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State Of Himachal Pradesh v. Punnu Ram .
Legal Opinion Summary
Factual and Procedural Background
On July 19, 1982 a sample of ajwain was taken from the respondent-accused, Punnu Ram, at his shop in village Gema by a Food Inspector. After completion of legal formalities the sample was sent to the Public Analyst, who reported the sample to be adulterated. Prosecution was launched against the respondent under S.16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954.
At the stage of framing of the charge-sheet the respondent raised a preliminary objection that the Public Analyst had not complied with R.7(3) of the Prevention of Food Adulteration Rules, 1955 (hereinafter the Rules) because the report was not delivered to the Local (Health) Authority within 45 days from receipt of the sample. The learned Sub Divisional Judicial Magistrate, Dalhousie, by order dated October 15, 1983, discharged the respondent on that ground. The State of Himachal Pradesh filed the present revision petition challenging that discharge.
Legal Issues Presented
- Whether the provisions of R.7(3) of the Prevention of Food Adulteration Rules, 1955 — which require the Public Analyst to deliver a report of analysis to the Local (Health) Authority within 45 days of receipt of a sample — are mandatory (peremptory) or directory (non-peremptory), and whether non-compliance thereof is fatal to prosecution.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Municipal Corporation of Delhi v. Kacheroo Mal, (1976) 1 SCC 412 (AIR 1976 SC 394) | Principle: The Act should be construed to suppress the mischief, advance the remedy and prevent evasion; interpret remedial statutes in a manner that promotes their object. | The court relied on these observations to emphasise the object of the Act (curbing food adulteration) and to guide a purposive interpretation that would not defeat the statutory scheme by treating technical breaches as fatal where that would subvert the Act's object. |
| Municipal Corporation of Delhi v. Ghisa Ram, (cited as 1967 Cri LJ 939 in the opinion) | Principle: Where delay in procedure deprives the accused of the right to have the sample re-examined (e.g., by the Central Food Laboratory), such prejudice can be fatal to the prosecution. | The court applied this principle to explain that prejudice (for example, inability to have the sample re-tested because it became unfit due to delay), not mere procedural delay, can entitle the accused to acquittal. |
| Dalchand v. Municipal Corporation, Bhopal, (1983) 2 SCC 486 (AIR 1983 SC 303) | Principle: No rigid test to determine mandatory vs directory; consider statute's purpose and the consequences of treating a provision as mandatory; provisions intended to prevent public mischief ordinarily treated as directory if literal enforcement defeats the object; delay provisions often for expedition not limitation. | The court said the ratio of Dalchand fortified its conclusion that timing provisions like those in the Rules are directory in the relevant sense — non-compliance requires demonstration of prejudice before being fatal to prosecution — and cited Dalchand's holding that R.9(j) was directory as analogous. |
| State of Himachal Pradesh v. Thakur Dass, (1983) 2 FAC 1 | Principle: R.9-A of the Rules was considered and held to be directory. | The court noted that a learned single Judge of the High Court applied reasoning similar to Dalchand and concluded R.9-A was directory; the present court regarded that decision as supportive of the directory interpretation of procedural rules in the statutory scheme. |
| Food & Sanitary Inspector v. Koppu Subbaratnam, (1984) 1 FAC 4 (1983 Cri LJ 1801) | Principle: Interpretation of sub-rule (3) of R.7 as directory. | The opinion records that the Andhra Pradesh High Court held R.7(3) to be directory and treats that view as consistent with the conclusion reached in the present case. |
| Om Parkash v. State of Punjab, (1984) 2 FAC 136 | Principle: Contrary view that R.7(3) is mandatory and its breach fatal to prosecution. | The court noted this Punjab & Haryana High Court decision reached the opposite conclusion and allowed the accused to benefit from the violation; the present court rejected that line of authority, stating it is not good law. |
| State of Maharashtra v. Chandanmal Bhanindwal, (1979) 1 FAC 235 | Principle: Used by some courts to treat similar procedural rules as mandatory. | The impugned judgment in the present case was based on the law laid down in this decision; the present court expressly stated that decisions like Chandanmal are not good law for the purposes of the question before it. |
| Public Prosecutor v. Murli Dhar (1977 Cri LJ 1634 (Andh Pra)) and Bhola Nath v. State (1977 Cri LJ 154 (Cal)) | Principle: Earlier holdings to the effect that R.9(j) was mandatory (as referenced in Dalchand). | The opinion reproduces Dalchand's rejection of these decisions to the extent that they held R.9(j) mandatory, citing them as not good law. |
Court's Reasoning and Analysis
The court proceeded in a step-by-step legal analysis, applying statutory interpretation principles and precedent cited in the opinion:
- Text and purpose of R.7(3): The court reproduced R.7(3) (as substituted in 1977) which directs that the Public Analyst shall, within 45 days of receipt of a sample, deliver a report to the Local (Health) Authority and, where non-conforming, deliver four copies and also forward a copy to the person who submitted the sample. The court contrasted this with the pre-amendment text which required two copies within 60 days to the person concerned. The change from 60 to 45 days showed an express legislative intent to hasten analysis and reporting to facilitate expeditious prosecutions.
