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TMI Blog1994 (1) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 16(1)(a)(i) and (ii) read with Section 7(i) and (v) and 2(i-a)(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. Incidentally 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 SI and to pay a fine of ₹ 1000, in default of payment of which to further undergo SI 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 M. P. I 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 mandatory and that violation of the same is fatal to the prosecution case. Rule 7(3) as it original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od Inspector v. Jaladanki Fajamma5 and State of Maharashtra v. Deepchand Khushalchand Jain3. In Food Inspector, Palghat Municipality v. K.M. Moosa7 a Division Bench of the Kerala High Court held that Rule 7(3) is mandatory. In Food Inspector v. Viswanatha Pillai8 a Single Judge of the Kerala High Court, relying on the judgment in Food Inspector, Palghat Municipality v. K.M. Moosa7 held that Rule 7(3) is mandatory. 6. 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 Subbaratnam9 (a case of Andhra Pradesh High Court) wherein Hon'ble K. Ramaswamy, J., as he then was, held that Rule 7(3) is 2 1973 FAC 43 3 (1983) 1 FAC 174 (Bom) 4 (1984) 2 FAC 136 (P&H) 5 (1984) 2 FAC 239: (1984) 2 Andh LT 141 (AP) 6 (1986) 3 FAC 62: 1986 FAJ 452 (MP) 7 1984 KLT 80: (1984) 1 FAC 347 : 1984 Cri LJ 563 (Ker) 8 (1987) 2 FAC 288 (Ker) 9 (1984) 1 FAC 4 : 1983 Cri LJ 1801 (AP) only directory and not mandatory. In State of H.P. v. Punnu Ram10 a Single Judge of the Himachal Pradesh High Court held that Rule 7(3) is only directory. In Bhavirisetti Deva Mohan Rao v. State of A.P.11 a Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986) 1 FAC 12: 1986 Cri LJ 495: (1985) 2 ALT 251 (AP) 12 (1983) 2 FAC 211:1981 MLJ (Cri) 314 (AP) 13 (1989) 2 FAC 51 (Ker) those which are not essential and may be disregarded without invalidating the thing to be done, are called directory."(emphasis in original) At page 250 it is further stated 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 those entrusted with the duty, and at the same time would not promote 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." 10. In Dattatraya Moreshwar v. State of Bombay14 it was held as under: "Generally speaking the provisions of a statute creating publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, 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 in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it must 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 cannot be a ground for the prosecution case being thrown out. 12. In this context it is useful to refer to the judgment of this Court in Dalchand v. Municipal Corpn., Bhopal15 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment, there is a reference to Dalchand case1 5 and the ratio laid down there has been followed and it was held as under: (SCC pp. 496-97 and 498, para 7) "The first thing to be noticed is that Rule 9- A certainly refrains from mentioning any definite limit of time such as that found in old Rule 9(j) which gave rise to the controversy whether the rule 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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