SHRIRAM HARICHAND GUJARAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this appeal the learned single Judge has referred to the Division Bench the following question : Whether the provisions of sub-rule (3) of rule 4 in so far as they stipulate that a copy of the memorandum and the specimen impression of the seal used to-seal the container and the cover should be sent separately are mandatory or are directory. In order to answer the question which has been referred to the Division Bench it is necessary to briefly state the facts of the case. The accused was prosecuted under sec. 16(1)(a)(i) of the Prevention of Food Adulteration Act 1954 for having sold to the complainant chilly powder adulterated with coal tar dye. The complainant-Food Inspector took from the accused the sample of chilly powder for analysis and divided it into three parts. As required by sub-sec. (1) of sec. 11 of the Prevention of the Food Adulteration Act 1954 he delivered one part of the sample to the accused sent another for analysis to the Public Analyst and produced the third in the Court below. As required by sub-sec. (1) of sec. 13 of the said Act the Public Analyst sent his report to the Food Inspector. He found that the chilly powder in question was adulterated with coal tar dye. The accused was therefore prosecuted. When the trial commenced the accused applied to the learned Magistrate under sub sec. (2) of sec. 13 to send the third part of the chilly power to the Director of Central Food Laboratory for obtaining his certificate. The learned Magistrate granted his application and sent it to the Director. He was required to comply with rule 4 of the Prevention Food Adulteration Rules 1955 He sealed the third part in a packet enclosed with it memorandum in form I appended to the Prevention of Food Adulteration Rules as required by rule 4(1) thereof and sent it by registered post to the Director. He however did not send the specimen impression of the seal and a copy of the memorandum separately by registered post to the Director. Instead of doing so he enclosed the specimen impression of his seal and a copy of the memorandum in the sealed packet itself. Therefore the question which arose before the learned single Judge was whether compliance with sub-rule (3) of rule 4 was mandatory or directory and what was the effect of the failure to send separately by registered post the specimen impression of the seal and a copy of the memorandum. Does it render the certificate issued by the Director of Central Food Laboratory inadmissible in evidence ? The learned single Judge found that the question which was raised before him was a question of considerable importance and therefore he referred the question reproduced above to the larger Bench. We are called upon to answer that question.

(2.) In order to answer the question it is necessary to discover the purpose and object which the rule-making authority had in mind in making sub-rule (3) of rule 4. It is necessary for us to see whether strict compliance with it advances the cause of Justice and what are the consequences flowing from the failure to comply with it. In order to answer the question a quick glance at secs. 11 and 13 is necessary. Their scheme has been analysed by a Division Bench of this Court in BHAGWANDAS GURNOMAL V. THE STATE OF GUJARAT 16 GUJARAT LAW REPORTER 164. Having referred to the two decisions of the Supreme Court bearing on the subject this Court has laid down that when a valuable right is conferred by sec. 13(2) on the vendor to have a sample given to him analysed by the Director of Central Food Laboratory the prosecution should proceed in the manner by which the right conferred upon the accused would not be denied to him. It is a valuable right because the certificate of the Director is treated as conclusive evidence of its contents. That right has been conferred upon the accused for his proper and effective defence. It is his right to have the other sample which was given to him by the Food Inspector or which the Food Inspector produced before the court analysed by a greater expert whose certificate becomes conclusive evidence of the facts stated therein. Relying upon the decision of the Supreme Court in RAM DHAVAN V. DELHI MUNICIPAL CORPORATION A.I.R. 1970 S.C. 366 this Court has observed that if the certificate issued by the Director was not made final and conclusive evidence of the facts stated therein it would be open to the party against whom the certificate is declared to be sufficient evidence either to rebut the facts stated therein by his own or other evidence or to require the expert to be produced for cross-examination. It has been pointed out by the Supreme Court in that decision that sub-sec. (2) of sec. 13 gives a right both to the accused as well as to the complainant on payment of a prescribed fee to apply to the Court after the prosecution has been instituted to send a part of the sample to the Director of Central Food Laboratory for a certificate and the Court is bound to send it under its seal to the Director who is required