JUDGMENT
1. Appellant is the Food Inspector, Tellicherry Municipality. He prosecuted the two respondents before the Additional Judicial First Class Magistrate I, Tellicherry in S.T.C No. 139/79 for possession and sale of adulterated pan supari punishable under S. 16(1)(a)(i) and (ii) read with Ss. 7(i) and (v) and 2(1a)(a) and (b) of the Prevention of Food Adulteration Act and Rules made thereunder as amended. First accused is the vendor and second accused was impleaded as the warranter. Trial Court acquitted both of them. Hence this appeal.
2. P.W 1 is an independent witness, who was present at the time of purchase and sampling. P.W 2 is the peon of the Food Inspector and P.W 3 is the Food Inspector himself. Exts. P1 to P20 are the documents proved by P.W 3. His evidence is supported by the depositions of P.Ws 1 and 2. On the question of purchase, sampling and observance of the formalities according to the Act and Rules, P.W 3 has given evidence only in general without going into the minute details of the observance of each and every formality. But he proved all the documents evidencing observance of the formalities enjoined by the Act and the Rules. In this appeal we are mainly concerned only with the accusations against the first accused because acquittal of the 2nd accused has only to stand. The contention of the 1st accused was that pan supari exposed by him for sale was purchased from the 2nd accused. But the 1st accused himself admitted that there was no warranty. Ext. D1 is the bill produced by the 1st accused during trial as if it was given by the 2nd accused. P.W 3 said that no such bill was shown to him at the time of purchase and sampling and what the 1st accused told him was that there was no bill or warranty. In the absence of proof on the part of the 1st accused, that he made the purchase with a written warranty from any manufacturer, distributor or dealer, much less the 2nd accused, there is no question of the 2nd accused being held liable or the first accused being exonerated under S. 19(2). Therefore the acquittal of the 2nd accused has only to be confirmed.
3. The first accused challenged the evidence of P.W 3, Food Inspector in his cross-examination only on the following aspects. He was first asked about Ext. D1 bill and he said that there was no such bill shown to him. Then he was asked whether saccharine is a permitted artificial sweetener. P.W 3 denied that suggestion also. Then he was asked whether Form III was sent as seen from Ext. P18 acknowledgment. The answer was that the suggestion is not correct and Form III was sent to the 1st accused. The only other question asked by the first accused in cross-examination of P.W 3 was whether Rule 3 was not complied with. That suggestion was also denied. I have adverted to these facts only because at the time of arguments before me non-compliance of various provisions of the Act and Rules was attempted to be canvassed. It has been held by this Court in various decisions that even though it may be advisable for the Food Inspector to give detailed evidence in the box regarding the observance of all the formalities, absence of such evidence and evidence given by the Food Inspector in a general way need not straightway lead to the acquittal of the accused. So also it has been repeatedly held that an accused who fails to challenge the general evidence of the Food Inspector supported by documents on the observance of any particular formality does so at his risk and thereafter he cannot be heard to say that such formality was not complied with unless the evidence supports his contention. The evidence will have to be appreciated in this background.
4. The sample consists of pan supari which is crushed and coloured arecanuts. Purchase and sampling is not disputed. It is also not disputed that the samples were in packets of 2 grams each and six such packets were purchased and they were sampled into three without even opening them. Ext. P14 report of the public analyst shows that sample was received by him for analysis properly sealed and fastened and he found the seals intact and unbroken. The seal fixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis. The report further shows that on analysis the sample was found to contain saccharin, which is a prohibited artificial sweetener, to the extent of 73.0 mg/100 grams and hence the same is adulterated. There is absolutely nothing on record to show that proper test was conducted. There is no such contention also. The opinion of the public analyst is not in any way shown to be incorrect.
5. The Magistrate acquitted the accused on the following grounds, (i) R. 7(3) was violated, (ii) R. 9(A) was not properly complied with, (iii) Printed form was used for preparation of mahazar, (iv) Rr. 16(c) and (d) were not observed, and (v) R. 17 was not followed.
6. Prevention of Food Adulteration Act has been enacted to eradicate the social menace of adulteration of food articles affecting health and life of the citizens. It is seldom that culprits are caught. Even then rarest cases alone end in conviction. Many escape with the connivance of those charged with the duty of enforcing the provisions. Even in many of the rarest cases where conviction is possible, Magistrates are having a light-hearted approach and they show a tendency to acquit the accused even on flimsy grounds. This tendency has to be taken serious note of. It is high time that such tendencies will have to be curbed.
