http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: PRABHU

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT07/04/1994

BENCH:

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by HANSARIA, J.- Leave granted. 2.   The  two appellants were appointed as  Deputy  Director (Finance)  on  promotion vide Notification No.  14  of  1991 issued  by Respondent 1, Indian Airlines.  The  validity  of the same came to be challenged by filing a writ petition  in the  High Court of Delhi by one Sushma Chawla (Respondent  4 herein) on the ground that while promoting the appellants as aforesaid the relevant guidelines holding the field were not adhered  to  and  as  such  their  promotions  were  not  in accordance with law.  The High Court accepted the contention of  the writ petitioner and set aside the promotion  of  the appellants.    Feeling  aggrieved,  this  Court   has   been approached under Article 136 of the Constitution. 3.   The  short point which needs determination  is  whether there was violation of the guidelines, the applicability  of which has not been questioned before us.  The requirement of the  guidelines which is said to have been violated is  that in judging the suitability of the persons within the zone of consideration   last   three  years’   "Annual   Performance Appraisal  Report"  (APR)  would be considered.   It  is  an admitted  position  that while considering the case  of  the appellants APRs of the immediately preceding three years had not  been  taken into consideration; what had  instead  been done was to take into consideration three years’ immediately preceding available APRS.  According to the High Court  this was not permissible, because that would amount to adding the word   "available"   in  the  guidelines,   which   is   not permissible. 4.   The three APRs as required by the guidelines could  not be considered in the case of the appellants for a cogent and adequate reason.  The same was that +    From  the  Judgment and Order dated 25-10-1991  of  the Delhi High Court in C.W. No. 1227 of 1991 177 the  Managing Director of Respondent I who was to write  the APRs for the years in question, namely, 1988-89 and 1989-90, did not do so as the then incumbent (one Shri R. Prasad) had resigned in February 1990; and despite efforts being made by Respondent I to get the concerned APRs written by him  after resignation the same did not bear fruit as he did not  agree to  do so.  It is for this reason that these APRs being  not available  could  not be considered  while  considering  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

promoting the appellants. 5.   On the aforesaid facts the question is whether the view taken by the High Court can be sustained.  The reason  given by  the High Court is that Shri Prasad being available,  the fact  that he did not agree to write the APRs could  not  be used against the writ petitioner permitting Respondent 1  to attach  another criterion beyond prescribed guidelines.   We are,   however,   of  the  view  that  for   the   aforesaid disinclination  of  Shri Prasad to write the two  APRs,  the reason of which cannot be said to be motivated or untenable, the  High Court took an unreasonable view by observing  that the  non-writing of two APRs was due to "lapse and fault  of Respondent  1".   It  is really not  a  question  of  taking advantage  of  ’one’s own default’ as observed by  the  High Court.   According to us, in the facts and circumstances  of the case the consideration of the APRs of the years 1985-86, 1986-87  and  1987-88,  which were the  APRs  of  the  three preceding  available  years,  has  to  be  taken  as  a  due compliance of the guidelines in this regard.  The ratings as per  these  three  APRs gave a total  of  35.68  insofar  as Respondent  4 is concerned, whereas the two  appellants  got 39.84 and 39.68 respectively.  In the interview also the two appellants got more marks than Respondent 4 as would  appear from  the  averment  made in para 7  of  the  special  leave petition,  which fact has not been disputed in the  counter- affidavit filed by Respondent 4. 6.   The aforesaid being the position, we are of the opinion that the High Court committed an error in setting aside  the promotion  of the appellants to the post of Deputy  Director (Finance).  We, therefore, allow the appeal by quashing  the impugned judgment and dismissing the writ petition filed  by Respondent 4. In the facts and circumstances of the case, we leave the parties to bear their own costs. 178                            ORDER 1.   Special leave granted. 2.   The appellant is a milk vendor.  On 19-3-1983, the Food Inspector  took  samples  of milk from the  custody  of  the appellant  under  Section 10(7) of the  Prevention  of  Food Adulteration  Act, 1954 (for short the ’Act’).  He sent  the sample for analysis on 21-3-1983.  The Analyst in his report dated  30-3-1983 found that the milk fat was 4.8%  and  milk solids non-fat was 6.36% whereas the prescribed standard for milk  fat is 4.5% and milk solids non-fat 8.5%. Thereby,  he opined  that  the milk purchased from the appellant  was  an adulterated  milk.   On the basis of the  said  report,  the prosecution was laid against the appellant.  The  Magistrate in his judgment dated 11-3-1987 found that the appellant had adulterated milk and convicted him under Section 7 read with Section 16 of the Act and sentenced him to a minimum  period of  6  months  and a fine of Rs 1000.   On  appeal,  it  was confirmed  and in Revision No. 61 of 1991, the Single  Judge by judgment dated 30-3-1991 confirmed the conviction but the sentence  was reduced to a period of 3 months and a fine  of Rs 500.  Thus this appeal by special leave. 3.   Mr  S.K.  Jain,  learned  counsel  for  the  appellant, contended  that from the date of taking the sample till  the date  of  laying  the prosecution,  there  was  considerable delay.   There is an inordinate delay to forward the  sample for  analysis by the Directorate of Central Food  Laboratory which  caused considerable prejudice to the  appellant,  The High  Court did not consider this aspect of the matter  from this  perspective.  Therefore, the appellant is entitled  to the acquittal.  We find no force in the contention. 4.   Section  13  of the Act provides that  (1)  the  Public

