U.L. Bhat, J.
1. Respondents 1 to 3 in Criminal Appeal No. 265 of 1980 are the Pirayiri Co-operative Milk Supply Society, the President of the Society and the Secretary respectively. Respondent 4 therein is the revision petitioner in Crl. R. P. No. 26 of 1980. Respondents 1 to 4 in the appeal are accused 1 to 4 in S. T. C No. 48 of 1978 on the file of the Court of Chief Judicial Magistrate, Palghat. They were prosecuted for an offence under Section 7(1) read with Section 16(1) (a) (i) of the prevention of Food Adulteration Act (for short 'the Act') on the ground that milk belonging to the Society under the direct management of the President and Secretary was sold by the salesman, 4th respondent, to the Food Inspector and the milk was found to be adulterated on analysis. The trial court, holding that the milk was not shown to belong to the Society, acquitted respondents 1 to 3. However, the trial court convicted the 4th respondent and sentenced him to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/- and in default to undergo rigorous imprisonment for one month. The Food Inspector has filed the appeal by special leave challenging the acquittal of respondents l to 3. Respondent 4 challenged his conviction before the Sessions Court, Palghat in Crl. Appeal No. 94 of 1979. The appeal was dismissed. He has filed the revision petition challenging the conviction and sentence entered against him. The parties will be referred to in this judgment by their rank in the Criminal Appeal. Respondent 4 has filed Cri. M. P. No. 765 of 1980 in Crl. R. P. 26 of 1980 seeking permission to urge additional grounds. Both sides have been heard in the matter.
2. The appellant is the Food Inspector, Palghat Municipality. His case is that on 25-8-1978 at about 4 p. m. while he (P. W. 1) was standing in front of P. W. 3's shop bearing No. H/315, Can-nara Street, Palghat, he saw respondent 4 coming in a bicycle carrying a zinc can and an aluminium can on the handle bar and another zinc can on the carrier, The Food Inspector called and questioned him and he stated that he was a milk vendor under the first respondent Society and was bringing the milk belonging to the Society for sale in Palghat town. P. W. 1 disclosed his identity and inspected the cans. One can was empty. The aluminium can contained 11/2 litres of milk. The can on the carrier having a capacity of 30 litres contained three litres of milk and respondent 4 informed the Food Inspector that it was buffalo milk. Food Inspector demanded 750 milli litres of buffalo milk from that can, gave him the notice under Form No. V of which a copy is Ext. P-l which was acknowledged by respondent 4 as seen in Ext. p-l (a). The Food Inspector paid Rs. 1.65 being the price of the milk and respondent 4 granted a receipt, Ext. P-2. The milk purchased was divided into three equal parts and each part was poured in a clean and dry bottle. 20 drops of formaline were added to each bottle and the bottles were corked and sealed. The sample number assigned was 117. The bottles were then packed in brown paper and tied and labels containing the number and details of the sample were pasted on the bottles. Paper slips containing the signature of the L. H. A. and bearing No. 25 and Code No. and serial number were pasted on each bottle. The signatures of respondent 4 were taken on the packages so as to carry part on the packing paper and part on the paper slip. The sampling was done in the presence of a Peon, and P. W. .3 an independent witness. Food Inspector prepared a mahazar, Ext. P-3, signed by the witnesses as also by respondent 4.
