iminal Appeal Nos
216 218 of 1976
Appeals by Special Leave from the Judgments and Orders dated the 12 2 1975 17 2 1975 and 8 7 1975 in Crl
Revision Petitions Nos 383 29474 and Crl
Petition No 57075 respectively and CRIMINAL APPEAL Nos
20476 3278 AND 30777 Appeals by Special Leave from the Judgments and Order dated the 15 7 1975 1213 11 1975 and 18 11 1975 in Crl
Appln
No 67875 Crl
Appeal No 31174 and Crl
A No 32574 respectively and 823 CRIMINAL APPEAL Nos
27876 408 41077 429 37277 33 3678
Appeals by Special Leave from the Judgments and Order dated the 19 4 1976 24 12 76 7 12 76 17 1 77 30 11 76 22 11 76 19 5 76 8 2 77 in Crl
Revision No 5375 29474 25876 1707 76 8676 21276 8275 23176 and 160376  23976 respectively
section V Gupte Attorney General of India In CA 216 K R Nambiar for the Appellant in CAs 216 and 21776
N Sudhakaran for Appellant in Crl
A 21876
V section Desai in CA 204 H R Khanna and M N Shroff for the Appellant in Crl
A 20476 30777 and 3278
section V Gupte Attorney General of India In CA 278 B P Maheshwari N K Jain Suresh Sethi and Randhir Jain for the Appellant in Crl
A27876 408 410 429 372 of 1977 and 33 36 of 1978
DMukherjee and section K Sabharwal for Respondent in Crl
A 3478
AS Nambiar for Respondent in Crl
A 21676
M C Bhandare B P Singh and A K Srivastava for Respondent No 1 in Crl
A No 27876
Vepa Sarathy and P K Pillai fort Respondent No 1 in Crl
A35 78
Veena Devi Khanna and V N Ganpule for Respondent No 1 in Crl
A No 3678
D P Mukherjee for Intervener in Cr
A No 278
Ganatra V B 1
N Shroff and H section Parihar for the Intervener in Crl
A No 204 and R 1 in Crl
A No 307
The Judgment of the Court was delivered by UNTWALIA J

In these appeals by special leave the common and important question of law which falls for our determination is whether the non compliance with the requirement of Rule 22 of the Prevention of Food Adulteration Rules 1955 hereinafter called the Rules framed under The hereinafter to be referred to as the Act vitiates the trial or the conviction recorded under section 161ai of the Act
In Rajal Das Guru Nanal Pamanant vs The States of Maharashtra1 the conviction of the appellant was set aside on the ground  The Public Analyst did not have the quantities mentioned in the Rules for analysis
The appellant rightly contends that non compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice
The quantities mentioned are required for correct analysis
Shortage in quantity for analysis is not permitted by the Statute
 This larger Bench was constituted for examining the correctness of the above view
1 1975 2SCR886 AIR 1975 SC 189
824 We shall at the outset notice the scheme of the Act with reference to the relevant provisions of the Act and the Rules
The Act was very substantially amended by Act 34 of 1976
We will however for the purpose of these appeals be referring to die provisions of the Act as they stood before the said amendment
When an article of food shall be deemed to be adulterated has been mentioned and defined in section 2 i of the Act
It is not seriously in dispute in any of these appeals that the articles of food sold to the Food Inspectors by the dealers were found to be adulterated within the meaning of one or the other sub clause of clause i of section 2 of the Act
Of course the type and extent of adulteration did vary
In some cases it was of a serious nature in others it was of a technical nature and in some it was as a result of misunderstanding as to nature of the article sold as for example whether it was Vanaspati or Ghee
As usual according to clause xii the word prescribed in the Act means prescribed by rules made under the Act
Clause xiv defines the sample to mean a sample of any article of food taken under the provisions of this Act or of any rules made thereunder
 A Central Committee for food standards has been constituted by the Central Government in accordance with section 3 to advise on matters arising out of the administration of the Act and to carry out the other functions assigned to it
Section 7 provides that no person shall manufacture for sale store sell or distribute any adulterated food
Public Analysts are appointed under section 8
Food Inspec tors appointed under section 9 have been conferred the powers enumerated in section 10
A Food Inspector has got power to take a sample of any article of food from any person selling such article under section 101 a i and to send such sample for analysis to the Public Analyst for the local area within which such sample has been taken as provided for in clause b
The procedure to be followed by Food
Inspectors is provided for in section 11
Under sub section 1 Food Inspector taking a sample of food for analysis has to give notice
to the person from whom he has taken the sample separate the sample then and there into three parts mark and seal or fasten up each part in such a manner as its nature permits deliver one of the parts to the person from whom the sample has been taken send another part for analysis to the Public Analyst and retain the third part for production in any legal proceedings or for analysis by the Director of the Central Food Laboratory
Sub section 2 says  If the person from whom the sample has been taken
declines to accept one of the parts the food inspector shall send intimation to the public analyst of such refusal and thereupon the public analyst receiving a sample for analysis shall divide it into two parts and shall seal or fasten up one of those parts and shall cause it either upon receipt of the sample or when he delivers his report to be delivered to the food inspector who shall retain it for production in case legal proceedings are taken
