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TMI Blog1991 (2) TMI 421X X X X Extracts X X X X X X X X Extracts X X X X ..... ved it on 26-11-1981. The report of analysis dated 23-12-1981 was received by the Local Health Authority on 11-1-1982. Reckoning the period from 26-11-1981, the date of receipt of the sample by the Public Analyst, stretching up to 11-1-1982, when the report was delivered to the Local Health Authority, the period comes to 46 days. As the Rule stood at that time, the time stipulated for delivery of the report of analysis was only 45 days. Even if it be a delay of one day, according to the Sessions Judge, it was fundamentally fatal to the prosecution. 2. The view was challenged in appeal. A learned Judge of this Court, who heard the appeal, noted a conflict in the views expressed by this Court on the issue. The appeal was accordingly referred for the decision of the Division Bench. 3. The Division Bench, in turn, indicated desirability of an authoritative pronouncement on the question. On a reference made in that behalf, the matter has come up before the Full Bench. 4. Rule 7(3) as it stood at the relevant time may only be extracted : The Public Analyst shall, within a period of forty-five days from the date of receipt of any sample for analysis, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the correct channels. 9. We shall, at the outset, view the framework of the statute and its larger background illumined by the helpful earlier pronouncements. 10. The statute we have to grapple with is the Prevention of Food Adulteration Act. It is a social legislation intended to promote a social objective; preserving for the people, pure and edible food. A modern man may not live by bread alone. He may not be one who lives to eat but eats to live. Even then, the food packet is indeed important. Ensuring the purity and edibility of the food has, therefore, been undertaken as a prima duty of the State. The community is not made of people who, like the imaginary divine swan, could separate milk from its mixture with water (matter in vernacular omitted -- Ed.) Measures restrictive and regulatory in relation to the distribution of the food in its widest form had been undertaken by the State. The legislation under consideration is one intended to achieve this larger and nobler goal. 11. The community with which the case is concerned may also be referred to, to indicate its imperious importance. To the larger sections of people, the cow is important and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision in the Act or Rule should receive such construction as would subserve public interest and promote the legislative intention. An interpretation which wrecks the public interest in the name of technicality should be eschewed. At the same time, a citizen has to be insulted against harassment and prejudice which can arise when a statute is implemented inadequately or imperfectly through human agencies with all their frailties and weaknesses. Whether, in a given context, a statute should be termed mandatory or directory would depend upon the larger aspect of public interest, nicely balanced with the precious right of the common man. Whether the accused in a particular case had been prejudiced to such a degree of delay as to liberate him from the unabated agony resulting from delay is a matter for decision in the individual case. The 25 sections of the Act cover areas which include matters of routine such as the cognisance and trial, offences by Companies, applicability of Probation of Offenders Act and the like. Section 8 deals with Public Analysts and Section 9 with Food Inspectors. 16. Two sections with which the rule in question has a direct nexus are Sections 11 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude between the time it is taken and theme of analysis. Further action -- whether a prosecution should be launched or not -- depends on the data as emerging on the analysis. The dealer from whom the sample was taken by the Food Inspector has a say and a right at that juncture. So too is the case with the local authority. It is on receipt of the analysis that the course of further action is decided by it. Mark that the statute does not indicate any time limit for such action. If the vendor of the article is not satisfied with the result of the analysis, he has a valuable right to approach the Director of the Central Laboratory. The Director's report has a statutory finality. This too has its prominence, its significance and emphasis in the scheme of things. It is in sharp contrast with the results of the analysis of the Food Analysts, which do not enjoy a privileged protection as in the case of the Director's report. In the larger interpretation of the character of the statutory provision, this aspect too has its crucial and controlling effect. 