2A. According to the Food Inspector, he prepared Form No. VII memorandum with copies and affixed the specimen impressions of the seal on them. One sample bottle together with copy of the Form VII memorandum containing the specimen impression of the seal was sent to the Public Analyst by registered post and another copy of the memorandum also containing the specimen impression of the seal was separately sent to the Public Analyst. The two remaining sample bottles were handed over to the L.H.A., P. W. 2 together with two copies of the memoranda containing specimen impressions of the seal and the covering letter Ext. P-5 under acknowledgment Ext. p-5(a). Ext. P-4 is a copy of memorandum. Ext. p-6 letter wag sent to the first respondent under Ext. p-7 postal acknowledgment, Report Ext. P-8 was received from the Public Analyst with a covering letter, Ext. P-19. P. W. 2 furnished a copy of the report to the Food Inspector with covering letter Ext. p-9. The report showed that the sample did not conform to the standards prescribed for buffalo milk. On the basis of the report, the Food Inspector filed a complaint and intimated P. W. 2 about it as per Ext. P-10. P. W. 2 sent copies of the report with necessary intimations under Section 13(2) of the Act (Ext. P-17 series) to respondents 1 to 4 by registered post under Ext. P-18 series acknowledgments,
3. Respondents 1 to 3 though admitted that respondent 4 was salesman under the Society, denied that the milk sold to the Food Inspector belonged to the Society. Milk will be taken from the Society only after testing with lactometer and all necessary instructions have been given to the salesman who were also provided with lactometers. The Society had arranged supervision for verification of the milk. Respondent 2 stated that he was holding charge as President and has nothing to do with these matters. Respondent 3 claimed that she was on leave on that day and had nothing to do with the milk. Respondent 4 denied the evidence against him and pleaded ignorance about the various steps taken by the Food Inspector. He also stated that he was taking the milk after testing with the lactometer and he had been given instructions to take milk in the afternoon only if there was 25 points and it was on that basis that he was taking the milk. There was no defence evidence.
4. Ext. p-8 is the report of the Public Analyst in Form No. III. It is dt. 20-9-1978. In the report, the Analyst has stated that on 31-8-1978 he received a sample of buffalo milk marked No. 117 for analysis from the Food Inspector that the sample was properly sealed and fastened, that he found the seal intact and unbroken, that the seal affixed on the container and the outer cover of the sample tallied with the specimen impression of the seal separately sent by the Food Inspector and the sample was in a condition fit for analysis. He mentioned the result of analysis as follows:
at 30C - 1-023
Milk fat - 3.8 per cent.
milk solids not fat - 7.5 per cent.
starch and sugar - Absent.
His opinion was that the sample does not conform to the standard prescribed for buffalo milk under the P.F.A. Rules (for short the Rules) and was therefore adulterated. He also stated that no decomposition had taken place in the sample that would interfere with the analysis.
5. According to learned Counsel for Food Inspector, the adulterated milk has been connected with the Society satisfactorily and therefore the acquittal of respondents 1 to 3 was not justified. No doubt, P. W. 1 as well as respondent 4 stated before the trial court that the milk belonged to the Society. P. W. 1 could have no personal knowledge in the matter. The mere statement of respondent 4 could not be the foundation for a conviction of the other respondents, It is true that respondent 4 was employed at that time as the salesman of the Society. But in the light of denial of respondents 1 to 3, the trial court was of the opinion that some more evidence was necessary to hold that the milk belonged to the Society. There could perhaps be documents available in the Society to show that the milk belonged to the Society. Perhaps, the cycle and the cans might show the name of the Society. No such evidence was attempted. In these circumstances, it cannot be held that the view taken by the trial court in this behalf is contrary to the evidence or is unreasonable and liable to be interfered with. The Criminal Appeal has therefore to be dismissed.
6. Learned counsel for respondent 4 has raised the following contentions:-
(a) There has been violation of Section 10 (7) of the Act.
(b) There has been violation of Rule 9A of the Rules.
(c) There has been violation of Section 11(3) of the Act read with Rule 17(a) of the Rules.
(d) There has been violation of Rule 16(d) of the Rules.
(e) There has been violation of Rule 14 of the Rules.
(f) The oral evidence regarding sampling is conflicting and should not have been acted upon.
(g) Respondent 4 has been seriously prejudiced by the dismissal of the application filed by him to send one of the samples available to the Central Food Laboratory for analysis.
7. It is the contention of respondent 4 that Section 10 (7) of the Act has been violated and therefore he is entitled to acquittal. It may be that the Food Inspector did not specifically call any person from any place to witness his action but he has deposed that the sampling was done in the presence of respondent 4 and the witnesses. One of those witnesses has been examined as P. W. 3. He is adjoining textile trader, and has sworn on oath that he was present. In these circumstances, it cannot be held that there has been violation of Section 10 (7) of the Act. Certain discrepancies in the evidence of P. Ws. l and 3 are relied on These discrepancies do not help to show that P. W. 3 was not present. P. W. 3 is certainly an independent witness. The courts below have held so. I therefore find there has been no violation of Section 10 (7) of the Act.
