http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: TULSI RAM

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT11/10/1984

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) KHALID, V. (J)

CITATION:  1985 AIR  299            1985 SCR  (1) 949  1984 SCC  (4) 487        1984 SCALE  (2)578  CITATOR INFO :  R          1991 SC1757  (5)

ACT:      Prevention of  Food Prevention Act, sections 13 (2) (as amended by  Act  of  1976)  read  with  Prevention  of  Food Adulteration Rules 9A. scope of-Interpretation  of Rules 9A.      Words and Phrases: meaning of the word "immediately" in Rule 9A-Whether  delay of 18 days in supplying the report of the Public  Analyst vitiates the trial-Whether mixing cotton seed oil  with soyabean  oil, adulteration  of soyabean oil- Prevention of  Adulteration Rule  44(c)  read  with  section 2(ia) (m).

HEADNOTE:      On the  basis of  the report of the Public Analyst that the  sample   of  soya.  bean  oil  purchased  by  the  Food Inspector, Sorar  on 17.11.79  from the  shop of the accused petitioner was  found adulterated,  a complaint was filed on 29.11.79 in  the Court of the Judicial Magistrate, Balod. On 17.11.79 a  copy of  the report  of the  Public Analyst  was forwarded to  the petitioner  as required  by Rule 9A of the Prevention  of   Food  Adulteration   Rules.   The   accused petitioner made  no application  to the  trial Court to have one of  the samples  sent to the Central Food Laboratory for further analysis,  but was  content merely  to deny offence. After due  trial, he  was convicted  by  the  Magistrate  on 8.9.82 under  section 16  (1) (a)  (i) of  the Prevention of Food Adulteration  Act  and  sentenced  to  suffer  rigorous imprisonment for  six months  and to pay a fine of Rs. 1000. The appeal preferred by the petitioner to the Session Judge, Durg and  the Revision  Petition preferred thereafter to the High Court  of Madhya  Pradesh  were  dismissed,  Hence  the Special leave petition.      Dismissing the petition, the Court, ^      HELD: 1:1.  The expression  "immediately" in Rule 9A is intended  to  convey  a  sense  of  continuity  rather  than urgency. What  must be  done is to forward the report at the earliest opportunity,  so as  to facilitate  the exercise of the statutory right under section 13(2) of the Prevention of Food Adulteration Act in Food and sufficient time before the prosecution commences leading evidence. [961C-D]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

    1:2. Non-compliance  with Rule 9A is not fatal. It is a question of  prejudice.  Applying  this  principle.  in  the instant case, the trial cannot be said to 950 be vitiated  by the delay of eighteen days in forwarding the report of the Public Analyst to the Petitioner.      1:3. Rule  9A has to be interpreted so as to keep it in tune with,  and within  the bounds  of  section  13(2).  The amended section  13(2) does  not prescribe any point of time before which  the report  of the  Public Analyst  is  to  be forwarded to  the accused  vendor. But,  the very basis of a prosecution for  adulteration of  food is  the report of the Public Analyst  that the  article of food is adulterated The accused is  given the  right to dispute the Public Analyst’s report by  applying to  the court  for an  analysis  by  the Central Food  Laboratory If  the report  of the Central Food Laboratory is  to the effect that the article of food is not adulterated  the   very  basis   of  the   prosecution  will disappear. In  such an  event the  further  pursuit  of  the prosecution will be needless and the accused will have to be discharged or  acquitted as the case may be. It is therefore to be assumed that the report of the Public Analyst is to be made available  to the accused vendor at the commencement of the prosecution,  that is  to say,  before  the  prosecution starts leading  evidence  in  the  case,  and  in  good  and sufficient time  to enable the accused to exercise his right of having the sample analysed by the Central Food Laboratory if he  so desires  it. There fore Rule 9A carefully refrains from  mentioning   any  definite   limit  of  time  and  the expression "immediately" is not to be understood to mean the very next  instant, the very next hour, that very day or the very next  day. Construed  in its  setting,  the  expression "immediately" is  only meant  to convey ’reasonable despatch and  promptitude’   and  no  more.  The  idea  is  to  avoid dilatoriness on  the part  of official dom and prevention of unnecessary harassment  to the  accused. But the idea is not to penalise  the prosecution  and  to  provide  a  technical defence. If  after receiving the Public Analyst’s report the accused never  sought to  apply to  the court  to  have  the sample sent  to the  Central  Food  Laboratory,  as  in  the present case,  he may  not be heard to complain of the delay in the  receipt of  the report by him, unless, of course, he is able to establish some other prejudice. [960E-H; 961A-B]      Dal Chand  v. Municipal Corporation, Bhopal AIR 1983 SC 303; Kashmiri  Lal v.  State of  Haryana 1981 (2) AIPFC 167, Kanda Swami  v. Food  Inspector 1982 (1) AIPFAC 322, Perumal v. Kumbakonam  Municipality 1982  (2) AIPFAC  106  and  Food Inspector v. Prabhkaran 1983 (1) AIPFAC 84; considered.      2. The  mixing of  cotton seed oil with soyabean oil is adulteration of  soyabean  oil  incurring  liability  to  be convicted under  section 16(1)  (a) (i) of the Prevention of Food Adulteration  Act. The  sale of  an article of food the sale of  which is  prohibited by any rule made under the Act also renders  the person  selling the article of food liable to punishment  under s. 16 (l) (i). Rule 44(e) prohibits the sale of  a mixture  of two  or more edible oils as an edible oil. A  mixture of  soyabean oil  and cotton seed oil cannot therefore be  sold as  soyabean oil  irrespective of whether the mixture  has affected  the soya  bean oil injuriously or not. [961E-G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Special  Leave  Petition

