KESAR SINGH Vs. STATE OF U P

JUDGEMENT

(1.) THIS revision arises out of the judgment dated 20th June, 1978 passed by the Sessions Judge, Nainital, dismissing the appeal that was filed by the present applicant against his conviction and sentence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act.

(2.) ON 8th of February, 1977, Sri. T. D. Bhandari, Food Inspector, collected sample of Bundi Laddoos from the shop of the applicant situate in Railway Bazar, Haldwani. ONe part of the sample was sent to the Public Analyst who reported it to be adulterated. A complaint was, therefore, filed for the prosecution of the applicant. The defence set up by the applicant was a total denial of the prosecution case. The trial court held the applicant guilty under Section 7 read with Section 16 of the Act, and, convicting him thereunder, sentenced him to six month's R. I. and a fine of Rs. 1,000/-. Aggrieved against it applicant filed an appeal in the court of Sessions which resulted in dismissal and hence this revision.

(3.) IT is pertinent to note that both in sub-section (2) and sub-Sec. (2-A), the legislature used the word 'shall'. When the legislature uses the word 'shall' the inference, unless a contrary is shown by context or otherwise, is that the rule is mandatory. In the instant case, it is apparent on a perusal of section 13 that sub-sections (2) and (2-A) thereof were enacted by the legislature to provide an opportunity to the accused to ask for the other sample-phial in the possession of the local authority being produced in court for its being sent to the Director of Central Food Laboratory, if he disputes the report of the Public Analyst. The provision was thus; enacted for the benefit of those who are proceeded against under the Act in order to provide an effective defence to them against uncalled for prosecution. In this connection it is also worthy of notice that previously there was a provision in Section 11 of the Act that when any sample was collected by the Food Inspector, it was divided in three parts and one part thereof was handed over to the person from whom the sample was collected. By the Amending Act No. 34 of 1976, Sec. 11 of the old Act has been amended and the [Food Inspector is no more required to handover any part of the sample to tie person from whom it is collected. The result is that the person from whom the sample is collected can by no means take any action by himself for any part of it being sent to the Director of Central Food Laboratory.