8. It is next contended that the Local (Health) Authority (P. W. 2) has violated Rule 9-A of the Rules. Rule 9-A requires the Local (Health) Authority, immediately after the institution of the prosecution, to forward a copy of the Public Analyst's report by registered post or by hand as may be appropriate, to the vendor and also to the person, if any, whose particulars have been disclosed under Section 14-A of the Act.
9. The complaint of the Food Inspector is seen dt. 31-10-1978. But it is seen received in Court on 2-11-1978. The copies of the intimation are Ext. P-17 series. They bear the date 4-11-1978 and are seen despatched on 6-11-1978 by the Local (Health) Authority. Ext. P-18 series are acknowledgements showing receipt of the intimations on 7-11-1978. Ext. P-17 series show that copies of the Public Analyst's report were sent along with the intimations. Thus, it is seen that after the complaint was filed, the Local (Health) Authority took three days for forwarding the copy of the Public Analyst's report with intimation to the accused persons and it is this delay which is characterised as fatal. Rule 9-A requires the despatch immediately on the prosecution being launched. A Full Bench of this Court had occasion to deal with this question in Food Inspector v. Prabhakaran 1982 Ker LT 809 : 1983 Cri LJ 81. In para 15 of the judgment Poti, Actg. C. J. (as he then was) speaking for the Full Bench observed :
It is only on the Local (Health) Authority getting intimation of the launching of the prosecution that the copy of the Public Analyst's report has to be sent. The rule does not contemplate the prior issue of the copy of the report and in fact it has been held by the Madras High Court that sending of copy of the report 5 days prior to the institution of the prosecution will not be in compliance with Rule 9-A (see 1982 Cri LJ 963) (Mad). The intimation by the Food Inspector to the Local (Health) Authority of the fact of the prosecution being launched cannot normally be expected to be made on the same day. It is well known that on occasions courts receive a number of complaints on the same day and the courts may be unable even to number them on that day. It sometimes happens that complaints under Special Enactments are prepared by the prosecuting agency and filed in bulk on days convenient to them. The officers of Courts faced with such a situation take sometime to go through them and number them. In such cases it is likely that the Food Inspector may intimate the Local (Health) Authority of the institution not on the day the complaint is filed in court. There may be other circumstances where neither due to the laches nor due to the default sometime is taken by the Local (Health) Authority to send the intimation under Rule 9-A. There is no logic or reason to cut down the elasticity, of the term 'immediately' by the court self-imposing any restriction as to the period within which copy of the report is to be sent. It will be, we are afraid, too unrealistic to think that such copy of the report must be sent on the same day the prosecution is launched or the very next day.
...If the object of providing that a copy of the report is to be sent by the Local (Health) Authority immediately to the vendor is to see that the trial was not protracted and there is no undue delay in the vendor being told about the result of the analysis so as to enable him to apply for an analysis of the remaining samples a delay of a day or two by itself may not be material. Therefore to say that the Local (Health) Authority should issue a copy of the report on the same day or at least next day would be unwarranted. We must also remember that the Local (Health) Authority has various functions to perform and it is the pressure of its work that must necessarily determine the speed and promptness with which it acts. That is not to say that it can afford to be not prompt. When the rule requires it to act immediately it must do so. But if the delay is such as it would not defeat the purpose for which the rule is made it could not be said that the action is not 'immediate'.
The following observations in para 18 are instructive.
Prosecution against a person who has committed a very serious offence under the Act ought not to fail merely on account of some time, not unreasonable, taken by the Local (Health) Authority to issue a copy of the Public Analyst's Report, a delay which is not shown in any way to cause injury or harm to the person prosecuted when there is no express provision providing for such consequence. Regard being had to the nature of the Act and the nature of the punishment under the Act any default or delay which would cause noticeable prejudice to an accused should be frowned upon and the prosecution must fail in that event. A different approach is beset with every evil consequences as it may open the door for corrupt practices and render the enactment, which in its performance is already weak, weaker still.
In the light of these principles, the Full Bench held in the case before the Court that merely for the reason that there was a period of eight days, taken to send the copy of the report, prosecution cannot fail.
10. In this case, the Local (Health) Authority took three days to send the copy of the public Analyst's report to respondent 4. Respondent 4 has no case that this delay has caused any prejudice to him. In the facts and circumstances of the case, there could be no such prejudice either. I therefore hold that there has been no fatal failure to comply with Rule 9-A of the Rules.