 Now sub section 3 should also be to read as a whole
825 When a sample of any article of food is taken under sub section 1 or sub section 2 of section 10 the food inspector shall send a sample of it in accordance with the rules prescribed for sampling to the public analyst for the local area concerned
 Any purchaser of any article of food other than a food inspector can also get the food purchased by him analysed in accordance with section 12
Section 13 deals with the report of the Public Analyst and makes it in certain cases subject to the over riding effect of the report of the Director of the Central Food Laboratory
Sub section 5 of section 13 says that any document purporting to be a report signed by a public analyst unless it has been superseded under subsection 3 by a certificate of the Director of the Central Food Laboratory may be used as evidence of the facts stated therein in any proceeding under the Act
It shall be final and conclusive evidence of the facts stated therein
Of course if necessary the Public Analyst can be called as a witness in accordance with the Code of Criminal Procedure to depose about certain facts in relation to his report either at the instance of the prosecution or the accused
Even the Court may summon him as its witness if the justice of the case so requires
And until and unless the report of the Public Analyst is demolished shaken or becomes doubtful it is final and conclusive evidence of the facts stated therein
A person can be convicted under section 16 1  a i merely on the basis of the report of the Public Analyst
His report therefore has got a great sanctity for protecting the general public and their health against use and consumption of adulterated food
On the other hand it has great significance and importance for the protection of a citizen as he can be convicted under the Act only on its basis
Amongst the Rules the relevant ones for our purpose are Rules 14 to 22A contained in Chapter V the heading of which is Sealing Fastening and Despatch of Samples
 The manner of sending sample for analysis is provided in Rule 14 and the method of labelling and addressing the bottles or containers is to be found in Rule 15
Rule 16 deals with the manner of packing and sealing the samples
How a container of a sample is to be sent to the Public Analyst is mentioned in Rule 17
The precaution of sending the memorandum and impression of seal is provided for in Rule 18
Rules 19 20 and 21 deal with preservatives to be added to certain types of samples
The important Rule 22 with which we are mainly concerned in these appeals specifies the quantity of sample to be sent to the Public Analyst and says The quantity of sample of food to be sent to the Public Analyst or Director for analysis shall be as specified below
 Items 1 to 22 _gives a list of various articles of food
The residuary item is 23 which includes all foods not specified in items 1 to 22
In the last column of this list as against the quantity to be suppliedthe heading is Approximate quantity to be supplied
 The first question which was mooted before us was whether Rule of the Rules is directory or mandatory
Attention of the Bench deciding Pamanani s case supra was not called to this aspect of the 826 matter
It seems to have been assumed however that the Rule is mandatory
Rules of interpretation for determining whether a particular provision is directory or mandatory are well known
Even in regard to Rule 22 many High Courts of India had taken the view that the Rule was directory or recommendatory as the use of the word approximate  in one of the columns of the Rule indicates
The object of the Rule according to the said decisions was to secure evidence as to whether the article of food sold was adulterated or not
If the quantity sent by the Food Inspector to the Public Analyst was sufficient for analysis and caused no prejudice to the accused then the mere fact of his sending a lesser quantity than that prescribed could not vitiate the evidentiary value of the report of the Public Analyst of the conviction based thereupon vide State of Bombay vs Ramanlal Jamnadas Gandhi1 Nagar Swatha Adhikari Nagar Mahapalika Agra vs Ant Ram2 Public Prosecutor vs Basheer Sahib3 Public Prosecutor Andhra Pradesh vs Pasara Rama Rao4 Public Prosecutor vs Ediga Venkata Swami5 Food Inspector Quilon vs Koyakutty6 and Food Inspector Calicut vs T Karunakaran  others
7  No decision of any High Court taking a contrary view was brought to our notice
In the Bombay decision mentioned above it was also observed and rightly that whether the Rule is recommendatory or mandatory it should be observed by the Food Inspectors concerned
We may add that the decisions of the Courts holding that the Rule is merely directory and if the quantity sent by the Food Inspector is sufficient for the purpose of analysis the report of the Public Analyst should not be thrown out merely on the ground of the breach of the Rule are not meant to give a charter or a licence to the Food Inspectors for violating  the Rule
They must remember that even directory Rules are meant to be observed and substantially complied with
A Food Inspector committing a breach of the Rule may be departmentally answerable to the higher authorities