to submit his report with one month from the date of its receipt. The certificate issued by the Director supersedes the public analysts report and is conclusive and final. This Court after having analysed the scheme of secs. 11 and 13 of the Act has held that sub-sec. (2) of sec. 13 confers upon the complainant and the accused a right to get the sample analysed by the higher authority the Director of Central Food Laboratory-whose certificate supersedes the report of the public analyst given under sub-sec. (1) of sec. 13. Since the certificate issued by the Director is final and conclusive evidence of the facts stated therein the law which provides for it must be construed strictly. Dealing with the question of the statutory requirement of sending the specimen impression of the seal this Court has observed in that decision that since the requirement of sub-sec. (2) of sec. 13 is mandatory the statutory safeguard provided by rule 4 must be interpreted in a manner consistent with that mandatory requirement. In sub-sec. (2) of sec. 13 there is an inbuilt guarantee because it requires the Court to firstly ascertain that the mark and seal which were affixed to the sample when it was first marked and sealed on the spot by the Food Inspector are intact. It is only when the Court is satisfied that the mark and seal or fastening up are intact that the Court seals the sample part delivered to the vendor or produced by the complainant before the Court and despatches it for analysis to the Director. They have therefore held that the expression despatch the part of the sample under its own seal means in the context of sub-sec. (2) of sec. 13 that the Court must apply its own seal both to the container and the outer cover. Dealing with rule 4 it has been observed by this Court that it provides that a sample for analysis should be sent through a messenger or by registered post in a sealed packet with a memorandum in form in outer cover addressed to the Director. In the context of sub-rule (3) of rule 4 with which we are concerned in this reference it has been observed by this Court that it provides that a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover shall be separately sent to the Director by registered post. Next this Court has further observed that the scheme of sub-rule (3) of rule 4 is that the Court will have to send along with a copy of the memorandum a specimen impression of the seal used by the Court to seal the container and the outer cover. The seal on the outer cover may be damaged in transit or may be tampered with. Therefore sub-rule (4) of rule 4 requires the Director to specifically examine the inner seal on the container and to note its condition. Taking into account the consequences flowing from the certificate issued by the Director this Court has taken the view that the requirement of sending a copy of the memorandum and a specimen impression of the seal of the Court to the Director cannot be directory. It is mandatory. Since in a case of this type the conviction of the accused shall rest upon the certificate issued by the Director which in its turn is a conclusive evidence of the facts stated therein it is guile obvious that all legal requirement laid down in that behalf must by strictly complied with.

(3.) In order to protect society against food adulteration and the hazards flowing therefrom the Act has made a provision for taking a sample of food by the Food Inspector and to have it analysed by the public analyst. It also provides for the analysis of such a food sample in order to find out whether the dealer carries on his business in a straightforward manner or has been doing so against the interests of the society endangering public health by selling adulterated articles of food. The object of the Act is to protect the society against unscrupulous and anti-social dealers. While protecting the society against such dealers the law also protests an honest dealer against an unscrupulous Food Inspcetor and gives him a right to have the sample delivered to him by the Food Inspector or one produced by him before the Court analysed by a superior expert the Director of Central Food Laboratory. Now when the accused chooses to exercise this right of this he takes the risk because the certificate issued by the Director supersedes the report of the public analyst (see sub-sec. (3) of sec. 13). The prosecution is not required to produce in the Court the sample analysed by the Director (see sub-see. (4) of see. 13). The certificate issued by the Director is final and conclusive evidence of the facts stated therein. (See proviso to sub-sec. (5) of see. 13). There is no obligation on the prosecution to examine the Director and the accused has no right to cross-examine him Under these circumstances the rule-making authority has provided certain safeguards with the object that the right given to the accused by sub-sec (2) of see. 13 does not become illusory and is exercised by him for his due and just protection against unexpected unfair and ordinarily unfathomable hazards. Therefore the