TMI Blog1978 (2) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was set aside on the ground :- The Public Analyst did not have the quantities mentioned in the Rules for analysis. The appellant rightly contends that non-compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice. The quantities mentioned are required for correct analysis. Shortage in quantity for analysis is not permitted by the Statute. This, larger Bench was constituted for examining the correctness of the above view. 2. We shall, at the outset, notice the scheme of the Act with reference to the relevant provisions of the Act and the Rules. The Act was very substantially amended by Act 34 of 1976. We will however, for the purpose of these appeals be referring to the provisions of the Act as they stood before the said amendment. When an article of food shall be deemed to be adulterated has been mentioned and defined in section, 2(i) of the Act. It is not seriously in dispute in any of these appeals that the articles of food sold to the Food Inspectors by the dealers were found to be adulterated within the meaning of one or the other sub-clause of Clause (i) of Section 2 of the Act. Of course, the type and extent of adu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legal proceedings are taken. Now Sub-section (3) should also be to read as a whole. When a sample of any article of food is taken under Sub-section (1) or Sub-section (2) of Section 10, the food inspector shall send a sample of it in accordance with the rules prescribed for sampling to the public analyst for the local area concerned. 4. Any purchaser of any article of food other than a food inspector can also get the food purchased by him analysed in accordance with Section 12. Section 13 deals with the report of the Public Analyst and makes it, in certain cases, subject to the over-riding effect of the report of the Director of the Central Food Laboratory. Sub-section (5) of Section 13 says that any document purporting to be a report signed by a public analyst, unless it has been superseded under Sub-section (3) by a certificate of the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under the Act. It shall be final and conclusive evidence of the facts stated therein. Of course, if necessary, the Public Analyst can be called as a witness, in accordance with the CrPC, to depose about certain facts in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Rule was directory or recommendatory as the use of the word 'approximate' in one of the columns of the Rule indicates. The object of the Rule, according to the said decisions, 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 and caused no prejudice to the accused, then the mere fact of his sending a lesser quantity than that prescribed could not vitiate the evidentiary value of the report of the Public Analyst of the conviction based thereupon; vide State of Bombay v. Ramanlal Jamnadas Gandhi; Nagar Swatha Adhikari, Nagar Mahapalika, Agra v. Ant Ram AIR1966All32 Public Prosecutor v. Basheer Sahib AIR1966Mad325 ; Public Prosecutor, Andhra Pradesh v. Pasara Rama Rao AIR1967AP49 ; Public Prosecutor v. Ediga Venkata Swami AIR1967AP131 ; Food Inspector, Quilon v. Koyakutty and Food Inspector, Calicut v. T. Karunakaran and Ors. 1973 Kerala Law Times 595 No decision of any High Court taking a contrary view was brought to our notice. In the Bombay decision mentioned above, it was also observed, and rightly, that, whether the Rule is recommendat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider the importance of the provision and the relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory. 9. It is not necessary to refer to the numerous decided cases on this point,- Applying the statutory principles extracted above, it would be noticed that the use of the, word 'shall' in Sub-section (3) of 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 well-known 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. It was brought to our notice by counsel on either side that the quantities of various samples of food to be sent to the Public Analyst as fixed from time to time have varied. As observed by this Court in the case of State of Uttar Pradesh v. Kartar Singh 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. To quote the words of Sir George Rankin, C. J. from the decision of the Calcutta High Court in Chandra Nath Bagchi v. Nabadwip Chandra Dutt and Ors. AIR1931Cal476 at page 478, it would be merely piling unreason upon technicality... . 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 Inspectors should take care to see that they comply with the Rule as far as possible. 10. We may also advert to one more aspect of the wording of the Rule to find out whether it is directory or mandatory and that is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of clarifying the law and not by way of amending it. The law, as we have enunciated it, was so even without Rule 22B and it is stated here to place it beyond any debate or doubt. 12. We may usefully refer to a recent decision dated July 6, 1976 of the Supreme Court of the United States of America in the cases of W. T. Stone, Warden, Petitioner, 74-1055 v. Lloyd Charles Powell and Charles L. Wolff, Jr., Warden, Petitioner, 72-1222 v. David L. Rice wherein the majority of the Court made a conspicuous departure from its previous decision of about half a century in the application of the exclusionary Rule of evidence. The prosecution relied upon evidence obtained by searches and seizures which were said to be unconstitutional and unlawful. The issue was of considerable importance in the administration of criminal justice. Mr. Justice Powell in his leading majority judgment dissenting from the earlier view said :- Upon examination, we conclude, in light of the nature and purpose of the Fourth Amendment exclusionary rule, that this view is unjustified. We hold, therefore, that where the State has provided an opportunity for full and fair litigation of a Fourth Amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sufficient. In our statute the ingredient of the offence is, as mentioned in the 7th section of the Act, manufacturing for sale, storing, selling or distributing any adulterated food. If the food sold to the Inspector is proved to be adulterated, it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person. A person who stores or sells such sample is liable to be punished under Section 16(1)(a)(i) of the Act. 14. Reliance was placed upon the case of Dwerryhouse v. United Co-operative Dairies, Ltd. [1962] England L.R 936 The question for consideration in that case was the scope and ambit of certain sections of the Food and Drugs Act, 1955. The Justice had come to the conclusion on the facts of the case that no sample under the Act had been procured and decided that Section 108 did not prevent their hearing the case and that the supplier was entitled to the defence laid down by Section 94(4) of the Act. On a case stated by Justices for the county of Chester, Lord Parker, CJ. said at page 941 :- I think that they were wrong in holding that the respondent was entitled to the statutory defence laid down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Pamanani's case recorded orders of acquittal. We also found that, in some cases, the adulteration was of a minor and technical character, although in some it was of, rather, serious nature too. In some cases, decisions were given on the footing that chillies powder is condiment and not spice-a matter which we are not deciding. But taking the totality of the facts and circumstances of each case and specially the fact that Pamanani's case has held the field for about three years by now, we did not feel that justice required that we should interfere with the orders of acquittal in all these cases and send some cases back to the High Court while deciding others ourselves by recording orders of conviction. Rule 22B clarifying the law has also been introduced as late as December, 1977 although Pamanani's case was decided in December, 1974. We were informed at the Bar, and so far we are aware, rightly too, that for non-compliance with the requirements of Rule 22, many cases in different States had ended in acquittal. Decision in many of them became final and only a few could be brought to this Court. Each one of the Food Inspectors concerned had failed in discharging his ..... 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