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

(Criminal No. 3038 of 1983.      From the Judgment and order dated the 16th August, 1983 951 of the  Madhya Pradesh  High Court  in Criminal Revision No. 260 of 1983.      S.K.Gambhir, Ashok  Mahajan and  S.S. Kirpalani for the petitioner.      The order of the Court was delivered by      CHINNAPPA REDDY,  1. On  17.8.1979 the  Food Inspector, Sorar, purchased  375 grams of Soyabean oil from the shop of the petitioners,  Tulsiram. The  Soyabean oil  purchased was divided into  three parts; each part was filled in a bottle; each bottle  was sealed; and, one of the bottles was sent to the Public  Analyst, Raipur for analysis. The Public Analyst found that the sample was adulterated as it contained traces of cotton  seed oil.  On 29.11.1979 a complaint was filed on the basis  of the report of the Public Analyst, in the court of the Judicial First Class Magistrate, Balod. On 17.12.1979 a copy  of the report of the Public Analyst was forwarded to the petitioner as required by Rule 9-A of Prevention of Food Adulteration Rules.  The accused-petitioner  however made no application to  the Trial  Court to  have one of the samples sent to the Central Food Laboratory for further analysis. He was content  merely to  deny offence. After due trial he was convicted  by   the  Magistrate   on  8.9.1982,   under   s. 16(1)(a)(i) of  the Prevention  Food  Adulteration  Act  and sentenced to suffer rigorous imprisonment for six months and to pay  a fine  of Rs.  1000. The  Appeal preferred  by  the petitioner to  the Sessions  Judge, Durg  and  the  Revision Petition preferred  thereafter to  the High  Court of Madhya Pradesh were  rejected. The  petitioner  now  seeks  special leave to  appeal to  this Court  under Article  136  of  the Constitution.      The learned  counsel for the petitioner urged before us that Rule  9-A of the Prevention of Food Adulteration Rules, which has  been substituted  for  Rule  9(j)  in  1977,  now prescribes  that   the  Local   (Health)   Authority   shall immediately after the institution of the prosecution forward a copy  of the  report of  the Public  Analyst by registered post or by hand to the person from whom the sample was taken by the Food Inspector, that the word ’immediately’ occurring in Rule  9-A showed  that it  brooked no delay and that as G there was  a delay  of 18  days, in  the  present  case,  in forwarding the report to the petitioner, the prosecution was vitiated and the petitioner was entitled to be acquitted. He argued that  the scheme  of  the  Act  was  changed  by  the amendments introduced  in 1976  and that  in consonance with the revised scheme of the Act 952 the rules were also amended. He invited our attention to the A departure in the language of the present Rule 9-A from the language of  old Rule  9(j). The learned counsel also argued that cotton  seed oil was more nutritive and consumable than Soyabean oil and, therefore, a person mixing cotton seed oil with Soyabean  oil could  not be  said to  have  adulterated soyabean oil.  He invited  our attention  to  Dal  Chand  v. Municipal Corporation,  Bhopal, Kashmiri  Lal  v.  State  of Haryana  ;   Kanda  Swami   v.  Food   Inspector:  State  of Maharashtra v.  Tukaram Babu Rao Mane; Perumal v. Kumbakonam Municipality ;  and Food  Inspector v.  Prabhkaran. We  have considered all  of them  and we do not think it necessary to launch into  a discussion  of the cases, one by one We would rather  refer   to  and   construe  the  relevant  statutory provisions and  rules ourselves. Suffice to say here that we do not agree with the submissions of the learned counsel.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