11. The next contention is that there has been violation of Section 10 (3) of the Act read with Rule 17(a) of the Rules. Section 11(3) of the Act requires that when the sample is taken under Section 10 (1) or Section 10 (2) of the Act, the Food Inspector shall, by the immediately succeeding working day, send the sample in accordance with the prescribed rules to the Public Analyst for sampling. Rule 17(a) requires that the sealed container of one part of the sample for analysis and a copy of Form VII Memorandum shall be sent in a sealed packet to the Public Analyst immediately but not later than the succeeding working day. The sampling was done on 25-8-1978. Sample was sent to the Public Analyst on 28-8-1978. According to the learned Counsel for respondent 4, it should have been sent immediately but not later than the succeeding working day viz-, 26-8-1978. There has been a delay of two days and the rule being mandatory, it is argued, the violation of the mandatory rule is necessarily fatal to the prosecution. Undoubtedly, it is mandatory for the Food Inspector to send one of the containers to the Public Analyst, and the remaining containers to the Local (Health) Authority. If the container is not sent to the Public Analyst, the Act is not implemented but frustrated and the Food Inspector may let himself open for action by superior authorities. Only when it is sent to the Public Analyst that one can know whether the sample of food stuff is adulterated or not. In that sense, the provisions are mandatory. But the question is whether the time limit indicated is of a mandatory nature so as to result in the subsequent prosecution itself being vitiated for violation of the time limit.
12. The question turns on the interpretation of the relevant provisions of the Act and the Rules. We have to get at the real intention behind the provisions. This has to be done by considering the whole scope or design of the statute, finding out the object sought to be achieved by the provision and the mischief sought to be suppressed, the importance and relation of the provision with the general object of the statute. It should also be remembered that procedural law, generally speaking, is to further the ends of justice and not to thwart it. While considering any technical contention raised in Court, court must view the potential frustration of the statute and try to avoid mischief by not construing the provisions un-realistically, for that would only serve the purpose of the offenders to undermine the object of the Act,
12A. There could be no two opinions on the view that adulteration of food articles has become all-pervasive and has attained menacing proportions. The malpractice is being indulged on a vast scale. It is to prevent adulteration of food articles that the statute has been enacted; that object is sought to be achieved by ensuring purity and quality of food articles supplied to consumers. The food trade is sought to be regulated from the point of view of quality and purity of food articles. This object is sought to be achieved through Food Inspectors empowered to inspect food articles, take samples, get the sample analysed by Public Analysts and launch prosecution against offenders. The size of the country and population, the vast area of operation of food trade create practical difficulties in controlling such malpractices. To check and test every article of food in every shop or in the possession of every vendor is an impossibility. Hence control is sought to be made operational by providing stringent measures such as dispensing the requirement of mens rea, broad-basing the definition of sale, conferring requisite legal status to Public Analysts' reports, providing minimum sentence etc. At the same time, the Act and the Rules contain several provisions to safeguard innocent vendors and the like. Offenders can be punished only through a fair trial, with opportunity being given to challenge the action of the Food Inspector and report of the Public Analyst. However, one should not lose sight of the danger of the object of the statute being frustrated by obliging Food Inspectors through malpractices or negligent acts.
13. The provisions under consideration require the sample to be sent to the Public Analyst immediately but not later than the next working day. It appears that the purpose of the provision is not so much to protect the person from whom a sample is taken as to promote expedition and more particularly, to foreclose the Food Inspector from tampering with the sample with a view to help the person who sold the adulterated Food article. The object of the provision is not protection of the offenders; the object is defence of public interest from the collusive acts of the Food Inspector and the offender. Delay of a few days in sending the sample to the Public Analyst does not per se cause prejudice to the offender. Certainly delay has to be avoided to prevent collusive or corrupt acts. To construe any and every delay as fatal to the prosecution would be to encourage malpractice and corruption and to frustrate the design of the statute. Such strict construction would thwart the legislative intent. On the other hand, liberal construction would only promote the purpose of the statute by reducing the chances of the sample being tampered with a view to help the offender. Of course, it needs no reiteration that where delay is shown to cause prejudice to the offender, he has to be protected. The time limit fixed in the provision cannot be regarded as a period of limitation; therefore every violation of the time limit cannot be fatal to the prosecution, unless prejudice is shown. The time limit indicated is not mandatory, but is directory and substantial compliance would be sufficient.
