The following questions have been referred to this Bench for opinion:-

(1) Whether Rule 20 of the Prevention of Food Adulteration Rules is so rigid that a small deviation about the quantity of formalin to be added will be fatal to the prosecution?

(ii) Delay has been considered to be fatal to the prosecution, but there is no precise time limit either under the Statute or by decision of any of the Courts If delay has to be considered fatal to the prosecution what should be the normal period by which the accused should be apprised of the prosecution?

(iii) Whether a slight deviation from the observance of the Rules about the quantity of formalin o be added will have its effect of the delay in launching the prosecution. If so, in what way it will influence?

2. Material facts giving rise to this reference are these :-

The respondent was prosecuted on a complaint by the appellant, a Food Inspector under the Indore Municipal Corporation, for having sold adulterated milk to him on 6 5-1966. In a trial held by the Municipal Magistrate, Indore, on charges under section 7/16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) the accused was acquitted mainly on the grounds that (i) the Food Inspector did not add the required quantity of preservative and (ii) that the complaint against the accused was filed about 21 months after the sample was taken.

3. The Food Inspector thereupon filed the present appeal after obtaining leave under sub-section (3) of section 417, Criminal Procedure Code. The Division Bench (Hon'ble Sen J. and myself), who heard this appeal, on a consideration of the contentions advanced by the parties was of the view that since some of the cases decided by this Court earlier did not specifically decide the questions raised before it, a reference to a larger Bench was necessary. This is how the case has come before this Beach for opinion on the aforesaid questions formulated by the Division Bench.

4. For the sake of convenience we purpose to consider questions Nos. (i) and (iii) together. The Rules framed under the Act and hereinafter referred to as the Rules, relevant for the answers to the aforesaid questions are these:-

“Rule 191-Any person taking a sample of any food for the purpose of analysis under the Act may add a preservative as may be prescribed from time to time to the sample for the purpose of maintaining it in n condition suitable for analysis.”

“Rule 20:-The preservative used in the case of samples of any milk (including toned, separated and skimmed milk), standardised milk, channa, skimmed milk channa, cream ice cream, mixed ice cream, ice candy, dahi and gur in liquid or semi-liquid from shall be the liquid commonly known as 'formalin' that is to say, a liqaid containing about 40 per cent o formaldehyde in aqueous solution in the proportion of O 1 ml. (two drops) for 25 ml. or 25 grams.”

5. These rules have been framed by the Central Government under section 23 of the Act after consultation with the Central Committee for Food Standards constituted under section 3 of the Act. This committee besides responsible Government Officers of the Health and Food Department, also includes experts and representatives of the Agricultural, Commerce, Medical profession, Indian Standards Institution, the States and the Union Territories in the Union of India. This Committee of experts and responsible Government representatives must have taker; into account the time that was likely to be taken before the Public Analyst at the local level and the Director of the Central Food Laboratory at the all India level, could analysis the sample of food (milk in this case) and submit the report. During this period the article of food had to be preserved in a condition fit and suitable for analysis and with that end in view a sufficiently adequate quantity of the preservative required to be added for preservation must have been prescribed. Considering the varied climatic conditiors s and different degrees of temperature prevailing throughout the year in the different parts of the country, the quantity of preservative must have been specified at a sufficiently higher level to rule out any possibility of allowing the article of food to get decomposed before its analysis in due course without undue delay.

6. Two quetions have been raised. The first question is whether a slight deviation, by putting a slightly more or less quantity, about the quantity of formalin would be fatal to the prosecution under the Act and the second question is whether such deviation will have any effect on the delay in prosecuting the vendor?

7. The sole purpose in making the aforesaid provisions for addition of a preservative is to provide for an immunity against the decomposition of the article of food till such time when the analysis is either done by the Public Analyst or got done by the vendor under section 13 (2) of the Act. Whether the said purpose has been achieved or was allowed to be frustrated to the prejudice of the vendor can very well be demonstrated by the reports of analysis. Form III prescribed by Rule 7 (3) of the Rules requires the Public Analyst to specifically report that the sample, when analysed by him, was fit for analysis. This report about fitness for analysis cannot be given if the article of food is found unfit either because of addition of inadequate quantity of the preservative or because of undue delay, both resulting in decomposition of the food article. Similarly the Director of the Central Food Laboratory will have to be satisfied about the fitness of the article of food sent to him for analysis before he actually undertakes the analysis and gives his report. In case the sample gets decomposed any analysis would become impossible and consequently there would be no adverse report against the vendor for his prosecution.