question which arises is this what are the safeguards which the rule-making authority has provided ? The principal safeguard which is provided is that under sub-see. (2) of see. 13 the accused can make an application to the Court for sending the sample which was delivered to him or the sample which the Food Inspector produced before the Court to the Director of Central Food Laboratory for his certificate. While doing so the Court has to first ascertain that the mark and seal or fastening contemplated by clause (b) of sub-sec. (1) of sec. 11 are intact and despatch the part or the sample under its own seal to the Director of the Central Food Laboratory. The Director is required to send to the Court within one month from the date of the receipt of the sample his certificate relating to the analysis of the food sample sent to him by the Court. It must be in the prescribed form. He is required to specify in that certificate the result of his analysis. Sub-rule (1) of rule 4 requires that the sample of food which is sent for analysis under sub-sec. (2) of sec. 13 shall be sent through a messenger or by registered post in a sealed packet enclosing therewith a memorandum in Form I in an outer cover addressed to the Director. The next safe-guard which is provided is in sub-rule (2) of rule 4 which requires the Court to mark the container as well as the outer covering of the packet with a distinguishing number. The third safe-guard which is provided is that a copy of the memorandum and a specimen impression of the seal used to seal the container and the cover shall be sent separately by registered post to the Director. The next safeguard which is provided is in sub-rule (4) of rule 4 which requires that either the Director or an officer authorised in writing by him in that behalf alone shall open the packet and record the condition of the seal on the container. Thereafter the food sample sent to him is subjected to analysis and the certificate is issued by him to the sender in Form II appended to the rules. Sub-rule (7) of rule 4 requires that the certificate issued under the rules by the Laboratory shall be signed by the Director. Since the legislature has made the certificate issued by the Director final and conclusive evidence of the facts stated therein and exonerated the prosecution from the ordinary requirement of examining him to prove his certificate it has provided a number of safeguards against all possible hazards which the accused may suffer and which he may not be in a position to avert or avoid. In other words since the certificate issued by the Director has been made final and conclusive evidence of the facts stated therein the accused has been protected in a number of respects. This Court in the case of Bhagwandas Gurnomal (supra) has already held that the requirement of sending a specimen impression of the seal of the Court and a copy of the memorandum under subrule (3) of rule 4 is mandatory. Mr. Shethna has tried to argue that this Court in that decision has not only held that the requirement of sending a specimen impression of the seal and a copy of the memoradum by the Court to the Director is mandatory but it has also held that sending them separately by registered post to the Director is mandatory. We have meticulously gone through that decision of this Court. It is clear from that decision that what was canvassed before the Court was that the requirement of sending a specimen impression of the seal and a copy of the memorandum was mandatory. While dealing with that question the Court referred to the language of sub-rule (3) of rule 4 which uses the expression separately by registered post. Whether sending of a specimen impression of the seal and a copy of the memorandum separately by registered post was mandatory or not was not canvassed in that case before the Court. Therefore after it was held that sending of a specimen impression of the seal and a copy of the memorandum to the Director was mandatory the further question which has arisen before us is whether sending them separately by registered post is mandatory or directory. It is true that in the case of Bhagwandas Gurnomal (supra) this Court has construed sub-rule (3) of rule 4 and has held it to be mandatory. However merely on the basis of that decision in which the question relating to sending separately by registered post was not canvassed it cannot be held that that decision answers the question which has been referred to us by the learned single Judge. We are in agreement with Mr. Shethna that subrule (3) of rule 4 which has been costrued by this Court in the case of Bhagwandas Gurnomal (supra) has laid down a mandatory requirement of sending a specimen impression of the seal and a copy of the memorandum to the Director but we do not agree with him when he says that that decision also lays down that sending a specimen impression of the seal and a copy of the memorandum separately by registered post has also been held to be mandatory. It has therefore become necessary for us to answer that question on first principles.