgressions in the observance of the time schedule. It was observed by the Bench that the exceeding of time limit by a day or two or a few days would not necessarily or gravely prejudice an accused person in his defence. Transgressions, large or small, would have to be seen in the perspective of prejudice to the accused in the facts and circumstances of each case. It is the extent of prejudice which would be the guiding factor and not merely the measure of time.

Having answered the question of law in detail in the earlier part of the judgment, we summingly hold that neither is Section 13(2) of the Prevention of Food Adulteration Act wholly mandatory and nor is it wholly directory, but is directory and mandatory, as spelled out hereinbefore. Holding so we remit the cases back to the Division Bench for disposal of the appeals on merits.

Sd/- Ujagar Singh, J.

Sd/- A.P. Chowdhri, J.