Mathew, J.:— This is an appeal with leave by the Food Inspectress, Calicut Corporation, the complainant in C.C No. 242 of 1965 on the file of the District Magistrate, against an order acquitting the accused of an offence punishable under S. 16(1)(a)(i) of the Prevention of Food Adulteration Act, hereinafter referred to as the Act.

2. The case of the complainant may be briefly stated. On 22-4-1965 the Food Inspectress visited the Santha Bhavan Hotel situated within the limits of the Calicut Corporation and purchased from the 1st accused who was in charge of the hotel 10 cups of ice cream from a stock of about 40 cups of ice cream manufactured and kept for sale in the ice cream plant in the hotel. The Food Inspectress paid Rs. 4/- to the 1st accused as the price of the ice cream purchased. The 1st accused gave Ext. P-1 receipt for it. Thereafter, she duly sampled the ice cream in three bottles after adding the required quantity of preservative formalin in the presence of the 1st accused. Of the purchase and sampling she prepared Ext. P. 2 mahazar. The 1st accused and three witnesses signed in it. The sale of the ice cream by the 1st accused and the sampling of the same were acknowledged in writing by the 1st accused (Ext. P. 2-a) The report of the Public Analyst to whom the sample was sent for analysis stated that the ice cream was substandard and therefore was adulterated. Ext. F-3 is the report. On the basis of the report the complaint was filed against the 1st accused and accused 2 and 3 as managing partners of the United Hoteliers. The learned Magistrate acquitted the accused.

3. The Two main reasons are given by the learned Magistrate for acquitting the accused; (1) that the Food Inspectress has not observed the provisions of S. 10(7) of the Act in that no independent witness was called to be present at the time of her action, and therefore, the proceedings of the Food Inspectress relating to the purchase and sampling of the ice cream are invalid and no prosecution can be based on such invalid proceedings; and (2) that there is no evidence to show that accused 2 and 3 are the managing partners of the United Hoteliers, and therefore, they cannot be saddled with any liability. He also held that even if they are proved to have been the managing partners there is no evidence to show that they were in charge of the hotel at the material time.

4. Therefore, the two main questions for consideration in this appeal are whether the proceedings of the Food Inspectress in respect of the purchase and sampling of the ice cream are invalid for the reason that she has not called an indepandent person to be present at the time of her action, and whether accused 2 and 3: were the managing partners of the United Hoteliers. S. 10(7) of the Act reads as follows:

“Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4), or sub-section (6). he shall call one or more persons to be present at the time when such action is taken and take his or their signatures”.

5. The object of calling for persons to be present at the time when action is taken by Food Inspector is to ensure the regularity and to secure evidence of the action of the Food Inspector. The Legislature must have thought that the presence of a person at the time would secure the regularity of the action by the Food Inspector. It is, therefore, only proper to infer an intention on the part of the Legislature that the persona witnessing the action muat not be under the influence of the Food Inspector, as otherwise the object of calling them to be present at the time of the action would be defeated. The learned Magistrate has relied on the ruling of a learned Single Judge of this Court in Subramaniam Chettiar v. Food Inspector, 1966 Ker LT 788 : (AIR 1967 Ker 192) and said that the persona called by the Food Inspectress to be present at the time of her action are not independent, and therefore, the proceedings by her relating to the purchase and sampling were bad, and cannot form the foundation of a complaint. In that case the learned Judge has said that the requirement of calling persona to witness the action, of the Food Inspector is to assure fairness in the action: and therefore, the persons called must be independent and die-interested and not susceptible to influence of the Food Inspector, and that it is essential then that the witnesses concerned must be persons unconnected with the trade in articles of food. Although we agree that the Food Inspector must call independent persons to be present at the time of the action, we think, it is not possible to lay down any hard and fast rule as to what class of persons will be independent. We find it difficult to characterise all persons belonging to or connected with trade in articles of food as dependents or under the influence of the Food Inspector, and unqualified to be witnesseas to the action of a Food Inspector. It will be too much to assume that because the Food Inspector can take action under the Act against persons dealing in articles of food all persons connected with the trade in articles of food would be dependents of the Food Inspector. We think that any such proposition would be too wide. The sub-section itself does not speak of any independent persons. But as we have stated, it is only fair to infer that the Legislature intended that persons who are called to be present at the time of the action by the Food Inspector should not be persons under the control and influence of the Food Inspector. A realistic approach to the situation would reveal the difficulties confronting a Food Inspector in his attempt to secure so-called independent persons to witness the action. The Food Inspector can threaten no sanction against a person refusing to be present in pursuance of his call. The reluctance of respectable and independent persons to enter the witness stand, which many people consider to be the ‘slaughter house of reputations’, dissuades them to respond to the call of the Food Inspector, as the only way to avoid a martyrdom is the witness box.