8. An article of food sent to an Analyst may also get decomposed irrespective of the required quantity of preservative being added. Some of the factors which may add to or accelerate decomposition may be as follows:

(i) The preservative used may not be of the required chemical composition;

(ii) The bottles used by the Food Inspector may not be either clean or dry;

(iii) The stoppers used for sealing the bottles may be ineffective or insecure; and

(iv) The samples retained by the Food Inspector and the vendor may be stored in such temperature or in such conditions that decomposition may be accelerated, etc., etc.

9. Cases in which any one of the above mentioned factors is present or where the required quantity of preservative is not added to the sample of food, the only material consequence which may follow is that before the analysis is done either by the Public Analyst or by the Director of the Central Food Laboratory the article of food may either be found to be unfit for analysis or may otherwise get decomposed to render analysis impossible. The report of the analysis will always show that the sample, when analysed, was in a condition fit for analysis and that the test for the preservative was either positive or negative. If, for any of the aforesaid reasons, analysis does not become possible, then certainly there will be no report adverse to the vendor and consequently no prosecution. Consequently, the question of the effect of insufficient quantity of preservative being added to the sample will never arise. In the above named circumstances, the question as to whether any deviation, slight or substantial, in the compliance of the Rules regarding addition of preservative will always depend upon the facts and circumstances of an individual case and no answer of any universal application can be given. Since a precise question has been referred to this Bench in the form reproduced above, we shall deal with this question and give our answer to it.

10. Before proceeding further we “may refer to some decided cases which having a bearing on this question.

11. In Municipal Corporation, Gwalior v. Kishan Swaroop, 1967 MPLJ 685 = AIR MP 180, the preservative added by the Food Inspector was only half of the prescribed quantity. The report of the Public Analyst was not drawn in accordance with the essential statutory provisions. There was also a delay of eight days in the analysis by the Public Analyst. Considering the cumulative effect of these facts the acquittal of the milk vendor was maintained. Kishan Swaroop's case (supra) was reconsidered so far as the question of delay in prosecuting the vendor was concerned, by the same Division Bench in Stale of M. P. v. Tulsiram, 1977 MPLJ 177 = AIR 1970 MP 128. We shall have an occasion to refer to this case at a later stage. In Ramdayal v. State of M. P., 1966 MPLJ 638 the preservative added to the sample was only 50% of the prescribed quantity. The Public Analyst was examined in that case but his evidence did not show that inadequate addition of the preservative affected the suitability of the sample of food for analysis. For that reason the contention about the analysis being bad for want of adequate quantity of preservative being added was ruled out. The view taken in Ramdayal's case (supra) was followed by another Division Bench in Municipal Council. Multai v. Juggan, Criminal Appeal No. 495 of 1964 dated 3.10.1986. In Ataul Haque v. The State of M. P., Criminal Revision No. 481 of 1986 dated 30.9.1969, only 16 drops of the preservative were added as against the required 20 drops. In that case since the accused did not get it clarified from the evidence of the Public Analyst that because of inadequate addition of the preservative the milk had deteriorated the contention raised on behalf of the accused was negatived. The last case is State of M. P, v. Tulsiram (supra). In that case, the cases referred to above were examined in the light of the decision of their Lordships of the Supreme Court in Municipal Corporation, Delhi v. Ghisa Ram, AIR 1967 SC 970 and it was held in para 23 that:-

“Therefore, it is not possible to state with precision for what period the contents of the sample bottles might remain intact and, therefore, we may take the opinion given by the experts examined in the Supreme Court ease of Municipal Corporation, Delhi v. Chisa Pom (supra) and Manka Hari v. State, AIR 1968 Guj. 88 as indication of the probable period for which by taking precautions, the samples might be kept intact.”

Earlier in para 10 of the same judgment, the learned Judges observed that since the question of inadequate addition of preservative had been referred to a Full Bench in Municipal Committee, Khandwa v. Ganpat, Criminal Appeal No. 311 of 1986 dated 25.8.1969, this precise question was not specifically decided.

12. In Municipal Corporation, Delhi v. Ghisa Ram, their Lordships of the Supreme Court did not decide the question as to what will be the effect of inadequate quantity of preservative added to a sample of milk. In para 8, they have considered the question as to for how long a sample of milk to which the preservative is or is not added will remain suitable for analysis. We shall have an occasion to refer to this case while dealing with the question of delay.

13. The other case where we find a detailed discussion on the question under consideration is Manka Hari v. State. In that case, the learned Judge on a reference to some standard books on Food Inspection and Milk held that:-

“It is, therefore, reasonable to conclude that when rule 20 prescribes two drops it provides for & fairly high degree of immunity and what is expected is that the rule be substantially complied with. No doubt where the rule is not in terms complied with and the prosecution relies on substantial compliance, the prosecution must prove that the compliance is substantial and has not affected the sample.”

