State Of Kerala Etc. Etc vs Alaserry Mohammed Etc. Etc on 10 February, 1978

           PETITIONER:
STATE OF KERALA ETC.  ETC.

	Vs.

RESPONDENT:
ALASERRY MOHAMMED ETC.	ETC.

DATE OF JUDGMENT10/02/1978

BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
BEG, M. HAMEEDULLAH (CJ)
CHANDRACHUD, Y.V.
KAILASAM, P.S.
TULZAPURKAR, V.D.

CITATION:
 1978 AIR  933		  1978 SCR  (2) 514
 1978 SCC  (2) 386
 CITATOR INFO :
 F	    1979 SC1824	 (1)
 R	    1980 SC 126	 (1,TO,5)
 R	    1980 SC 593	 (13)
 RF	    1981 SC1169	 (44)
 R	    1983 SC 545	 (5,6)
 F	    1985 SC 329	 (2)


ACT:
Prevention  of	Food  Adulteration  Act,  1954,	 s.  11	 and
Prevention of Food Adulteration Rules, 1955, rule 22  object
of the Act and the Rule.
Prevention  of	Adulteration Rules, 1955  framed  under	 the
Prevention  of Adulteration Act, 1954, rule 22--Whether	 the
rule  is directory or mandatory--Whether the  non-compliance
with  the  requirement of rule 22 vitiates a  trial  or	 the
conviction recorded under s. 16(1)(a)(ii).
Practice  and  Procedure--Interference with  the  orders  of
acquittal  based on the decision of the Supreme Court  which
has held the field for over 3 years, Whether permissible  in
the interest of justice.



HEADNOTE:
Rule  22 of the Prevention of Food Adulteration Rules,	1955
framed	under the Prevention of Food Adulteration Act,	1954
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	 v. The State of Maharashtra  [1975]  2	 SCR
886=AIR	 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 s.	 13  of	 the
Prevention  of Food Adulteration Act, 1954 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 s. 16(1)
821
(a)(ii)	 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 s. 13 (5) of the Act. [825 D-E]
(2)  The use of the word 'shall' in sub-s. (3) of s. 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 s.  11  of
the Prevention of Food Adulteration Act. 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-s. (2), the Food Inspector has to send an  intimation
to  the	 Public Analyst of such refusal	 and  thereupon	 the
latter has to divide 1/3rd 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 v. Kartar Singh [1964]	 6  SCR	 679
referred to.
(4)  The object of the Act is to obtain the conviction of  a
person dealing in adulterated food.  The whole object of  s.
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 v. Nabadwip Chandra  Dutt	 and  others
A.I.R. 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 v. Ramanlal Jamnadas Gandhi  I.L.R.  [1960]
Bombay, 404, Nagar Swatha Adhikari, Nagar Mahapalika Aqra v.
Ant  Ram  A.I.R.  1906 Allahabad, 32  Public  Prosecutor  v.
Basheer	 Sahib A.I.R. 1966 Madras 325 Public  Prosecutor  v.
Ediga  Venkata Swami A.I.R. 1967 Andhra Pradesh	 131  Andhra
Pradesh	 v. Pusala Rama Ram A.I.R. 1967 Andhra	Pradesh	 49,
FoodInspector, Quilon v. Kovakutty (1972) Kerala Law  Times.
464  and  Food Inspector, Calicut v. 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  s.
19(2)(a)  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 v.  Lloyd  Charles
Powell and Charles  L.	Wolff.	Jr. Warden  Petitioner,	 72-
1227 v. David L. Rice decided on July 6,     1976     quoted
with approval.
10. 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 s. 16(1)(a)(i) of
the Act. [830 F-G]
Dwerryhouse  v. United Co-operative Dairies, Ltd.  [1962]  1
All England Law Reports 936 and Skeate v. Moore [1971] 3 All
England Law Reports, 1306 distinguished.
Rajal  Das Guru Namal Pamanani v.  The State of	 Maharashtra
[1975] 2 SCR 886 =AIR 1975 SC 189 overruled.
[ln  ,view of Pamanani's case holding the field for about  3
years,	the introduction of the new s. 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]



