1993 Supreme(MP) 369

D.K. Jain, J.
Tularam Patel v. State of M.P.
Cr. Revn. No. 268 of 1988 (J); Decided on 26.6.1993.

Headnote:(1) Prevention of Food Adulteration Act, 1954 -- S. 13 (2) -- provision under -- is directory.

        (2) Prevention of Food Adulteration Rules, 1955 -- Rr. 9A and 9 (j) -- provisions under -- are directory if no prejudice is caused to the accused.

        ¼1½ [kk| vifeJ.k fuokj.k vf/kfu;e] 1954 & /kkjk 13 ¼2½ & ds v/khu mica/k & funsZ‘kkRed gSA

        ¼2½ [kk| vifeJ.k fuokj.k fu;e] 1955 & fu- 9d rFkk 9 ¼¥½ & ds v/khu mica/k & funsZ‘kkRed gSa ;fn vfHk;qDr izfrdwy :i ls izHkkfor ugha gksrk gSA

        Applicant Tularam Patel son of Bhaiyalal Patel, resident of village Kugwa; Police Station Garha, Jabalpur was convicted and sentenced by Special Nagar Nigam, Judicial Magistrate, Jabalpur in Criminal Case No. 1469/84, decided on 17.1.1985 to undergo R.I. for six months and a fine of Rs. 1,000/- and in default of payment of fine to undergo imprisonment for three months under section 7 (1) read with section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954. The applicant went up in appeal against the aforesaid Judgment and the IIIrd Additional Sessions Judge, Jabalpur in Criminal Appeal No. 8/85, decided on 11.7.1988 partly allowed the appeal and set aside the sentence of R.I. for six months awarded by the trial Court and instead while maintaining the conviction of the applicant/Appellant Tularam under section 7 (1) read with section 16 (1) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to the Act), he modified the sentence as per which the appellant was sentenced till rising of the Court and was fined of Rs. 2,000/- and in default of payment of fine to undergo R.I. for three months. Being aggrieved by this judgment the present applicant, Tularam has preferred this revision.

        Held : Both the Courts below have placed reliance on the version of Food Inspector, V.K. Shrivastava (P.W. 1) who was examined in the case. After perusing of the evidence of this witness I find no infirmity in the evidence so as to discard his testimony. The case law cited above on behalf of the applicant does not apply in view of the full Bench decision reported in 1985 JLJ Page 195 (Food Inspector, Nagarpalika, Mandsaur v. Devilal) in which it has been laid down that the provisions of section 13 (2) of the Act and rule 9-A of the Rules are not mandatory and are directory and the non-compliance thereof per se is not fatal to the prosecution case. In AIR 1983 SC 303, Dalchand v. Municipal Corpn. Bhopal and another, it has been held that Rule 9 (j) of Prevention of Food Adulteration Rules (1955) which required the Food Inspector to supply a copy of the Report of Public Analyst to the person from whom the sample was taken within a period of Rs. 10 days of the receipt of the Report was directory and not mandatory. It has been further laid down by the Supreme Court that:

        "Rule 9 (j) of the Prevention of Food Adulteration Act, as it then stood, merely instructed the Food Inspector to send by registered post copy of the Public Analysts Report to the person from them 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 occurred. 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, for example, by making a request to the Magistrate to send the other sample to the Director of the Central Food Laboratory for analysis. Where the effect of non-compliance with the rule was such as to wholly deprive the right of the person to challenge the Public Analysts 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. I am clearly of the view that R. 9 (j) of the Prevention of Food Adulteration Rules was directory and not mandatory."

        The aforesaid cited case reported in AIR 1983 SC 303 has also been discussed in the reported full Bench decision of this Court reported in 1985 JLJ 195.

        In the instant case there is nothing on record to show that applicant Tularam was prejudiced in any way because in case he had wanted to send the other sample of milk taken by the Food Inspector during the checking to the Director of the Central Food Laboratory for analysis, he could have made such a request to the Magistrate concerned before whom he was prosecuted. But, it appears that no such request was made to him on behalf of the applicant Tularam. Besides this, the Food Inspector has specifically denied the suggestion that the Report of the Public analyst was not sent to the accused. Report Ex. P-7 of the Public Analyst also shows that a copy of the Report was dispatched under certificate of posting on 29.10.1975. 1985 JLJ 195 (FB) relied on. AIR 1983 SC 303 followed. Revision dismissed.