NAGAR PARISHAD ALWAR Vs. BHARAT BHUSHAN

JUDGEMENT

(1.) THIS appeal by way of special leave to appeal is directed against the judgment, dated April 21, 1975, of learned Chief Judicial Magistrate, Alwar, acquitting the accused of the charge, punishable under section 7/16 of the Prevention of Food Adulteration Act, 1954 (Act No. 37 of 1954) (hereinafter referred to as 'the Act'). The prosecution story, in nut -shell, is that on January 8, 1975, PW 1 Shambu Datt Vjjay, Food Inspector, inspected and checked the shop of accused -respondent. At that time the respondent was selling Ghee. Having disclosed his identity to the accused -petitioner, the Inspector served him with a notice in Form No. 6 (Ex. P. 1) and purchased 450 grams of ghee for Rs. 9/ -. The ghee was divided into three parts, each of which was filled in three bottles. All the three bottles were sealed in the presence of the respondent. A memorandum containing details of the action taken by the Food Inspector was prepared. It has been marked Ex. P. 2. It bears the signatures of the Food Inspector PW 1 Shambhu Datt Vijay and two attesting witnesses, namely, PW 2 Shiv Charan and PW. 3 Prithvi Raj. It also bears the signature of the accused -respondent Bharat Bhushan. One sample in bottle was given to the accused -respondent and the other was sent to the Public Analyst. The third sample bottle was retained by the Food Inspector. The sealed bottle was received by the Public Analyst on 8 -1 -1974. On the report Ex. P. 3 specimen of the seal was given and it was also mentioned therein that the "bottle was properly sealed and fastended and that the seal was intact and unbroken". The seal fixed on the container of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a fit condition for analysis. The Public Analyst examined the contents of the bottle and declared the result as under:

(2.) MR . Goyal, appearing on behalf of the Municipal Council, Alwar, urged that the ghee purchased from the accused has to be recorded as adulterated due to excess moisture in it and that its sale to the Food Inspector for analysis is covered by the definition of 'sale', as given in section 2(xii) of the Act. He further urged that it was the duty of the accused to question the Food Inspector as to whether the ghee was filled into the wet bottles or dry ones. More over, the Public Analyst in his cross -examination stated that if drops of water would have been found in the bottle containing the sample of ghee, he would not have analysed the article & would have rejected the sample. That the variation found in the moisture contents exceeding 0.39% cannot be said to be a marginal one and the learned Magistrate was wrong in traveling in the realm of imagination for acquitting the accused.

(3.) THE provisions of Rule 9(j), as amended by Notification, dated February 13, 1974, also cannot be said to be mandatory. By the amendment the previous Rule was substituted by a new one & the provisions relating to sending of the report of the Pubic Analyst by hand or by registered pose was substituted by the word "sent by the registered post 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 of the said report." Thus in the new rule the words 'by hand' have been omitted and the word ten days' have been substituted in place of words' as soon as the case is filed in the Court'. Rule 9(j) provides an opportunity to the accused to take the benefit of Section 13(2), If he doubts the correctness of the report of Public Analyst, he can move an application to the concerned Court and the Court thereupon may ask the local authority to produce the sample of the article i.e. the third bottle and upon such requisition being made, the authority is bound to produce the same before the Court. On receipt of that part, the Court is required to ascertain the mark and seal and fastening of the bottle as provided in clause (b) of sub -section 11. After being satisfied that the sample has not been tampered with, the Court can dispatch the third bottle to the Director of the Central Food Laboratory and after examination he is required to send a certificate to the Court in the prescribed form showing the result of the analysis. The certificate so issued by the Director of the Central Food Laboratory supersedes the report given by the Public Analyst. The accused, who does not move an application to the Court for sending the third bottle of the sample to the Director, the Central Food Laboratory, cannot be allowed to make grievance that his case has been prejudiced by not sending a copy of the report of the Public Analyst by registered post to him within ten days. The Rules of an enactment are required 10 sub -serve the purpose for which they are male. They provisions of the Prevention of Food Adulteration Act are very statutory. The Act itself has been enacted with the object of eradicating the anti social evil and for ensuring purity in the article of food. The rule lays down no penalty for its non -compliance. When a statute requires that a thing shall be done in a prescribed manner or form, but does not set out the consequence of non -compliance, the question whether the provision is mandatory or directory, has to be judged in the light of the intention of the Legislature as disclosed by the purpose and scope of the Act. It is the duty of the Court of justice to try and get at the real intention of the Legislature by carefully attending to the whole scope of the statute. Reference in this connection may be made with advantage to the following observations made by me in Shakhor vs. State of Rajasthan : 1976 WLN 697,