He should therefore always be cautious in complying with the Rules as far as possible and should not send a lesser quantity of sample than prescribed to the Public Analyst unless there be a sufficient reason for doing so
In the eleventh edition of the well known treatise Maxwell on Interpretation of Statutes
are to be found at page 362 onwards certain guidelines laid down for determining whether a particular Statute or Statutory Rule is imperative or directory
Where indeed the whole aim and object of the legislature would be plainly deflated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other manner no doubt can be entertained as to the intention that is to say such a requirement would be imperative  At page 364 it is stated  The general rule is that an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled substantially 1 ILR 1960 Bombay 404
2 AIR 1966 Allahabad 32
3 AIR 1966 Madras 325
4 AIR 1967 Andhra Pradesh 49
5 AIR 1967 Andhra Pradesh 131
6 1972 Kerala Law Times 464
7 1973 Kerala Law Times 595
827 A few principles may now be extracted with advantage from the seventh edition of Craies on Statute Law Page 62 When a statute is passed for the purpose of enabling something to be done and prescribed the formalities which are to attend its performance those prescribed formalities which are essential to the validity of the thing when done are called imperative or absoute but those which are not essential and may be disregarded without invalidating the thing to be done are called directory
Page 262 It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed 
that in each case you must look to the subject matter consider the importance of the provision 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 enactment is what is called imperative or only directory
 It is not necessary to refer to the numerous decided cases on this point
Applying the statutory principles extracted above it would be noticed that the use of the word shall  in sub section 3 of section 11 and in Rule 22 would on its face indicate that an imperative duty has been cast upon the Food Inspector to send a sample in accordance with the prescribed Rules
But it is well known that the mere use of the word shall  does not invariably lead to this result
The whole purpose and the context of the provision has to be kept in view for deciding the issue
The object of the Act is to obtain the conviction of a person dealing in adulterated food
It was brought to our notice by counsel on either side that the quantities of various samples of food to be sent to the Public Analyst as fixed from time to time have varied
As observed by this Court in the case of State of Uttar Pradesh vs Kartar Singh1 the standards of food are fixed after consultation with the Committee constituted under section 3 of the Act
The quan tities of samples are also fixed from time to
time by the Government presumably in consultation with the Committee and on the basis of the Experts  opinions
By and large it appears as was stated before us by the
learned Attorney general with reference to the various tests and the quantities required therefor from the Manual of Methods of Tests and Analysis for food that generally the quantities fixed are more than double the quantity required for analysis by the Public Analyst
As for example the total quantity required for the various tests of Ghee is approximately 55 gms
But the quantity prescribed in Rule 22 is 150 gms
The purpose of prescribing more than double the quantity required for analysis
is that a Food Inspector while taking a sample of food for analysis in accordance with section 11 is not aware at the threshold whether the person from whom the sample has been taken would decline to accept one of the three parts
It is to 1 19646 SCR 679 828 guard against such an eventuality that the quantity prescribed is more than double because if the person declines to accept one part of the sample then as mentioned in sub section 2 the Food Inspector has to send an intimation to the Public Analyst of such refusal and thereupon the letter has to divide the 13rd part sent to him into two parts
The half of the one third is retained for further tests if necessary or for production in case legal proceedings are taken
It would thus be seen that the whole object of section 11 and Rule 22 is to find out by a correct anaysis subject to further
verifications and tests by the Director of the Central Laboratory or otherwise as to whether the sample of food is adulterated or not
If the quantity sent to the Public Analyst even though it is less than that prescribed is sufficient and enables the Public Analyst to make a correct analysis then merely because the quantity sent was not in strict compliance with the Rule will not result in the nullification of the report and obliterate its evidentiary value
If the quantity sent is less it is for the Public Analyst to see whether it is sufficient for his analysis or not
if he finds it insufficient there is an end of the matter
If however he finds it sufficient but due to one reason or the other either because of further tests or otherwise it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt the case may fail
In other words if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst it is obvious that the case may end in acquittal
But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt then it will endanger public health to acquit offenders on technical grounds which have no substance