14. In Maxwell on Interpretation of Statutes, nth Edition, Page 369 it is stated:
It has often been held, for instance when an Act ordered a thing to be done by a public body or Public Officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time.
In Sutherland, Statutory Construction (3rd Edition Vol. 3 at page 102) it is stated:
A statute specifying a time within which a Public Officer is to perform an official act regarding the rights and duties of others is directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of the Officer.
In Craies on Statute Law (7th Edn.) at page 262, it is stated:
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 caller imperative or only directory.
15. In Dalchand v. Municipal Corporation, Bhopal 1982 Ker LT 594 : 1983 Cri LJ 448, the Supreme Court while holding that Rule 9(j) of the Rules as it was in force till it was replaced, observed as follows:
There are no. ready tests or invariable formula 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 mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of. 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 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. 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.
16. In State of Punjab v. Devinder Kumar , the Supreme Court observed (para 3):
While construing such food laws Courts should keep in view that the need for prevention of future injury is as important as punishing a wrong doer after the injury is actually inflicted. Merely because a person who has actually suffered in his health after consuming adulterated food would not be before court in such cases, courts should not be too eager to quash on slender grounds the prosecutions for offences, alleged to have been committed under the Act.
17. The Full Bench of this Court in Prabhakaran's case 1982 Ker LT 809 : 1983 Cri LJ 81 observed, while considering the meaning of the expression "immediately" in Rule 9-A of the Rules.
That would be to assign a rigid and inflexible meaning to the term 'immediately'. Such an approach would defeat the very purpose of the provision. It is no doubt true that the Act envisages absolute offences in the sense that even without mens rea a person may fall within the penal net of the Act. But this is not the only consideration that should weigh with a court in applying the provisions of the Act to prosecutions thereunder. The Act is intended to serve a social purpose, to punish offenders who indulge in a crime of great consequence to the health and life of the people. No provision in an enactment of the nature of the Prevention of Food Adulteration Act should be read in such a way as to search for and find a purely technical reason for dropping the penal proceedings.
18. All the observations extracted above go in support of the view that the time limit mentioned in the provision is not a rigid one, though intended to be acted upon and any infringement of the time limit is per se not fatal to the prosecution, unless, of course, the accused is shown to have suffered prejudice on that account. No attempt has been made at any stage in proceedings on behalf of the accused to show that he has suffered any prejudice on account of the delay of three days in sending the sample to the Public Analyst. This contention is therefore overruled.
19. It is argued that there has been a violation of Rule 16(d) of the Rules. Rule 16 deals with the manner of packing and sealing the samples. Clause (d) of the Rules requires that the paper cover shall be further secured by means of strong twine or thread both above and across the container and the twine then shall be fastened on the paper cover by means of sealing wax and there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender. Learned counsel for respondent 4 contended that neither the Food Inspector nor the attesting witness has deposed in specific terms that four distinct and clear impressions of the seal had been affixed or that one seal had been affixed at the top, one at the bottom and the other two on the body of the packet or that the knots of the twine had been covered by means of sealing wax. The contention is that the rule, being a mandatory one, must be shown to have been observed by positive evidence. The answer of the learned Prosecutor is that, being an official act, it is proper for the court to draw a presumption under Section 114 Illustration (e) of the Evidence Act.
20. This Court had occasion to consider the nature of Rule 16(c) of the Rules. That rule deals with the manner in which the paper slip has to be affixed and the signature and other particulars taken. In Sivanandan v. Food Inspector 1981 Ker LT 273 : 1981 Cri LJ (NOC) 108, I observed:
Considering the intention and the object of the legislation, the purpose behind the specific provisions under discussion and the consequence which would follow in interpreting the provisions one way or the other, I am of the opinion that substantial compliance with these provisions would be sufficient and it is for the accused to make out prejudice on account of absence of strict compliance with these provisions." Rule 16(d) contains one more procedural safeguard of the same nature and must receive the same interpretation as stated above. Substantial compliance is sufficient.
