1. In Criminal Appeal No. 648 of 1978, the appellant, who was original accused No. 3 in the trial Court, has impugned his conviction under section 7(i) and section 7(v) read with section 16 of the Prevention of Food Adulteration Act, 1954, and sentence of simple imprisonment till the rising of the Court and a fine of Rs. 2000/-, in default rigorous imprisonment for four months, passed by the learned Metropolitan Magistrate, 29th Court, Dadar, Bombay, by his Judgment and Order dated 25-4-1978.
2. Criminal Revision Application is in respect of a suo motu Notice for enhancement of sentence issued by this Court by Order dated 19-6-1878.
3. The brief facts of the Prosecution Case were that original accused No. 1 was the owner and licenced of a restaurant known as Amrut Punjab Hotel, situated at 107, Acharya Pande Marg, Patel, Bombay. Accused No. 2 was the conductor of the said restaurant and accused No. 3 was the Manager and at the relevant time the Vendor at the said restaurant. On 13-1-1977 at about 12.00 noon Ravindra Madhav Dabholkar (P.W 1) along with a Panch witness Maganial Dedia (P.W 2) visited the said restaurant. Dabholkar disclosed his identity to accused No. 3 who was present there. He purchased 1500 gms. of prepared food i.e mutton biryani and paid a sum of Rs. 17.50 to accused No. 3. Accused No. 3 issued a receipt for the payment of the article. The receipt has been tendered and marked as Ex. A. The Case Memo issued by accused No. 3 has been tendered and marked as Ex. B. Dabholkar thereafter issued a notice to accused No. 3 in Form No. VI which was signed by accused No. 3 at the same time. The notice has been marked as Ex. C. A notice under section 14-A of the Prevention of Food Adulteration Act, 1954 was also issued. A copy of the said notice has been marked as Ex. D. After purchasing 1500 gms. of mutton biryani Dabholkar divided the same into three equal parts of 500 gms. each and placed the same into three dry and clean polythene bags. Thereafter the bags were closed by pieces of strings. They were wrapped in thick paper and were pasted with gum and labels were affixed on the said bags, Dabholkar drew up a Panchanama in the presence of Panch Dedia (P.W 2). The Panchanama has been marked as Ex. N. a copy of the Panchanama was delivered to accused No. 3.
4. One of the sample bags was forwarded by Dabholkar on the same day to the Public Analyst along with Form No. VII. Dabholkar forwarded the second packet to the Public Analyst along with the specimen impression of the seal. Dabholker produced the acknowledgement from the Public Analyst's Office signed by the Public Analyst's clerk Mangal Sabnis (P.W 3).
5. Dabholkar received the Public Analyst's Report on 27-1-1977 which has been marked as Ex. J. Thereafter Dabholkar forwarded the papers to the Commissioner, Food and Drug Administration, through the Executive Health Officer and obtained sanction to prosecute the three accused. The Joint Commissioner, Food and Drug Administration, sanctioned the prosecution. The sanction has been marked as Ex. K. Dabholkar then filed his complaint in the Court of the learned Metropolitan Magistrate, 29th Court, Dadar, Bombay. It has been admitted as the First Information Report and marked as Ex. L.
6. The three accused were charged under section 7(i) and section 7(v) read with section 16 of the Prevention of Food Adulteration Act, 1954. There being no evidence against accused Nos. 1 and 2, they were discharged by the learned Metropolitan Magistrate. Accused No. 3 was found guilty under section 7(i) and section 7(v) read with section 16 of the Prevention of Food Adulteration Act and was sentenced to simple imprisonment till the rising of the Court and to pay a fine of Rs. 2000/-, in default to suffer rigorous imprisonment for four months.
7. Upon perusal of the record and proceedings of this case, this Court by its order dated 13-6-1978 issued a suo motu Notice for enhancement of sentence against accused No. 3. This notice of enhancement is the subject matter of Criminal Revision Application No. 218 of 1978.
