G CHANDRAMOULI Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The question of law that arises for decision in this case is whether the requirement under sec. 11 (3) of the Prevention of Food Adulteration Act viz., that the Food Inspector shall send the sample by the immediately succeeding working day to the Analyst, is mandatory or directory.

(2.) The necessary facts that gave rise to this question may briefly be stated. The 2nd petitioner is a dealer in kirana articles in the name and style of Sri Rajarajeswari Provision Stores. The 1st petitioner is an employee under him and he is generally in charge of the shop. On 21-8-76 at 12.30 p.m. the Food Inspector visited the shop and purchased a sample of 450 grams of Kurd Oil from a tin. After going through the necessary formalities, the sample was divided into three. One of the samples was sent to the Public Analyst on 24-8-1976. The Public Analyst gave an opinion that the sample was adulterated as it contained 30% of groundnut oil. A prosecution was launched and the trial court convicted them under sections 7 and 16 (1 )(a) (i) read with section 2 (m) of the Prevention of Food Adulteration Act, hereinafter referred to as 'the Act', and sentenced each of them to suffer six months rigorous imprisonment and also to pay a fine of Rs. 1.000/-. The petitioners preferred an appeal and the same was dismissed. Hence the revision.

(3.) The main point that was urged on behalf of the petitioners is that the sample collected by the Food Inspector on 21-8-1976 was sent to the Public Analyst only on 24-8-1976 and therefore there was a contravention of the mandatory provisions enacted in section 11 (3) of the Act. It must be mentioned here that there is no denial that 22-3-1976 was a Sunday and 23-8-1976 was the immediately succeeding working day. But the sample was not sent on that day but was sent on the next day. Therefore, there was a delay of one day. The Lower Appellate Court however held that sub-sec. (3) of section 11 is a mandatory provision but the infraction of the said provision did not vitiate the conviction as there is no material to show that P.W.1 tampered or meddled with the sample before sending it to the Public Analyst and that the Public Analyst also did not complain that the sample was unfit for analysis. The learned Metropolitan Sessions Judge also pointed out that no suggestion was made to the Food Inspector in cross-examination that he had tampered or meddled with the sample. In this view of the matter the learned Metropolitan Sessions Judge reached the conclusion that the conviction is not vitiated.