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal 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, 294/74 and Crl. Misc. Petition No.
570/75 respectively and
CRIMINAL APPEAL Nos. 204/76, 32/78 AND 307/77
Appeals by Special Leave from the Judgments and Order dated
the 15-7-1975, 12/13-11-1975 and 18-11-1975 in Crl. Appln.
No. 678/75, Crl. Appeal No. 311/74 and Crl. A. No. 325/74
respectively and
823
CRIMINAL APPEAL Nos. 278/76, 408-410/77, 429, 372/77, 33-
36/78.

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. 53/75, 294/74,
258/76, 1707/ 76, 86/76, 212/76, 82/75; 231/76 and 1603/76 &
239/76 respectively.

S. V. Gupte, Attorney General of India (In C.A. 216), K. R.
Nambiar for the Appellant in C.As. 216 and 217/76.
N. Sudhakaran for Appellant in Crl. A. 218/76.
V. S. Desai, (in CA. 204), H. R. Khanna and M. N. Shroff for
the Appellant in Crl. A. 204/76, 307/77 and 32/78.
S. 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. A.278/76, 408-410, 429, 372 of 1977
and 33-36 of 1978.

D.Mukherjee and S. K. Sabharwal for Respondent in Crl. A.
34/78.

A.S. Nambiar for Respondent in Crl. A. 216/76.
M. C. Bhandare, B. P. Singh and A. K. Srivastava for
Respondent No. 1 in Crl.A No., 278/76.

Vepa Sarathy and P. K. Pillai fort Respondent No. 1 in Crl.
A.35/ 78.

Veena Devi Khanna and V. N. Ganpule for Respondent No. 1 in
Crl. A. No. 36/78.

D. P. Mukherjee for Intervener in Cr. A. No. 278.
Ganatra (V. B.), 1. N. Shroff and H. S. 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 Prevention of Food Adulteration Act, 1954-
hereinafter to be referred to as the Act, vitiates the trial
or the conviction recorded under section 16(1)(a)(i) of the
Act. In Rajal Das Guru Nanal Pamanant v. The States of
Maharashtra(1) 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] 2S.C.R.886 =A.I.R. 1975 S.C. 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 pro.visions 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 10(1) (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 supplied,the
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 v. Ramanlal
Jamnadas Gandhi(1); Nagar Swatha Adhikari, Nagar Mahapalika,
Agra v. Ant Ram(2) Public Prosecutor v. Basheer Sahib(3);
Public Prosecutor, Andhra Pradesh v. Pasara Rama Rao(4);
Public Prosecutor v. Ediga Venkata Swami(5); Food Inspector,
Quilon v. Koyakutty(6) and Food Inspector, Calicut v. 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) I.L.R. [1960] Bombay, 404.

(2) A.I.R. 1966 Allahabad, 32.

(3) A.I.R. 1966 Madras 325.

(4) A.I.R. 1967 Andhra Pradesh 49.

(5) A.I.R. 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 v. Kartar Singh(1) 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) [1964]6 S.C.R. 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 1/3rd 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
v. Nabadwip Chandra Dutt and others(1) 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.

(1)A.I.R. 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 v.
Lloyad Charles Powell and Charles L. Wolff, Jr., Warden,
Petitioner, 72-1222 v. 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,
e.g. Killough v. United States, 315 F. 2d 241
(1962).The 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 v. 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 94(4) of the Act. On a case stated by
Justices for the county of Chester, Lord Parker, C.J. said
at page 941
“I think that they were wrong in holding that
the respondent was entitled to the statutory
defence laid down in s. 94(4) 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-s. (4) of s. 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-s. (4) does not
come into operation.”

On a consideration of the various relevant provisions of the
English Statute for the application of section 1108(1) and
section 94(4) 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 v.
Moore(1). 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. S. 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 M/s. V. S.
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 v. 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 v. Cherukattil Gopalan and
anr.(2) 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 S.C.R. 726.

(2) [1971] Suppl. S.C.R. 721.

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.

834