    It is true, in 1976 important changes were made in some of the  procedural provisions  of  the  Prevention  of  Food Adulteration Act. We are concerned in this case with some of the changes  made in  ss. 11  and 13  of the Act and the new Rules made  as a  consequence. Before the 1976 amendment, s. 11 required  the Food Inspector taking a sample for analysis to separate  the sample  into three parts, seal or fasten up each part and to deliver one of the parts to the person from whom the sample was taken, send another part for analysis to the Public  Analyst and retain the third part for production in case  legal proceedings were taken or for analysis by the Director of  the Central Food Laboratory under sub-section 2 of s.  13 as the case might be. Sub-section (1) of old s. 13 (as it  stood before  1976) required  the Public  Analyst to deliver to  the Food  Inspector a  report of the analysis of any article of food submitted to him for such analysis. Sub- section  (2)   enabled  the   accused  vendor,   after   the institution of  the prosecution  under the  Act, to apply to the Court to send the part given to him or the part retained with the  Food Inspector  for production  in case  of  legal proceedings, to  the Director of the Central Food Laboratory for a  certificate specifying  the result of the analysis to be made  by him.  The certificate  issued by the Director of the Central Food Labora- 953 tory was to supersede the report given by the Public Analyst and was  to be  final and  conclusive evidence  of the facts stated therein.  A Rule  9 (j)  of the 1955 Rules prescribed that it  shall be  the duty of the Food Inspector to send by registered post,  a copy of the report of the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report.      It is  obvious that s. 13 (2) was intended to secure to the accused  vendor the  right to  have the  report  of  the Public Analyst  tested if  he so  wanted, by  obtaining  the final and  conclusive report  of the Director of the Central Food Laboratory.  In order  to enable  the accused vendor to exercise this right it was necessary to first make available to him  the report  of the  Public Analyst.  So Rule  9  (j) provided that  a copy  of the  report of  the Public Analyst should be  sent to the person from whom the sample was taken within ten  days of  the receipt  of the  report by the Food Inspector. The  mention of  ten days  as the  period  within which the  Food Inspector  was to  send the  report  of  the Public Analyst  to the person from whom the sample was taken led to  considerable controversy  whether  Rule  9  (j)  was mandatory or  directory. Some High Courts took the view that Rule 9 (j) was mandatory and that failure to strictly comply with the  rule was  fatal to the prosecution. The matter was finally set  at rest  by this Court in Dalchand v. Municipal Corporation Bhopal (supra) where it was held that Rule 9 (j) was directory. It was observed :-           "There are  no ready  tests or invariable formulae      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 mis-chief, but the enforcement of      a particular  provision literally  to its  letter  will      tend to  defeat that design, the provision must be held

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

    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 954      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.  Rule 9  (j) of  the  Prevention  of  Food      Adulteration Act,  as it  then stood, merely instructed      the Food  Inspector to  send by registered post copy of      the Public Analyst’s Report to the person from when the      sample was  taken within  10 days of the receipt of the      Report. Quite obviously the period of 10 days was not a      period of  limitation within  which an action was to be      initiated or  on the  expiry of  Which a  vested  right      accrued. 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. I  am clearly  of the view      that R.  9 (j)  of the  Prevention of Food Adulteration      Rules were directory and not mandatory".      As already  mentioned  by  us,  some  High  Courts  had earlier taken  the view that the Rule was mandatory and that non-compliance with  the Rule  was fatal to the prosecution. The working  of the  Act also revealed that often enough the accused vendor  would adopt dilatory tactics by waiting till the last  minute to exercise his right to apply to the Court to  send   the  sample  to  the  Director  of  Central  Food Laboratory. This  statutory right could not be denied to the accused vendor even when made at the very last stages of the case. The  result was not merely undue and unnecessary delay in the  disposal of the case but fairly frequently, it would be discovered 955 that the sample had disintegrated due to lapse of time, thus disabling  the   Director,  Central   Food  Laboratory  from analysing  the   sample.  With   a  view   to  overcome  the difficulties encountered  in the  working of the Act, ss. 11 and 13 were recast by the Amending Act of 1976 and new rules were made  in 1977,  new Rule  9-A replacing old Rule 9 (j). Sub-section (1) of amended s. 11 and the whole of amended s. 13 may  be usefully  extracted here. Section 11 sub- section (1) is as follows:-           "When a  food inspector takes a sample of food for      analysis, he shall:-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