- Meaning of "shall": Although the duty is expressed by the word "shall" (which often denotes an imperative obligation), the court reiterated the established principle that "shall" is not universally mandatory. Whether a provision is mandatory or directory depends on the purpose the legislature intended the provision to serve and the statutory scheme as a whole.
- Statutory purpose and remedial context: Emphasising the Act's objective to curb food adulteration (citing Municipal Corporation of Delhi v. Kacheroo Mal), the court warned against interpreting procedural rules in a manner that would defeat the statute's object through hyper-technical readings that allow the guilty to escape liability.
- General principle re public duties: The court stated the general rule that provisions creating public duties are, "generally speaking," directory; non-compliance does not automatically render subsequent acts null and void. The crucial consideration is whether non-compliance caused prejudice or a failure of justice to the accused.
- Concrete effect of delay: Turning to S.13(2) of the Act, the court noted the accused's statutory right to apply within ten days from receipt of the Public Analyst's report to have the sample re-analysed by the Central Food Laboratory. If delay attributable to the prosecution causes the sample to become unfit for re-analysis, that constitutes prejudice and could be fatal to the prosecution (as illustrated by Municipal Corpn. of Delhi v. Ghisa Ram). If the sample remains fit, mere delay will not prejudice the accused on the merits.
- Application of precedents: The court found the reasoning in Dalchand (holding R.9(j) directory) directly supportive. It further noted supportive single-judge authority (Thakur Dass) and some High Court decisions (e.g., Andhra Pradesh in Koppu Subbaratnam) that treated R.7(3) as directory, while acknowledging contrary decisions (e.g., Om Parkash, Chandanmal) but rejecting those as not good law in the present context.
- Conclusion from the analysis: The court concluded that a breach of the 45-day time limit in R.7(3) by itself does not give the accused a right to automatic discharge; the prosecution must be shown to have caused prejudice (such as loss of the right to meaningful re-examination of the sample) before non-compliance can be treated as fatal.
Holding and Implications
Holding: The revision petition is allowed; the impugned order of discharge is set aside and the case is remanded to the trial court to proceed with the trial from the stage it was left.
Implications:
- Direct effect on the parties: The respondent's discharge by the Sub Divisional Judicial Magistrate, Dalhousie, dated October 15, 1983, has been vacated. The matter is remitted for trial to continue; the parties were directed to appear before the trial court on February 22, 1985 (after winter vacation), and the trial court was directed to complete the trial at an early date.
- On law: The court held that non-compliance with R.7(3)'s time limit is not per se fatal to prosecution; prejudice to the accused must be shown (for instance, the sample becoming unfit for re-analysis). The opinion rejects a rule that treats every breach of R.7(3) as mandatorily entitling an accused to discharge. The court treated certain High Court decisions taking the opposite view as not good law, and relied on Supreme Court reasoning (notably Dalchand) that timing provisions of this nature are, in effect, directory where literal enforcement would frustrate the statutory purpose.
- Broader precedent setting: The opinion bases its conclusion on existing Supreme Court authority and rejects contrary High Court decisions. The decision's immediate legal consequence is the remand and continuation of trial. The opinion does not purport to establish an abstract new rule beyond applying the established principle that procedural time prescriptions in the Rules require demonstration of prejudice to be treated as fatal.
1. The short question which falls for determination in this Criminal Revision is whether the provisions of R. 7(3) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) are mandatory or directory.
2. The brief facts of the case are that a sample of Ajwain was taken from respondent-accused, Punnu Ram, from his shop at village Gema on July 19, 1982 by the Food Inspector, After completing the legal formalities, it was sent to the Public Analyst who found it to be adulterated. This resulted in the launching of prosecution against the respondent. At the stage of framing of the charge-sheet, a preliminary point was raised that the Public Analyst had not complied with the mandatory provisions of R. 7(3) ibid inasmuch as his report of the result of analysis was not delivered to the Local (Health) Authority within a period of 45 days from the date of receipt of the sample and that the said violation was fatal. This objection found favour with the learned Sub Divisional Judicial Magistrate, Dalhousie, who vide his order dated Oct. 15, 1983, discharged the respondent of the offence under S. 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). Aggrieved from the aforesaid decision, the State of Himachal Pradesh has preferred the present revision petition.