7. At the outset the first accused raised a contention that presence of saccharin cannot be taken as an item of adulteration because saccharin is not a totally prohibited material. This contention was raised on a wrong assumption of the provisions of the Act and Rules. R. 47 of the Prevention of Food Adulteration Rules provides that saccharin or any other artificial sweetener shall not be added to any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix ‘B’ and where any artificial sweetener is added to any food, the container of such food shall be labelled with an adhesive declaratory label to that effect. That means unless and to the extent in accordance with the standards prescribed in Appendix B, saccharin or any other artificial sweetener are prohibited materials in food articles. For pan supari no standard is fixed in Appendix B. That means addition of artificial sweetener is not permitted by the standards laid down in Appendix B and the prohibition under R. 47 operates as an absolute prohibition against addition of saccharin or other artificial sweetener so far as pan supari is concerned. Whether addition of artificial sweetener is injurious to health or life is not a matter for consideration when its addition is prohibited. In P.K Tejani v. M.R Dange, (1974) 1 SCC 167 : AIR 1974 SC 228 : (1974 Cri LJ 313), it is said:
“The Act defines ‘food’ very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is commonplace knowledge that the word “food” is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. As supari eaten with relish by men for taste and nourishment it is food within the meaning of S. 2(v) of the Act”.
8. Therefore, it follows that pan supari will have to be treated as an item of food article. Adulteration on account of the addition of saccharin was also considered in that decision and it was held:
“It is not the judicial function to enter the thicket of research controversy or scientific dispute where Parliament has entrusted the Central Government with the power, and therefore the duty, of protecting public health against potential hazards and the Central Government, after consultation with a high-powered technical body, has prohibited the use of sacchrin and cyclamates. The fact that for a long time these substances were allowed is no argument against the reasonableness of their later ban; for human knowledge advances and what was regarded as innocuous once is later discovered to be deleterious. So long as the exercise of power is not smeared by bad faith, influenced by extraneous considerations, uniformed by relevant factors, and is within the limits of reasonableness, it becomes out of bounds for judicial re-evaluation. Where expertise of a complex nature is expected of the State in framing rules, the exercise of that power, not demonstrated as arbitrary, must be presumed to be valid as a reasonable restriction on the fundamental right of the citizen and judicial review must halt at the frontiers. The Court cannot re-weigh and substitute its notion of expedient solution. Within the wide judge-proof areas of policy and judgment open to the government, if they make mistakes, correction is not in Court but elsewhere. That is the comity of constitutional jurisdictions in our jurisprudence.
9. Nor is there any substance whatever in the plea that there is a discrimination against supari vis-a-vis carbonated waters. There is a reasonable basis for the distinction. The Court certainly is the constitutional invigilator and must act to defend the citizen in the assertion of his fundamental rights against executive tyranny draped in discretionary power but here no case for it exists.”
10. It was observed in State Of Kerala… v. Lakshmanan…., 1973 Ker LT 257 : (1973 Cri LJ 1730):
“Appendix B is not exhaustive with regard to the articles of food. It only prescribes the standard for addition of sweetener in the items of food dealt with in it. “Food” defined in S. 2(v) is the genus of which the items referred to in Appendix A are only some of the species. Therefore from the mere fact that an article of food is not included in Appendix B it cannot be taken that it is not food. It would be food if it comes within the definition of that word in S. 2(v) irrespective of the question whether it is included or not in Appendix B. Ice-candy is an item expressly included in Appendix B. Ice-fruit and ice-nut are only different forms of ice-candy. It is common knowledge that ice-fruit is generally used for human consumption as food. Ice-fruit is a form of ice-candy and it is food. R. 44 prohibits sale of articles of food which contains any artificial sweetener, except where such artificial sweetener is permitted in accordance with the standard laid down in Appendix B and for ice-candy which finds a place in Appendix B. Saccharin and Dulcin are not permitted to be added. The respondent is, therefore, guilty of the offence punishable under S. 16(1)(a)(ii) read with S. 7(v) of the Act and R. 44(g) of the Rules”.
11. R. 7(3) of the Prevention of Food Adulteration 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.”
12. This rule is contended by the counsel for the first accused to be mandatory and its non-compliance or delayed compliance is said to be fatal to the prosecution even in the absence of proof of prejudice. Food Inspector v. Moosa, 1984 Ker LT 80 : (1984 Cri LJ 563) was relied on in support of that proposition. In that decision it was held:
“Sub-rule (3) of R. 7 evidently relates to the essence of the thing to be performed and to matters of substance and is not merely a rule of convenience. The time limit has been prescribed in order that the article of food is analysed before the same gets deteriorated and the report is promptly delivered thereby enabling the authority to launch the prosecution in appropriate cases, and for safeguarding the interest of the accused in exercising the right provided under S. 13(2) in due course in such cases. S. 13 itself has been amended by Act 34 of 1976 changing the whole scheme of prosecution, minimising the chances of harassment of vendors and reducing the number of prosecutions. A time schedule is also seen to be envisaged in the scheme of the Act and the Rules. Wherever a time limit is prescribed, it can only be the outer limit within which the requirement is to be complied with indicating the imperative nature of the obligation. The real intention of the framers of the amended sub-rule (3) of R. 7 of the P.F.A Rules, as gathered by carefully attending to the whole scope of the statute, thus appears to be to assign an imperative duty on the public analyst in completing the analysis and delivering his report within the minimum time required and prescribed. In the background of the legislation it can only be held that the rule making authority intended to make a provision which is mandatory.”
