ORDER (1) The main point for decision in this revision petition is whether non-compliance of the provisions of Rules 7 and 18 of the Prevention of Food Adulteration Rules, 1955(hereinafter referred to as the Rules)--affects the evidentiary value of the report made by the public Analyst so as to vitiate the conviction under S. 7 read with S. 16 of the Prevention of Food Adulteration Act, 1954(hereinafter called the Act).

(2) There is no dispute about the relevant facts of this case. The Food Inspector of Mangalore Municipality purchased from the petitioner 700 m. litres of Cow's milk on payment of Rs. 0-70 on 19-4-1963 at 6.40 A.M. in Mangalore Town after due notice to her, for the purpose of analysis of the milk. He divided the sample into three portions and put them into three empty bottles adding 16 drops of Formalin as preservative and corked., sealed and labelled each of the bottles under a 'Yadast' (Executed. P-2) He handed over one of such bottles to the petitioner and sent another to the Public Analyst for analysis. The latter sent his report in due course stating that the cow's milk analysed by him contained 2 per cent of milk fat and 7 per cent of 'solids not fat'. According to the standards of quality mentioned in Appendix B to the Act, Cow's milk should contain not less than 3.5 per cent milk fat and milk solids other than milk fat should not be less than 8.5 per cent.

(3) At the trial the petitioner pleaded not guilty. The prosecution examined the Sanitary Inspector, Store-Keeper of the Kannada Milk Society and the Sanitary Maistry. Many factual contentions raised by the petitioner were rejected and she was held guilty of selling adulterated milk and sentenced to pay a fine of Rs. 50 in default to undergo simple imprisonment for five days.

(4) Miss Anasooya the learned Advocate appearing for the petitioner has attacked the Order of conviction mainly on the ground that the conviction was not sustainable in the absence of proof that the mandatory provisions of Rules 7 and 18 of the Rules have been fully complied with. In support of her contention she placed reliance, amongst other decisions, on the decision of the Gujarat High Court in State of Gujarat v. Shantaben , which fully supports her stand. The learned Government Pleader submitted that the two rules were directory in character and that their non-compliance could not vitiate the Order of conviction. According to him, the two Rules could not be regarded as mandatory since S. 13 of the Act conferred liberty on the accused to make an application to the Court for sending the part of the sample delivered to her, to the Director of the Central Food Laboratory for a certificate and show that the report made by the Public Analyst was wrong. He has tried to sustain his argument by relying upon the decision in Kamal Singh v. State, 1957 All LJ 89.

(5) Before referring to the authorities cited at the Bar it is necessary to read the relevant Rules and determine their scope and intent. Rules 14 to 18 provide for sealing and packing of the samples and for the manner of sending the same for analysis. Rule 16 prescribes the manner in which samples of food sent for analysis shall be packed, marked and sealed. Rules 17 enjoins on the Food Inspector to send the container of sample for analysis by Registered Post or by Railway parcel or be air freight or by hand, in a sealed packet enclosed together with a memorandum I Form No. 7 in an outer cover addressed to the Public Analyst. The Memorandum in Form No. 7 to be sent to the Food Analyst contains express direction that a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by Registered Post or delivered to him or to any person authorised by him.

The duties of the Public Analyst on receipt of the packet of sealed sample of food are defined in Rule 7. It reads-

"7. Duties of Public Analyst:

(1) On receipt of a package containing a sample for analysis from a food inspector or any other person the public analyst or an Officer authorised by him shall compare the seals on the container and the outer cover with the specimen impression received separately and shall note the condition of the seals thereon.

(2) The Public analyst shall cause to be analysed such samples of articles of food as may be sent to him by food inspector or by any other person under the Act.

(3) After the analysis has been completed he shall forthwith supply to the person concerned a report in Form No. III of the result of such analysis".

