STATE OF KERALA ETC. ETC v. ALASERRY MOHAMMED ETC. ETC

22fl <'l.ld the States' interest being more in the correct enun ciation of the law than in seeing that the respondents in these appeals are con victed, the Court, in larger interest of justice. disposed of !he appeals v.'ithout di~lurbing or setting aside the orders under appeals or mnki'llg any consequential Qrders] 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 CRIMINAL APPEAL Nos. 204/76, 32/78 AND 307 /77 Appeals by Special Le1we from the Judgments and Order dated the 15-7-1975, 12/13-11-1975 and 18-11-1975 in Crl. Appln. No. 678/75, Cr!. Appeal No. 311/74 and Crl. A. No. 325/74 respectively E F G H KERALA v. ALASUR.Y (Untwalia, J.) 823 r CRr111JNAL APPEAL Nos. 278/76, 408-410/77, 429, 372/77, 33- %/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, 212176, 82/75; 231/76 and 1603/76 & 239/76 res· pectively. 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. Sudlulkaran 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. Maheshwari, N. K. Jain, Suresh Sethi and Randhir Jain for the Appel lant in Crl. A.278/ 76, 408-410, 429, 372 of J977 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. Blumdare, B. P. Singh and A. K. Srivastava for Respondent No. 1 in Crl.A No. 278176. Vepd Sarathy and P. K. Pillai foJ.1 Respondent No. 1 in Crl. A.35/

The rightly contends that non-compliance with the quantity to be sup plied caused not only infraction of the provisions but also injustice. The quantities mentioned fo r .Shortage in quantity_ for analysis is not correct analysis. permitted by the Statute. " · appellant required This larger Bench was constituted for examining the correctness of the nbove view. (1) [1975]2S.C.R.886 = A.J.R. 1975S.C. 189. F G H A B c D E F G H 824 SUPREME COURT REPORTS (1978] 2 s.c.I We shall, at the outset, notice the scheme of the Act with re~ f erence 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 the pr<> visions of the Act as they stood before the said amendment. When an · article of food shall be deemed to be adulterated has been men tioned and defined in section 2(i) of the Act.

It is not seriously dispute in any of these appeals that the articles of food sold to 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 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 the word Vanaspati or Ghee. As usual, according to clause (xii) "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. " the. Act. Of course, A Central Committee for food standards has been constiuted by the Central Government in accordance with section 3 to advise on Rrntters arising out of the administration of the Act and to carry out the other functions assigned to it.

Section 7 provides that no person shall manufacture for sale, store, sell or distribute any adulterated food. Public Analysts are appointed uti~er section 8. Food Inspcc· tors appointed under section 9 have been conferred the powers enumer ated 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 An alyst for the local area within which such sample has been taken a~ provided for in clause (b). The procedure to be followed by Food Inspectors is provided for in section 11. Under sub-section ( 1), a 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 anaiy$t 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 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. \ ... - \ ; - ... KERALA v. ALASERRY ( Untwalia, J.) 825 "When a sample of any article of food is taken under sub section (1) or sub-section (2) of section 10, the food inspec tor 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 repon signed by a public analyst, unless it has been supersed~d under sub sc::ction (3) by a certificate of the Director of the Central Food Labo ratory, may be used as evidence of the facts stated therein in any pro It shall be final and conclusive evidence of the ceeding under the Act. facts stated therein. Of course, if necessary, the Public Analyst can be called as a witness, in accordance with the Code of Criminal .Pro cedure, to depose about certain facts in relation to bis 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 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 pro tection 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 impres sion 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 concen~ed in these appeills specifies the quantity of sample to be sent to the Public Analyst and says-"The quantity of samR].e of food to be sent to the Public An alyst 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 In item 23 which includes all foods not specified in items 1 to 22. the last column of this Jist as against the quantity to be supplied, heading is "Approximate quantity to be supplied. " The first question which was mooted before us was whether Rule 22 of the Rules is directory or mandatory. Attention of the Bench deciding Pamanani's case (supra) was not called to this aspect of the A B c D E F G H '\ T I , ' . ..oi, A B c . D E F G H 826 SUPREME COURT REPORTS (1978] 2 5.4 It seems to have been assumed, however, that the!

Rule ~ matter. mandatory. Rules of interpretation for determining whether a parti cular provision is directory or mandatory are well-known. Even in regard to Rule 22, many High Courts of Jndia had taken the view that the Rule was directory or recommendatory as the use of the word 'approximate' in one of the columns of th~ 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 .quan tity 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 convic tion based thereupon ; vide State of Bombay v. Ramanlal Jamnadas Gandhi('); Nagar Swatha Adhikari, Nagar Mahapalika, Agra· v.

