Chander
Sain Vs. State of Hyrayana [1994] INSC 5 (7 January 1994)
Agrawal, S.C. (J) Agrawal, S.C. (J) Venkatachala N. (J)
CITATION:
1994 AIR 972 1994 SCC (1) 750 JT 1994 (1) 15 1994 SCALE (1)22
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.- This appeal
arising under Prevention of Food Adulteration Act is filed against the judgment
of the Kerala High Court in Criminal Appeal No. 153 of 1982+ and the main
question that arises for consideration is whether Rule 7(3) of the Prevention
of Food Adulteration Rules is mandatory or only directory? The appellant Usman
(A-1) was a vendor. On October
4, 1978, the Food
Inspector PW 3 purchased six packets of Pan supari from him which were duly
sampled and sent for analysis to the Public Analyst who received the same on October 5, 1978. But the Analyst's report was
received by the Local Health Authority on December 6, 1978 which was beyond 45 days. It was
opined by the Analyst that the sample contained saccharin, an artificial sweetener
and was thus adulterated. The Food Inspector filed a complaint on December 15, 1978 against the appellant (A-1) and
also the manufacturer (A-2) and they were charged 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
Rs 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
originally stood read thus:
"After
the analysis has been completed he (the Public Analyst) shall forthwith supply
to the person concerned a report in Form III of the result of such
analysis." The amendment in 1968 substituted the following Rule 7(3):
"After
the analysis has been completed he shall send to the person concerned two
copies of the report of the result of such analysis in Form III within a period
of sixty days of the receipt of the samples." This rule was again
substituted by a new rule with effect from January 4, 1977 which reads thus:
+
(1986)IFAC328 1 (1984) 4 SCC 487 : 1985 SCC (Cri) 4 757 "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 Ill." This was the rule in force on
the date relevant for the purpose of this case. It may be noted here that a
period of 45 days was reduced to 40 days by subsequent amendment in 1984 with
which we are not concerned.
3. The
learned counsel submits that specifying the period in a statute of this nature
and the historical background of the rule would show that the word
"forthwith" is of great importance and the provisions should be held
to be mandatory. In support of his submission he Yelled upon several decisions
of the various High Courts as well as of this Court.
4. In
State Public Prosecutor v. Meenakshi Achi2 learned Single Judge of the Madras
High Court held that Rule 7(3) is mandatory and in no event and under no
circumstances full rigour of Rule 7 should be permitted to be relaxed otherwise
it would even result in the effective deprivation of the valuable right under
Section 13(2) of the Act.
5. In
State of Maharashtra v. Deepchand Khushalchand Jain3 a Single Judge of the Maharashtra
High Court held that Rule 7(3) is mandatory. In Om Parkash v. State of Punjab4
a Single Judge of Punjab and Haryana High Court, relying upon the judgment of
the Madras High Court in State Public Prosecutor v. Meenakshi Achi2 also held
that Rule 7(3) is mandatory. In Food Inspector v. Jaladanki Fajamma5 a Single
Judge of the Andhra Pradesh High Court held that Rule 7(3) is mandatory. In
State of M.P. v. Ghasiram Malviya6 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 Food 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)
758 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 Bench of Andhra
Pradesh High Court consisting of Hon. Jeevan Reddy (as he then was) and Sriramulu,
JJ. held that Rule 7(3) is only directory and not mandatory and thereby did not
agree with the view taken by the learned Single Judge of the same High Court in
The State through Food Inspector v. Shaik Nisar Ahmed12 and Food Inspector v. Jaladanki
Fajamma5. Again a Division Bench of the Kerala High Court in Kunhamu v. Food
Inspector13 considered very elaborately the scope of Rule 7(3) and referred to
all the earlier decisions and held that Rule 7(3) is only directory and not
mandatory.
7. Shri
P.S. Poti, learned Senior Counsel appearing for the appellant submitted that
though there is divergence of opinion, the rule must be held to be mandatory
and having regard to the stringent provisions of the Act, strict compliance
with the provisions of the Act as well as the Rules should be insisted upon and
where there is a failure to comply with, prejudice per se must be inferred.
8. In
Maxwell on Interpretation of Statutes, Eleventh Edn., at page 362 it is stated
as under:
"Where,
indeed, the whole aim and object of the legislature would be plainly defeated
if the command to do the thing in a particular manner did not imply a
prohibition to do it in any other manner, no doubt can be entertained as to the
intention; that is to say, such a requirement would be imperative." It is
further stated on page 364 that:
"The
general rule is, that an absolute enactment must be obeyed or fulfilled
exactly, but it is sufficient if a directory enactment be obeyed or fulfilled
substantially.