What is complainant of in this case by the learned Advocate for the petitioner is that there was no evidence to show that the Food Inspector had sent separately by Registered Post or delivered to the Public Analyst in person a specimen impression of the seal used for sealing the bottles so as to enable the latter to compare the seals on the bottles with the specimen impression received by him from the Food Inspector. It was conceded for the State that no question had been asked to the Food Inspector about his having complied with the requirements of Rule 18 of the Rules. It was, however, emphasised that the Report by the Public Analyst contained a statement that the sample sent for analysis had been property sealed and fastened, and that he found the seal intact and unbroken. It is pertinent property to mention that this statement is contained in the printed form in which the results of the analysis have been noted.

(6) It cannot be disputed that there is no evidence that the Inspector in this case had complied with the provisions of R. 18 of the Rules. Whether the provision for enclosing a specimen impression of the seal used to seal the packet to the copy of the Memorandum sent to the Public Analyst is mandatory or directory has to be decided with reference to the real intention of the Legislature is disclosed by the whole scope of the statute and the object intended to be achieved by the Rule. As is laid down by the Supreme Court in Rattan Anmol Singh v. Ch. Atmaram .

"When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there."

In that case the substance of the matter was about the satisfaction of the Returning Office at a particular moment of time about the identity of a person making a mark in place of making a signature. The relevant rule under consideration required the attestation, in the prescribed manner of the signatures of the proposers and the seconders. In holding that the rule regarding the attestation was mandatory, their Lordships were of the opinion that 'it was impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether and that the provision was 'as necessary and as substantial as attestation in the cases of a will or a mortgage'.

(7) The test for determining whether a particular provision of law is mandatory or only directory has been discussed by the Supreme Court in Hari Vishnu v. Ahmad Ishaque, . During the course of the discussion their Lordships have pointed out that an enactment in form mandatory might in substance be directory and that the use of the word 'shall' does not conclude the matter. They referred to the decision of the House of Lords in Julius v. Bishop of Oxford, (1880) 5 AC 214 and laid down that the true intention of the legislature was the determining factor, which ultimately depended on the context and that a provision which is mandatory must be strictly observed while substantial compliance was sufficient in the case of a directory provision. In this connection the following passage from the judgment of the Lord Chancellor from (1880) 5 AC 214 discussing the meaning of the words 'it shall be lawful' may be quoted:

"........... they (these words) confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the powers is to be exercised, which may couple the power with a duty and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." A similar test has been referred to at page 364 of 'Maxwell on interpretation of Statutes (11th) Edition)'.

"Where powers, rights or immunities are granted with a direction that certain regulations formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred, and it is therefore probable that such was the intention of the Legislature."

The same learned author has referred to another principle elsewhere, which lays down that where the whole aim and object of the Legislature would be plainly defeated if the command to do a thing in a particular manner did not imply a prohibition to do it any other manner, no doubt can be entertained as to the intention.

(8) Bearing these principles in mind, I proceed to investigate the intention of the Legislature in determining whether the Rules could be regarded as mandatory or directory. The object of the Act is to prevent adulteration of food. Detail provisions have been made for appointment of Food Inspectors clothing them with the power to take samples for the purpose of analysis and to enter and inspect any place where any article of food in manufactured, stored or exhibited for sale and take samples of such articles. The Inspector has also the power to break open the door under certain circumstances. The Act contemplates a well defined procedure for the division of sample of food into three parts and for proper packing and sealing of the three parts and despatch to the Public Analyst of one of such parts.

Under S. 13(5) of the Act a report made by the Public Analyst giving the results of his analysis of any article of food can be treated as evidence of the facts stated therein in any proceeding under the Act. Section 13(2) confers liberty on the accused to send the sample left with him by the Inspector, of applying to the Court to send the sample to the Director of Central Food Laboratory for a certificate. The certificate issued by the latter in the prescribed form shall be final and conclusive evidence of the facts stated therein. These provisions make it clear that what the Food Inspector does in the purchase of the sample of food and in the submission of the sample for analysis to the Public Analyst is to secure evidence against the accused to show whether the article of food is or is not adulterated. In a trial under this Act the report of the Public Analyst, unless a certificate is prayed for and received from the Director of the Central Food Laboratory, would be the strongest piece of evidence against the accused.

