TMI Blog1994 (1) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... harged under Section 16(1)(a)(i) and (ii) read with Section 7(i) and (v) and 2(1a)(a) and (b) of the Prevention of Food Adulteration Act. The First-Class Magistrate acquitted both of them mainly on the ground that Rule 7(3) was violated inasmuch as the Local Health authority received Form III report beyond 45 days and the same is fatal to the prosecution. Incidently the trial Court also observed that Rule 9(a) was not properly complied with. The Food Inspector preferred an appeal before the High Court and the High Court while confirming the acquittal of A-2 convicted the appellant (A-1) and sentenced him to undergo six months S.I. and to pay a fine of ₹ 1,000/-, in default of payment of which to further undergo S.I. for two months. The High Court held that Rule 7(3) is not mandatory and non-compliance of the same need be considered only if the prejudice is established. Likewise, the High Court following the judgment of the Supreme Court in Tulsiram v. State of Madhya Pradesh held that Rule 9(a) also is not mandatory but only directory. 2. In this appeal the only contention is that Rule 7(3) is not mandatory as held by the High Court and that violation of the same is fatal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a single Judge of the Madhya Pradesh High Court held that Rule 7(3) is mandatory, placing reliance on the Judgment of the Andhra Pradesh High Court in The Food Inspector v. Jaladanki Fajamma and Anr. (supra) and Stale of Maharashtra v. Deepchand (supra). 11. In Food Inspector, Pal that Municipality v. Moosa and Ors. 1984 K.L.T. 80, a Division Bench of the Kerala High Court held that Rule 7(3) is mandatory. 12. In Food Inspector v. Viswanatha Pillai 1987 (2) F.A.C. 288, a single Judge of the Kerala High Court, relying on the Judgment in Food Inspector, Palghat Municipality v. Moosa and Ors. 1984 (1) F.A.C. 347 equal to 1984 K.L.T. 80 held that Rule 7(3) is mandatory. 13. Now we shall also list out the cases where the said Rule is held to be only directory and not mandatory. In Food and Sanitary Inspector, Giddalur Panchayat v. Koppu Subbaratnam, 1984 (1) F.A.C. 4 (a case of Andhra Pradesh High Court) wherein Hon K. Ramaswamy, J., as he then was, held that Rule 7(3) is only directory and not mandatory. In State of Hunachal Pradesh v. Punnu Ram 1985 (1) F.A.C. 91, a single Judge of the Himachal Pradesh High court held that Rule 7(3) is only directory. In Bhavirisetti Deva Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute; but those which are not essential and may be disregarded without invalidating the thing to be done, are called directory. 17. At page 250 it is further states thus: The question whether the provisions in a statute are directory or imperative has frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at.... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in respect of this duty would work serious general inconvenience or injustice to persons who/have no control over the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable not affecting the validity of acts done. In Dattatraya v. State of Bombay it was held as under: Generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis inspite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it mast be shown that the delay has led to the denial of right conferred under Section 13(2) and that depends on the facts of each case and violation of the time limit given in Sub-rule 3 of Rule 7 by itself can not be a ground for the prosecution case being thrown out. 18. In this context it is useful to refer to the judgment of this Court in Dalchand v. Municipal Corporation, Bhopal and Anr. wherein the question was whether Rule 9(j) of Prevention of Food Adulteration Rules under which report of the public analyst has to be supplied within ten days, is mandatory or directory and it was held as under: There are no ready tests or invariable formulas to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was mandatory or directory, and instead uses the general expression immediately'. The Local (Health) Authority is now required to forward to the person from whom the sample was taken in the manner prescribed, a copy of the report of the Public Analyst immediately after the institution of the prosecution. While prescribing the manner in which the report may be forwarded the opening words of Rule 9-A The Local (Health) Authority shall (immediately) after the institution of prosecution forward' (bracket supplied), are borrowed verbatim from Section 13(2) with the word immediately' inserted in between. The rule-making authority could never have intended to amend the statute by superadding the word immediately' as indeed it was not competent to do. Rule 9-A has to be interpreted so as to keep it in tune with and within the bounds of Section 13(2). xxx xxx xxx In the context the expression 'immediately' is only meant to convey 'reasonable despatch and promptitude' and no more. The idea is to avoid dilatoriness on the part of officialdom and prevention of unnecessary harassment lo the accused. But the idea is not to penalise the prosecution and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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