Special Leave Petition Criminal No 3038 of 1983
From the Judgment and order dated the 16th August 1983 951 of the Madhya Pradesh High Court in Criminal Revision No 260 of 1983
SKGambhir Ashok Mahajan and SS Kirpalani for the petitioner
The order of the Court was delivered by CHINNAPPA REDDY 1
On 1781979 the Food Inspector Sorar purchased 375 grams of Soyabean oil from the shop of the petitioners Tulsiram
The Soyabean oil purchased was divided into three parts each part was filled in a bottle each bottle was sealed and one of the bottles was sent to the Public Analyst Raipur for analysis
The Public Analyst found that the sample was adulterated as it contained traces of cotton seed oil
On 29111979 a complaint was filed on the basis of the report of the Public Analyst in the court of the Judicial First Class Magistrate Balod
On 17121979 a copy of the report of the Public Analyst was forwarded to the petitioner as required by Rule 9 A of Prevention of Food Adulteration Rules
The accused petitioner however made no application to the Trial Court to have one of the samples sent to the Central Food Laboratory for further analysis
He was content merely to deny offence
After due trial he was convicted by the Magistrate on 891982 under section 161ai of the Prevention Food Adulteration Act and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs 1000
The Appeal preferred by the petitioner to the Sessions Judge Durg and the Revision Petition preferred thereafter to the High Court of Madhya Pradesh were rejected
The petitioner now seeks special leave to appeal to this Court under Article 136 of the Constitution
The learned counsel for the petitioner urged before us that Rule 9 A of the Prevention of Food Adulteration Rules which has been substituted for Rule 9j in 1977 now prescribes that the Local Health Authority shall immediately after the institution of the prosecution forward a copy of the report of the Public Analyst by registered post or by hand to the person from whom the sample was taken by the Food Inspector that the word immediately  occurring in Rule 9 A showed that it brooked no delay and that as G there was a delay of 18 days in the present case in forwarding the report to the petitioner the prosecution was vitiated and the petitioner was entitled to be acquitted
He argued that the scheme of the Act was changed by the amendments introduced in 1976 and that in consonance with the revised scheme of the Act 952 the rules were also amended
He invited our attention to the A departure in the language of the present Rule 9 A from the language of old Rule 9j
The learned counsel also argued that cotton seed oil was more nutritive and consumable than Soyabean oil and therefore a person mixing cotton seed oil with Soyabean oil could not be said to have adulterated soyabean oil
He invited our attention to Dal Chand vs Municipal Corporation Bhopal Kashmiri Lal vs State of Haryana  Kanda Swami vs Food Inspector State of Maharashtra vs Tukaram Babu Rao Mane Perumal vs Kumbakonam Municipality  and Food Inspector vs Prabhkaran
We have considered all of them and we do not think it necessary to launch into a discussion of the cases one by one We would rather refer to and construe the relevant statutory provisions and rules ourselves
Suffice to say here that we do not agree with the submissions of the learned counsel
It is true in 1976 important changes were made in some of the procedural provisions of the Prevention of Food Adulteration Act
We are concerned in this case with some of the changes made in sections 11 and 13 of the Act and the new Rules made as a consequence
Before the 1976 amendment section 11 required the Food Inspector taking a sample for analysis to separate the sample into three parts seal or fasten up each part and to deliver one of the parts to the person from whom the sample was taken send another part for analysis to the Public Analyst and retain the third part for production in case legal proceedings were taken or for analysis by the Director of the Central Food Laboratory under sub section 2 of section 13 as the case might be
Sub section 1 of old section 13 as it stood before 1976 required the Public Analyst to deliver to the Food Inspector a report of the analysis of any article of food submitted to him for such analysis
Sub section 2 enabled the accused vendor after the institution of the prosecution under the Act to apply to the Court to send the part given to him or the part retained with the Food Inspector for production in case of legal proceedings to the Director of the Central Food Laboratory for a certificate specifying the result of the analysis to be made by him
The certificate issued by the Director of the Central Food Labora 953 tory was to supersede the report given by the Public Analyst and was to be final and conclusive evidence of the facts stated therein
A Rule 9 j of the 1955 Rules prescribed that it shall be the duty of the Food Inspector to send by registered post a copy of the report of the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report