The rules which prescribe the procedure to be followed in packing, selaing and despatching the sample by the Food Inspector in the discharge of his duties serve tow objects: Firstly, they leave no scope for tampering with the article of food which is once sealed and packed in the prescribed manner in the presence of respectable witnesses. Secondly, the requirement to send a specimen impression of the seal used by the Food Inspector in a separate packet is to enable the Public Analyst to verify the seal of the packet of sample before him and to ensure him that the sample he is to analyse is the self-same sample received from the Inspector.

This method of check and verification provided for by the Rules is the only guarantee against tampering and is a definite source of confidence both to the accused and to the Court that the sample analysed was the very sample which had been submitted by the Food Inspector. In fact, it is the report or the certificate issued after such analysis that virtually concludes that accused against himself. The procedure prescribed by the Rules serves a great public purpose by guaranteeing impartial and honest handling of the sample despatched to, and received for analysis by the Public Analyst.

(9) To argue that the Rules could be regarded as directory because the accused is given the liberty of submitting the sample in his possession for analysis is to render the guarantee afforded by the Rules meaningless. The burden of proving the guilt of the accused is on the prosecution and if the report or the certificate is to be used as evidence without calling the Public Analyst or the Director of the Central Food Laboratory for evidence as the law now permits, then it is imperative that all the rules prescribing the procedure commencing from the stage of purchasing the sample of food leading up to its analysis are strictly observed. To argue that the accused has got the liberty of getting his sample analysed to counteract the effect of the report of the Public Analyst is to require the accused in every case to prove his innocence.

(10) In this contest, it is worthy of note that Section 13 itself makes a distinction between the evidentiary value of the report of the Public Analyst and that of the Certificate issued by the Director of the Central Food Laboratory. While Section 13(5) lays down that a report signed by the Public Analyst 'may be used as evidence of the facts stated therein the proviso to it lays down the certificate signed by the Director 'shall be final and conclusive evidence of the facts stated therein.' Further when a certificate of the Director is produced in the case, it shall not be necessary in such a proceeding to produce any sample of food taken for analysis. Since the report of the Public Analyst has neither finality nor conclusiveness as evidence of the facts stated therein, it becomes all the more obligatory on the Court to require strict and imperative compliance with the Rules before it decides to use the report of the Public Analyst as proof of the accused's guilt.

(11) Looking to the scheme of the various sections and the Rules made under the Act it is manifest that the Magistrate can accept the report as evidence only if the report is prepared after full and thorough compliance with the Rules. Dealing with identical provisions under the Sale of Food and Drugs Act, it has been held by their Lordships in Suckling v. Parker, 1906-1 KB 527, that-

"If the samples are not sealed or fastened up in such manner as its nature permits the conviction ought to be set aside."

I am only citing this decision to indicate that the principle that to support a conviction, there must be a finding by the Court that there had been complete compliance with the statutory requirements of procedure, has found favour with the British Courts in interpreting identical provisions.

(12) Now, I proceed to consider the decision cited at the Bar. The decision of the Gujarat High Court in held the two Rules to be mandatory and the Court declined to treat the report of the Public Analyst as evidence against the accused as there was no evidence of compliance with Rules 7 and 18. The other decisions cited by the learned Advocate for the petitioner have no bearing on the point and hence I consider it unnecessary to refer to the same.

The decision in 1957 All LJ 89 relied upon by the learned Government pleader takes the view that the rules under consideration are only directory and that "it is possible to take the Public Analyst's report into consideration even in a case where there was non-compliance with certain rules'. With respect, I am unable to agree with this view. The Court relied upon the presumption arising under S. 114 of the Evidence Act; but the presumption in regard to the regularity of procedure followed by the Public Analyst may be raised when there is proof that the Food Inspector had discharged his functions both in favour of the Food Inspector and the Public Analyst is to render the Rules superfluous and meaningless.

(13) For the reasons aforesaid, I am of opinion that the report relied upon in the case cannot be accorded the requisite evidentiary value and the conviction solely based upon it cannot be sustained. I allow this petition, set aside the order of conviction and sentence and acquit the accused. The fine if paid, shall be refunded to her.

(14) Petition allowed.