    (a)  give notice  in writing  then  and  there  of  his           intention to  have it  so analysed  to the  person           from whom  he has  taken the  sample  and  to  the           person, if  any, whose  name,  address  and  other           particulars have been disclosed under section 14A.      (b)   except in  special cases  provided by rules under           this Act,  divide the  sample then and there into;           three parts  and mark  and seal  or fasten up each           part in  such a  manner as  its nature permits and           take the  signature or  thumb  impression  of  the           person from whom the sample has been taken in such           place and in such manner as may be prescribed;           Provided that where such person refuses to sign or      put his  thumb impression the food inspector shall call      upon one  or more  witnesses  and  take  his  or  their      signature or thumb impressions, of such person:- (a)  (i)  send one  of the  parts for analysis to the public           analyst under  intimation, to  the Local  (Health)           Authority; and      (ii) send the remaining two parts to the Local (Health)           Authority: for  the purposes of sub-section (2) of           this section  and sub-sections  (2A) and  (2E)  of           section 13". Section 13 is as follows:-      "(1) The  public 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. 956      (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           particulars have been disclosed under section 14A,           forward, in  such manner  as may  be prescribed, a           copy of  the report  of the result of the analysis           to such  person or  persons, 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 ten           days from  the date  of receipt of the copy of the           report to  get the  sample of  the article of food           kept by  the Local  (Health) Authority analysed by           the Central Food Laboratory.      (2A) When an application is made to the Court under sub           section (2),  the court  shall require  the  Local           (Health) Authority to forward the part or parts of           the sample  kept by  the said  Authority and  upon           such requisition  being made,  by  said  Authority           shall forward  the part  or parts of sample to the           court with  in a period of five days from the date           of receipt of such requisite on.      (2B) On receipt of the part or parts of the sample from           the Local  (Health) ’Authority  under  sub-section           (2A), the  court shall  first assertion  that mark           and seal or fastening as provided in clause (b) of           sub-section (1)  of section  11 are intact and the           signature or thumb impression, as the case may be,           is not tampered with, and despatch the part or, as           the case  maybe, one  of the  parts of  the sample           under its  own seal to the Director of the Central           Food  Laboratory   who  shall   thereupon  send  a           certificate to  the court  in the  prescribed form

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

         within one  month from  the date of receipt of the           part of  the sample  specifying the  result of the           analysis.      (2C) Where  two parts  of the  sample have been sent to           the court and only one part of the sample has been           sent by  the court  to the Director of the Central           Food Laboratory  under sub-section (2B), the court           shall, as soon as 957           practicable, return  the  remaining  part  to  the           Local   (Health) Authority  and the Local (Health)           Authority  shall   destroy  that  part  after  the           certificate from  the Director of the Central Food           Laboratory has been received by the court;                Provided that  where the  part of  the sample           sent by  the court to the Director of Central Food           Laboratory is  lost or  damaged, the  court  shall           require the  Local (Health)  Authority to  forward           the part  of the sample, if any, retained by it to           the court  and on  receipt thereof the court shall           proceed in  the  manner  provided  in  sub-section           (2B).      (2D) Until the receipt of the certificate of the result           of the  analysis from the Director of Central Food           Laboratory the  court shall  not continue with the           proceedings pending  before it  in relation to the           prosecution.      (2L) It  after considering  the report,  if any, of the           Food Inspector  or otherwise,  the Local  (Health)           Authority  is  of  the  opinion  that  the  report           delivered by  the public analyst under sub-section           (1) is erroneous, the said Authority shall forward           one of  the parts  of the sample kept by it to any           other public  analyst  for  analysis  and  if  the           report of  the result of the analysis of that part           of the  sample by  that public  analyst is  to the           effect that  the article  of food  is adulterated.           the provisions  of sub  section (2) to (2D) shall,           so far as may be apply.      (3)   The certificate  issued by  the Director  of  the           Central Food  Laboratory  under  sub-section  (2B)           shall supersede  the report  given by  the  public           analyst under sub section (1).      (4)   Where a certificate obtained from the Director of           the Central Food Laboratory under sub-section (23)           is produced  in any  proceeding under this Act, or           under sections  272 to  276 of  the  Indian  Penal           Code, 45 of 1860 it shall not be necessary in such           proceeding to  produce any  part of  the sample of           food taken for analysis.      (5)  Any document purporting to be a report signed by a 958           public analyst, unless it has been supersede under           sub section (3) or any document purporting to be a           certificate signed  by the Director of the Central           Food Laboratory,  may be  used as  evidence of the           facts stated  therein in any proceeding under this           Act or  under sections  272 to  276 of  the Indian           Penal Code 45 of 1980. (Provided that any document           purporting to  be  a  certificate  signed  by  the           Director of  the  Central  Food  Laboratory)  (not           being a  certificate with  respect to the analysis           of the  part of  the sample of any article of food           referred to  in the proviso to sub-section (1A) of           section  (16)   shall  be   final  and  conclusive