It is obvious that section 13 2 was intended to secure to the accused vendor the right to have the report of the Public Analyst tested if he so wanted by obtaining the final and conclusive report of the Director of the Central Food Laboratory
In order to enable the accused vendor to exercise this right it was necessary to first make available to him the report of the Public Analyst
So Rule 9 j provided that a copy of the report of the Public Analyst should be sent to the person from whom the sample was taken within ten days of the receipt of the report by the Food Inspector
The mention of ten days as the period within which the Food Inspector was to send the report of the Public Analyst to the person from whom the sample was taken led to considerable controversy whether Rule 9 j was mandatory or directory
Some High Courts took the view that Rule 9 j was mandatory and that failure to strictly comply with the rule was fatal to the prosecution
The matter was finally set at rest by this Court in Dalchand vs Municipal Corporation Bhopal supra where it was held that Rule 9 j was directory
It was observed  There are no ready tests or invariable formulae to determine whether a provision 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 mis chief 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
It is well to remember that quite often many rules though couched in language which appears to be imperative are no more than mere instructions to those entrusted 954 with the task of discharging statutory duties for public benefit
The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute
It is as well to realise that every prescription of a period within which an act must be done is not the prescription of a period of limitation with painful consequences if the act is not done Within that period
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 Analyst s Report to the person from when 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 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 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
I am clearly of the view that R 9 j of the Prevention of Food Adulteration Rules were directory and not mandatory
As already mentioned by us some High Courts had earlier taken the view that the Rule was mandatory and that non compliance with the Rule was fatal to the prosecution
The working of the Act also revealed that often enough the accused vendor would adopt dilatory tactics by waiting till the last minute to exercise his right to apply to the Court to send the sample to the Director of Central Food Laboratory
This statutory right could not be denied to the accused vendor even when made at the very last stages of the case
The result was not merely undue and unnecessary delay in the disposal of the case but fairly frequently it would be discovered 955 that the sample had disintegrated due to lapse of time thus disabling the Director Central Food Laboratory from analysing the sample
With a view to overcome the difficulties encountered in the working of the Act sections 11 and 13 were recast by the Amending Act of 1976 and new rules were made in 1977 new Rule 9 A replacing old Rule 9 j
Sub section 1 of amended section 11 and the whole of amended section 13 may be usefully extracted here
Section 11 sub section 1 is as follows When a food inspector takes a sample of food for analysis he shall a give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person if any whose name address and other particulars have been disclosed under section 14A b except in special cases provided by rules under this Act divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed Provided that where such person refuses to sign or put his thumb impression the food inspector shall call upon one or more witnesses and take his or their signature or thumb impressions of such person a i send one of the parts for analysis to the public analyst under intimation to the Local Health Authority and ii send the remaining two parts to the Local Health Authority for the purposes of sub section 2 of this section and sub sections 2A and 2E of section 13
Section 13 is as follows 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
956 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 particulars have been disclosed under section 14A 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
2A When an application is made to the Court under sub section 2 the court shall require the Local Health Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made by said Authority shall forward the part or parts of sample to the court with in a period of five days from the date of receipt of such requisite on
2B On receipt of the part or parts of the sample from the Local Health Authority under sub section 2A the court shall first assertion that mark and seal or fastening as provided in clause b of sub section 1 of section 11 are intact and the signature or thumb impression as the case may be is not tampered with and despatch the part or as the case maybe one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis
2C Where two parts of the sample have been sent to the court and only one part of the sample has been sent by the court to the Director of the Central Food Laboratory under sub section 2B the court shall as soon as 957 practicable return the remaining part to the Local Health Authority and the Local Health Authority shall destroy that part after the certificate from the Director of the Central Food Laboratory has been received by the court Provided that where the part of the sample sent by the court to the Director of Central Food Laboratory is lost or damaged the court shall require the Local Health Authority to forward the part of the sample if any retained by it to the court and on receipt thereof the court shall proceed in the manner provided in sub section 2B
2D Until the receipt of the certificate of the result of the analysis from the Director of Central Food Laboratory the court shall not continue with the proceedings pending before it in relation to the prosecution
2L It after considering the report if any of the Food Inspector or otherwise the Local Health Authority is of the opinion that the report delivered by the public analyst under sub section 1 is erroneous the said Authority shall forward one of the parts of the sample kept by it to any other public analyst for analysis and if the report of the result of the analysis of that part of the sample by that public analyst is to the effect that the article of food is adulterated
the provisions of sub section 2 to 2D shall so far as may be apply
3 The certificate issued by the Director of the Central Food Laboratory under sub section 2B shall supersede the report given by the public analyst under sub section 1
4 Where a certificate obtained from the Director of the Central Food Laboratory under sub section 23 is produced in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code 45 of 1860 it shall not be necessary in such proceeding to produce any part of the sample of food taken for analysis
5 Any document purporting to be a report signed by a 958 public analyst unless it has been supersede under sub section 3 or any document purporting to be a certificate signed by the Director of the Central Food Laboratory may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code 45 of 1980
Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory not being a certificate with respect to the analysis of the part of the sample of any article of food referred to in the proviso to sub section 1A of section 16 shall be final and conclusive evidence of the facts stated therein
Explanation In this section and in clause f of sub section 1 of section 16 Director of the Central Food Laboratory  shall include the officer for the time being in charge of any Food Laboratory by whatever designation he is known recognised by the Central Government for the purpose of this section
It will be noticed that amended section 11 does not require a part of the sample to be given to the person from whom the sample was taken
While one part is required to be sent to the public Analyst for analysis the other two parts are required to be sent to the Local Health Authority
The amended section 13 requires the Public Analyst to deliver to the Local Health Authority a report of the result of his analysis
Section 132 requires the Local Health Authority lo forward to the person from whom the sample was taken a copy of the report of the Public Analyst if the report is to the effect that the article of food is adulterated
The report is to be forwarded in such manner as maybe prescribed after the institution of the prosecution
Thereafter the person from whom the sample was taken is given the right to apply to the court within ten days of the receipt by him of the copy of the Public Analyst s report to get the sample kept by the Local Health Authority analysed by the Central Food Laboratory
It is no longer open to the accused vender to wait till the very last minute to apply to the court to have the sample analysed by the Central Laboratory
If he wants to exercise the statutory right of having the sample analysed by the Central Food Laboratory he has to 959 exercise that right by applying to the court within ten days of receipt by him of the Public Analyst s Report
It is also to be noticed that amended section 132 does not prescribe any point of time before which the report of the Public Analyst is to be forwarded to the accused vendor
But the very basis of a prosecution for adulteration of food is the report of the Public Analyst that the article of food is adulterated
The accused is given the right to dispute the Public Analyst s report by applying to the court for an analysis by the Central Food Laboratory
If the report of the Central Food Laboratory is to the effect that the article of food is not adulterated the very basis of the prosecution will disappear
In such an event the further pursuit of the prosecution will be needless and the accused will have to be discharged or acquitted as the case may be
It is therefore to be assumed that the report of the Public Analyst is to be made available to the accused vender at the commencement of the prosecution that is to say before the prosecution starts leading evidence in the case and in good and sufficient time to enable the accused to exercise his right of having the sample analysed by the Central Food Laboratory if he so desires it
