TMI Blog1992 (9) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judges of this court in The State of Assam v. Sri Nath Mal Goenka, (1990) 2 GLR 64, The The State Of Assam v. Sri Sumermal Jain Accused/Opposite Party/., (1990) 2 GLR 99. and The State of Assam v. Sri Shiew Kumar Jain, 1992 Cri. L.J 1479 and of a Division Bench of this court in Criminal Revision No. 358186 (Paban Kumar Agarwalla v. State of Assam decided on 26-6-92)* require reconsideration. 3. P.W 1, District Food Inspector of Ssbsagar district visited the grocery shop belonging to the firm on 26.8.198??? and after observing the requisite formalities, purchased six bottles of ghee from out of the stock exhibited for sale, dealt with the same in accordance with law, sent one part of the sample to the Public Analyst for analysis and the other two parts to the Local Health Authority. Public Analyst in bis report, Ext. 10, stated that the sample was aduker-ated ghee. Butyro-refractometer reading at 40 C was 52 as against the standard prescribed of 40.0 to 43.0 and Reichert value was 3.5 as against the minimum prescribed of 26. The sample contained Va-naspati to the extent of 83%. Added colour, Annalto was present. The report has not been successfully challenged either by e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was delivered to the Local Health Authority, it must be taken that it was delivered on 27.10.81 or 28.10.81 This would mean that the delivery of the report was made fifty six days after the Public Analyst received the sample and therefore, it is argued, there has been violation of Rule 7(3) of the Rules. Hence it is necessary to decide if the Rule is mandatory or directory. Whether the requirement of Rule 7(3) is mandatory or directory has to be decided on the basis of well established rules of interpretation. 6. Supreme Court in State of Mysore v. V.K Kanqan, (1976) 2 SCC 895 : AIR 1975 SC 2190, observed as follows: No doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview. But it does not follow that every departure from it shall taint the proceedings with a fatal blemish. 7. The following observations of the Supreme Court in Pratap Singh v. Shri Krishna Gupta, AIR 1956 SC 140 are instructive: we deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter: they cannot be broken; others are on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, design, and the consequences which would follow from construing it the one way or the other. In Banwarilal Agarwalla v. State of Bihar, AIR 1961 SC 849, the court observed that the legislative intent has to be found on an examination of all the relevant circumstances, namely, the language used, the scheme of the legislation, the benefit to public on insisting on strict compliance as well as the riks to public interest on insistence on such compliance. See also, Hiralal Agarwal v. Rampadarath Singh, AIR 1969 SC 244. In re-Presidential Election, 1974, (1974) 2 SCC 33 : AIR 1974 SC 1682, Ramchandra Keshav Adke v. Govind Joti Chavare, (1975) 1 SCC 559 : AIR 1975 SC 915, Dr. Ram Singh Saini v. H.N Bhargava , (1975) 4 SCC 676 : AIR 1975 SC 1852, The Municipal Corporation of Greater Bombay v. The BEST Workers' Union, (1973) 3 SCC 546 : AIR 1973 SC 883, The State of Punjab v. Shamlal Murari, (1976) 1 SCC 719. In Dattatraya Moreswar v. The State of Bombay, AIR 1952 SC 181,- it has been observed that generally speaking the provisions of a statute creating public dutie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Director. If in pursuance of the application the part of tbe-sample was sent to the Director sad he had reported that the part of the sample was incapable of analysis for the reason-that it was decomposed, the appellant could perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, since the appellant never applied under section 13(2) of the Act, he cannot complain that he has been deprived of any right. (Emphasis supplied) 12. Dealing with the contention that no useful purpose would be served by sending the sample for analysis by the Director, Supreme-Court observed: There is no reason to think that the sample became deco mposed by the time the summons was served for that reason. There was no evidence before the Magistrate that for the reason that the prescribed quantity of formalin was not added to each part, the part of the sample delivered to the vendor was incapable of being analysed by the Director. Nor did the Magis trate rely on that circumstance for his conclusion that the sample would have become decomposed. The appellant could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of, a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the result was not merely undue and unnecessary delay in the disposal of the case but fairly and frequently it would be discovered that the sample had disintegrated due to lapse of time, thus disabling the Director, Central Food Laboratory from analysing the sample. It was with a view to overcome the difficulties encountered in the working of the Act, sections 11 and 13 were recast in 1976 and rules were amended in 1977. Rule 9-A replaced the old Rule 9(J). The court held that the expression immediately had been used to convey a sense of continuity rather than a sesse of urgency. 