To quote the words of Sir George Rankin C J from the decision of the Calcutta High Court in Chandra Nath Bagchi vs Nabadwip Chandra Dutt and others1 at page 478 it would be merely piling unreason upon technicality
 In our considered judgment the Rule is directory and not mandatory
But we must hasten to reiterate what we have said above that even so Food Inspectors should take care to see that they comply with the Rule as far as possible
We may also advert to one more aspect of the wording of the Rule to find out whether it is directory or mandatory and that is the use of the word approximate  in the second column of the list
The use of this term does indicate the directory nature of the Rule but does not necessarily militate against the view that the Rule is mandatory
The expression approximate quantity  is meant to convey that the quantity to be supplied must be in the close vicinity of the quantity specified So long it is so there is no infraction of the Rule at all
But the question of non compliance with the Rule comes in when the quantity supplied is not in close vicinity of the quantity specified and appreciably below it
Even so if the quantity supplied is sufficient and enables the Public Analyst to do his duty of making a correct analysis it should be inferred that the Rule has been substantially complied with as the purpose of the Rule has been achieved
1AIR 1931 Calcutta 476
829 In Pamanani s case supra the Court seems to have been Over whelmed by a sense of injustice when the High Court which had acquitted the manufacturer convicted the appellant a grocer although facts of the case did indicate that the real culprit was the manufacturer
Technically the grocer could not succeed in getting protection under section 19 2 a of the Act
It is in this background we are inclined
to think that the Court s sense of justice weighed heavily in favour of the grocer and prompted it to say that non compliance with the quantity to be supplied caused not only infraction of the provisions but also injustices
How did it cause injustice There is not elaboration in the judgment
There is no indication of the basis for saying The quantities mentioned are required for correct analysis
 A lesser quantity also could enable the Analyst to make a correct analysis
That being so the inference from the two premises stated above that Shortage in quantity for analysis is not permitted by the statute if we may say so with great respect is not a correct statement of the law
We may in passing note that the Rules have now been amended and Rule 22B has been added in 1977 which reads as follows 22B Quantity of sample sent to be considered as sufficient Notwithstanding anything contained in Rule 22 the quantity of sample sent for analysis shall be considered as sufficient unless the public analyst or the Director reports to the contrary
 In our opinion the new Rule has been added for the purpose of clarifying the law and not by way of amending it
The law as we have enunciated it was so even without Rule 22B and it is stated here to place it beyond any debate or doubt
We may usefully refer to a recent decision dated July 6 1976 of the Supreme Court of the United States of America in the cases of W T Stone Warden Petitioner 74 1055 vs Lloyad Charles Powell and Charles L Wolff Jr Warden Petitioner 72 1222 vs David L Rice wherein the majority of the Court made a conspicuous departure from its previous decision of about half a century in the application of the exclusionary Rule of evidence
The prosecution relied upon evidence obtained by searches and seizures Which were said to be unconstitutional and unlawful
The issue was of considerable importance in the administration of criminal justice
Mr Justice Powell in his leading majority judgment dissenting from the earlier view said Upon examination we conclude in light of the nature and purpose of the Fourth Amendmen t exclusionary rule that this view is unjustified
We hold therefore that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim the Constitution does not require that a State prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial 830 A very wholesome principle was adverted to by the learned Judge when he said  Application of the rule thus deflects the truth finding process and often frees the guilty
The disparity in partiCular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice
Thus although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice
 Chief Justice Burger in his concurring opinion said To vindicate the continued existence of this judge made rule it is incumbent upon those who seek its retention and surely its extension to demonstrate that it serves its declared deterrent purpose and to show that the results outweigh the rule s heavy costs to rational enforcement of the criminal law
See eg Killough vs United States  1962The burden rightly rests upon those who ask society to ignore trustworthy evidence of guilt at the expense of setting obviously guilty criminals free to ply their trade
 We may now briefly deal with some of the submissions made on behalf of the respondents in support of the decision of this Court in Pamanani s case
It was argued with reference to Mothods in food Analysis second edition by Maynard A Joslyn that the sample must be a representative sample
It is with that view that the quantity was prescribed in Rule 22 and should not be permitted to be tampered with in any manner
We are not impressed by this argument at all
