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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 ..... (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 ₹ 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hasiram 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) only directory and not mand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing 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) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int, 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 ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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