13. In that decision itself the Division Bench said:
“The time limit is fixed in order that the article of food is analysed before the same gets deteriorated and the report is promptly delivered thereby enabling the authority to launch the prosecution in appropriate cases, and for safeguarding the interest of the accused in exercising the right provided under S. 13(2) in due course in such cases.”
14. The sample involved in that case was karimasala whereas the sample invovled herein is pan supari which is not liable to deterioration easily. The reasonings adopted in that decision for arriving at the conclusion that R. 7(3) is mandatory has been superseded by later Supreme Court decisions. That decision itself laid down that the object of the rule is to have the sample analysed before it gets deteriorated and for safeguarding the interest of the accused in exercising the right provided under S. 13(2). After the said decision 1984 Ker LT 80 : (1984 Cri LJ 563) decided on 12-12-1983 was rendered, the Supreme Court had occasion to consider R. 9A framed in order to facilitate the exercise of the statutory right under S. 13(2) in the decision in Tulsiram; v. State Of Madhya Pradesh., (1984) 4 SCC 487 : AIR 1985 SC 299 : (1984 Cri LJ 1731). It was held that non-compliance of R. 9A is not fatal and it is only a question of prejudice. It was further held in that decision:
“The idea is to avoid dilatoriness on the part of officialdom and prevention of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to provide a technical defence.”
15. In view of this decision rendered subsequent to the decision in Food Inspector's case, 1984 Ker LT 80 : (1984 Cri LJ 563), the principles laid down in that decision must be taken to have been superseded. If S. 13(2) and R. 9A framed for facilitating the right under S. 13(2) are not mandatory and non-compliance need be considered only if prejudice is established, R. 7(3) which is also intended for the same purpose cannot be considered mandatory and its non-compliance or delayed compliance cannot be treated as fatal to the prosecution without proof of prejudice. Further, in Shambhu Dayal's case, (1979) 1 SCC 202 : AIR 1979 SC 310 it was held that analysis of milk by the public analyst after 44 days cannot be treated as fatal to the prosecution and the contention on that basis cannot be accepted. Even though Shambhu Dayal's case, (1979) 1 SCC 202 : AIR 1979 SC 310 is not exactly to the point the principle is applicable here also because if the analysis is after 44 days compliance of R. 7(3) will not be possible.
16. In this connection it may also be advantageous to refer to the relevant principles laid down by the Supreme Court in Dalchand v. Municipal Corporation, Bhopal, (1984) 2 SCC 486 : AIR 1983 SC 303 : (1983 Cri LJ 448). On the question of considering whether a rule is mandatory or directory, the Supreme Court said:
“There are no ready tests or invariable formulae to determine whether a particular provision in a statute 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 provision 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”.
17. Specific instances were considered and in the same decision it was held:
“Every prescription of a period within which an act must be done is not the prescription of a period of limitation with the painful consequences if the act is not done within that period. R. 9(j) of the Prevention of Food Adulteration Rules, as it stood prior to 4-1-1977 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. 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.”
18. In view of the above said decisions referred to by me I think that in the light of Art. 141 of the Constitution I will be justified in holding that R. 7(3) of the Prevention of Food Adulteration Rules is not mandatory and that its violation cannot be considered fatal in the absence of allegation or evidence of prejudice having been caused.
