STATE OF MADHYA PRADESH Vs. NANHELAL

JUDGEMENT

(1.) The appellant runs a kirana shop at village Sukri, police station Bargi, district Jabalpur. On 1-2-1980, Food Inspector, Barela, District Jabalpur, obtained sample of jaggery from his shop which on examination by Public Analyst was found to be adulterated. Therefore, the appellant was convicted under S.16(1)(a)(i) of Prevention of Food Adulteration Act, 1954 (hereinafter called 'the Act') and sentenced to 6 months rigorous imprisonment and a fine of Rs. 1,000/-. He was also convicted for selling 'nankin' without licence with which we are not concerned as the said conviction has not been challenged in this appeal. On appeal, the learned Second Additional Sessions Judge, Jabalpur set aside appellant's conviction under S. 16(1)(a)(i) of the said Act and acquitted him, which has been challenged in this appeal by the State.

(2.) The sole ground of acquittal is non-compliance of Section 11(3) of the said Act by the Food Inspector. This provision requires the Food Inspector to transmit the sample obtained by him to the Public Analyst latest by the next working day. In this case, the sample was sent not on the next day but on the fourth day. The learned first appellant judge inferred in a para 9 of the judgment from the above delay, that the sample obtained by the Food Inspector was changed by him and therefore it could not be held that the sample analysed by the Public Analyst was the same which was obtained from respondent's possession. The learned Government Advocate criticized this conclusion as wholly unfounded. Relying upon (Municipal Corporation, Indore v. Nathuram (1986) 1 MPWN 158 and (State of M.P. v. Choonaram) (1988) 2 MPWN 35), he argued that the nominal delay in sending the sample to the Public Analyst is of no consequence so far as proof of the charge is concerned. In those cases, it has been held that notwithstanding the use of term 'shall' in Section 11(3) of the said Act, its provision ought to be construed as directory and not mandatory. Therefore, the learned first appellate judge was obviously in error to hold that non-compliance of the said provision was sufficient to lead to the inference that the sample was changed before transmission to the Public Analyst. In fact, there is absolutely nothing on record to suggest even remotely that the sample was so changed. Merely from this delay and that too just two days in sending the sample to the Public Analyst, the inference that the same was changed in the meantime could not have been drawn. The Public Analyst on receipt of the sample as is evident from his report Ex. P. 11 found the seal intact and the sample itself fit for analysis. In these circumstances, the conclusion that the sample of jaggery obtained from the appellant was substandard arrived at by the trial Magistrate was not liable to be interfered with.

(3.) Next it was argued that the sample was taken 10 years ago and the appellant has closed his shop subsequently. Therefore, the respondent may not be awarded the statutory minimum jail term and the sentence of fine alone should be considered adequate. In support of this prayer, reliance was placed on State of M.P. v. Choonaram (1988) 2 MPWN 35.