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 to the accused and not to penalise the prosecution and to provide a technical defence. The Court observed: 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. If a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1952 SC 181 and Dalchand's case ((1984) 2 SCC 486 : AIR 1983 SC 303). We may notice that the two decisions rendered by Ramanujulu Naidu, J. have been over ruled by a Division Bench of the same High Court in a judgment delivered by Jeevan Reddy, J. (as ho then was) in Bhanrisetti Deva Mohan Rao v. The State of Andhra Pradesh, 1986 (1) FAC 12. 18. In Om Prakash v. The State of Punjab, 1984 (II) FAC 136 and Amarsingh v. The State of Haryana, 1987 (II) FAJ 88, learned Single Judges of the Punjab and Haryana High Court held Rule 7(3) to be mandatory without detailed consideration of the matter. In Mohinder Singh v. State of H.P, 1984 (II) FAC 296, Handa, J. of Himachal Pradesh High Court held Rule 7 to be mandatory on the ground that the rule is intended to ensure against the possibility of the sample having lost its original quality or tampered with or rep-laced in the course of transit. There is the contra decision of Bhatnagar, J. of the Himachal Pradesh High Court in State of Himachal Pradesh v. Punnu Ram, 1985 (I) FAC 91 relying on Dalchand's case, (1984) 2 SCC 486 : AIR 1983 SC 303. Bhatt, J. of the Madhya Pradesh High Court in State of Madhya Pradesh v. Ghasiram Mal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala in Food Inspector v. Gapalan, 1991 I FAC 143, approved the view taken in Kunhamus case, 1989 (II) FAC 51. The Full Bench did so on a consideration of the object of the Act, the various steps provided in the Act and the Rules, the fact that Director Central Food Laboratory will have occasion to analyse another part of the sample only very much later and relying on Koppu Subharatnam's case, 1984 (1) FAC 4, Puma Ram's case, 1985 (I) FAC 91, Dalchand's case, (1984) 2 SCC 486 : AIR 1983 SC 303. The Full Bench noticed the period of 30 days prescribed for the Director, Central Food Laboratory to despatch his certificate to the Court and indicated that rejection of the Certificate on the ground of delay in despatch would rob the accused of his-valuable right of relying on the Certificate. 21. A Full Bench of five Judges of the High Court of Kerala, speaking through Fathima Beevi, J. (as she then was), in Mathukutty v. State of Kerala, AIR 1988 Kerala 60 (FB) dealing with the time lag between the date on which the sample is taken and the date of analysis held that the time lag would by itself be of no consequccce and that whether the time lag had any effect on the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction-should be provided to the accused. On these grounds it was held that Rule 7(3) is mandatory. 23. The matter came up before a Division Bench of this Court in Criminal Revision No. 358 of 1986 (Shri Pawan Kr. Agarwalla v. State of Assam) on a reference made by one of us (Bhat, J.) The Division Bench approved the decision in Nathmal Goenkas case, (1990) 2 GLR 33 without independently considering the matter, and observed: We have persued the judgment of this Court and we do not find any reason to take a contrary view that Rule 7(3) is not mandatory and accordingly we affirm the said ratio laid down by this Court. 24. It is this decision which led to the present reference to a larger Bench by another Division Bench. 25. As observed by the Supreme Court in State of Mysore v. K. Kanqan, (1976) 2 SCC 895 : AIR 1975 SC 2190 no doubt, all laws are mandatory in the sense they impose the duty to obey on those who come within its purview. But it does not follow that every departure from it shall taint the proceedings with a fatal blemish. Those who are required to obey the law are not expected to ignore, disregard or disobey the law; but that a particular public officer who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closely scrutinized for no court will interpret a provision in a manner so as to promote mischief or inconvenience. As observed in Dalchand's case, where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular proviskn literally to its letter will tend to defeat that design, the provision must be held to be directory. The provision will be regarded as laying down instructions to those entrusted with the task of discharging statutory Pieties for public benefit. The court must also be aware that every prescription of a period within which an act must be done, is not the prescription of a period of limitation with fatal consequences if the act is not done within the said period. The court must determine the intentioa of the legislature or the Rule-makiog authority in prescribing the period before holding it to be mandatory or directory Tkeeping in mind the consequences which may follow in either case. Statutes prescribing the manner in which public officials shall exercise the power vested in them will generally be construed as directory. As a general rule a statute specifying time limit for performance of an official duty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hes of the law should be discouraged. 