ORDER
M.A.A. Khan, J.
1. On April 26,1980 PW-1 Ranjeet Singh, the then Food Inspector Niwai Distl, Tonk (Raj) noticed Lal Chand petitioner offering, besides other foodstuffs, chillies powder for sale at his shop at Niwai. After informing the petitioner of his intention to get the chillies powder examined by Public Analyst for proof of adulteration, if any, therein the Food Inspector purchased 600 grams of chillies powder for Rs. 6/- only, prepared three samples therewith, sent one of them to the Public Analyst for analysis and deposited the remaining two with the Local (Health) Authority.
2. On analysis the Public Analyst reported that the sample of chillies powder was adulterated as the same did not conform to the prescribed standard of purity. The sample powder contained non-permitted coaltar Die of 'Red Shade' as well. The Food Inspector there upon obtained the requisite written consent of the Local (Health) Authority. Tonk and filed a complaint against the petitioner in the Court of the Chief Judicial Magistrate Tonk. The learned Magistrate tried the petitioner on charge Under Section 7 of the Prevention of Food Adulteration Act, 1954 (the Act) and found him guilty thereof. He accordingly convicted the appellant therefor and sentenced him Under Section 16(1) of the Act to one year Rigorous imprisonment and a fine of Rs. 1,000/-. The appeal preferred by the petitioner against his conviction and sentence having been dismissed by the learned Sessions Judge, Tonk, the petitioner has approached this Court in revision Under Section 397/401 of the Code of Criminal Procedure, 1973 (the Cr. P.C.).
3. Mr. Inder Raj Saini, the learned counsel for the petitioner urged that the Court, below did not correctly appreciate the evidence on record and, therefore, the findings recorded by them regarding the quilt of the petitioner were not correct. In this behalf Mr. Saini pointed out that the petitioner simply ran a hotel at the relevant time and he was not a dealer in chillies powder and therefore, sale of chillies powder by him to the Food Inspector did not amount to sale for the purposes of the Act. I find no force in this argument.
4. The definition of the term 'food' as given in Section 2(v) of the Act after its substitution by Amendment Act No. 34 of 1976 provides that 'food' means any article used as food or drink for human consumption other than drugs and water and inter alia, includes any article which ordinarily enters into or is used in the composition or preparation of human food. A study of this definition of 'food' disclose that any article used as food or drink for human consumption (not being drugs or water) and any article which ordinarily enters into or is used in the composition or preparation of human food would fall within the ambit of this definition. To regard an article as food for the purposes of the Act it is not necessary that it should be described or exhibited as intended for human consumption or for preparation of food. It is enough if the article is generally or commonly used for human consumption or the preparation of human food. It can hardly be disputed that chillies powder is commonly used for preparation of human food. It therefore, clearly falls within the purview of the definition of the term 'food' as given in Section 2(v) of the Act.
5. Section 2(xiii) of the Act defines the term 'sale' in following words; (xiii) 'sale' with its grammatical variations and cognate expressions, means the sale of any article of food whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use. or for analysis and includes an agreement for sale an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article.
6. A plain reading of the above definition clearly informs that the Act gives in Section 2(xiii) a special definition of the term 'sale'. The definition specially includes within its ambit a sale of an article of food to a Food Inspector for 'analysis'. In this behalf the decision of the Supreme Court in Mangal Dass Raghavji Ruparel v. State of Maharashtra, (AIR 1966 SC 128), wherein it was held that a sale for analysis must be regarded as sale even if the transaction contains an element of compulsion, may usefully be referred to.
7. To constitute 'sale' of an article of food, as per definition of the term given in Section 2(xiii) of the Act. It is in my opinion, not necessary that the seller should be a dealer in that article. If he keeps an article of food for preparation of another article of food, which is intended to be sold to the consumers thereof the sale of the component article of food by him would none the less amount to 'sale' as contemplated by the Act.
8. It would thus appear that the Act defines not only the term 'food' very widely so as to cover any article used as food and every component which enters into it and even flavouring agents and condiments but also the term 'sale' quite exhaustively so as to cover the cases of the sale of an 'article of food' to a Food Inspector for analysis. The Act is a piece of Social welfare legislation enacted to curb the widely spread evil of adulteration endangering national health and human life for monetary gains. It offers solution to a human problem and aims at achieving social concord and peaceful adjustment and thus to arrive at the material progress of the country keeping the moral fabric and preserving the health of the community intact. Courts are, therefore required to approach it from the point of view of furthering the social interest, which this legislation aims at to promote and put such construction to its provisions as are appropriate to a social defence legislation and as suppresses the mischief aimed to be suppressed by such legislation and advances the remedy provided by it. The sale of the chilly powder by the petitioner to Ranjet Singh Food Inspector at his restaurant-hotel near the Bus-Stand. Niwai was definitely a 'sale' of 'an article of food' for the purposes of the Act. The argument of Mr. Saini is rejected.