8. At this stags it will be relevant to set out the Report of the Public Analyst Ex. J. The following were the results of the analysis;—
9. Insect & fungal infestations:Absent
10. Coal tar dye. .. …Present
(Sunset Yellow FCF)
11. Boric Acid Test for turmeric:Positive.
12. In the opinion of the Public Analyst the said sample was not as required under rule 29 of the Prevention of Food Adulteraion Rules, 1955.
13. It may be pointed out here that Sunset Yellow FCF was one of the coal far dyes. Under rule 28 of the Prevention of Food Adulteration Rules, Sunset Yellow FCF was a pormissible coal far dye which could be used in food. Rule 29 sets out the items of food in which Sunset Yellow FCF could be used. It is relevant to point out that mutton biryani has not been specifically set out in the list of permitted items set out in rule 29. It may, however, be pointed out that biscuits, pastry, confectionery, sweats, soup powder and several other items have been mentioned in the list under rule 29. The purpose of setting out rules 28 and 29 is that Sunset Yellow FCF which was found in the impugned sample was a coal tar dye which was not entirely a prohibited dye.
14. Mr. Ganatra, the learned Advocate appearing on behalf of the Appellant, has submitted three submissions in this case. According to Mr. Ganatra the mutton biryani did not contain any colour at all. In the alternative Mr. Ganatra argued that in the event of it being held that the mutton biryani did have some colour mixed with it, then the colour was due to the fact that turmeric had been mixed with the rice. Mr. Ganatra pointed out that the Food Inspector Dabholkar (P.W 1) had not in his evidence stated that the 1500 gms. of mutton biryani which he purchased from accused No. 3 was coloured. He then turned to the evidence of the Panch witness Maganial Dedia (P.W 2) and pointed out that the Pansh witness had stated in cross-examination that the cooked rice purchased by Inspector Dabholkar (P.W 1) was white in colour. Mr. Ganatra then drew my attention to the Panchanama at Ex. N wherein the fact that the mutton biryani was coloured had not been mentioned. Now, it is true that the Food Inspector has not stated that the mutton biryani was coloured. It is also true that Panch witness Dedia has stated that the rice was white in colour and the Panchanama Ex. N does not mention the fact that mutton biryani was coloured. However, any person with some experience of having partaken of mutton biryani at any time would be in a position to say that mutton biryani was always coloured. However, it is not necessary to import one's personal experience in this matter for the reason that the Public Analyst Ratnakar Balawathi (P.W 4) has denied the suggestion that the sample of mutton biryani in this case did not contain any colour. Indeed the only reason why the Food Inspector Dadholkar had taken the sample of the mutton biryani and forwarded part of the same to the Public Analyst was for the purpose of finding out whether permissible colour had been used. Therefore, I am unable to accept Mr. Ganatra's argument that tine sample of mutton biryani did not have any colour at all.
15. The alternative argument of Mr. Ganatra was that in the event of it being held that the mutton biryani did contain colour than the colour was due to the fact that turmeric had been mixed with the rice. This argument cannot be accepted far the reason that according to the Public Analyst Report Ex. J. the mutton biryani contained Coal tar dye and the specific dye was Sunset Yellow FCF. I am, therefore, unable to accept this argument of Mr. Ganatra.
16. Secondly Mr. Ganatra urged that the sample which was forwarded by Food Inspector Dabholkar to the Public Analyst on 13-1-1977 was not the same sample which Inspector Dabholkar had taken at the promises of the restaurant Mr. Ganatra based this argument on the evidence of Food Inspector Dabhokar as also on the evidence of the Public Analyst Ratnakar Balawathi. Dabholkar stated in his evidence that after purchasing the mutton biryani measuring 1500, gms. he divided the same into three equal parts of 500 gms. each. Mr. Ganatra placed some, emphasis on the fact that each part weighed about 500 gms. However, Ratnakar Balawaihi, the Public Analyst, stated that the sample quantity which no received from the Food Inspector weighed 550 gms. including the wrapper and container. On the strength of this answer of Balawathi, Mr. Ganatra argued that the sample sent by Dabholkar weighed only 500 gms. whereas the sample that was received by the Public Analyst weighed 550 gms. Therofore, it could be inferred that the Public Analyst had not received the same sample of the mutton biryani which had been obtained by Inspector Dabholkar at the premises of the restaurant and forwarded hereafter to the Public Analyst.