Ant Ram( 2 ) Public Prosecutor v. Basheer Sahib(!); Public Prosecutor,' ; Public Prosecutor v. Ediga Andhra Pradesh v. Pasara Rama Rao ( 4 Venkt1ta SwamiC'); Food Inspector, Quilon v. Koyakutty(6) Food Inspector, Calicut v. T . Karunakaran & others. (1 ) 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 right- ly, 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 pur pose of analysis, the report of the Public Analyst should not be thrown out merely on the ground of the breach of the Rule, are riot -ineant to give a charter or a licence to the Food Inspectors for violating Rule. They must remember that even directory Rules are meant to be observed and substantially complied with.

A Food Inspector com mitting a breach of the Rule may be departmentally answerable to the higher authorities. He should, therefore, always be cautious in com plying 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 eleV'~nth edition of t.he well-known treatise,-Maxwell on Interpretation of Statutes. are to be found at page 362 onwards cer tain guidelines laid down for determining whether a particular Statute or Statutory Rule is imperative or d irectory. "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 pro hibition 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 impera tive. At page 364 it is stated :-"The general rule is. that an abso lute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.

" (l) I.L.R. [1960) Bombay. 404. (2) A.LR. 1966 Allahabad, 32. (3) A.T.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. ~-- ­ ( KERALA y. ALASERRY ( Untwalla, !.) 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 some thing to be done, and prescribed the formalities which are to attend its performance, those prescribed formalities which are essential to the v;tlidity of the thing when done are called imperative or absoute; but those which are not essen tial, and m!y be disregarded without invalidating the thing to be do·ne, are called directory" . . -~ Page 262 : ........... J "It is the duty ot courts of iustice to try to get at the intention of the legislature by carefully attending 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 provi sion 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 th~ 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 o[ various samples of food to be sent to the Public Analyst as fixed from time to time have varied. As observed by this Court in the case of State of Uttar Pradesh v. Kartar Singh(') the standards of food are fixed after consultation with the Committee cQnstituted under section 3 of the Act The quan tities of samples are also nxed from time to time by the G overnment 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 a'nd the quantities requir~d therefor from the Manual of Methods of Tests and Analysis for food, that generally the quantities fiied are more than double the quantity required for analysis by the Public Analyst. As, for example, the total quantity required for tlie various ~ests of Ghee is approximately 55 gms. But the quantity prescribed m Rule 22 is 150 gms. Th_e purpose of prescribing more than double tl1e 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 It is to been taken would decline to accept one of the three parts. (I) (1964] 6 S.C.R. 679. A B c D E F G 828 SUPREME COURT REPORTS [1978) 2 S·C·R· guard against such an eventuality that the quantity prescribed is more than double because if the person declines to accept one part of the sampJe, then, as mentioned in ~ub-section (2), the Food Inspector ha1 to send an intimation to the Public Analyst of such re.fusal and there upon 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 iDd 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 Public Analyst, even though it is less than that prescribed, is sufficient and enabJes· the Public Analyst to make a correct analysis, then mere ly 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 If he Analyst to see whether it is sufficient for his anaTysis or not. If, how finds it immfficient, ever, he 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 In other words, is not trustworthy or beyond doubt, the case may fail. if the object is frustrated by the sending of the short quantity by the Food Inspector to the Public An~lyst, 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 offen1lers 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(') at page 478, it would "be Jn our considered merely piling unreason upon technicality .... ". judgment the Rule is directory and not mandatory. But we must hasten to reiterate what we have said above that, even so, Food Ins pectors should take care to see that they comply with the Rule as far as possible. is an end of tO ln1t due it sufficient, the matter. reason or We may also advert to one more ·aspect- of the wording of the Ru)e 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 RuJe 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 ques tion of non-compliance with the Rule comes in when the quantity sup . plied is not in close vicinity of the quantity specified and appreciably below it. Even so, if the quantity supplied is sufficient and enabk;s the Public Analyst to do his duty of making a c?rrect ana~ysis,. it should be inferred that the Rule has been substantially complted with, as the purpose of the Rule has been achieved. (1) A.l.R. 1931 Calcutta 476. A B c D E F G H \ 1 KERALA V· ALASERRY ( Untwalia, J.) 829 In Parm.mani'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 manufac turer.

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 oE thei grocer and prompted it fo say "that non-compliance with infraction of the quantity the provisions but also tice ? There is not elaboration in 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 rn, 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 m 1977 which reads as follows : - injustice. " How did the judgment.

There supplied caused 'not only it cause to be ---<, cient: "22B Quantity of sample sent to be considered as suffi 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. " Jn our opinion, the new Rule has been added for the purpose of clari- fying the Jaw 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. / ,...- A B c D E 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. Lloyd 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 evi dence obtained by searches and seizures which were said to be un constitutional and unlawful. The issue was of considerable importance in the administration of criminal justice. Mr. Justice Powell in his G leading majority judgment dissenting from the earlier view said : - F _ ..____ "Upon examination, we conclude, in light of the nature and purpose of the Fourth Amendment exclusionary rule that this view is unjustified. We hold, therefore, that wher~ t~e State has provided an opportunity for full and fair litiga- tion of a Fourth Amendment claim, the Constitution does not ' require that a State prisoner be granted federal habeas corpus relref on the ground that evidence obtained in an unconstitu tional search or seizure was introduced at his trial. " II / 830 SUPREME COURT REPORTS (1978] 2 S·C·R j A A very wholesome principle was adverted to by the learned Judge when .he said : · "Application of the rule thus deflects the truth finding process anq often frees the guilty.