21. The point strongly canvassed is whether it is fatal to the prosecution if the Food Inspector or the attestor does not specifically advert to everyone of the requirements of these rules and does not specifically state that each of those requirements had been satisfied or whether the presumption under Illustration (e) to Section 114 of the Evidence Act can be invoked and if so, to what extent.
22. Let us see how this Court as also some of the other Courts have looked at this question. In State of Kerala v. A.N. Ramakrishnan Nair 1965 Ker LT 402, this Court had to consider the effect of absence of evidence to prove that a sample seal was forwarded to the Analyst for comparison as enjoined by Rule 7 and absence of evidence regarding actual comparison, Anna Chandy, J., overruling the contention that absence of specific evidence is fatal to the prosecution case, stated that under Section 114 of the Evidence Act the Court may presume that official acts have been regularly performed, that when the Food Inspector was in the box, it was not suggested to him that he did not forward the specimen seal as enjoined in Rule 7, that the report of the analyst that the seals were found intact, leads to a presumption that he could not certify to that effect without making himself sure that there was no tampering of any sort with the seal. In Food Inspector, Can-nanore Municipality v. P. Kannan , Anna Chandy J. once again overruled a similar contention and commented on the failure of the defence to cross-examine the Food Inspector in regard to this aspect. These decisions were followed by Isaac J. in T. A. Ouseph v. State of Kerala 1967 Ker LT 290 : (1967 Cri LJ 1430 (2). It was argued in that case that there was no evidence that the Public Analyst complied with Rule 7 or that the Food Inspector complied with Rs. 17 and 18 and in the absence of evidence, the report cannot be acted upon. There was only general evidence of the Food Inspector and the learned Judge commented on the fact that nothing was asked to the Food Inspector even to suggest that in sending the sample to the Public Analyst he did not act as required by the Rules. It was held that it was not a case where there was no evidence at all, that the requirements of the Rules were complied with though the evidence did not deal in detail with the various aspects and that such detailed evidence was not however necessary, in the light of Illustration (e) of Section 114 of the Evidence Act. A Division Bench of this Court took more or less the same view in Muthukumaran v. State of Kerala 1968 Ker LT 909 : 1968 Cri LJ 1554. The argument was that there was no evidence to the effect that; the sample was sent to the Public Analyst along with the prescribed memorandum and specimen impression of the seal, besides the contents of the report of the Public Analyst. It was held that notwithstanding the lack of oral evidence, the statements of the Public Analyst in the report in Form No. III would be sufficient. This very case came up for consideratoin before the Supreme Court in K.K. Pookunju v. Ramakrishna Pillai 1969 Ker LT 50, the Supreme Court after referring to the fact that the High Court drew a presumption that the official concerned acted in accordance with the rules, observed that there was no error in the decision of the High Court.
23. The matter has been dealt with by a Full Bench of the Madhya Pradesh High Court in State of Madh. Pra. v. Chhotekhan Nannekhan . It was argued before the Court that in the absence of specific evidence to show that the specimen of the seal had been sent separately or that the Public Analyst had compared with the seal as required by the rules, the report of the Public Analyst was not admissible and the prosecution has to fail. After referring to the observations of the Supreme Court in K.K. Pookunju's case and the other decisions, the Full Bench observed as follows (paras 8 and 9):-
The principle embodied in Illustration (e) under Section 114 of the Evidence Act is that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that the formal requisites for its validity have been complied with. As we have indicated elsewhere, if the Statute itself had provided that certain regulations and formalities must be complied with before the report of the Public Analyst could be admitted in evidence, the position would have been different, for in that case, it would be necessary to specifically establish that those regulations and formalities were duly observed. In the absence of such a provision, what purports to be report signed by a Public Analyst is, without any other proof, admissible in evidence and the presumption arising under Section 114 of the Evidence Act to the regular performance of official acts also applies to it. The accused is not thereby prejudiced. He may rebut the presumption by cross-examining or leading other evidence. He has also been given under Sub-section (2) of Section 13 of the Act the right to show, if possible, that the report is incorrect... It is, however, a rebuttable presumption. That being so, such a report is not inadmissible only because it has not been specifically established by evidence aliunde that the requirements of Rs. 7 and 18 of the Prevention of Food Adulteration Rules, 1955, were duly complied with.