We have seen that section 132 provides that the Public Analyst s Report shall be forwarded to the person from whom the sample was taken in such manner as may be prescribed 
Now Rule 9 A of the Rules as amended in 1977 which replaces Rule 9j of the old Rules prescribes the manner in which the Public Analyst s Report may be forwarded to the person from the sample was taken
lt reads as follows 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 has been disclosed under Section 14A of the Act Provided that where the sample conforms to the pro visions of the Act of the Rules made thereunder and no prosecution is intended under sub section 2 or no action is intended under sub section 2E of section 13 of the Act the Local Health Authority shall intimate the 960 result to the vendor from whom the sample has been taken and 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
 The first thing to be noticed is that Rule 9 A carefully refrains from mentioning any definite limit of time such as that found in old Rule 9j which gave rise to the controversy whether the Rule was mandatory or directory and instead uses the general expression immediately  The Local Health Authority is now required to forward to the person from whom the sample was taken in the manner prescribed a copy of the report of the Public Analyst immediately after the institution of the prosecution
While prescribing the manner in which the Report may be forwarded the opening words of Rule 9 A The Local Health Authority shall immediately after the institution of the prosecution forward   bracket in ours are borrowed verbatim from section 132 with the word immediately  inserted in between
The Rule making authority could never have intended to amend the statute by super adding the word immediately  as indeed it was not competent to do
Rule 9 A has to be interpreted so as to keep it in tune with and within the bounds of section 132
The departure from the previous rule by refraining from mentioning a definite period of time as was done in the old rule makes it evident that the expression immediately  is used to convey a sense of continuity rather than a sense of urgency
It is not to be understood to mean the very next instant the very next hour that very day or the very next day
It must be construed in its setting
It is no use turning to dictionaries
Dictionaries give variegated meanings to words
What meaning is to be adopted depends on the context
Rule 9 A is made in the context of the amended section 132 which provides for the forwarding of the Public Analyst s Report to the person from whom the sample was taken after the institution of prosecution and enables that person to apply to the court to have analysed by the Central Food Laboratory the sample kept with the Local Health Authority
In the context the expression immediately  is only meant to convey reasonable despatch and promptitude  and no more
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
First to construe immediately  as meaning at once  or 961 forthwith  and next to hold delay to be fatal to the prosecution would perhaps be to make Rule 9 A ultra vires section 132
We do not think it is permissible to interpret Rule 9 A in such a way
The real question is was the Public Analyst s Report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the court to send one of the samples to the Central Food Laboratory for analysis
If after receiving the Public Analyst s Report he never sought to apply to the court to have the sample sent to the Central Food Laboratory as in the present case  he may not be heard to complain of the delay in the receipt of the report by him unless of course he is able to establish some other prejudice
Our conclusions on this question are The expression immediately  in Rule 9 A is intended to convey a sense of continuity rather than urgency
What must be done is to forward the report at the earliest opportunity so as to facilitate the exercise of the statutory right under section 132 in good and sufficient time before the prosecution commences leading evidence
Non compliance with Rule 9 A is not fatal
It is a question of prejudice
Applying these principles
We find no merit in the submissions based on Rule 9 A
The second submission of the learned counsel namely that mixing cotton seed oil with Soyabean oil cannot be considered to be adulteration of Soyabean oil and therefore the petitioner was not liable to be convicted under section 16 1 a i is equally without any merit
Section 16 1 a i makes a person liable to punishment if whether by himself or by any other person on his behalf he imports into India or manufactures for sale or stores sells or distributes any article of food which is adulterated within the meaning of sub clause m of clause ia of section 2 or misbranded within the meaning of clause ix of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food Health Authority