9. It was next urged by Mr. Saini that the trial of the petitioner stood vitiated for non-compliance of Section 11(3) read with Rule 17 of the Prevention of Food Adulteration Rules 1965 (the Rules) in as much as the sample of chillies powder was not sent 'immediately' to the Public Analyst. Again, I find no merits in this argument either. Section 11(3) and Rule 17(a) of the Rules, as substituted by G.S.R. 4(E) dated 4-1-1977 published in the Gazette of India Extra-ordinary Part-II Section 3(1), read as under:-
Section 11(3). When a sample of any article of food (or adulterant) is taken under sub-section (1) or sub-section (2) of Section 10 (the Food Inspector shall by the immediately succeeding working day, send a sample of the food or adulterant or both, as the case may be) in accordance with the rules prescribed for sampling to the Public Analyst for the local area concerned.
Rule 17. Manner of despatching containers of samples- The containers of the samples shall be despatched in the following manner, namely:-
(a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a scaled packet to the Public Analyst immediately but not later than the succeeding working day by any suitable means.
(b) The sealed containers of the remaining two parts of the sample and two copies of the memoranda in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means:
Provided that in the case of a sample of food which has been taken from container bearing Agmark seal the memorandum in Form VII shall contain the following additional information, namely:
(a) Grade.
(b) Agmark label No. Batch No.
(c) Name of packing station. 1.
10. The above provisions contained in Section 11(3) and Rule 17 (a) of the Rules enjoin upon the Food Inspector to send in sealed container, one of the three samples, to the Public Analyst 'immediately and not later than the succeeding working day' by any suitable means. In the instant case the sample was taken on 24-4-80 and one of the samples was sent in sealed container to the Public Analyst on 26-4-80. The sample was received by the Public Analyst on 28-4-1980. The question for consideration is whether the provisions contained in Section 11(3) and Rule 17(a) were complied with or not. 'Section 10(1)(b) read with Section 11(3) of the Act empower a Food Inspector to send the sample of the article of food taken by him for analysis to the Public Analyst of the local area within which such sample has been taken. To send a sample for analysis is in fact not a power of the Food Inspector but is a duty cast upon him by the statute. The provisions contained in Sections 10 and 11 regulate the procedure in which the power is to be exercised or, to put it rightly, the duty is to be performed. Rules 14, 17 and 18 of the Rules regulate the mode of manner or the exercise of such power or performance of the duty cast upon the Food Inspector by Section 10(1)(b) read with Sections 11(1)(c) and 11(3). Section 11(3) and Rule 17(a), as stated above, require the Food Inspector to send the sealed container of one of the sample to the Public Analyst 'immediately' but not later than the succeeding working day by any suitable means. The question is what sense does the use of the word 'immediately'' in the language of Section 11(3) read with Rule 17(a) conveys.
11. It is the well settled position of law that when rules are made under authority conferred by a statute they are deemed to be part of it and have the same force and effect as if their provisions were included in the statute. It has been observed above that a social welfare legislation, which the present Act undoubtedly is has to be approached from the point of view which furthers the social interest which such legislation aims at promoting, and its provisions are to be so construed as suppresses the mischief sought to be done away with and advances the remedy provided by the statute. The imperatives of social defence should outweigh such literal and technical interpretation as renders the provisions and in the final analysis the statute itself non-functional.
