S. Padmanabhan, J.
1. This criminal appeal against acquittal came up for hearing again when the judgment of conviction and sentence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act was set aside in a petition filed under Section 482 of the Code of Criminal Procedure and the appeal reopened.
2. Sample is curd, which the respondent exposed for sale in his hotel and sold to PW2 Food Inspector on demand without specifying whether it is from milk of cow or buffalo. Rules require it to be treated as curd from milk of bufallo. Ext. P1 report issued by PW1 Public Analyst shows it to be substandard going by the standard of curd from milk of cow or bufallo. It also contained not less than 31% of added water. Sale and adulterated nature of the sample were found by the Magistrate. Those aspects were not challenged before me.
3. Curd was exposed for sale in the hotel in cups. PW2 purchased 6 cups of curd. In the box, he said that the entire quantity purchased was poured into a larger vessel brought by him using an ounce glass and then it was churned and mixed before being sampled in three clean and dry vessels. Magistrate is of the opinion that this is insufficient. She said that the entire quantity of curd exposed for sale in the hotel had to be churned and mixed together and the purchase ought to have been after doing so in order to make what is purchased homogeneous. Omission to do so was the sole ground of acquittal.
4. Even the counsel for the respondent did not attempt to support this perverse ground of acquittal. This court, in umpteen cases, had occasion to say that in a sale if mixing or churning is required, it is for the vendor to do so. What PW2 claimed to have done itself is a superfluidity though he has done so in good faith. Attempt was, therefore, to support the acquittal on other grounds. It is trite law that an acquittal could be supported on grounds not relied on by the acquitting court. Acquittal was supported before me only on grounds of violation of Rules 14, 17 and 18 and none else. I need only consider those grounds.
5. Rule 14 deals with the containers used for sampling and how they were to be closed. They must be clean and dry and shall be closed sufficiently tight to prevent leakage, evaporation and entry of moisture when the sample is a dry substance. There is no complaint that these formalities are not observed. Mahazar mentions it and PW2 has sworn to it. In the box, for the first time, PW2 divulged the use of an ounce glass and vessel for mixing the curd. Nobody asked him and he did not voluntarily say that they were clean and dry. This is the basis of the technical plea. Ext. P1 report of analysis and the evidence of PW1 show that everything was intact and the sample was fit for analysis. No extraneous matter was there evidencing any unclean vessel being used. When an official act is shown to have been performed, there is the presumption that it has been regularly performed until at least that presumption is rebutted. Normally clean and dry ounce glass and vessel alone could have been used by the Food Inspector. Presence of not less than 31% of added water cannot be attributed to an imaginery possibility of the ounce glass and vessel not being dry. If there is such a case, it ought to have been at least put to PW2 and an Opportunity given to him. Contention in that respect was not taken before the trial court and it appears to be fanciful. The complaint seems to be that he did not mention in the mahazar that these vessels were clean and dry. When these vessels themselves were not made mention of in the mahazar, he cannot be expected to say that they are clean and dry. These are not vessels dealt with in Rule 14.
6. Violation of Rules 17 and 18 is also a new contention. These rules relate to the manner, method and time of the sealed containers and Form VII memorandum being forwarded to the public analyst and local health authority as well as copy of memorandum and specimen impression of the seal being separately sent to the public analyst. Action was taken on 27-6-1984. Rule 17(a) and (b) requires the forwarding to be immediately but not later than the succeeding working day. PW2 said that they were forwarded to the public analyst and local health authority on the same day as required by Rules 17 and 18. He produced and proved the necessary records also. Only defect is non-production of the postal receipt. For that, he had a valid reason. Same day, he took action in some other cases also. Samples and records in three cases were sent by registered post under one receipt. That is possible even when items are separately sent. He said that the receipt was produced in one of the three cases. Local health authority was examined as PW3. His evidence and the records proved by him show that two samples and two copies of memoranda with an intimation that the third sample and records were sent to the public analyst on 27-6-1984 itself were despatched to him also on 27-6-1984 and received by him on 29-6-1984. Ext. P1 report and the evidence of the public analyst also show that Rules 17 and 18 were complied with and everything was received by him intact and the sample fit for analysis. But he received the sample and the papers only on 20-7-1984. The only item of non-compliance of Rules 17 and 18, therefore, argued before me was omission to 'send immediately but not later than the succeeding working day'. If PWs 2 and 3 and the papers proved by them are believed (I see no reason to disbelieve), Rules 17 and 18 are fully complied. Omission to produce the postal receipt, in these circumstances, cannot be of any consequence. There can be delay in post which PW2 cannot and he is not bound to explain.