18. There is one contingency which is statutorily covered, which, though not easily noticeable, throws considerable light o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allude to them. 21. As regards the principles of interpretation, two decisions, which have given serious and detail thought, are those of the Andhra Pradesh High Court in the Food and Sanitary Inspector v. Koppu Subbaratham 1984 FAJ 80: 1983 Cri U 1801 and of the Himachal Pradesh in the State of H. P. v. Punnu Ram 1985 FAJ 579: 1985 Cri LJ 1270. Paragraphs 30 to 38 in the Andhra decision detail the reasoning. The well known passages from Maxwell and Craies were extracted; and the approving adoption of those principles by the Supreme Court, though in different contexts were recounted. Reference was made to the early decision of the Supreme' Court in Dattatraya v. State of Bombay, AIR 1952 SC 181 : (1952 Cri U 955) where S. R. Das, J. stated that it has been the practice of the Courts to hold such provisions to be directory only, when they relate to the performance of a public duty and where a declaration about the void character of acts done in neglect of the duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the public duty. Illustrations of adoption and application of the principle as discernible from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... baratnem's case (vide 1984(1) FAC 4 : 1984 Cri LJ 1801 (AP)) and the reasoning steps contained in the Supreme Court decision in Dalchand's case (vide: AIR 1983 SC 303) : (1983 Cri LJ 448). The plurality of the cases taking divergent views had been adverted to. The Court had no doubt that the decisions taking contrary views are not good law . 24. If the original stipulation of time for despatch of the results of analysis is only directory -- we have so held -- the mere fact that the period was reduced from the earlier provision to 60 to 45 days, would not alter the character of the statute. 25. The decision of the Madliya Pradesh High Court, in State of Madhya Pradesh v. Ghasiram Malviya 1986(3) FAC 62 and of the Bombay High Court in State of Maharashtra v. Sahaji Gajanan Jadhav 1989 (1) FAC 107, with great respect, do not give any helpful light by an effective display of strong stands of logic. We do not find any assistance from those decisions. A judicial decision has its strength in the solid foundations of unblastable logic. Acceptability of a view is not based on the counting of heads. 26. The generalisation as contained in the later decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Moosa. The observations of Janaki Amma, J. in 1982 KLT 37 (supra), supported the view about the rule being mandatory. The preponderance of the view, it was noted, was in favour of upholding the mandatory character of the rule. The decisions of the Madras High Court in State Public Prosecutor v. Meenakshi Achi, of the Bombay High Court in State of Maharashtra v. Chandanmal Bharindwal `, State of Maharashtra v. Trilokchand Divraj Jain 1979 (II) FAC 14, State of Maharashtra v. Ram/.an Abdul Desai 1980 (1) FAC 158, State of Maharashtra v. Jamandas Vansimal Paryan of the Punjab High Court in State of Punjab v.Jai Gopal 1983 (1) FAC 140, of the Patna High Court in Daitari Mahte v. State and P. P. Azeez v. Food Inspector were noticed as falling within the 'preponderance of authorities'. The decision of the Delhi High Court in Municipal Corporation v. Chhote Lal 1973 FAC 363, and of the Orissa High Court in State v. Satyabadi Jena and of the Andhra High Court in C. Chandra Mouli v. State were distinguished as not referring to Rule 7(3) after its amendment. 29. There is an exhaustive survey of the case law by a Division Bench of this Court in Kunhamu v. Food Inspector. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stroy the argument based on delay rendering analysis impossible and constituting consequential prejudice to the accused. What has to be overcome is the delay in delivering the report as is referred to in Rule 7(3). We feel that the proper and effective way of tackling the problem is to look at it straight in its eyes, and to determine its dominant characteristic whether director or mandatory. On an analysis of the scheme of the Act and Rules, and on an application of the well settled principles of interpretation in relation to mandatory and directory statutory provisions, we have no hesitation to hold that Rule 7(3) is only directory. The declaration of the directory character of the rule, however, does not arm the Food Analysts with a carte blanche to mark their own leisurely pace and to despatch the report in an indolent manner. The delay will certainly expose them to disciplinary action. In any given case, a delay which was found to have caused prejudice will enable the accused to plead successfully for an acquittal. Whether the acquittal is merited in a given case would depend upon the totality of the circumstances. There may be instances where marginal delay is venial and non- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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