12. The literal meaning of the word 'immediately', when unqualified would ordinarily be 'at once' or 'forthwith'. But when the word 'immediately' is qualified by some other words or expression which convey the same or similar sense as is the position in Section 11(3) and Rule 17(a) such restricted meaning cannot be given to this word. In the language of Rule 17(a) the word 'immediately' is qualified by the expression but not later than the succeeding working day. Similar expression is also there in the language of Section (3). This use of such expression indicates that the legislature did not intend to use the word 'immediately' in literal or restricted sense. The very fact of using a qualifying phrase after the use of the word 'immediately' shows that time limit is not the essence of Section 11(3) and/or Rule 17(a). Again, the use of the attribute 'working' before the noun 'day' in the language of the phrases indicates that the time was not intended to be extended to a 'succeeding day' only but to a succeeding 'working' day. There may be a temporary cut of the way by rains or other natural calamity or is suspended for any other reason. There may be yet another case wherein the 'succeeding working day' may come after a period of four five or more days due to holidays or some other like reason. It may also be noted that Section 11(3) and Rule 17(a) prescribe a time limit for sending the sample to the Public Analyst. There is no strict time limit prescribed for examination of the sample and submission of his report by the Public Analyst. That also shows that time is not the essence of the action of the Food Inspector Under Section 11(3) and Rule 17 of the Rules. The word 'immediately' occurring in the language of Section 11(3) and Rule 17(a), therefore, does not admit of literal or technical interpretation. That being the position, it necessarily follows that the Rule is directory and not mandatory. If Section 11(3) and Rule 17(a) are not so construed it is likely to render the other relevant provisions requiring the Public Analyst to compare the seal on the container of sample with the specimen seal separately redundant and non- functional. An interpretation of a provision in the Act and/or Rules which causes avoidable hardship in the functioning of other relevant provisions and is likely to render them, redundant and nugatory has to be avoided. Anyway, non-complaince of a directory provision does not vitiate the trial. Even the non-compliance of a mandatory provision does not necessarily vitiate the trial of an accused unless prejudice is found to have been caused to him due to such non-compliance.
13. The present case is not a case of non-compliance of Section 11(3) and Rule 17(a). The sample was sent by the Food Inspector to the Public Analyst but with a delay of one day only. It is, therefore a case of compliance of the above provisions with some irregularity of procedure. Since the sample was found fit for analysis and analysis therefore was done the procedural irregularly, which was of curable nature Under Section 465, Cr. P.C. caused no prejudice to the petitioner in his trial. This argument too fails and is hereby rejected.
14. Mr. Saini next urged that the trial of the petitioner stood vitiated due to grant of sanction Under Section 20 of the Act by the authority concerned without application of mind. I find no substance in this argument too.
15. Section 20 of the Act provides as under:-
20. Cognizance and trial of offence - (1) (No prosecution for an offence under this Act. not being an offence under Section 14 or Section 14A shall be instituted except by or with the written consent of the Central Government or the State Government. (***) or a person authorized in this behalf by general or special order by the Central Government or the State Government(***) :
Provided that a prosecution for an offence under this Act may be instituted by a purchaser referred to in Section 12, if he produces in Court a copy of the report of the Public Analyst along with the complaint.
(2) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.
(3) Notwithstanding anything contained in the Code of Criminal Procedure. 1973(2 of 1974), an offence punishable under sub section (1-AA) of' Section 16 shall be cognizable and non-bailable.)
16. It may be observed that the main Section 20(1) starts with a non-obstante clause which prohibits prosecutions under the Act except on complaint by or with the 'written consent' of the authorities specified therein. This prohibition., subject to the exception cared out in the Proviso, speaks of the nature and the character of the mandate contained in sub-section (i) of Section 20. For launching prosecutions under the Act it is, therefore, necessary that the complaint must have been made by or with the written consent of the authorities enumerated therein. That makes the provisions of Section 20(1) mandatory in character.
17. An analysis of Section 20(1) leads to the following position :
(1) No prosecution for an offence under the Act, not being an offence Under Section 14 or Section 14A shall be instituted except.
(2) By the Central Government or the Slate Government, or
(3) With !he written consent of the Central Government or the State Government or
(4) a person authorized in that behalf by general or special order, by the Central Government or State Government.
The above analysis of Section 20(1) reveals that prosecution for an offence under the Act may be instituted only-by -
(1) The Central Govt. or
(2) The State Govt. or
(3) any person with the written consent of the Central! Government or the State Govt. or
(4) a person on whom the authority has been conferred either by the Central Government, or the State Govt.
