PUBLIC PROSECUTOR A P Vs. MURLIDHAR

JUDGEMENT

(1.) This it an appeal against an acquittal of the respondent who was tried for offenceg of adulteration under section 7 read with sec.2 (l)(a) andlO(la) (i) of the PREVENTION OF FOOD ADULTERATION ACT, 1954. The respondent was acquisted by the lower court on the sole ground that the Food Inspector failed to supply a copy of the report of the Public Analyst as required under Rule 9(j) of the Prevention of Food Adulteration Rules. It is provided under that Rule that it shall be the duty of the Food Inspector to send by Registered Post, a copy of the report received in Form No. III from the Public Ana- lysit to the person from whom the sample was taken within ten days of the receipt of the said report if the report is against the person. However, the report shows that the sample conforms to the provisions of the Act or Rules made thereunder, it is enough if the person is informed of the same in which case no report need be sent. Here the report of the Public Analyst is that the groundnut oil sent for analysis contained 7% of Castor Oil Therefore it was adulterated. Admittedly when the report of the Public Analyst was received by the Food Inspector even prior to 19 6-1975, till 29-7-1975 no efforts were made to serve a copy of the same on the respondent. This mandatory provision is obviously made to enable the person against whom the report was given, to send the sample to the Director of the Central Food Laboratory for a certificate, whose certificate will supersede the report given by the Public Analyst. The provision relating to the supply of the report of the Public Analyst under the Rule is a mandatory one. Sri Madhusudhan Rao J., took a similar view in the decision reported in Public Prosecutor vs. Sreeramulu (1). The same learn d Judge in another case in Crl. R.C.No. 773/1975 dt. 27-1-76 came to the conclusion that mere non-compliance with the Rule does not entitle the accused of an acquittal unless prejudice is shown to have been caused to him. After a lapse of time, it is difficult to send a sample of the food article to the Director of the Central Food Laboratory to get a correct analysis of the food article. That is why it is provided under Rule 9 (j) of the Rules that a copy of the report of the Public Analyst shall be served on the person within ten days of the rectipt of the report of the Public Analyst. I am unable to understand how an accused person can be able to prove that a prejudice has been caused in his defence for non-supply of the report of the Public Analyst to him in time except to say that if it were to be supplied to him in time, he would have asked the concerned authority io send the other sample to the Director of the Central Food Laboratory for an authoritative report on the matter. The learned Addl. Public Prosecutor has brought to my notice the above two decisions of my learned brother Sri Madhusudhan Rao, J. Prima facie I think the non-supply of the report of the Public Analyst in time as required under Rule 9 (j) of the Prevention of Food Adulteration Rules will be fatal to the prosecution case, I think some authoritative decision is necessary on the point, as it may frequently arise in Food Adulteration Cases. Accordingly the case is referred to a Bench- The papers may be placed before the Hon'ble the Chief Justice to direct the office to post the case before a Bench. (Persuent to the above order the case came before a Bench) JUDGMENT (Judgment of the Bench delivered by Muktadar J).

(2.) The Food Inspector, Circle No. II Municipal Corporation Hyderabad filed a complaint against the accused on 25-8-1975 alleging that the accused has contravened the provisions of S 7 read with S. 2(1) (a) and S. 16(1) (a) (1) of the PREVENTION OF FOOD ADULTERATION ACT, 1954 (Hereinafter referred to as the Act). The Food Inspector visited the shop of the accused on 10-2-1975. After complying with the formalities prescribed in the Rules framed under the Act, he purchased 375 grams of groundnut oil for Rs. 3-15 p. He divided the oil into three equal parts and put them in three empty, dry and clean bottles, corked them, and affixed his seal. He gave one sample to the accused, and sent another sample to the Public Analyst while retaining the third with himself. The Public Analyst in his report dated 22-3-1975 came to the conclusion that the sample contained about 7% of the castor oil and was therefore, adulterated. It is not known as to when exactly the report was received by the Food Inspector but we have it in the evidence of P.W. 2 that on 19-6-1975 he received the record in the case along with the Public Analyst report which would go to show that the report of the Analyst was received before 19 6-1975. Thereaftet the complaint was filed on 25-8-1975. The trial court came to the conclusion that under R. 9 (j) of the Prevention of Food Adulteration Rules (herein after referred to as the Rules) it was incumbent on the part of the Food Inspector to send a copy of the report of the Public Analyst within 10 days of its receipt by him, and since the Food Inspector has not complied with that provision, the accused was entitled to acquittal. The trial court, therefore, acquitted the accused.

(3.) The State has preferred this appeal against the acquittal. It came up before our learned brother, Ramachandra Raju J, who by his order dated 15-10-1976 referred the case for consideration of the Bench. The learned Judge was of the opinion that the provisions of R.9(j) of the Rules were mandatory. In Public Prosecutor v. Sretramulul Madhusudana Rao J., had taken a similar view; but in Crl R. No. 773/75 dated 27-1-1976 the same learned Judge had held that mere noncompliance with the Rule does not entitle the accused to an acquittal unless prejudice is shown to have been caused. Hence our learned brother, Ramachandra Raju J. was of the opinion that the question as to whether R. 9 (j) of the Rules is mandatory or directory should be decided by a Bench, and that is how this appeal is before us. Mr Obulapathi Chowdary the learned Public Prosecutor contends that R. 9 (j) of the Rules is not mandatory but directory. He contends vhat simply because the word 'shall' is used in the rule, it cannot be concluded that the rule is mandatory. In support of his contention, he has cited Babulal v. State of Gujarat and Shiveswar v. District Magistrate In order to determine whether R. 9(j) of the Rules is mandatory or directory, it is necessary to quote the relevant rule. R. 9 provides for the duties of the Food Inspector, and it reads as follows : 9. It shall be the duty of the Food Inspector (j) to send by registered post, a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within 10 days of the receipt ef the said report. However, in case the sample conforms to the provisions of the Act or Rules made thereunder, then the person should be informed of the same and report need not be sent.