When a
public duty is imposed and the statute requires that it shall be performed in a
certain manner, or within a certain time, or under other specified conditions,
such prescriptions may well be regarded as intended to be directory only in
cases when injustice or inconvenience to others who have no control over those
exercising the duty would result if such requirements were essential and
imperative."
9. In Craies'
Statute Law, Seventh Edn., at page 62 it is stated thus:
"When
a statute is passed for the purpose of enabling something to be done, and
prescribes the formalities which are to attend its performance, those
prescribed formalities which are essential to the validity of the thing when
done are called imperative or absolute; but 10 (1985) 1 FAC 91 : 1985 Cri LJ
1270 (HP) 11 (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) 759 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 public duties are directory and
those conferring private rights are imperative. 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 neglect 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 of the Courts to hold such provisions to
be directory only, the neglect of them not affecting the validity of the acts
done."
11. In
Rule 7(3) no doubt the expression "shall" is used but it must be home
in mind that the rule deals with stages prior to launching the prosecution and
it is also clear that by the date of receipt of the report of the Public
Analyst the case is not yet instituted in the court and it is only on the basis
of this report of the Public Analyst that the authority concerned has to take a
decision whether to institute a prosecution or not. There is no timelimit
prescribed within which the prosecution has to be instituted and when there is
no such limit prescribed then there is no valid reason for holding the period
of 45 days as mandatory.
Of
course that does not mean that the Public Analyst can ignore the time-limit
prescribed under the rules. He must in all cases try to comply with the
time-limit. But if there is some delay, in a given case, there is no reason to
hold that the very report is void and on that basis to hold that even
prosecution cannot be launched. May be, in a given case, if there is inordinate
delay, the court may not attach any value to the report but merely because the
time- limit is prescribed, it cannot be said that even a slight delay would
render the report void or inadmissible in law.
In
this context it must be noted that Rule 7(3) is only a procedural provision
meant Citing Sir Arthur Channel in the Privy Council in Montreal Street Rail
Co. v. Normandin, [1917] AC 170, 174 14 AIR 1952 SC 181 : 1952 SCR 612: 54 Bom
LR 525 760 to speed up the process of investigation on the basis of which the
prosecution has to be launched. No doubt, sub- section (2) of Section 13 of the
Act confers valuable right on the accused under which provision the accused can
make an application to the court within a period of 10 days from the receipt of
copy of the report of Public Analyst to get 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 mandatory or directory and it was held
as under: (SCC pp. 486-87, para 1) "There are no ready tests or invariable
formulae to determine whether a provision is mandatory or directory. The broad
purpose of the statute is important. The object of the particular provision
must be considered. The link between 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 the act is not done within that period." 15 (1984) 2 SCC
486: 1984 SCC (Cri) 311 : AIR 1983 SC 303 761 In this view of the matter this
Court held that Rule 9(j) is only directory and not mandatory. Regarding the
effect of non-compliance of Rule 9(j) it was further held that: (SCC p. 487, para
1) "Where the effect of non-compliance with the rule 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. Where
no prejudice was caused there could be no cause for complaint. I am clearly of
the view that Rule 9(j) of the Prevention of Food Adulteration Rules was
directory and not mandatory."
13. In
Tulsiram case this Court has laid down that Rule 9-A is only directory and not
mandatory. In the course of 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 tune with and within the bounds of Section
13(2).
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. But the
idea is not to penalise the prosecution and to provide a technical defence.
Our
conclusions on this question are: The expression 'immediately' in Rule 9-A is
intended to convey a sense of continuity rather than urgency. What must be done
is to forward the report at the earliest opportunity, so as to facilitate the
exercise of the statutory right under Section 13(2) in good and sufficient time
before the prosecution commences leading evidence. Non- compliance with Rule
9-A is not 762 fatal, it is a question of prejudice.
Applying
these principles, we find no merit in the submissions based on Rule 9-A."
The same reasoning applies to the case of non-compliance of Rule 7(3) also and
unless there is proof of prejudice, there can be no cause for complaint by the
accused.
14. In
Craies' Statute Law, Eighth Edn. at page 262 it is stated thus:
"It
is the duty of courts of justice to try to get at the real intention of the
legislature by carefully attending to the whole scope of the statute to be
construed. ... That in each case you must look to the subject-matter, consider
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."
15.
Likewise in State of Kerala v. Alasserry Mohammed16 Hon'ble Untwalia, J.
speaking for the Supreme Court and while holding that Rule 22 of Prevention of
Food Adulteration Rules is only directory, held that "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."
16.
Therefore we are of the view that Rule 7(3) is only directory and not
mandatory. No interference is called for in this appeal. It is accordingly
dismissed.
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