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

         evidence of the facts stated therein).                Explanation-In this  section, and  in  clause           (f) of sub-section (1) of section 16, "Director of           the Central  Food Laboratory’  shall  include  the           officer for  the time  being in charge of any Food           Laboratory (by  whatever designation  he is known)           recognised  by  the  Central  Government  for  the           purpose of this section)".      It will  be noticed that amended s. 11 does not require a part of the sample to be given to the person from whom the sample was  taken. While  one part is required to be sent to the public   Analyst  for analysis,  the other two parts are required to  be sent  to the  Local (Health)  Authority. The amended s.  13 requires the Public Analyst to deliver to the Local (Health)  Authority a  report of  the  result  of  his analysis.  Section   13(2)  requires   the  Local   (Health) Authority lo  forward to the person from whom the sample was taken a  copy of  the report  of the  Public Analyst, if the report is  to  the  effect  that  the  article  of  food  is adulterated. The report is to be forwarded in such manner as maybe prescribed,  after the institution of the prosecution. Thereafter the  person from  whom the  sample was  taken  is given the right to apply to the court within ten days of the receipt by him of the copy of the Public Analyst’s report to get the sample kept by the Local (Health) Authority analysed by the  Central Food Laboratory. It is no longer open to the accused vender to wait till the very last minute to apply to the court  to  have  the  sample  analysed  by  the  Central Laboratory. If  he wants  to exercise the statutory right of having the sample analysed by the Central Food Laboratory he has to 959 exercise that right by applying to the court within ten days of receipt,  by him  of the  Public Analyst’s  Report. It is also to  be noticed that amended s. 13(2) does not prescribe any point  of time  before which  the report  of the  Public Analyst is  to be  forwarded to the accused-vendor. But, the very basis  of a prosecution for adulteration of food is the report of  the Public  Analyst that  the article  of food is adulterated. The  accused is  given the right to dispute the Public Analyst’s  report by  applying to  the court  for  an analysis by  the Central  Food Laboratory.  If the report of the Central  Food Laboratory  is  to  the  effect  that  the article of  food is  not adulterated  the very  basis of the prosecution will  disappear. In  such an  event the  further pursuit of  the prosecution will be needless and the accused will have  to be discharged or acquitted as the case may be. It is  therefore to be assumed that the report of the Public Analyst is to be made available to the accused vender at the commencement of  the prosecution, that is to say, before the prosecution starts leading evidence in the case, and in good and sufficient  time to  enable the  accused to exercise his right of  having the  sample analysed  by the  Central  Food Laboratory if  he so  desires it. We have seen that s. 13(2) provides  that   the  Public   Analyst’s  Report,  shall  be forwarded to  the person  from whom the sample was taken ’in such manner  as may  be prescribed’.  Now, Rule  9-A of  the Rules as amended in 1977 which replaces Rule 9(j) of the old Rules prescribes  the manner  in which  the Public Analyst’s Report may  be forwarded  to the  person from the sample was taken. lt reads as follows:-           "The Local  (Health) Authority  shall  immediately      after the  institution of prosecution forward a copy of      the report  of the  result  of  analysis  in  Form  III      delivered to  him under  sub-rule (3)  of  Rule  7,  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