30. To achieve the aforesaid objective, the Act contemplates creation of various agencies. There is the Central Committee for Food Standards which is to advise the Central Government and the State Governments in matters arising out of the administration of the Act. There are Food Inspectors with adequate power to detect offences. They secure crucial evidence from Public Analysts. There is Central Food Laboratory as an additional safeguard for the accused. Sections 5 and 7 off the Act are substantive provisions dealing with adulterated food and misbranded food etc. The powers of the Food In-specters are enumerated in Section 10. He has power to take a sample of any article of food for the purpose of analysis from the-persons indicated in the provision. Section 11 lays down the procedure-to be followed by the Food Inspector?. Elaborate procedure is laid down to ensure that the Food Inspector is able to prove in court that he has taken the sample in accordance with law and also to afford protection against arbitrary action on bis part. He has to send one part of the sample for analysis to the public analyst under intimation to the Local (H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report of the result of such analysis in Form III within a period of sixty days of the receipt of the sample. 34. Sub-rule (3) as amended in 1977 read as follows: The public analyst shall within a period of forty-five days from the date of receipt of any sample for analysis deliver to the Local (Health) Authority a report of the result of such analysis in Form III. 35. The sub-rule reads as follows after the 1984 amendment: The public analyst shall within a period of forty days from-the date of receipt of any sample for analysis send by registered post or by hand to the Local (Health) Authority a report of the result of such analysis in Form III. 36. In Dalchand's case the Supreme Court held that the period of 10 days mentioned in old Rule 9(J) was only directory, and was not a prescription of period of limitation. The prescription was only with a view to expedition. According to the learned counsel for the revision petitioner this reasoning cannot be applied to Rule 7(3) for two reasons, namely, the possibility of deterioration in the quality of the article leading to change in composition and the changes brought about in the Rule from time to time by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This, it is said is necessary since delay could lead to decomposition or deterioration of quality and that will seriously prejudice the accused. Such decomposition or deterioration of the quality could not affect the analysis by the public analyst since he would have analysed the article before sending the-report. The argument is that further possibility of decomposition or deterioration will deprive the accused of his valuable right under Sec. 13(2) to have a part of the sample analysed at the Central Food Labsratory. Procedure for reference is laid down in various sub sections of Section 13. The whole procedure involves various steps. A careful;: study of Section 13 shows that period or time limit has been prescribed in regard to the duty to be performed by the public analyst as well as the Director, Central Food Laboratory and also for making the application by the accused and no time limit has been prescribed for the duties to be performed by the Food Inspector, Local (Health) Authority or the Court. 40. Let us analyse the various steps to be taken in the Statutory process under the Act and the Rules: Steps to be taken Time limit 1. Rule 17 Despatch of one part of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate the intention not to regard the prescription of period as mandatory. Of course, the legislature and the Rule-making authority have a definite purpose in prescribing period even in regard to a few matters. That is so spar the public authorities concerned to discharge their duties wish all expedition. The accused also is required to file-application within a prescribed limit. That also cannot be regarded as-mandatory for there may be variety of circumstances in which an accused may not be able to file it within the prescribed period. He-may be prevented by sufficient reasons from making application within--the prescribed period. Public Analyst is a public functionary in whom, certain duties are vested by the Stalute or Statutory Rules. He is-required to perform his duties in accordance wiih law. However, the-Rule-making authority must necessarily be aware that the public functionary on account of volume of work or the inadequacy of facilities-provided may not be able to perform his duties within the prescribed period. It may even be possible that he may refrain from proper discharge of his duty for extraneous reasons. There may be delay of a few days on account of carelessnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ieved quickly. 42. Considerable stress has been laid in the course of arguments-about the changes brought about from time to time in the period-stipulated in ruie 7(3). We have already indicated that there is no significance in the change over from the words forthwith supply , send , deliver and send , since unless the Food Inspector obtains a report he cannot initiate prosecution at all. A study of the statutory frame shows that inflexibility is inconsistent with the basic-object of the Statute. The provisions we have referred to indicate the statutory aim to be reasonable despatch which is necessary in public interest as well as in the interest of the person likely to be prosecuted. If any delay is shown to have caused prejudice to the accused, the court would naturally take note of the same. The Statute is worked through human agencies and in the functioning of human agencies, perfunctoriness, carelessness or delay may intervene or even be induced. It cannot be the aim of the legislature or the Rule making authority that these human factors by themseves should frustrate a purposeful action aimed at protecting and preserving-public health. A dalay which has not been shown ..... X X X X Extracts X X X X X X X X Extracts X X X X
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