While giving this decision, the learned Judge approved of the view taken by this Court in Ramdayal's case (supra).

14. In some of the cases referred to above it has been incidentally observed that neither the provisions of the Act nor the Rules framed thereunder have prescribed any time limit for the analysis by the Public Analyst. No doubt, this is true but sub-rule (3) of rule 7 (substituted by G. S. R. 1553, dated 7-8-1968, published in the Gazette of India, Part II, Section 3 (i) No. 34 dated 24-8-1968) however, provides that after the analysis is completed by the Public Analyst, the result of such analysis to be drawn up in Form III of appendix-A shall be sent within a period of 60 days of the receipt of the sample. If the Public Analyst is permitted 60 days time to send his report then by necessary implication it follows that the rules permitted the Public analyst to complete the analysis within that period. When that is so, it can further be presumed that the rule making authority was of the opinion that if adequate quantity of preservative is added to the sample then it will not get decomposed and it will remain in a state fit for analysis during this period of 60 days. If any slight deviation, that is, a slightly inadequate addition of the preservative was likely to have any immediate adverse effect in maintaining the fitness of the article of food for analysis, then certainly the Public Analyst could not have been permitted to complete his report within the period of 60 days and a shorter period would have been prescribed by the rules.

15. On a perusal of the provisions of the Act and the Rules and on a consideration of the cases referred to above, we are of the view that in all such cases where there is a complaint of inadequate addition of preservative the question as to whether the adequacy would or would not prove fatal to the prosecution under the Act will not depend only on the adequate addition of preservative. If the evidence shows that even though technically the prescribed quantity of preservative is not added but substantial compliance of the rule is made by adding sufficient quantity of preservative to the sample of food meant for analysis and the sample of food is found in a condition fit for analysis by the Public Analyst at the time of his analysis then certainly a slight deviation in the matter of the addition of the preservative cannot be fatal to the prosecution under the Act. Similarly when the accused has a right to get the sample analysed under section 13 (2) of the Act and also exercises this right without undue delay the sample must be found in the same condition of fitness for analysis. If by (he time the accused exercises this right without any delay on his part, the sample gets decomposed only on account of inadequate addition of preservative then also the strict non-compliance of the provisions of rule 20 would prove fatal to the prosecution under the Act. If at both the stages the sample is found fit for analysis by the Public Analyst and by the Director of the Central Food Laboratory, then any deviation, whether slight or substantial, would not prove fatal to the prosecution under the Act.

16. The third question is whether a slight deviation from the observance of the rules about the quantity of formalin to be added will have its effect on the delay in launching the prosecution. If, so in what way it will influence?

17. We think that we have already answered this question by what we have stated above. The sole purpose of adding a preservative is to keep the sample in a condition fit for analysis. If in addition to the inadequate addition of preservative there is also delay in prosecuting the vendor, then in that event also the same question would arise, namely, whether the accused, when he at the earliest opportunity exercises his right under section 13 (2) of the Act, the sample has or has not remained fit for analysis. If inspite of any delay the Public Analyst and or the Director of the Central Food Laboratory find the samples in a condition fit for analysis, the delay will have, no adverse effect. This conclusion will further be clear from our answer to question no. (ii) which we may now propose to give.

18. In some cases delay in prosecuting the vendor has been held to be fatal to the prosecution. Since no precise time limit, either under the Act or by any decision of any Court, has been specified a question is raised as to what should be the normal period by which the accused should be made aware of his prosecution.

19. No doubt neither the Act nor the rules have made any provision as to within what period the prosecution, if any, on the report of the Public Analyst must be launched. We have already referred to sub-rule (3) of rule 7 of the Rules which requires a Public Analyst to send his report within 60 days of the receipt of the sample by him. This provision, therefore, can clearly be meant as laying down that the prosecution can be launched, atleast beyond the period of 60 days but without any further unexplained delay. The Food Inspector naturally takes time to send the sample to the Public Analyst and after the report is received and prosecution is deemed necessary some other formalities have to be observed before the matter is actually taken to the Court of Law. Thereafter the usual time is taken in getting the accused served with the notice of his prosecution and it is only when the accused knows that he has been prosecuted that he can exercise his right under section 13 (2) of the Act of getting the sample analysed by the Director of Central Food Laboratory. In normal cases it may be presumed that since after the receipt of the report by the Public Analyst and till before the accused is made aware of his prosecution, another period of two months may be required. In normal circumstances, therefore, a period of 4 months can easily be taken before the accused has any opportunity of exercising his right under section 13 (2) of the Act. Cases, however, are of frequent occurrence where not only the receipt of the report of the Public Analyst is delayed, and in some cases unduly delayed, but also a long period of time elapses before the accused is made aware of his prosecution. Where the delay was inordinate and was not attributable to the vendor of the article of food it has been held in some cases that inordinate delay was fatal to the prosecution under the Act. The Supreme Court has, however, taken the view that it is always open to the accused to exercise his right under section 13 (2) of the Act as and when he has an opportunity to exercise that right and if he fails to exercise the right given to him under the Act, then certainly the report of the Public Analyst would be legal evidence and a conviction can be based on it alone. In our opinion, the following view taken by the Supreme Court in the case of Municipal Corporation, Delhi v. Ghisa Ram is conclusive when Their Lordships held that:-