24. The failure to produce an office copy of the Form VII memorandum and its effect on the success of the prosecution came up for consideration before a Full Bench of this Court in State of Kerala v. Mammu Musaliar 1974 Ker LT 792 : 1975 Cri LJ 409. This Court found that a reading of the Public Analyst's report would show that he had received the sample properly sealed and fastened, with seal intact and unbroken, that he had received the specimen impression of the seal separately etc. and observed as follows:-
The presumption under Section 114 of the Evidence Act is that official duties are performed regularly. It has not been shown to us as to how prejudice has been caused to the accused by the prosecution not producing or proving the office copy of the memorandum under which the sample was sent to the Analyst.
See also 1979 Ker LT 500 : 1980 Cri LJ 521 and 1979 Ker LT 625.
25. In Gopaldas Baheti v. State of Assam 1979 FAJ 173(2) (SC), the receipt given by the Health Officer stated that the sample was put in a sealed sack and no reference was made to the sealed sack being put in a container as required by the Rules. It was argued that in such circumstances it was not safe to act on the report of the Public Analyst, as there was violation of Rs. 14, 15 and 16 of the Rules and on account of exposure to moisture the samples would have deteriorated. The Supreme Court dealt with this argument in the following manner:
But there is no evidence on the record that the samples were not put in any 'suitable container ... sufficiently tight to prevent entrance of moisture". The plea that the samples were not put into containers as required by the Rules was never raised in the trial Court nor even in the Sessions Court. It is true that in Ext. 2, which is the receipt given by the appellant to the Health Officer, it is stated that the sample was in a "sealed sack' but there is nothing to show that this sealed sack was not put in a container as required by the rules.
The Supreme Court proceeded to overrule these objections.
26. The above decisions provide a useful guide in the matter of formulating the correct approach in controversies like the present one. Undoubtedly, it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. But where he gives evidence only in a general way indicating the steps taken by him, but without specifically referring to the details, that cannot straightway lead to acquittal of the accused. His evidence may be corroborated by the mahazar and the other evidence and supported by the contents of the report of the Public Analyst unless the same is challenged in cross-examination or in some other way known to law. Where the accused refrains from cross-examining the Food Inspector in regard to these details and fails to suggest either non-compliance with any particular detail of a rule or prejudice having been suffered by the accused he certainly runs a risk. Such contention should be taken up in the trial Court itself, so that the prosecution is not taken by surprise and as an opportunity to give the necessary explanation. It is for the accused to raise the necessary challenge in the course of evidence. The report of the Public Analyst which is admissible in evidence without examination of the Public Analyst would normally show that the relevant rules have been complied with and that analysis had been done only after the necessary verification of the container in accordance with the rules. Of course, it is open to one or the other party to examine the Public Analyst to clarify any matter and to challenge any aspect. In the absence of any inhibiting factor it is open to the Court to presume that the official act has been regularly performed, where it is shown that the official act has been performed. It is also open to the accused to show that he has suffered prejudice on account of the action or inaction of the Food Inspector, in which case, the Court is free to draw necessary inferences.
27. As I have already indicated, the contention raised is that the Food Inspector did not say in what manner he tied the container with twine or thread and at what all places he had affixed the seals. He has generally stated "( )". In other words, he has stated that he had tied the container and affixed the seal. This is corroborated by the contents of the mahazar. The attestor, P. W. 3, has also referred to. "( )" The Public Analyst stated in his report that he received the sample properly sealed and fastened and that he found the seal intact and unbroken etc. and the sample was in a condition fit for analysis. The expression "properly sealed and fastened" must necessarily mean sealed and fastened in accordance with the Rules. These matters were not challenged before the trial Court either at the stage of cross-examination of the Food Inspector or at any other stage, No prejudice is seen to have been caused to the accused by any action or inaction of the Food Inspector. The Court is justified in these circumstances in drawing an inference that the official act covered by Rule 16(d) has been done properly and regularly, that is, in accordance with the Rules. No prejudice also is shown to have been caused to the accused. This contention is overruled.