18. It is clear from the above analysis that a prosecution under the Act must be by one or the other person specified in Section 20(1) of the Act. The prosecution may be launched either by the Central Govt. or the State Govt. themselves or by any other person with their written consent or by a person on whom the authority has been conferred by them. Where the Central Govt. or the State does not itself launch the prosecution they may confer the power of launching prosecution upon any other person by a written consent or may delegate such authority by making a general or special order in that behalf. The use of the expressions 'with the written consent of' and 'person authorized in this behalf in the phraseology of Section 20(1) refers to two distinct powers of the Central Govt. or the State Govt. in the matter of launching prosecutions under the Act. The expression 'with the written consent of indicates express and specific authorization by the Central Government or the State Government to consent to the launching of prosecution and only the person or the authority to whom such written consent has been given can institute the prosecution. The words 'a person authorised in the behalf followed by the words 'by genera! or special order', as occurring in the later part of the language of Section 20(1) speaks of a general authorisation which may be given through or by a general or special order. The words 'written consent' used in the earlier part of Section (1) should not be mistaken for the word ''sanction'. The two carry different meanings. Whereas the expression 'written consent' implies mere concurrence or agreement in the doing of an act. The word 'sanction'' confers authority on the person, in whose favour sanction is granted to do that act. in the former case the power to do that act was there with the person concerned but exercise, of such power was subject to !he consent of the other. In the latter case the power did not vest in the former person and the same was to be conferred upon him by the other who had the authority to exercise such power.
19. In the case of Dhian Singh v. Municipal Board Saharanpur 1973 FAC 404 : (1970 Cri LJ 4920, the Apex Court had the occasion to deal with the objection to the authority of the person launching prosecution for an offence under the Act their Lordships observed as follows (at Page 321; of AIR):-
The question whether he was authorized by the Municipal Board to file The complaint was never put into issue. Both the parties to the complaint proceeded on the basis that it was as validly instituted complaint. If file the complaint, then the complaint itself was not maintainable. If that is so, no question of the invalidity of the appeal arises for consideration. It was never the case of the accused that the complaint was invalid. In Municipal Committee v. Khem Chand the Delhi High Court has held that a complaint filed by one of the officers of a local authority is in law a complaint instituted by the local authority. Therefore if the complaint with which we are concerned in this case had been filed by the Food Inspector on the authority of local board, the complaint must be held to have been instituted by the local board itself. The question whether the Food Inspector had authority to file the complaint on behalf of the local board is a question of fact. Official acts must be deemed to have been done according to law. (B the accused had challenged (he authority of the Food Inspector to file the complaint, the Trial Court would have gone into that question. The accused cannot be permitted to take up that contention for the first time after the disposal of the appeal. This Court refused to entertain for the first time an objection as regards the validity of a sanction granted in Mangaldas Raghavji v. State of Maharashtra. Mr. Garg the learned counsel for the accused, urged that a permission under Section 20 of the Prevention of Food Adulteration Act 1954 to file a complaint is a condition precedent for validly instituting a complaint under the provisions of that Act. The fulfillment, of that condition must be satisfactorily proved by the complaint before a Court can entertain the complaint. Without such a proof, the Court will have no jurisdiction to try the case. In support of that contention of his he sought to take assistance from the decisions of the Judicial Committee in Gokalchand Dwardkadas Morarka v. King and Madan Mohan Singh v. State of Uttar Pradesh. Both these decisions deal with the question of the validity of sanctions given for the institution of certain criminal proceedings. The provisions under which sanction was sought in those cases required the sanctioning authority to apply its mind and find out whether there was any jurisdiction for instituting the prosecutions. The judicial committee as well as this Court has laid down that in such cases the evidence that all the relevant facts had been placed before the sanctioning authority and that authority had granted the sanction after applying its mind to those facts. The ratio of those decisions has no bearing on the facts of this case. Under Section 20 of the Prevention of Food Adulteration Act, 1954. no question of applying ones mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under that provision can he conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a class of cases. That section merely prescribes that persons or authorities designated in that section are along competent to file complaints under the statute in question.
20. It may be noted that in no ambiguous language their Lordship of the Apex Court held that under Section 20 of the Act no question of applying ones mind to the facts of the case before launching prosecutions arises as the authority to be conferred under that provision can be conferred long before a particular offence takes place. It is only the conferment of an authority to institute a particular case or class of cases, Section 20 merely prescribes that persons or authorities designated in that section are alone competent to launch prosecutions under that Act. It is pertinent to note that the Proviso to Section 20(1) permits prosecution for an offence under the Act even by a purchaser referred to Under Section 12 on his producing in Court a copy of the report of the Public Analyst alongwith his complaint. Offences under the Act being offences against the consumer public at large the legislature in its wisdom has thought it proper to arm the particular consumer with the power of launching prosecution against the offender in case where the persons or authorities enumerated in the section fail to discharge their duties having obtained a report from the Public Analyst adverse to the interests of the seller of adulterated food or foodstuff. A proviso to a section or a sub-section is subservient to the main provision and only embaraces the field which is covered by the main provision. It has therefore to be read in the context of the principal matter dealt with in the main section. The exception carried out in the Proviso indicates liberalization of law and relaxation of the rule relating to launching of prosecution for offences under the Act laid down in the main Section 20(1) and supports the view that application of ones mind to the facts of a case before launching prosecution's is not an essential requirement for valid trials of sellers of adulterated food articles.