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

Analyst shall deliver, in such form as may be prescribed,  a report to the Local (Health) Authority of the result of  the analysis  of  any  article  of food  submitted  to  him  for analysis, and (2) on receipt of the report of the result  of the  analysis under sub-section (1) to the effect  that  the article   of  food  is  adulterated,  the   Local   (Health) Authority,  shall,  after  the  institution  of  prosecution against  the person from whom the sample of the  article  of food  was taken and the person, if any, whose name,  address and other particulars have been disclosed under Section  14- A, forward in such manner as may be prescribed, as the  case may  be, informing such person or persons that if it  is  so desired,  either or both of them may make an application  to the  court  within  a period of 10 days  from  the  date  of receipt of the copy of the 179 report to get the sample of the article of food kept by  the Local  (Health)  Authority  analysed  by  the  Central  Food Laboratory. 5.   Rule 9-A provides that the local authority shall within a   period  of  10  days,  after  the  institution  of   the prosecution,  forward a copy of the report of the result  of the  analysis  in Form III under sub-rule (3) of Rule  7  by registered  post  or by hand as may be  appropriate  to  the person from whom the sample of the article was taken by  the Food  Inspector  and simultaneously also to the  person,  if any,  whose  name, address and other particulars  have  been disclosed under Section 14-A of the Act. 6.   This Court considering the language of Section 13(2) in Babu  Lal  Hargovindas v. State of Gujarat’  held  that  the accused  had  an opportunity to make an application  to  the court for sending the sample to the Central Food  Laboratory for analysis.  He did not avail the same.  Therefore, it was no longer open to him to contend that he had no  opportunity to  send the sample in his custody to the Director,  Central Food  Laboratory under Section 13(2), since he did not  make any application to the court for sending it.  This view  was followed  in  Ajit  Prasad  Ramkishan  Singh  v.  State   of Maharashtra2.  In Tulsiram v. State of Mp.3 this Court  held that Rule 9-A is directory and if after receiving the Public Analyst’s report, the accused does not apply to the court to have the sample sent to the Central Food Laboratory, he  may not  be  heard  to complain about delay in  receipt  of  the report  by  him, unless he is able to establish  some  other prejudice to him. 7.   The decision of this Court in Municipal Corpn. of Delhi v. Ghisa RaM4 was based on the fact that the sample had,  in fact, been sent to the Director who returned the same saying that  the sample had become highly decomposed and could  not be  analysed;  as  the  Food Inspector  had  not  taken  the precaution  of adding the preservative.  This  decision  was distinguished in Babu Lal Hargovindas1. 8.   Thus, it is settled law that the appellant has a  right under  Section 13(2) to avail of sending the sample  in  the custody  of  the  court for analysis  by  the  Central  Food Laboratory  after  the prosecution was laid  or  immediately after  notice was received by him in the case, by making  an application  to the court.  The duty of the  prosecution  to send the report is governed by Rule 9-A of the rules.  After 4-1-1977,  the  word ’immediately’ was  used  replacing  the words "within ten days" in this rule.  The decision of  this Court  in  Ahmed Dadabhai Advani v.  State  of  Maharashtra5 relied on by the appellant does not help him.  Therein,  the report  was  stated to have been  despatched  on  13-6-1974. But, in fact it was despatched on 11-7-1979.  The report was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

of  1-9-1978.   The Magistrate on the basis of  those  facts held that it must have been received in due course and there was  delay  in launching prosecution.  Since  the  acquittal ordered  by the Magistrate was interfered with by  the  High Court,  this  Court  stated  that the  High  Court  was  not justified  in interfering with the same.  The fact  of  non- availing  of  the remedy under Section 13(2)  had  not  been considered by this 1  (197 1) 1 SCC 767: AIR 1971 SC 1277 2    (1972) 2 SCC 180: AIR 1972 SC 1631 3    (1984) 4 SCC 487 4    (1967) 2 SCR 1 16: AIR 1967 SC 970 5  1991 Supp (2) SCC 652: JT (1991) 5 SC 178 180 Court.   Therefore, the ratio in Ahmed D. Advani case5  does not run counter to the consistent law laid by this Court  in the  above  cases that despite non-availment of  the  remedy under Section 13(2), prejudice could be inferred. 9.Under these circumstances and following the consistent law laid by this Court,.we are of the considered view that since admittedly the appellant had not availed of the remedy under Section 13(2) to send the sample of the article of food  for analysis  by the Central Food Laboratory, it cannot be  held that the appellant suffered prejudice on account of delay in laying  the  prosecution.  It is also seen from  the  record that  within  10  days from the date of the  filing  of  the prosecution,  the report was sent to the  appellant,  though Shri  S.K. Jain seeks to contend that there is no  proof  of service.  Since it being a question of fact and not disputed in  the courts below, we cannot go into that  question.   In that view, we hold that no prejudice has been caused to  the appellant and the conviction of the appellant under  Section 7 read with Section 16 of the Act and sentence of 3  months’ imprisonment  imposed  by the High Court  does  not  warrant interference. 10.  The appeal is accordingly dismissed.