BALJI Vs. STATE

JUDGEMENT

(1.) THE applicant Balji has been convicted under section 7/16 Prevention of Food Adulteration Act, and sentenced to six months R. I. and a fine of Rs. 1000/-. in default further R. I. for three months.

(2.) THE prosecution case was that on 3-11-1978 at about 2 P. M. a sample of turmeric whole (Sabit Haldi) was takan from the applicant's Kirana shop in village Korni. THE applicant's case was that the Haldi was not for sale and the sample was not taken from a shop. He claimed that he had no shop in the village and the only shop in the village belonged to his enemy Sagar Koeri. He also stated that when he was taking the Haldi for his personal use he was intercepted by the Food Inspector in front of the shop of Sagar Koeri and a sample was taken from him presumably at the instance of Sagar Koeri, his enemy. THE prosecution examined the Food Inspector about the sample taking and Panna Lal, Food Clerk in the office of the Local Health Authority, about the despatch of the notice Ex. Ka. 7 under section 13 (2) after the [institution of the case. THE applicant examined D. W. 1 Rajendra Prasad who was shown in the complaint as one of the witnesses to the sample taking and D. W. 2 Babu Ram. THE courts below believed the prosecution case and convicted the applicant.

(3.) THIRDLY it was urged that there has been a breach of section 11 (3) of the Act and Rule 17, and hence the conviction is vitiated. The foundation for this argument is that the Food Inspector admitted that although he took the sample on 3-11-1978 he forwarded one phial of the sample to the Public Analyst on 6-11-1978. A reference to the calendar for that year shows that though 5-11-1978 was a Sunday, 4-11-1978 was a working day. Section 11 (3) requires the Food Inspector to send the sample to the Public Analyst by the immediately succeeding working day and it is emphasised that the imperative 'shall' is used by the statute. Rule 17 also uses the categorical language 'shall send..................immediately but not later than the succeeding working day.' Learned counsel has relied upon Bhaskar v. State of Mahrashtra, 1980 AFJ 258 and another case reported in 1976 AFJ 230 in which Sec. 13 (2) was held to be mandatory as the provisions used the word.'shall'. These decisions about the accused, right to secure Central Food Laboratory opinion cannot, in my opinion, bear upon the question whether the time limit prescribed by Section 11 (3) and Rule 17 about forwarding of the sample by the Food Inspector to the Public Analyst is mandatory. It is a well settled principle of law that the word 'shall' is by it self not conclusive on the question whether the provision is mandatory or directory and the matter has to be considered in the light of the whole scheme of the Act. The object to be secured by the provision, the mischief that is sought to be prevented and the relative mischief that is likely to result from the breach of the provision. While looked at in this way there does not appear to be any particular sanctity behind the time limit of next working day. The time which is itself flexible for if a number of holidays intervene this time limit may well extend to beyond that number of days after the date of sample taking. The only intention is that the Food Inspector should officially be as prompt as possible and should not take thing easy. Maxwell on Interpretation of Statutes, 11th Edn. at page 369 has observed : "It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done. That the Act was directory only and might be complied with after the prescribed time.'' On these principles the time limit under section 11(3) or Rule 17 cannot be held to be mandatory because a breach of the strict time limit does not affect any right of the accused nor lead to any general inconvenience or injustice. Therefore, the provision has to be regarded as only directory and in the absence of negligence or prejudice a breach of this time limit must be held as not vitiating the conviction.