It is therefore seen that the sale of an article of food the sale of which is prohibited by any rule made under the Act also renders the person selling the article of food liable to punishment under section 16 1 a i
Rule 44 e prohibits the sale of a mixture of two or more edible oils as an edible oil
A mixture of Soyabean oil and cotton seed oil cannot therefore be sold as Soyabean oil irrespective of whether the mixture has affected the Soyabean oil injuriously or not
The special leave petition is therefore dismissed
SR Petition dismissed


Summary:
On the basis of the report of the Public Analyst that the sample of soya
bean oil purchased by the Food Inspector Sorar on 171179 from the shop of the accused petitioner was found adulterated a complaint was filed on 291179 in the Court of the Judicial Magistrate Balod
On 171179 a copy of the report of the Public Analyst was forwarded to the petitioner as required by Rule 9A of the Prevention of Food Adulteration Rules
The accused petitioner made no application to the trial Court to have one of the samples sent to the Central Food Laboratory for further analysis but was content merely to deny offence
After due trial he was convicted by the Magistrate on 8982 under section 16 1 a i of the Prevention of Food Adulteration Act and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs 1000
The appeal preferred by the petitioner to the Session Judge Durg and the Revision Petition preferred thereafter to the High Court of Madhya Pradesh were dismissed Hence the Special leave petition
Dismissing the petition the Court  HELD 11
The expression immediately in Rule 9A is intended to convey a sense of continuity rather than urgency
What must be done is to forward the report at the earliest opportunity so as to facilitate the exercise of the statutory right under section 132 of the Prevention of Food Adulteration Act in Food and sufficient time before the prosecution commences leading evidence
961C D 12
Non compliance with Rule 9A is not fatal
It is a question of prejudice
Applying this principle
in the instant case the trial cannot be said to 950 be vitiated by the delay of eighteen days in forwarding the report of the Public Analyst to the Petitioner
Rule 9A has to be interpreted so as to keep it in tune with and within the bounds of section 132
The amended section 132 does not prescribe any point of time before which the report of the Public Analyst is to be forwarded to the accused vendor
But the very basis of a prosecution for adulteration of food is the report of the Public Analyst that the article of food is adulterated The accused is given the right to dispute the Public Analyst s report by applying to the court for an analysis by the Central Food Laboratory If the report of the Central Food Laboratory is to the effect that the article of food is not adulterated the very basis of the prosecution will disappear
In such an event the further pursuit of the prosecution will be needless and the accused will have to be discharged or acquitted as the case may be
It is therefore to be assumed that the report of the Public Analyst is to be made available to the accused vendor at the commencement of the prosecution that is to say before the prosecution starts leading evidence in the case and in good and sufficient time to enable the accused to exercise his right of having the sample analysed by the Central Food Laboratory if he so desires it
There fore Rule 9A carefully refrains from mentioning any definite limit of time and the expression immediately is not to be understood to mean the very next instant the very next hour that very day or the very next day
Construed in its setting the expression immediately is only meant to convey reasonable despatch and promptitude  and no more
The idea is to avoid dilatoriness on the part of official dom and prevention of unnecessary harassment to the accused
But the idea is not to penalise the prosecution and to provide a technical defence
If after receiving the Public Analyst s report the accused never sought to apply to the court to have the sample sent to the Central Food Laboratory as in the present case he may not be heard to complain of the delay in the receipt of the report by him unless of course he is able to establish some other prejudice
960E H 961A B Dal Chand vs Municipal Corporation Bhopal AIR 1983 SC 303 Kashmiri Lal vs State of Haryana 1981 2 AIPFC 167 Kanda Swami vs Food Inspector 1982 1 AIPFAC 322 Perumal vs Kumbakonam Municipality 1982 2 AIPFAC 106 and Food Inspector vs Prabhkaran 1983 1 AIPFAC 84 considered
The mixing of cotton seed oil with soyabean oil is adulteration of soyabean oil incurring liability to be convicted under section 161 a i of the Prevention of Food Adulteration Act
The sale of an article of food the sale of which is prohibited by any rule made under the Act also renders the person selling the article of food liable to punishment under section 16 l i
Rule 44e prohibits the sale of a mixture of two or more edible oils as an edible oil
A mixture of soyabean oil and cotton seed oil cannot therefore be sold as soyabean oil irrespective of whether the mixture has affected the soya bean oil injuriously or not
961E G