A representative sample has got a different connotation meaning and purpose in commercial transactions
If for instance an average price is to be fixed for a huge quantity of say wheat lying in bulk in different storages then samples must be taken from all the storages to make them a representative sample of the entire quantity for the fixation of the average price
Taking sample from one storage will not be sufficient
In our statute the ingredient of the offence is as mentioned in the 7th section of the Act manufacturing for sale storing selling or distributing any adulterated food
If the food sold to the Inspector is proved to be adulterated it is
immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person
A person who stores or sells such sample is liable to be punished under section 16 1 a i of the Act
Reliance was placed upon the case of Dwerryhouse vs United Co operative Dairies Ltd 1 The question for consideration in that case was the scope and ambit of certain sections of the Food and Drugs Act 1955
The Justice had come to
the conclusion on the facts of the 1 1962 1 All England Law Reports 936
831 case that no sample under the Act had been procured and decided that section 108 did not prevent their hearing the case and that the supplier was entitled
to the defence laid down by section 944 of the Act
On a case stated by Justices for the county of Chester Lord Parker CJ said at page 941 I think that they were wrong in holding that the respondent was entitled to the statutory defence laid down in section 944 of the Act
That defence is only open in respect of a sample of milk taken
I cannot think that one can give a sample of milk any other meaning than a sample of milk procured under the Act which are the words used in section 108 1 a i
Indeed sub section
4 of section 94 appears in a section which is dealing particularly with the sampling of milk and subsequent proceedings and I am quite satisfied therefore that if as I think no sample was procured under the Act sub section
4 does not come into operation
 On a consideration of the various relevant provisions of the English Statute for the application of section 11081 and section 944 it was found necessary that the sample should have been procured under the said Act
Since it was not so both the said provisions were held to be inapplicable
In the context of our Statute the decision is of no help to the respnodents
Reliance was also placed upon the case of Skeate vs Moore1
In that case the report of the Public Analyst showed that the aggregate of meat in the two pies represented a smaller percentage of meat than was required to be contained in one meat pie under the Meat Pie and Sausage Roll Regulations 1967
He did not find separately the meat content of each of the two pies sent to him
Under Regulation 5 a meat content of each pie was necessary to be found out
The proceeding had to be in respect of an article of substance sampled
 They were found to relate to part only of the sample taken
And in that view of the matter the conviction was quashed
In our opinion the Language of the 1955 Act and the Regulations framed thereunder being quite dissimilar to our Statute and the Rules the decision aforesaid cannot be assessed into service in favour of respondents
On a careful consideration of the matter we have come to the conclusion and we say so with very great respect that Pamanani s case on the point at issue before us was not correctly decided
And this would have necessitated our passing of various consequential orders in these cases
In some cases High Court refused special leave against orders of acquittal in others some other grounds of attack on the order of conviction were available but were neither gone into nor decided by the High Court in some others the High Court following the decision of this Court in Pamanani s case recorded orders of acquittal
We also 1 1971 3 All England Law Reports 1306
832 found that in some cases the adulteration was of a minor and technical character although in some it was of rather serious nature too
In some cases decisions were given on the footing that chillies powder is condiment and not spice a matter which we are not deciding
But taking the totality of the facts and circumstances of each case and specially the fact that Pamanani s case has held the field for about three years by now we did not feel that justice required that we should interfere with the orders of acquittal in all these cases and send some cases back to the High Court while deciding others ourselves by recording orders of conviction
Rule 22B clarifying the law has also been introduced as late as December 1977 although Pamanani s case was decided in December 1974
We were informed at the Bar and so far we are aware rightly too that for non compliance with the requirements of Rule 22 many cases in different States had ended in acquittal
Decision in many of them became final and only a few could be brought to this Court
Each one of the Food Inspectors concerned had jailed in discharging his duty strictly in accordance with the requirements of the law and in such a situation after great harassment long delay and expenses which the respondents bad to incur they should not be punished by this Court
In the three Kerala cases Mr section V Gupte appearing with Mr K R Nambiar and Mr Sudhakaran stated before us that the State was interested more in the correct enunciation of the law than in seeing that the respondents in these appeals are convicted