6. We do not think that because an independent person of the nature envisaged has not been present at the time of the action of the Food Inspector the proceeding of the Food Inspector relating to the purchase and sampling would be invalid. If in a particular case it is possible to come to the conclusion on the evidence adduced that the action of the Food Inspector has been regular, the fact that the person or persons present to witness the action of the Food Inspector is or are not independent will not be fatal to the prosecution.

7. In the division Bench decision of this Court in Criminal Appeals Nos. 92, 112 and 114 of 1960, (Ker) Velu Pillai and Anna Chandy JJ., had occasion to consider the question. Velu Pillai J., said:

“The term ‘independent witnesses’ is not necessarily related to persons pertaining to the same department as the prosecutor; while there is no presumption that every person of that category is susceptible to the influence of the prosecution, other ties of dependence than the official tie, are also conocivable. There is no rule, as seems to have been assumed, that the evidence of officers in charge of police investigations is always to be looked upon with suspicion………………………….”

8. The learned Judge further said:

“I, therefore, hold, that non-compliance with S. 10(7) of the Act is an irregularity and the questions which arise on such non-compliance are, whether the accused is prejudiced and whether the evidence adduced is worthy to be acted upon.”

9. Anna Chandy J. said that S. 10(7) is mandatory. The learned Judge inferred the mandatory character of the sub-section from the use of the word ‘shall’ in it and said that ordinarily it connotes a mandate. As regards the independence of the persons present at the time of action she said;

“However to construe ‘persons’ as ‘independent witnesses’ is not to import something entirely alien to the spirit of the section. The very idea behind requiring other persons to witness the action of the investigating officer, is the need for corroborating his evidence and his official subordinates are certainly not the best persons to serve that purpose.”

10. We think that if the idea behind the necessity of calling independent persons is to secure corroboration of the evidence of the Food Inspector, the object of enacting S. 10(7) is evidentiary in character. The purpose is to secure the evidence on independent persons to the action of the Food Inspector. We are not sure whether such a provision should be construed as mandatory in character. If the court is satisfied on the evidence adduced that the action of the Food Inspector was regular would it consist with the aim of the Legislature to say that because no independent person was called to be present, the proceedings of the Food Inspector are bad? We think not. To attribute such a consequence to the violation of a provision having only an evidentiary purpose would be to ignore the very purpose of the legislature. In some of the rulings in the subject it has been stated that the provisions in S. 10(7) of the Act are mandatory and yet the proceedings of the Food Inspector relating to purchase and sampling are not necessarily bad. This may lead to confusion of Ideas. A mandatory provision is one which must be followed in order that the proceedings to which it relates may be valid. To say therefore that the provisions regarding the presence of independent persons at the time of the action of the food inspector are mandatory and yet the proceedings of the food inspector relating to purchase and sampling are valid is to say nothing but that the provisions of S. 10(7) are directory. All laws are mandatory in the sense that they impose a duty on those who come within their express purview but it does not follow that every departure therefrom would taint the whole proceedings with a fatal blemish. There is nothing inconsistent in saying that the legislative aim was that one or more independent persons must be present at the time of the action of the Food Inspector and yet his proceedings relating to the purchase and sampling might be valid, even if no independent person or persons were present, provided there is evidence worthy of acceptance by the court that the action of the Food Inspector is in accordance with law. It is not easy to determine whether a particular provision is mandatory or directory. The real test is, if the provision involved relates to some immaterial or collateral matter, where compliance is a matter of convenience rather than of substance or directs certain actions with a view to the proper, orderly, and prompt conduct of public business, the provision may be regarded as directory. Lord Campbell said in Howard v. Bodington, (1877) 2 PD 203:

“No universal rule can be laid down……I believe, as far as any rule is concerned you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been dis-regarded, and the relation of that provision, to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.”