21. In the instant case it was not disputed before me that the Local (Health) Authority had the authority to grant sanction for prosecution of the petitioner for an offence under the Act. The sanction granted in this case was not challenged before me except on the ground of non-application of mind. Not only that in view of the legal position explained and clarified on the point by the Apex Court in the case of Dhian Singh (supra) that application of mind is not necessary before launching prosecutions under the Act but also that there are absolutely no grounds to read non-application of mind by the authority concerned in the present case. The recital made in the sanction. Ex. P10. clearly speak that the Local (Health) Authority had applied his mind to the facts of the case before sanctioning prosecution of the petitioner. There is thus no merits in the arguments advanced by Mr. Saini and the same are hereby rejected.
22. In the end Mr. Saini submitted that since the petitioner has faced the pain and agony of this litigation for the last more than 15 years, he should either be given benefit of Probation of Offenders Act, 1958 or Section 360 Cr. P.C. or a sentence of fine only be considered sufficient punishment in his case.
23. Prolonged trials should normally arouse the sympathetic feelings of Courts for the sufferer accused/convicted persons. But as was observed by the Apex Court in State Bank of Patiala v. S.K. Sharma, 1966 (3) SCC 364: (AIR 1996 SC 1669), justice means justice between both the parties. The interest of justice equally demand that the guilty should be punished. 'Law' as was observed in Madhu Kishan v. State of Bihar, (1996 (5) SCC 125) : (AIR 1996 SC 1864), is a living organism and its utility depends on its vitality and ability to serve as sustaining pillar of society. Contours of law in an evolving society must constantly keep changing as civilization and culture advances. The customs and mores must undergo change with the march of time. 'In Rajiv v. State of Rajasthan (1996) 2 SCC 175 the Apex Court ruled that', it is the nature and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment in criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the victim and criminal belong. The punishment to be awarded for a crime must not be irrelevant but it should conform and be consistent with the atrocity and brutality with which the time has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society's cry for justice against the criminal.'
24. In, Pyarali K. Tejani's case 1974 (1) SCC 167 : (1974 Cri LJ 313), the Supreme Court observed that the rehabilitory purpose of the Probation of Offenders Act 1958 is pervasive enough technically to lake within its wings an offence even under the Act. But the kindly application of the probation principles is negatived by the imperative of social defence and the improbabilities of moral proselytisation. No chances can be taken by society with a man whose anti-social operations, disguised as a respectable trade imperil numerous innocents. He is a security risk. These economic offences committed by white collar criminals are unlikely to be dissuaded by the gentle probationary. Neither casual provocation nor motive against particular persons but planned profit making from numerous consumers furnishes the incentive not easily humanized by the therapeutic probationary measure. This judicial approach to penology in cases involving adulteration in food and food articles conforms with and approves of legislative will of imposing the mandatory minimum punishment as provided in Section 16(1) on the offenders under the Act and withholding the benefit of probationary measure save to the extent mentioned in Section 20A from them.
25. The place of activity of the petitioner of selling adulterated food is a bus stand where happy and healthy persons get down to fill their empty and hungry bellies with adulterated food stuff and may reach their destinations with likely disorders in their stomachs. The passengers may even comprise of innocent babies, pregnant mothers diseased man and ailing ageds. No, no sympathy to the seller of sub-standard articles of food can be shown. However looking to the fact that much water has run under the bridge since the offence was committed and the lower Courts have assigned no specific reasons for awarding sentence in excess of the mandatory minimum. I would like to reduce the same.
26. In the result the conviction of the petitioner for offence Under Section 7/16 of the Act is hereby upheld but the sentence awarded to him is reduced to six months Rigorous Imprisonment and a fine of Rs. 1,000/- or in case of default of payment of fine to further undergo RI for one month. The judgment and orders of the Courts below shall stand modified accordingly. The petition is consequently partly allowed.