7. Even taking for granted that there was some delay in the compliance of the formalities required under Rule 17, it is not a matter of technical defence. What is fixed under Rule 17 is not a period of limitation. It is only one among the several precautions to protect the interest of the person from whom the sample is taken against malpractices and see that the sample taken is analysed early in a proper condition so that the right to get a second opinion from the Central Food Laboratory is not defeated. It is true that in State of Maharashtra v. Rajkaran, (1988 SCC (Cri) 47), which alone was relied on by the respondent, the Supreme Court said that there is a purpose behind the requirements and when there is non-compliance, the prosecution must fail. But that was an appeal challenging in limine dismissal of the appeal by the High Court against an order of acquittal on the ground that Rules 17 and 18 were violated. Prosecution case that sample was sent by registered post was not proved by the production of the postal receipt and the Supreme Court did not want to interfere.
8. That decision cannot stand in isolation. It has to be considered in the light of the context as well as earlier and subsequent decisions. A host of decisions, including Dalchand v. Municipal Corporation, AIR 1983 SC 303 : 1983 Cri LJ 448; Food Inspector v. Prabhakaran, 1982 KLT 809 : 1983 Cri LJ 81; Food Inspector v. Karingarapully Co-op. M.S. Society Ltd., 1986 KLT 174 : 1986 Cri LJ 719; Food Inspector v. Varghese, 1986 KLT 852; Food Inspector v. Velayudhan, 1987 (1) KLT 722 : 1987 Cri LJ 1137; Tulsiram v. State of Madhya Pradesh, AIR 1985 SC 299 : 1984 Cri LJ 1731; Food Inspector v. K.M. Alikunju, 1970 KLT 987; Food Inspector v. Secretary, Ksheeravyavasaya Co-op. Society, 1977 KLT 370 : 1978 Cri LJ 532; State of Kerala v. Alasserry Mohammed, AIR 1978 SC 933 : 1978 Cri LJ 925 and Ramdas Bhikaji Chaudhari v. Sadanand, AIR 1980 SC 126 : 1980 Cri LJ 111, held that identical provisions in the statute are either directory or substantial compliance is sufficient even if treated as mandatory in a general sense and that the prosecution can fail only if prejudice is shown to have been caused to the accused. Before applying such provisions, it may also be necessary for the court to consider the notes of caution and the guidelines given in various decisions, including State of Punjab v. Devinder Kumar and Ors., 1983 (2) SCC 384 : 1983 Cri LJ 980; Municipal Corporation of Delhi v. Kacheroo Mal, AIR 1976 SC 394 : 1976 Cri LJ 336, Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929 : 1976 Cri LJ 1527; Municipal Corporation of Delhi v. Shiv Shanker, 1971 (1) SCC 442 : 1971 Cri LJ 680; Pyarali K. Tejani v. Mahadeo Ramchandra Dange, AIR 1974 SC 228 : 1974 Cri LJ 313; Dineshchandra Jamnadas Gandhi v. State of Gujarat, AIR 1989 SC 1011 : 1989 Cri LJ 889 and State of Kerala v. Vasudevan Nair, 1975 (1) FAC 8 : 1975 Cri LJ 97. In order to decide whether a particular provision is mandatory or directory, the Supreme Court has given definite guidelines in the decision in Dalchand's case, (AIR 1983 SC 303) : 1983 Cri LJ 448. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance is necessary to invalidate the act complained of. Ever so many provisions are there in the Act and Rules intended by way of abundant caution in safeguarding the interest of the vendors, dealers, distributors and manufacturers. Non-compliance or ineffective compliance of many of these provisions may not prove prejudicial to anybody on account of compliance of other checks and counter-checks provided. Most or many of the provisions may be mandatory and an honest and fair compliance may be necessary. That does not mean that whenever observance of a particular rule is not whole or strict, prejudice must be presumed or prosecution must fail. As held in Kunhamu v. Food Inspector, 1989 (1) KLT 707 : 1989 Cri LJ 2349, simply because a provision is considered to be mandatory in the general sense, it cannot operate as a technical reason for the failure of the prosecution on the ground that the provision was not wholly or strictly complied with.
9. Time limit is only for sending the sample, etc. There is no time limit for it reaching the analyst. There is a matter in which the Food Inspector may not have any control when sent by post or other conveyance where delays are possible. If such delays have affected the analysis of the sample or getting a second opinion, it could be said that prejudice was caused. Even if there is delay in sending the sample or it being received by the public analyst, if it has not in any way affected the analysis or the right to get a second opinion, there is no question of prejudice and a technical plea of delay in either case cannot stand. Here the respondent did not even want a second opinion. Contention based on violation of Rules 17 and 18 cannot stand. In Rule 18, there is no time limit also.
10. Acquittal was only on the imaginary impropriety in sampling. Therefore, the restriction in the matter of interference in appeal against acquittal also cannot apply. Offence is established beyond doubt.
11. Criminal appeal is, therefore, allowed and the acquittal is set aside. Respondent-is convicted for having committed an offence punishable Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. He is sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 1,000/-with a default sentence of simple imprisonment for a further period of two months. Magistrate will take steps to execute the sentence.