(Para 4) “There can be no doubt that sub-section (2) of section 13 of the Act confers a right on the accused vendor to have the sample given to him examined by the Director of the Central Food Laboratory and to obtain a certificate from him on the basis of the analysis of that sample. It is when the accused exercises this right that a certificate has to be given by the Director of the Central Food Laboratory and that certificate then supersedes the report given by the Public Analyst. If, in any case, the accused does not choose to exercise this right, the case against him can be decided on the basis of the report of the Public Analyst. Difficulty, however, arises in a case where the accused does exercise the right by making a request to the Court to send his sample for analysis to the Director of the Central Food Laboratory and the Director is unable to issue a certificate because of some reason, including the reason that the sample of the food article has so deteriorated and become decomposed that no analysis is possible.”

(Para 7.) “It appears to us that when a valuable right is conferred by section 13 (2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of is contents. Obviously the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.”

(Para 8 ) “We are not to be understood as laying down that, in every case where the right of the vendor to have its sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted on the basis of the report of the Public Analyst. We consider that the principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.”

20. In Babulal v. State of Gujarat, AIR 1971 Guj. 1277 the case of Municipal Corporation v. Ghisa Ram (supra) was again considered. In Babulars case (supra) there was a period of four months which had elapsed in between the taking of the sample and the filing of the complaint. The accused, however, without exercising his right under section 13 (2) of the Act contended that because of the delay of four months the prosecution was vitiated. Their Lordships negatived this contention on the ground that there was evidence to show that the preservative was added and the accused had not even made an application to get the sample analysed by the Director of the Central Food Laboratory. This view was reaffirmed in Ajitprasad v. State of Maharashtra, AIR 1972 SC 1681 where Their Lordships negatived a contention similar to the contention raised in Babulal's case (supra) and held that: -

“(1) In the absence of any application by the accused under section 13 (2) for getting the sample analysed by the Director the accused could not complain that he was deprived of his right to have the sample analysed by the Director; and (2) mere delay and laches on the part of the complainant in getting the summons served was not, in the absence of evidence to show that the sample had deteriorated when the summons was served, sufficient to hold that the accused was prejudiced by reason of deprivation of the right under section 13 (2).”

21. It would thus appear that in the aforesaid three decisions of their Lordships of the Supreme Court emphasis was always on the question of the opportunity to the accused to exercise his right under section 13 (2) of the Act. If inspite of the availability of such an opportunity, the accused chooses not to exercise this right, then in the event of the report of the Public Analyst being adverse to him the courts acted upon such report and convicted the accused. The real test prescribed in all these cases was that at the time when the accused has an opportunity to exercise his right under section 13 (2) of the Act the sample of food should be found in a condition fit for analysis by the Director. If on account of the delay, which is attributable to the prosecution agency only, the right given under section 13 (2) of the Act to the accused-vendor is either denied or is frustrated, then certainly the delay would be fatal to the prosecution. In other cases, the delay, whatever be its duration, would not be fatal.