3. sub-rule (3) of R. 7 of the Rules reads:
“The Public Analyst shall, within a period of forty-five days from the date of receipt of any sample for analysis, deliver to the Local (Health) Authority a report of the result of such analysis in Form III:
Provided that where any such sample does not conform to the provisions of the Act or these rules, the Public Analyst shall deliver four copies of such report to the said Authority:
Provided further that the Public Analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis under S. 12 of the Act.”
4. The above Rule is as it was substituted by Notification No. GSR 4(E) D/- Jan. 4, 1977. Before the amendment, it was in the following terms:
“After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in Form. III within a period of 60 days of the receipt of the sample.”
5. The word “he” obviously refers to the Public Analyst since R. 7 pertains to the duties of a Public Analyst.
6. The comparison of R. 7(3) as it stood before the amendment and as it emerged after the amendment shows that the alteration made was to reduce the period of 60 days for sending the report of the Public Analyst to 45 days for delivering the said report to Local (Health) Authority. It also throws some light on the intendment of the rule-making authority inasmuch as it was considered necessary to bring forward the amendment referred to above thereby reducing the period in which the analysis was required to be made and the report sent to the Local (Health) Authority. In other words, a statutory requirement was introduced so as to hasten the process of analysis and the communication of the report to the Local (Health) Authority to facilitate the expeditious launching of the prosecution, if called for.
7. The duty entrusted to the Public Analyst vide R. 7(3) is controlled by the word “shall” which, in legal parlance, means that the requirement is imperative. However, the word “shall” need not be given that connotation in each and every case and it can be interpreted as directory instead of being mandatory depending upon the purpose which the legislature wanted to achieve as disclosed by the scheme of the Act and the Rules.
8. Adulterating an article of food is undoubtedly a heinous crime. It is a hazard to the health of consumers, that is, the people at large. The motive obviously is to make a quick buck and amass illegal wealth. No society can condone such an act of perfidy. The elected representatives of the people have taken note of this compulsion in enacting the Prevention of Food Adulteration Act, 1954 in order to curb and, if possible, eradicate the widespread evil of food adulteration so much so that deterrent minimum punishments have been prescribed for those found guilty. The laudable object enunciated above cannot and should not be permitted to be defeated through imparting non-existent meaning to some mere technicality found here and there in the Act or the Rules.
9. The object of the Act was also considered by the Hon'ble Supreme Court in Municipal Corporation Of Delhi v. Kacheroo Mal ., (1976) 1 SCC 412 : AIR 1976 SC 394 : (1976 Cri LJ 336), wherein the following observations were made in para 4 thereof:
“The Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It is well settled that wherever possible, without unreasonable stretching or straining, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention……………………………………………………………….
10. It has also to be borne in mind that the provisions of a statute creating public duties are, generally speaking, directory. The purpose is to incorporate certain procedural instructions for strict compliance by public functionaries. Nevertheless, non-compliance of these instructions perse cannot render the acts done as null and void. It will have to be shown that such non-compliance has caused prejudice and failure of justice. The above principles pertaining to the interpretation of statutes are well settled by now.
11. When sub-rule (3) of R. 7 is examined in the light of observations made above, the determination of the question raised in this case presents no problem.
12. sub-rule (3) of R. 7 merely lays down the time limit (45 days) within which the Public Analyst has been directed to complete the analysis and deliver the report to the Local (Health) Authority. It is one step forward to achieve the object of the Act by bringing the culprit to book as speedily as possible. If the Public Analyst neglects to perform this statutory duty within the prescribed time and takes a few days more, he can certainly be hauled up by way of departmental action but it is difficult to understand much less appreciate a single good reason how such breach of the Rule creates a vested right in the accused entitling him to be discharged or acquitted on this short ground.
13. Here it would be pertinent to consider the effect of delay in the performance of public duties of the nature envisaged in sub-rule (3) of R. 7.
14. Sub-section (2) of S. 13 of the Act does confer a valuable right on the accused. He may make an application to the court within a period of ten days from the receipt of the copy of the report of Public Analyst to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. In case this sample is found by the said Laboratory to be unfit for analysis due to decomposition by passage of time or any other reason attributable to the conduct of the prosecution, the valuable right referred to above would stand denied. This would constitute in itself sufficient prejudice to the accused so as to entitle him to acquittal. The Supreme Court has held so in Municipal Corpn. of Delhi v. Ghisa Ram, (1975) 1 FAC 186 : (1967 Cri LJ 939). Delay, in such cases, has plainly come to the rescue of the accused. On the other hand, if the sample continues to remain fit for analysis in spite of the delay, the accused is certainly not prejudiced on the merits of the case notwithstanding any such delay. In short, an accused in food adulteration cases has an inviolable right to get the sample re-tested by the Central Food Laboratory. The denial of this right would be fatal to the prosecution but then it will have to be shown that the delay has lead to the aforesaid denial of right.