17. It may be pointed out that according to Ratnakar Balwathi, the Public Analyst, 550 gms. included the wrapper and container, Assuming that the wrapper and container did not weigh 50 gms. even so, one has to bear in mind that at the time which Dabholkar made three equal parts of the sample mutton biryani, he had not measured the same meticulously into 500 gms. each. Apart from that there is intrinsic evidence on record to show that what was forwarded by Food-inspector Dabholkar to the Public Analyst was the same sample which the Food Inspactor had obtained from the premises of the restaurant. In his Notice in Form VI Ex. C dated 13-1-1977 Dabholkar has stated the details of the food prepared and that the sample taken was numbered 1078. In his forwarding letter dated 13-1-1977 Exhibit D addressed to the Public Analyst, Dabholkar has mentioned that he was sending a sample to the Public Analyst under rule 17 of the Prevention of Food Adulteration Rules, 1955 which had No. 1978. Finally in the Report of the Public Analyst dated 19-1-1977 the Public Analyst has mentioned that he had received the sample form the Food Inspector which had the No. 1078. These documents, therefore, would conclusively sat at rest any controversy with regard to the sample which had been taken by Dabholkar from accused No. 3 at the premises of the restaurant and forwarded to the Public Analyst. The second contention of Mr. Ganatra must, therefore, be negatived.
18. Finally, Mr. Ganatra submitted that in this case there was a breach of the provisions of section 13(2) of the Prevention of Food Adulteration Act and rule 9-A of the Prevention of Food Adulteration Rules. Mr. Ganatra urged that both section 13(2) and rule 9-A were mandatory and a breach of the same would vitiate the conviction of the accused. Mr. Ganatra is on stronger grounds in urging this argument. Section 13(2) provided that on receipt of the report of the Public Analyst the Local (Health) Authority should, after the institution of the prosecution against the person from whom the sample of the food was taken, forward in the manner prescribed a copy of the report of the result of the analysis to such person informing such person that if he so desired, he might make an application to the Court within a period of ten days from the date of the receipt of the copy of the report to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. Sub-section (2-A) of section 13 provided that when an application was made to the Court under sub-section (2) of section 13 the Court should require the Local (Health) Authority to forward the part or parts of the sample kept by the ??? Authority and upon such requisition being made, the said authority should forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition. Section 13(1), (2) and (2-A) provide as follows:—
“S. 13(1) The Public Analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.
(2) On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the Sample of the article of food was taken and the person, if any, whose name, address and other particulars had been disclosed under section 14-A, forward in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court Within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
(2-A) When an application is made to the Court under sub-section (2), the Court shall require the Local (Health) Authority to forward the part of parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition.”
19. Rule 9-A of the Prevention of Food Adulteration Rules, 1955, which cams into force from 4-1-1977 provided that the Local (Health) Authority should immediately after the institution of the prosecution forward a copy of the report of the result of analysis in From III delivered to him under sub-rule (3) of rule 1, by registered post or by hand 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 had been disclosed under section 14A of the Act. Rule 9-A, therefore, made it obligatory upon the Local (Health) Authority to forward a copy of the report of the Public Analyst to the person from whom the sample of the article was taken by the Food Inspector immediately after the institution of the prosecution. Rule 9-A of the Prevention of Food Adulteration Rules, 1955, provided:
“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 rule 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 section 14A of the Act:
Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action is intended under sub-section (2-E) of section 13 of the Act, the Local (Health) Authority shall intimate the result to the Vendor from whom the sample has been taken sod also to the person, whose name, address and other particulars have been disclosed under section 14A of the Act, within 10 days from the receipt of the report from the Public Analyst.”
20. Now, it may be pointed out here that it is undisputed in this case that the Report of the Public Analyst was at no time forwarded to accused No. 3 by the Local (Health) Authority. This position is admitted by Mr. Damle, the learned Public Prosecutor, on behalf of the respondents. Nor is there any indication on the record before me that the report of the Public Analyst had at any time been forwarded to accused No. 3 by the Local (Health) Authority. I shall, therefore, proceed to consider the arguments at the Bar on the footing that a copy of the report of the Public Analyst was at no time forwarded to accused No. 3 from whom the sample of the article had been taken by the Food Inspector.