22. In some cases the view taken is that if the accused is either not made aware of his prosecution or does not become aware of such prosecution for reasons which may be attributable to him also, then he is not expected to retain a sample for an indefinite period so that it may be sent to the Director of the Central Food Laboratory for analysis. On facts such a contention may be advanced but it cannot and should not be accepted. Under section 11(1)(c)(iii.) of the Act when the Food Inspector takes a sample of food for analysis, he has to divide it into three bottles, one of which is to be delivered to the person from whom the sample has been taken, the other is required to be sent to the Public Analyst and the third is required to be produced in the legal proceedings which may be taken, for analysis by the Director of the Central Food Laboratory under sub-section (2) of section 13 of the Act. It would thus be clear that the third sample will always be required to be retained by the Food Inspector and must be made available to the accused for analysis by the Director of the Central Food Laboratory under section 13 (2) of the Act. If and when the accused contends that because of the delay in being made aware of his prosecution he did not retain the sample given to him, then certainly the third sample can be made available for being sent to the Director of the Central Food Laboratory for analysis provided always that a request to that effect is made promptly. If that sample, because of delay attributable to the prosecution agency, gets decomposed and no analysis is possible, then certainly there would both be a denial as well as frustration of the right given to the accused under section 13 (2) of the Act. In that event, the delay would be fatal to the prosecution. If on the contrary the accused chooses to keep quiet and makes no prompt application for the analysis under section 13 (2), then at a late stage he cannot be heard to contend that when he prayed for an analysis under section 13 (2) the third sample, though available, had become decomposed so as to make an analysis an impossibility.

23. Accordingly, we are of the view that though promptness in prosecuting the accused is always necessary and expedient to enable the accused to exercise his right under section 13 (2) of the Act but the question as to whether in a given case the effect of delay is or is not fatal to the prosecution under the Act can be answered only on the basis of the fact that when the accused had an opportunity to exercise his right under the Act either the sample delivered to him or the third sample meant for production in Court and/or for analysis by the Director under section 13 (2) had or had not decomposed. If at the stage when such right is exercised the delay results in the decomposition of the sample, it would prove fatal to the prosecution case. In normal circumstances period of three to four months prosecuting the accused and making him aware of this prosecution would not be fatal, subject to the condition that the provisions of rule 20 in the matter of addition of the preservative are substantially complied with.

24. In the latter part of the second question it is stated as to what should be the normal period within which the accused should be apprised of his prosecution. Apparently as stated above, no specified time limit has been prescribed for such prosecution either under the Act or the Rules framed thereunder. However, it is of utmost importance that the prosecution agency should take immediate step to prosecute the accused soon after a report is received from the public Analyst. Thereafter it is the duty of the Court to see that the accused is made aware of his prosecution so as to enable him to exercise his right under section 13 (2) of the Act. Thus, diligence and promptness both on the part of the prosecution agency and the Court is necessary. What may be treated as a prompt and diligent step in one case and at one particular place may not be so at another place because of unavoidable circumstances much depends upon the volume of work both with the Food Inspector as well as in the Court concerned. It is, however, suggested that in order that prosecution under the Act may not fail only on the ground of delay rules may suitably be amended and provisions on the lines suggested below may be made.

25. No sooner a Food Inspector takes a sample of any article of food for being analysed, he should then and there direct the accused to appear before him on a specified date to be supplied with the report of the Public Analyst. In case the report is adverse to the vendor, then he should also be given a specified date as to when he is to appear in the Court having jurisdiction to entertain the prosecution. On such a specified date, the complaint must be filed so that fresh summons need not be issued to the accused. If the accused chooses to remain absent, then he may be served in the ordinary manner. But the delay in getting him served, if the aforesaid provisions are made, will not be attributable to the prosecution agency and the accused will not be heard to contend that because of delayed service on him, he could not exercise his right under section 13 (2) of the Act.

26. In the light of the above discussion, our answers to the three questions formulated by the Division Bench are these:-

Answer to question No. 1-Rule 20 of the Rules framed under the Prevention of Food Adulteration Act is not so rigid or mandatory that a small deviation about the quantity of formalin to be added will be fatal to the prosecution. The law only requires substantial and not technical compliance of this rule, provided that when the sample is examined by the public Analyst at the request of the Food Inspector and by the Director of the Central Food Laboratory at the request of the accused the sample of food is found in, a condition fit for analysis and its analysis is not rendered impossible only because of inadequacy of formalin added to the sample of food. Answer to question No. (ii)-Delay alone in prosecuting the accused-vendor under the Prevention of Food Adulteration Act cannot be fatal to the prosecution unless it is established that because of delay, attributable to the prosecution agency only any right given to the accused under the said Act to get the sample analysed is denied to him. In normal circumstances, the accused vendor should be informed about his prosecution either within three to four months of the taking of the sample or within such period which would enable him to exercise his right under section 13 (2) of the Act to get the sample of food analysed at the earliest possible opportunity.

Answer to question No. (iii).-A slight deviation from the observance of the Rules about the quantity of formalin to be added will not have any effect on the delay in launching the prosecution unless it is established that the delay and /or the inadequate addition of formalin has resulted in the denial or frustration of the statutory right under section 13 (2) of the Act given to the accused to have the sample of food analysed.

27. The case shall now go back to the Division Bench for necessary orders.

Reference answered.

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