They were not anxious to prosecute these matters to obtain ultimate conviction of the respondents
A large number of the other appeals are by the Municipal Corporation of Delhi for whom the Attorney General appeared assisted by Mr B P Maheshwari
Although a categorical stand was not taken on behalf of the appellants in these appeals as the one taken in the Kerala cases eventually the learned Attorney General did net seriously object to the course indicated by us
In the few Bombay appeals Ms V section Desai and M N Shroff showed their anxiety for obtaining ultimate convictions of the offenders but we do not find sufficient reason or passing a different kind of order in the Bombay appeals
In similar situations in the case of The State of Bihar vs Hiralal Kejriwal and Another this Court refused to exercise its discretionary jurisdiction under Article 136 of the Constitution and did not order the continuance of the criminal proceeding any further
In Food Inspector Calicut Cororation vs Cherukattil Gopalan and anr2 this Court said at page 730  But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the aquittal of the respondents we merely set aside the order and judgment of the High Court
But we may make it clear that apart 1 1960 1 SCR 726
2 833 from holding the respondents technically guilty we are not setting aside the order of acquittal passed in their favour
 For the reasons stated above we dispose of these appeals by merely laying down the correct proposition of law but do not make any con sequential orders setting aside the acquittal of any of the respondents or sending back the cases to the Courts below or convicting any of them by an order of this Court
Appeals allowed


Summary:
Rule 22 of the Prevention of Food Adulteration Rules 1955 framed under the specifies the quantity of sample of food to lye sent to the Public Analyst or Directorate for analysis as the case may be
Items 1 to 22 gives a list of various articles of food and the residuary item 23 includes all foods not specified in items 1 to 22
In the last column of the list as against the quantity to be supplied the heading is Approximate quantity to be supplied
While considering the said provisions in Rajal Day Guru Namal Pamanani vs The State of Maharashtra  1975 SC 189 conviction of the appellant was set aside by this Court on the ground  The Public Analyst did not have the quantities mentioned in the Rules for analysis
The appellant rightly contends that non compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice
The quantities mentioned are required for correct analysis
Shortage in quantity for analysis is not permitted by the Statute
 Since under Article 141 of the Constitution the above decision of the Supreme Court is binding on all the High Courts following the above view in some cases the High Court refused special leave against the order of acquittal in others some other grounds Of attack on the order of conviction were available but were neither gone into nor decided by the High Court in some others the High Court recorded orders of acquittal in some cases the adulteration was of a minor and technical character although in some it was of rather serious nature too and in some cases decisions were given on the footing that chillies powder is condiment and not spice
Hence the appeals by special leave
The appellants contended that the view in Pamanani s case was not correct and needed further examination
Disposing of the appeals by laying down
the correct proposition of the law the Court HELD  1 The report of the Analyst under section 13 of the has got a great sanctity for protecting the general public and their health against use and consumption of adulterated food
On the other hand it has great significance and importance for the protection of a citizen as he can be convicted under the Act only on its basis under section 161 821 aii of the Act because unless and until the report of the Public Analyst is demolished shaken or becomes doubtful it is final and conclusive evidence of the facts stated therein under section 13 5 of the Act
825 D E 2 The use of the word shall  in sub section
3 of section 11 and in Rule 22 would on its face indicate that an imperative duty has been cast upon the Food Inspector to send a sample in accordance with the prescribed rules
The mere use of the word shall  does not invariably lead to this result
The whole purpose and the context of the provisions has to be kept in view for deciding the issue
827 D E 3 The purpose of prescribing more than double the quantity required for analysis is that a Food Inspector while taking a sample of food for analysis in accordance with section 11 of the 
is not aware at the threshold whether the person from whom the sample has been taken would decline to accept one of the three parts
It is to guard against such an eventuality that the quantity prescribed is more than double because if the person declines to accept one part of the sample then as mentioned in sub section
2 the Food Inspector has to send an intimation to the Public Analyst of such refusal and thereupon the latter has to divide 13rd part sent to him into two parts
The half of the one third is retained for further tests if necessary or for production in case legal proceedings are taken
827 G H 828 A B State of Uttar Pradesh vs Kartar Singh  referred to
4 The object of the Act is to obtain the conviction of a person dealing in adulterated food
