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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

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             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,

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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.

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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.

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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.

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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

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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

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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

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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

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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

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             "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

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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

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(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

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Courts  below or convicting any of them by an order of  this Court. Appeals allowed. 834