15. It, therefore, follows that the violation of the time limit given in sub-rule (3) of R. 7 perse is not a complete answer to a charge of food adulteration under the Act.
16. No direct ruling of the Supreme Court on the above point has been cited before me but the ratio of Dalchand v. Municipal Corpn. Bhopal, (1984) 2 SCC 486 : AIR 1983 SC 303 : (1983 Cri LJ 448) fortifies me in the conclusion arrived at. In that case, the question raised was whether the failure to supply a copy of the report of the Public Analyst within the period of 10 days stipulated by R. 9(j) of the Rules, as it was in force at the relevant time, was fatal to the prosecution. The Supreme Court made the following observations:
“……………. There are no ready tests or invariable formulae to determine whether a provision is mandatory or directory. The broad purpose of the statute is important. The object of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and, more often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provison literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period. R. 9(j) of the Prevention of Food Adulteration Rules, as it then stood, merely instructed the Food Inspector to send by registered post copy of the Public Analyst's Report to the person from whom the sample was taken within 10 days of the receipt of the Report. Quite obviously the period of 10 days was not a period of limitation within which an action was to be initiated or on the expiry of which a vested right accrued. The period of 10 days was prescribed with a view to expedition and with the object of giving sufficient time to the person from whom the sample was taken to make such arrangements as he might like to challenge the Report of the Public Analyst, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analyst's report by obtaining the report of the Director of the Central Food Laboratory, there might be just cause for complaint, as prejudice would then be writ large. Where no prejudice was caused there could be no cause for complaint I am clearly of the view that R. 9(j) of the Prevention of Food Adulteration Rules was directory and not mandatory. The decisions in Public Prosecutor v. Murli Dhar, 1977 Cri LJ 1634 (Andh Pra) and Bhola Nath v. State, 1977 Cri LJ 154 (Cal) to the extent that they hold that R. 9(j) was mandatory are not good law……………”
17. In the State of Himachal Pradesh v. Thakur Dass, (1983) 2 FAC 1 : (1983 Cri LJ 1694), a learned single Judge of this High Court considered the question whether provisions of R. 9-A of the Rules are directory or mandatory. R. 9-A reads:
“9-A. The Local (Health) Authority shall immediately after the institution of prosecution forward a copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of R. 7 by registered post or by hand as may be appropriate to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under S. 14-A of the Act:
Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosectuion is intended under sub-sec. (2E) of S. 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and particulars have been disclosed under S. 14-A of the Act, within 10 days from the receipt of the report from the Public Analyst.”
18. The learned single Judge discussed the scheme of the Act and the Rules in depth as also the import of the ratio of Dalchand's case (1983 Cri LJ 448) (SC) (supra) and came to the conclusion that the provisions of R. 9-A were directory and, therefore, their infraction in itself could not result in acquittal unless it was also established that prejudice has been caused to the accused thereby.
19. No doubt, various High Courts have been taking different views pertaining to the interpretation of sub-rule (3) of R. 7 of the Rules. The Andhra Pradesh High Court in Food and Sanitary Inspector v. Koppu Subbaratnam, (1984) 1 FAC 4 : (1983 Cri LJ 1801) has held that the aforesaid provisions are directory and not mandatory. The decision of the Punjab and Haryana High Court in Om Parkash v. State of Punjab, (1984) 2 FAC 136 is, however, diametrically opposite.
20. In that case, the High Court permitted the accused to take benefit of the violation of the provisions in question and acquitted him. There are a number of cither High Courts as well who have held likewise. The impugned judgment is, in fact, based on the law laid down in State of Maharashtra v. Chandanmal Bhanindwal, (1979) 1 FAC 235 (Bom). However, the decisions in Om Parkash's case (supra) as well as in Chandanmal's case (supra), with all respect, are not good law.
21. In the above view of the matter, it is clear that the learned Sub-Divisional Judicial Magistrate, Dalhousie has fallen into an error in discharging the respondent merely on the ground that the time limit prescribed in R. 7(3) had not been strictly adhered to. As a result, this revision petition is accepted, the impugned order is set aside and the case remanded to the trial Court with the direction to proceed with the trial of the case in accordance with law from the stage it was left.
22. The parties are directed to appear in the Court of the Sub-Divisional Judicial Magistrate, Dalhousie on Feb. 22, 1985 after the winter vacation. The learned Court below is directed to complete the trial at an early date.
23. Petition allowed.
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