19. The sample was taken on 4-10-1978. It reached the Public Analyst on 5-10-1978. Ext. P14 report of the Public Analyst is dt. 17-11-1978. That means the analysis was conducted at least on 17-11-1978, if not earlier. Even if it was on 17-11-1978 the analysis was before 45 days. In Ext. P14 the Public Analyst found that the sample was intact and fit for analysis. The report seems to have been received by the Local (Health) Authority only on 6-12-1978 beyond 45 days of the receipt of sample by the Public Analyst. The complaint was filed on 15-12-1978. Form III was sent to the accused as provided in S. 13(2) or R. 9A only on 19-12-1978.1 have already stated with reference to the decisions that Rr. 7(3), 9A and S. 13(2) are not mandatory. In order to make delayed compliance fatal to the prosecution, there must be proof of prejudice. Public Analyst found the sample fit for analysis and adulterated. The sample is pan supari which is not liable to deterioration easily. The Local (Health) Authority need inform the Food Inspector only after getting the report from the public analyst. Then only the Food Inspector need file the complaint. No time limit is fixed in the Act or Rules for filing the complaint by the Food Inspector. Only after getting intimation of the filing of the complaint, the Local (Health) Authority need give intimation under S. 13(2) to the accused. There is no complaint that intimation under S. 13(2) was not received even though the intimation is said to be 3 or 4 days after the filing of the complaint by the Food Inspector. The first accused has not attempted to send one of the samples with the Local (Health) Authority for analysis by the Director of Central Food Laboratory. There is nothing to show that he could not have exercised that right on account of the sample having become unfit for analysis. Prejudice is not found to have been attempted to be established. If so, the first accused cannot plead violation of Rr. 7(3), 9A or S. 13(2) as defence. Those contentions will have to be negatived outright.
20. The objection that printed form was used for preparation of mahazar supported by the decision in State of Maharashtra v. Khachara Das D. Bahalgar, 1979 FAJ 39 (Bom) is without any merit. Printed forms are recognised in official dealings. In many cases use of such forms is mandatory also. Printed forms are provided as safeguards to ensure that the necessary details and formalities are not omitted. Blank spaces are provided in printed forms in order to enter details necessary in individual cases. Whenever and wherever space in the form is found insufficient in individual cases, additional sheets could be inserted. There is absolutely no logic or reason in treating printed form as prohibitions. The Prevention of Food Adulteration Act or Rules do not provide for preparation of a mahazar. That is being prepared, only as a contemporaneous document to act as assurance to the actions of the Food Inspector. I do not find any reason to hold that use of printed forms is prejudicial to the accused. Therefore, that contention is also negatived.
21. Then the contention is based on non-observance of R. 16(c) and (d). R. 16(c) and (d) reads:
“16(c) A paper slip of the size that goes round completely from the bottom to top of the container, bearing the signature and code and serial number of the Local (Health) Authority, shall be pasted on the wrapper, the signature or the thumb impression of the person from whom the sample has been taken being affixed in such a manner that the paper slip and the wrapper both carry a part of the signature or thumb impression:
Provided that in case, the person from whom the sample has been taken refused to affix his signature or thumb impression, the signature or thumb impression of the witness shall be taken in the same manner;
(d) The paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender.”
22. The Food Inspector, who was examined as P.W 3, has spoken to the observance of these rules and he produced and proved all the necessary documents also. The evidence in that respect is not challenged by cross-examination. Ext. P13 report of the Public Analyst shows that the sample for analysis was properly sealed and fastened and the seals were intact and unbroken. The seals fixed on the container and the outer cover tallied with the specimen impression of the seal separately sent. Official acts must be presumed to have been done properly and regularly especially when there is no challenge and proof in support of the challenge. These statements hold good equally regarding the contention of non-observance of R. 17(a) and (b) as well.
23. It follows that none of the contentions raised by the first accused will hold good. The first accused is proved beyond doubt to have exposed for sale and sold adulterated pan supari. He is proved beyond doubt to be guilty of the violations for which the complaint was filed. The Magistrate was wrong in acquitting him.
24. The appeal is therefore allowed and the acquittal of the first accused is set aside. First accused is found guilty of having committed the offences punishable under S. 16(1)(a)(i) and (ii) read with Ss. 7(i) and (v) and 2(1a)(a) and (b) of the Prevention of Food Adulteration Act and Rules and he is convicted accordingly.
25. Counsel for the first accused was heard on the question of sentence. He had no valid contention to raise except saying that the article is not a food item which is injurious to health. This contention will not stand in view of the decisions reported in P.K Tejani's case, (1974) 1 SCC 167 : AIR 1974 SC 228 and State Of Kerala… v. Lakshmanan…., 1973 Ker LT 257 : (1973 Cri LJ 1730).
26. In the result, while confirming the acquittal of the 2nd accused, the appeal is allowed as regards the first accused. The acquittal against the 1st accused is set aside and he is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/- and in default to undergo simple imprisonment for a further period of two months for the offences mentioned above. The trial Court will take steps to execute the sentence.
27. Immediately after the judgment was pronounced counsel for the 1st respondent (1st accused) requested for a certificate for appeal to the Supreme Court.
28. I do not think that the case involves any substantial question of law as to the interpretation of the Constitution or that even otherwise this is a fit case for appeal to the Supreme Court. Certificate for appeal to the Supreme Court is therefore refused.
29. Order accordingly.