    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 has been disclosed under Section 14A of the      Act;           Provided that where the sample conforms to the pro      visions of the Act of the Rules made thereunder, and no      prosecution is  intended under  sub-section (2),  or no      action is intended under sub-section (2E) of section 13      of the Act, the Local (Health) Authority shall intimate      the 960      result to  the vendor  from whom  the sample  has  been      taken and  also to  the person, whose name, address and      other particulars have been disclosed under Section 14A      of the  Act, within  10 days  from the  receipt of  the      report from the Public Analyst."      The  first  thing  to  be  noticed  is  that  Rule  9-A carefully refrains  from mentioning  any definite  limit  of time such  as that found in old Rule 9(j) which gave rise to the controversy whether the Rule was mandatory or directory, and instead  uses the  general expression ’immediately.’ The Local (Health)  Authority is  now required to forward to the person  from  whom  the  sample  was  taken  in  the  manner prescribed, a  copy of  the report  of  the  Public  Analyst immediately after  the institution of the prosecution. While prescribing the  manner in which the Report may be forwarded the opening  words of Rule 9-A "The Local (Health) Authority shall (immediately) after the institution of the prosecution forward’’ (bracket  in ours),  are borrowed verbatim from s. 13(2) with  the word  ’immediately’ inserted in between. The Rule making authority could never have intended to amend the statute by  super-adding the  word immediately’ as indeed it was not  competent to  do. Rule 9-A has to be interpreted so as to  keep it  in tune  with and  within the  bounds of  s. 13(2). The  departure from  the previous  rule by refraining from mentioning a definite period of time as was done in the old rule  makes it evident that the expression ’immediately’ is used  to convey a sense of continuity rather than a sense of urgency. It is not to be understood to mean the very next instant, the  very next hour, that very day or the very next day. It  must be  construed in  its setting.  It is  no  use turning  to   dictionaries.  Dictionaries   give  variegated meanings to  words. What meaning is to be adopted depends on the context.  Rule 9-A is made in the context of the amended s. 13(2)  which provides  for the  forwarding of  the Public Analyst’s Report  to the  person from  whom the  sample  was taken after  the institution of prosecution and enables that person to apply to the court to have analysed by the Central Food Laboratory  the sample  kept with  the  Local  (Health) Authority. In  the context  the expression  ’immediately’ is only meant  to convey  ’reasonable despatch and promptitude’ and no  more. The  idea is to avoid dilatoriness on the part of officialdom  and prevention  of unnecessary harassment to the accused. But the idea is not to penalise the prosecution and to  provide  a  technical  defence.  First  to  construe ’immediately’ as meaning ’at once’ or 961 ’forthwith’ and  next to  hold delay  to  be  fatal  to  the prosecution would perhaps be to make Rule 9-A ultra vires s. 13(2). We  do not  think it is permissible to interpret Rule 9-A in  such a  way. The  real question  is, was  the Public Analyst’s Report  sent to  the accused sufficiently early to enable him  to properly  defend himself  by  giving  him  an

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

opportunity at  the outset to apply to the court to send one of the  samples to the Central Food Laboratory for analysis. If after  receiving the  Public Analyst’s  Report  he  never sought to  apply to the court to have the sample sent to the Central Food  Laboratory, as in the present case’ he may not be heard  to complain  of the  delay in  the receipt  of the report by  him, unless,  of course,  he is able to establish some other  prejudice. Our conclusions on this question are; The expression  ’immediately’ in  Rule 9-A  is  intended  to convey a  sense of continuity rather than urgency. What must be  done   is  to   forward  the   report  at  the  earliest opportunity,  so  as  to  facilitate  the  exercise  of  the statutory right  under s.  13(2) in good and sufficient time before the  prosecution  commences  leading  evidence.  Non- compliance with  Rule 9-A  is not fatal. It is a question of prejudice. Applying  these principles.  We find  no merit in the submissions  based on Rule 9-A. The second submission of the learned  counsel, namely,  that mixing  cotton seed  oil with Soyabean oil cannot be considered to be adulteration of Soyabean oil  and therefore the petitioner was not liable to be convicted  under s. 16 (1) (a) (i) is equally without any merit. Section  16 (1)  (a) (i)  makes a  person  liable  to punishment if  whether by  himself or by any other person on his behalf,  he imports into India or manufactures for sale, or stores, sells or distributes any article of food which is adulterated within  the meaning  of sub-clause (m) of clause (ia) of  section (2)  or misbranded  within the  meaning  of clause (ix)  of  that  section  or  the  sale  of  which  is prohibited under  any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority. It is therefore  seen that  the sale  of an article of food the sale of  which is  prohibited by any rule made under the Act also renders  the person  selling the article of food liable to punishment  under s.  (16)  (1)  (a)  (i).  Rule  44  (e) prohibits the  sale of  a mixture of two or more edible oils as an  edible oil. A mixture of Soyabean oil and cotton seed oil cannot therefore be sold as Soyabean oil irrespective of whether  the   mixture  has   affected  the   Soyabean   oil injuriously or  not. The special leave petition is therefore dismissed. S.R.                                     Petition dismissed. 962