BEENA STORES Vs. FOOD INSPECTOR

JUDGEMENT

(1.) The revision petitioners are a firm and one of its, partners. They were convicted under the provisions of the Prevention of Food Adulteration Act for sale of adulterated Bengal gram. The minimum sentence provided under the Act was awarded to the partner.

(2.) It was conceded on behalf of the Food Inspector who launched the prosecution, the first respondent in this revision petition, that the provisions of R.9(j) of the rules framed under the Act were not complied with in the instant case. Under that rule if the Public Analyst's report was adverse to the vendor the Food Inspector had a duty to give a copy of it to the vendor within 10 days of its receipt by him. R.9(j) was omitted with effect from 4-1-1977 and from that date it ceased to be in operation. From 4-1-1977 onwards R.9A came into force. Under that rule no such duty was cast on the Food Inspector but the Local (Health) Authority was directed to give a copy of the report to the vendor. Even that he need give only after launching the prosecution. Under R.9(j) the copy had to be given even before the launching of the prosecution if the report was received more than 10 days before such launching. This change was made by the Amendment Act, 34 of 1976. After purchase of the article concerned the Food Inspector has to divide it into three parts. He has to send one part to the Public. Analyst for analysis. Previous to the amendment of the Act as regards the other two parts he had to retain one part with him and deliver the third part to the vendor, but by the amendment of S.13(2) of the Act that provision was changed and he had to send those two parts to the Local (Health) Authority. After analysis the Public Analyst was directed to send his report not to the Food Inspector as before but to the Local (Health) Authority. The Local (Health) Authority in turn had to give a copy of the report to the vendor if the report was adverse to him. These changes brought about by Act 34 of 1976 came into force on 1-4-1976. From that date till 4-1-1977 when R.9A came into force R.9(j) which was in force even previously was allowed to continue in force. We are concerned here only with the operation of R.9(j) during this limited period of about nine months between 1-4-1976 and 4-1-1977. Cases in which prosecutions were launched during that period and which would now be pending would only be very few.

(3.) It is not disputed that the provision in R.9(j), if it was applicable during the period between 1-4-1976 and 4-1-1977, had to be complied because it was mandatory. The only dispute is as to whether it was applicable in spite of it having been allowed to continue in force till 4-1-1977. There are two conflicting decisions of this Court about this matter, both single judge decisions. The earlier one is State of Kerala v. Abdul Azeez, Criminal Appeal No. 286 of 1977 (unreported) and the later Narayanan v. Food Inspector, Calicut Corporation, 1979 KLT 469 . In the earlier decision it was held that the provision in R.9(j) had to be applied in the case of prosecutions between 1-4-1976 and 4-1-1977 and in Narayanan v. Food Inspector, Calicut Corporation, 1979 KLT 469 an opposite view was taken. The learned Judge who decided the later case thought that in the earlier case no definite opinion had been expressed about the consequences of non compliance with R.9(j). With great respect that does not appear to be correct. The earlier decision expressly said that the provisions of R.9(j) had to be satisfied. In the later decision the learned Judge thought that the provisions of R.9(j) conflicted with the provisions of S.13(2) of the Act and therefore the provisions in R.9(j) had to yield to the provisions of S.13(2). With great respect there does not appear to be any conflict between the provisions of S.13(2) and R.9(j). The provisions of S.13(2) relate to what the Local (Health) Authority should do in a case of this kind. It does not at all deal with the duties of the Food Inspector. Previously also there was a provision that intimation should be given to the vendor that he may if he so desired send one of the samples to the Central Food Laboratory. There is that provision in the Act even after the amendment by Act 34 of 1976. The main change made was with regard to the person who should give that intimation. While previously it was the Food Inspector who had to give that intimation, after the amendment it was the Local (Health) Authority who had to give it. As regards the giving of the copy of the Public Analyst's report to the vendor while previously the Food Inspector had to give it to the vendor within 10 days of his receiving the report under the amended provision the Local (Health) Authority had to give it after the launching of the prosecution. After all both the Food Inspector and the Local (Health) Authority are employees of the same institution. The Food Inspector is an officer below the Local (Health) Authority in rank. In the present case the Food Inspector who launched the prosecution got the report of the Public Analyst and he filed it along with the complaint. So this is not a case where he did not get a copy of the report before he filed the complaint. The provisions in R.9(j) and 9A are provisions for the benefit of accused persons. The retention of R.9(j) until R.9A came into force was with a purpose. It was to avoid hardship to the accused. To accept the argument now advanced on behalf of the first respondent would be to take up the position that neither R.9(j) nor R.9A was in force during this period between 1-4-1976 and 4-1-1977. That would cause serious hardship to the accused persons in the prosecutions launched during this period. It is a cardinal principle of interpretation that we should try and reconcile conflicts, if any, between the provisions in the sections of an enactment and the Rules framed under that Act as best we can. Agreeing with the earlier decision of this court in State of Kerala v. Abdul Azeez Criminal Appeal No.286 of 1977 (unreported) failure to comply with the provisions of R.9(j) is held to be fatal to the prosecution. This revision petition is allowed. Fine, if paid, shall be refunded to the concerned revision petitioner.