21. sub-section (2) of section 13 confers a right upon an accused person from whom the sample of the article has been taken by the Food Inspector, in that the accused has a right to make an application to the Court within a period of tan days from the date of the receipt of the copy of the report to get the sample of the Article of food kept by the Public (Health) Authority analysed by the Central Food Laboratory. If under rule 9-A the Local (Health) Authority failed to forward a copy of the report of the Public Analyst to the accused as provided under that rule, then the accused would be deprived of a valuable right to apply to the Court within a period of ten days from the date of the receipt of such a report, to have the article of food kept by the Local (Health) Authority analysed by the Centrel Food Laboratory. Therefore, by not forwarding a copy of the report of the Public Analyst to the accused immediately after the institution of the prosecution and committing a breach of rule 9-A, the accused had been deprived of a valuable right provided under section 13(5). That the provisions of section 13 are mandatory appear to be clear from the wordings of the section and of rule 9-a. It is pertinent to note that under section 13(2), the words used are that the Local (Health) Authority snail, after the institution of prosecution against the person from whom the sample of the article of food was taken, forward a copy of the report of the result of the analysis to such person or persons. When the legislate had made use of the word “shall”, then it meant that the provision was mandatory unless a contrary intention appeared from the context or otherwise.
22. Mr. Ganatra has cited before me a ruling of the Allahabad High Court in the case of 1(Kesar Singh v. State of U.P), reported in 1979 All. Law Journal 1059 wherein Sinha, J. sitting singly was pleased to observe:
“There is yet another circumstance which points to the conclusion that the provision contained in sub-sections (2) and (2-A) of section 13 is mandatory. According to sub-section (2) of section 13, a copy of the report of the Public Analyst has to be sent to the person concerned ‘in such manner as may be prescribed’. The expression ‘Prescribed’ means prescribed by rules. According to rule 9-A a copy of the report of the Public Analyst should be sent by the local authority to the person concerned immediately after the institution of the prosecution by registered post or by hand, as may be appropriate. The fact that the rule required the local Authority to send the copy of the report of the Public Analyst immediately after the institution of the prosecution clearly indicates that the provision contained in sub-sections (2) and (2-A) of section 13 was enacted to be complied with and not for being ignored.”
23. It may be pointed out that in rule 9-A also it has been provided that the Local (Health) Authority “shall” immediately after the institution of the prosecution forward a copy of the report of the result of the analysis by registered past or by hand as may be appropriate. Prior to the enactment of Rule 9-A with effect from 4-1-1977 a corresponding provision was contained in Rule 9(j) which has been ???. The provision of Rule 9(j) was held to be mandatory by this Court in the case of 2(The State Of Maharashtra v. Jesti Dosa*), reported in 1977 U.C.R (Bom) 595 : 1978 Cr. Law J. 427. Similarly the Calcutta High Court in the case of 3(Bhola Nath v. State), reported in 1977 Cr. L.J 154 had also held the provisions of Rule 9(j) to be mandatory. In this view of the matter and following the reasoning of the Allahabad case cited heretofore, with which I respectfully agree, I hold that the provisions of section 13(2) and (2-A) are mandatory and that the provisions of Rule 9-A also must be held to be mandatory and not directory. As pointed out heretofore, it is not disputed that in this case at no time was a copy of the Report of the Public Analyst forwarded to the accused immediately after the institution of the prosecution. I must, therefore, hold that there is a clear breach of the provisions of section 13(2) and rule 9-A. In this view of the matter the accused is entitled to an acquittal.
24. In the result Appeal No. 648 of 1978 is allowed. The conviction and sentence of accused No. 3 are set aside. Bail bond of accused No. 3 to stand cancelled. Fine, if paid, to be refunded to accused No. 3.
25. Criminal Revision Application No. 218 of 1978 is dismissed.