The disparity in parti cular cases. between the error committed by the police officer and the wmdfall 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 nyrturing 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 e~istence of this judge-made rule, it is incumbent upon those who seek its retention-and surely its extepsion-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 the expense of setting trustworthy evidence of guilt, at 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--Methods in food Analysis, second edition by Maynard A. Joslyn, that the sample must It is with that view that the quantity was be a representative sample. prescribed in Rule 22 and should no.t 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 differ ent storages, then samples must be taken from all the storages to make them a representative S{lmple of the entire quantity for the fixation of the average price.

Taking sample from one storage will not be suffi In our statute the ingred~ent of the offence is, as mentioned in cient. the 7th section pf 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 pur chased 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 lia'ble 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 tacts of the >--- / (1) (1962) 1 All England Law Reports, 936. B c D E F G H \ KERALA v. ALASERRY (Untwalia, J.) 831 case that no sample under the Act had . been procured and decided t~at section 108 did not prevent their hearing tho case and that the supplier was entitled to the defence laid down by section 94 ( 4) of the Act.

On a ca!e stated by Justices for the county of Chester, Lord Parker, CJ. said at page 941 :- "I think that they were wrong in holding that the respon dent was entitled to the statutory defence laid down in s. 94 l 4) of the Act. That defence is only open in respect of a I cannot think that one can give a ~ample of milk taken. sample of milk any other meaning than a sample of milk pro cured under the Act, which are the words used in section Indeed, su~s. (4) of s. 94 appears in a 108(1)(a)( i). 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 108 (1 ) and section 94 ( 4) it was found necessary that the sample should have been procured unde r the said Act Since it was not so, both the said provisions were held to be In the context of our Statute the decision is of no help inapplicable. to the respnodents. · Reliance was also placed upon the case of Skeafe 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 und Sausage Roll Regulations, 1967. He did not find separately the meat ccmtent of each of the two pies sent to him. Under R egulation 5, a rrieat content of each pie was necessary to be found out. The proceed ing 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 a nd the R egulations framed thereunder be ing 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 Pamcmani's case on the point at issue b efore us was not correctly decided.

And consequential this would have necessitated our passing of various orders in these cases. B c D E F G In some cases High Court refused special leave against orders of acquittal; in others some other grounds of attack on the order of con viction were available but w~re neither gone into nor decided by the High Court; in some others the High Court following the decision of this Court in Panumani's case recorded orders of acquittal. We also H (1) [1971) 3 All England Law Reports, 1306. ·-· .J _.( '· SUPREME COURT REPORTS (1978] 2 S·C·'R· :A B found that, in some cases, the adulteration was of a minor and technical In character, although in some it was of, rather, serious nature too. some cases, decisions were given on the footing that chiJlies 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 record ing orders of conviction.

Rule 22B clarifying the law bas also been introduced as Jate as December, 1977 although Pamanani's case was c decided in December, 1974. We were informed at the Bar, and so far we are aware, rightly too, that for non-compliance with the require ments 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 bad failed in discharging his duty suictly in accordance with the requirements of the law, and, in such a situation, after great harassment, Jong delay, and the respondents had to incur, they should not be expenses which punished by this Court. D E 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 in terested more in the correct enunciation of the law than in seeing that the respondents in these appeals are convicted.

They were not anxfous 'to prosecute these matters to obtain ultimate conviction of the respon dents. A large number of the other appeals are by the Municipal Cor poration 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 Kerala cases, eventually, the learned Attorney General did not seriously In the few Bombay appeals M/s. V. S. Desai and M. N. Shroff showed their anxiety for obtaining ulti mate convictions of the offenders, but we do not find sufficient reason for passing a different kind of order in the Bombay appeals. In similar situations in the case of The State of Bihar v. Hiralal Ke}r!wal and A nother(l) this Court refused to exercise its discretionary jurisdiction under Article 136 of the Constitution and did not order ibe continuance Jn Food Inspector, Calicut of the criminal proceeding any further.

Cororation v. Cherukattil Gopalan and anr. ( 2 this Court said at page 730 :- ) F object to the course indicated by us. -G JI " 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 judg- ment of the High Court. But we may make it clear that apart j-_ / (l) {1960) 1 S.C.R. 726. (2) [1971] Suppl. S.C.R. 721. KERALA v. ALASERRY ( Untwalia, J.) 833 from holding tpe 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 consequential orders setting aside the acquittal of any of the respon dents or sending back the cases to the Courts below or convicting any of them by an order of this Court. A B Appeals allowed ._ / 1