The whole object of section 11 and Rule 22 is to find out by a correct analysis subject to further verifications and tests by the Director of the Central Laboratory or otherwise as to whether the sample of food is adulterated or not
If the quantity sent to the Public Analyst even though it is less than that prescribed is sufficient and enables the Public Analyst to make a correct analysis then merely because the quantity sent was not in strict compliance with the rule will not result in the nullification of the report and obliterate its evi dentiary value
If the quantity sent is less it is for the public Analyst to see whether it is sufficient for his analysis or not
If he finds it insufficient there is an end of the matter
If however he finds it sufficient but due to one reason or the other either because of further tests or otherwise it is shown that the report of the Public Analyst based upon the short quantity sent to him is not trustworthy or beyond doubt the case may fail
in other words if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public Analyst the case will end in acquittal
But if the object is not frustrated and is squarely and justifiably achieved without any shadow of doubt then it will endanger public health by acquitting offenders on technical grounds which have no substance
827 E 828 B F Chandra Nath Bagchi vs Nabadwip Chandra Dutt and others AIR 1931 Calcutta 476 quoted with approval
5 The object of rule 22 is to secure evidence as to whether the article of food sold is adulterated or not
That being so even directory Rules are meant to be observed and substantially complied with
A Food Inspector committing a breach of the Rule may be departmentally answerable to the higher authorities
He should therefore always be cautious in complying with the Rules as far as Possible and should not send a lesser quantity of sample than prescribed to the Public Analyst unless there be a sufficient reason for doing so
823 A B D E State of Bombay vs Ramanlal Jamnadas Gandhi ILR 1960 Bombay 404 Nagar Swatha Adhikari Nagar Mahapalika Aqra vs Ant Ram AIR 1906 Allahabad 32 Public Prosecutor vs Basheer Sahib AIR 1966 Madras 325 Public Prosecutor vs Ediga Venkata Swami AIR 1967 Andhra Pradesh 131 Andhra Pradesh vs Pusala Rama Ram AIR 1967 Andhra Pradesh 49 FoodInspector Quilon vs Kovakutty 1972 Kerala Law Times
464 and Food Inspector Calicut vs T Karunakaran Others 1973 Kerala Law Times 595 approved
6 Rule 22 is directory and not mandatory as it seems to have been assumed by this Court in Pamanani s case
The use of the word approximate  does in 822 dicate the directory nature of the Rule but does not necessarily militate against the view that the Rule is mandatory
826 A 827 A B 7 The expression approximate quantity  is meant to convey that the quantity to be supplied must be in the close vicinity of the quantity specified
So long it is so there is no infraction of the Rule at all
But the question of non compliance with the Rule comes in when the quantity supplied is not in close vicinity of the quantity specified and is appreciably below it
Even so if the quantity supplied is sufficient and enables the Public Analyst to do his duty of making a correct analysis it should be inferred that the Rule has been substantially complied with as the purpose of the Rule has been achieved
828 F H 8 In Pamanani s case the Court seems to have been overwhelmed by a sense of injustice when the High Court which had acquitted the manufacturer convicted the appellant a grocer although facts of the case did indicate that the real culprit was the manufacturer
Technically the grocer could not succeed in getting protection under section 192a of the Act
It is in this background that the Court s sense of justice weighed heavily in favour of the grocer and promoted it to say that non compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice
829 A B 9 The new Rule 22B added in 1977 to the Prevention of Food Adulteration Rules 1955 is for the purpose of clarifying the law and not by way of amending it
The law was so even without any amendment
Rule 22B places it beyond any debate of doubt
829 E W T Stone Warden Petitioner 74 1055 vs Lloyd Charles Powell and Charles L Wolff
Jr Warden Petitioner 72 1227 vs David L Rice decided on July 6 1976 quoted with approval
A representative sample has got a different connotation meaning and purpose in commercial transaction
In our statute the ingredient of the offence is manufacturing for sale storing selling or distributing any adulterated food
If the food sold to the Inspector is proved to be adulterated it is immaterial whether the sample purchased by him is a representative sample or not of the entire stock in possession of the person
A person who stores or sells such sample is liable to be punished under section 161ai of the Act
830 F G Dwerryhouse vs United Co operative Dairies Ltd 1962 1 All England Law Reports 936 and Skeate vs Moore 1971 3 All England Law Reports 1306 distinguished
Rajal Das Guru Namal Pamanani vs The State of Maharashtra  overruled
ln view of Pamanani s case holding the field for about 3 years the introduction of the new section 22B and the States  interest being more in the correct enunciation of the law than in seeing that the respondents in these appeals are convicted the Court in larger interest of justice disposed of the appeals without disturbing or setting aside the orders under appeals or making any consequential orders