11. It is said that the basic test by which to determine whether a provision is essential to be complied with or not, is to consider the consequences of the failure to follow the provision. This is perhaps begging the question in this case, for, what we want to know is the consequence of a failure to follow the provisions of S. 10(7). We must therefore consider the importance of a punctilious observance of the provision in question with reference to the object the Legislature had in view. The use of the expression ‘shall’ may not be conclusive. If as was said that the object with which the provision has been enacted is to supply corroborative evidence of the action of the Food Inspector, we find it difficult to say that the provision is mandatory in the sense that if it is not complied with the whole proceedings will become invalid. That an independent person must witness the action in order to ensure the regularity of the action does not go to the sub-stance of the action or the regularity of the action of the Food Inspector. It is merely collateral. It might in this connection be remembered that it is not within the power of the Food Inspector always to get the presence of an independent person to witness his action. He can administer no sanction if his call is disobeyed and therefore to make the presence of an independent person a condition precedent to the validity of his proceedings would very often result in his not taking any proceedings at all. We cannot visualise therefore that the Legislature would have intended the presence of an independent person as a mandatory requirement for the validity of the proceedings of the Food Inspector. The analogy furnished by the provisions of S. 103 of the Criminal P.C is helpful in this context. The decision of the Supreme Court in State Of Rajasthan v. Rehman , AIR 1960 SC 210, should put the matter beyond doubt about the consequences which may follow from a violation of the provisions of S. 10(7). Velu Pillai J. has considered the bearing of the Supreme Court ruling on the question in his judgment referred to above and we respectfully agree with his view.

12. In 1966 Ker LT 788 : (AIR 1967 Ker 192), the learned Judge has relied upon the decision of the Punjab High Court in State v. Sadhu Singh, AIR 1962 Punj 548. That decision hold that even if no independent persons are called to be present at the time of the action of the Food Inspector, his proceedings would not be invalid. It is observed:

“The previous question has been enacted as a safeguard for an accused person, because the consequences or conviction for an offence under S. 16 of the Food Adulteration Act are likely to be grave, as a severe penalty is provided for the second and subsequent offences. The Courts would insist upon the observance of such safeguards as they are not intended to be set at naught or disregarded at the sweet will or whim of the person concerned with apprehension of offenders and their prosecution; but at the same time it must be remembered that sub-section (7) of S. 10 of the Prevention of Food Adulteration Act merely prescribed a procedure for taking samples of the articles suspected to be adulterated, and it will be unreasonable to hold that any non-compliance with this provision of law, however minor it may be, would render the prosecution baaed upon such taking of samples illegal.

Section 10(7) of the Prevention of Food Adulteration Act, 1951, not only requires the presence of at least two persons at the time a sample of any article of food is taken but also enjoins upon the Food Inspector to obtain the signature of those persons. This clearly contemplates the drawing up a memo regarding the taking of sample and its attestation by at least two persons who are present at the time the sample is taken. As found above, in the present case no memo evidencing the search, as required by sub-s. (7) of S. 10 of the Prevention of Food Adulteration Act was prepared. Thus is certainly a breach of the provision, but applying the rule laid down by their Lordships of the Supreme Court in Sunder Singh's case AIR 1956 SC 411, which has been quoted earlier, we hold that this by itself would not vitiate the proceedings regarding the taking of samples, or affect the validity of the prosecution based upon such irregular action of the Food Inspector.”

13. We do not think that anything can be clearer. The decisions on the subject were reviewed by Govinda Menon J. in Food Inspector Cannanore, Municipality v. Kannan, 1965 Mad LJ (Cr) 335 : (AIR 1964 Ker 261), and his conclusion was that non-compliance with the provisions of S. 10(7) was only an irregularity.