28. The next contention is based on the alleged violation of Rule 14 of the Rules. Rule 14 requires sample of food to be taken in clean dry bottle or jar or other suitable container which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed. P. W. 1 has deposed that he used clean dry bottles to take the sample. This evidence has not been challenged. The submission made by learned Counsel for respondent 4 is that the Food Inspector used a measuring vessel belonging to respondent 4 for the purpose of taking the milk from the can and he has not deposed specifically that the measuring vessel was clean or dry. Therefore, it is argued that there was every possibility of moisture entering the sample and thereby affecting the analysis. I have already referred to the observations of the Supreme Court in Gopaldas Baheti's case 1979 FAJ 173(2) (SC), commenting on the absence of circumstances to show that the samples were not taken in any suitable container sufficiently tight to prevent entrance of moisture. The same consideration would apply to the arguments raised in this case also. I have already indicated in another context that if the accused wanted to challenge he should have challenged the evidence at the appropriate stage. There was no suggestion put to P. W. 1 or any other witness that the measuring vessel was not clean or dry or contained moisture or water. In the absence of any such suggestion, the Food Inspector's failure to specifically state that the measuring vessel was clean or dry, would not affect the question as long as no prejudice is shown to have been suffered by the accused.
29. In the trial court, respondent 4 filed an application under Section 13(2) of the Act to send for the sample in the custody of the Local (Health) Authority and to forward it for analysis to the Central Food Laboratory. The petition is C.M.P. No. 1708/78. There was a delay of two days in filing this petition and therefore respondent 4 filed another petition to condone the delay in filing the main petition. Both these applications were dismissed by the trial Magistrate. Respondent 4 was shown to have received a copy of the report on 10-11-1978. The application ought to have been made, according to Section 13(2) of the Act, on or before 20-11-1978. It was actually presented in Court on 22-11-1978. According to respondent 4, he was ill and he had been advised rest for a period of one week from 12-11-1978. That period would be over before 20-11-1970. There was therefore no explanation for the non-filing of the petition on 20th or 21st. It was on this ground that the learned trial Magistrate dismissed the petition. This is challenged by the learned Counsel for respondent 4.
30. Of course, there is no specific provision in the Act or the Rules prescribing any time limit for moving any such application. But Section 13(2) clearly indicates that the motion must be made within 10 days from the date of receipt of a copy by the mover. Ordinarily, this time limit should be adhered to, because it is prescribed to achieve expedition and to avoid uncertainties that may result from the delay in applying. There was no such time limit prescribed in Section 13 as it originally stood. It was introduced only by the Amending Act 34/ 1976. That is to avoid delay in such application being made leading to delay in disposal of cases. Sometimes, the delay would lead to the sample deteriorating and being found unfit for analysis, at the Central Food Laboratory. That would lead controversies regarding the person responsible for the deterioration and the prejudice caused to the accused. It is to avoid all these factors that a time I limit has now been specified. Normally, the time limit must be adhered to. However, at the same time, it cannot be said that the Court has no jurisdiction to send a sample on the application of the accused to the Central Food Laboratory for analysis even after the expiry of 10 days as prescribed. The Court could do so if proper and convincing reasons are shown that the accused could not make the motion within a period of 10 days. That is because, the provision for sending a sample to the Central Food Laboratory is a provision intended to test the report of the Public Analyst and forms one of the safeguards for the accused. Courts have to deal with this matter in this perspective.
31. The trial Court has considered the reasons given by respondent 4 for the delay. Looking at the averments in the petition, the contents of the medical certificate and relevant dates, it is seen that there was no valid explanation why he did not make the application on the 10th or 11th day. I am not persuaded to agree that the dismissal was wrongful.
32. However, this is not sufficient to dispose of the matter. I have already referred to the contention of the 4th respondent that there are discrepancies in the evidence of the Food Inspector and the attestor. These discrepancies are not sufficient to show that independent witness was not present. I have been taken through the evidence of P. Ws. 1 and
3. I find that there are material discrepancies in their testimony in regard to some of the steps taken in the course of sampling. The courts below did not apply their minds regarding these material aspects of the evidence. These material discrepancies affect the trustworthiness of the evidence. In the light of these serious discrepancies and in the peculiar facts and circumstances of the case, I am of opinion that it is not safe to act on the report of the Public Analyst procured as a result of such sampling. The benefit of doubt naturally should go to respondent 4. He has therefore to be acquitted.
In the result, Crl. Appeal No. 265 of 1080 is dismissed. Crl. It. P. No. 26 of 1980 is allowed. The conviction and sentence against the 4th respondent (4th accused) are set aside. He is acquitted of the charge against him.