14. Counsel for the accused has brought to our attention the ruling of the Supreme Court in State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358, and said that when the Legistature has prescribed a mode for doing a thing the thing must be done in that mode and no other, and that the result of doing it in any other mode would be to vitiate the entire proceedings. That case followed the decision of the Privy Council in Nazir Ahmad v. King-Emperor, AIR 1986 PC 258 (2) where it was held that a Magistrate who did not record a confession in the manner prescribed by the Criminal Procedure Code should not be permitted to give oral evidence of the confession made to him by the accused, as the Legislature has prescribed a mode for recording the confession and that unless it is recorded in that manner the oral evidence of the confession by the Magistrate should not be admitted. The case can hardly furnish a parallel to the question here in controversy. A Magistrate failing to perform his duty to record the confession in the manner provided can hardly be likened to a Food Inspector who fails to secure the presence of independent person to witness his action. A literal reading of the sub-section would show that the only duty of the Food Inspector is to call one or more persons to witness his action and the further duty to obtain his or their signatures arises only if they are present. The case of a dishonest Food Inspector who with oblique motive deliberately fails to call independent persons whom he could secure, might stand on a separate footing. The court might in such a case view the evidence of his proceedings with suspicion and may refuse to accept his uncorroborated testimony.

15. We think that if the evidence adduced at the trial is sufficient and reliable for the court to come to the conclusion that the action of the Food Inspector was regular, the fact that no independent person was called to be present at the time of the action of the Food Inspector should have no adverse consequence on the case on the complainant. To say this is not to say that the Food Inspector need not observe the provisions of S. 10(7) of the Act.

16. We cannot subscribe to the broad proposition laid down in City Corporation v. Aruna chalam Chettiar, 1960 Ker LT 515 : (AIR 1960 Ker 356) that non-compliance with the requirements of S. 10(7) is a serious irregularity, which ipso facto causes material prejudice to the accused. The decision in Ouseph v. State of Kerala, 1967 Ker LT 290 emphasises the view that if no independent witness has been called to be present on the occasion of the action of the Food Inspector, the only consequence will be that the court will have to look into the evidence in the case with greater care.

17. As already stated, there were three witnesses to the mahazar, two of them being employees of the hotel and the other a maistry of the corporation. The maistry has been examined as P.W 8, and he has spoken to the action of the Food Inspector. We do not think that the learned Magistrate was justified in acquitting the accused on the ground that the persons called to be present at the time of the action of the Food Inspectress were not independent. He has to consider the evidence adduced on its merits and come to a conclusion.

18. The other question for consideration is whether accused 2 and 3 were the managing partners of the United Hoteliers and were in charge of the conduct of the hotel at the material time. The learned Magistrate has held that there was no legal evidence to prove that they were the managing partners of the Firm, or that they were in charge of the conduct of the hotel. The complainant relied upon Ext. P-6(a), a report by P.W 2, the Health Inspector of the Ward, for showing that accused 2 and 3 were the managing partners of the United Hoteliers. The Learned Magistrate found that the evidence was inadmissible on the ground that it was hearsay. Ext. P-6(a) incorporates the result of the observatiod of P.W 2 based on the documents perused by him and his enquiries. We think that the documents from which P.W 2 drew the conclusion should have been placed before the court instead of his submitting a report of his conclusion as regards the effect of these documents. Ext. P. 8 is the extract from the Register of Firms showing that accused 2 and 3 were partners in the Firm. But the lower court has rejected the evidence on the ground that the partnership was registered only on 17-5-1965, and that the alleged commission of the offence was before that date. But it is seen from Ext. P. 8 that accused 2 and 3 joined the firm on 15-2-1965. This apparently has not been noted by the learned Magistrate. The evidence furnished by Ext. P-7 has been discarded by the Magistrate on the ground that it has not been properly proved. Ext. P-7 is a letter purporting to be sent by accused 2 and 3 to the Commissioner of the Corporation and that would indicate that accused 2 and 3 were partners of the firm at the relevant time. It will be open to the complainant to prove this document by examining a person acquainted with the hand, writings or signatures of these accused. This document, if properly proved, may furnish valuable evidence on the question whether accused 2 and 3 were the managing partners of the firm.

19. We set aside the order passed by the Magistrate acquitting the accused and direct a re-trial of the case in the light of the observations made above. The appeal is disposed of as above.

VGW/D.V.C

20. Order accordingly.