RAJ KUMAR versus THE STATE OF UTTAR PRADESH on 4 October 2019

RAJ KUMAR

v.

THE STATE OF UTTAR PRADESH

(Criminal Appeal No. 1541 of 2019)

OCTOBER 04, 2019

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Prevention of Food Adulteration Act, 1954: s.13(2) – Non-compliance of – Sample of milk – Milk Solid Non Fat (MSNF) –7.7% of MSNF found in sample of milk against the prescribedstandard of 8.5% – Option given by Magistrate to the appellant tosend sample to CFL – Appellant waived his right by not applying toMagistrate for sending second sample for analysis to CFL –Appellant cannot raise grievance of non-compliance of s.13(2) ofthe Act.

Prevention of Food Adulteration Act, 1954: Even marginaldeviation from the prescribed standard cannot be ignored – In casesof food coming under the Act, it is not required to prove that articleof food was injurious to health – If an article of food fails to complywith the standards then it will have to be treated as an adulteratedarticle even if it is not rendered injurious to health – If the standardsare not complied with, the Court is not justified in acquitting theaccused charged with adulteration only on the ground that thedeficiency is marginal.

Code of Criminal Procedure, 1973: s.433 – Scope of –Commutation of sentence – Held: The powers under s.433 can onlybe exercised by the appropriate Government – This power of theappropriate Government cannot be usurped by the courts and theGovernment cannot be directed to pass ‘formal compliance order’.

Constitution of India: Art.142 – The power under Art.142cannot be exercised against the specific provision of law – s.16(1)(a)of the PFA Act lays down a minimum sentence of six months –Considering the bane of adulteration and the deleterious effect ofadulteration and sub-standard food on the health of the citizens(especially children when milk is involved), the Legislature provideda minimum sentence of six months – Passage of time can be no

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Aexcuse to award a sentence lower than the minimum – Furthermore,the power under Art.142 cannot be used in total violation of thelaw – When a minimum sentence is prescribed by law, this Courtcannot, in exercise of its power under Art. 142, pass an order totallycontrary to law – If such power could be used in a food adulterationcase to impose a sentence lower than the minimum prescribed, thenBeven in cases of murder and rape, this Court applying the sameprinciples could impose a sentence less than the minimum – This, isnot the purpose of Art.142 – The powers under Art.142 cannot beexercised in such a manner that they make a mockery of the lawitself – Administration of justice – Prevention of Food AdulterationCAct, 1954.

Dismissing the appeal, the Court

HELD: 1. Plea of the appellant was that there was delay inanalysing the sample and, therefore, marginal shortfall in MSNFshould be overlooked, since it would have been caused by theDdelay in testing the sample. This contention is not acceptedbecause there is no material on record to support this assertion.The appellant did not even deem it fit to summon the PublicAnalyst for cross-examination for this purpose. Since the samplehad been preserved by using formalin the accused cannot getEany benefit. [Para 3][954-D-E]

Shambhu Dayal v. State of U. P. (1979) 1 SCC 202 :[1979] 2 SCR 341 – referred to.

2. The second contention raised was that the provisions ofSection 13(2) of the Prevention of Food Adulteration Act, 1954Fwere not complied with in as much as the appellant was not givenan opportunity to send his second sample to the Central FoodLaboratory (CFL) for analysis. This argument is also withoutany merit. All the courts have given a finding of fact that noticeunder Section 13(2) of the Act was sent to the appellant onG18.02.1996. The appellant did not choose to exercise his optionto get his sample analysed by the CFL. The appellant urges thatthis option was given to him three months after the sample hadbeen taken and the second sample would have obviously becomeunfit for analysis. It is also contended that the complaint filed on15.02.1996 was defective and the defects were removed only onH

27.06.1996 and, thereafter, no option under Section 13(2) of theAct was given. This argument is totally without any merit. Theappellant was given an option to have the second sample sent tothe CFL when the Magistrate took cognizance of the complaint.The complaint may not have been complete in the sense that thelist of witnesses was not filed but this, in any way, did not impactthe right given to the appellant to get the second sample analysedfrom CFL. If the appellant had exercised his option and theMagistrate had not sent the second sample to the CFL, or if theCFL had reported that the sample is not fit for analysis, thenalone the appellant could have got some benefit. The appellantwaived his right by not applying to the Magistrate for sendingthe second sample for analysis to the CFL, and he cannot haveany grievance in this behalf. [Para 4][954-F; 955-A-D]

Dattappa v. Buldana Municipality AIR (38) 1951Nagpur 191; Duli Chand v. State of U.P. 1987All.L.J.971; Karunan v. Food Inspector 1985KLT.523; Ram Kumar vs. The State of Punjab 1982 (I)F.A.C. 68; Hans Raj v. The State of Punjab 1980 (II)F.A.C. 396; Ujagar Singh v. The State of Punjab 1980(I) F.A.C. 432; Food Inspector, Palghat Muncipality v.Karingarappully Co-op. Milk Society Ltd. & Ors. 1986K.L.J. 29; State of Punjab v. Ramesh Kumar 1984 Crl.L.J. 381; State of Punjab v. Teja Singh 1976 Crl.L.J.1648 – referred to.

3. Once standards are laid down by the Legislature thenthose standards have to be followed. In items like milk which isa primary food, under the Act, it is not necessary to also provethat the food item had become unfit for human consumption orinjurious to health. In cases of food coming under the Act, it isnot required to prove that article of food was injurious to health.In this case, the only question to be determined is whether thearticle complies with the standards laid down or not. If it fails tocomply with the standards then it will have to be treated as anadulterated article even if it is not rendered injurious to health.Even marginal deviation from the prescribed standard cannot beignored. If the standards are not complied with, the Court is notjustified in acquitting the accused charged with adulteration only AB

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Aon the ground that the deficiency is marginal. [Para 8, 11][956-E;958-F]

4. A bare perusal of Section 433 of Cr.PC shows that thepowers under Section 433 can only be exercised by the appropriateGovernment. These powers cannot be exercised by any courtBincluding this Court. At best, the court can recommend to theState Government that such power may be exercised but thepower of the appropriate Government cannot be usurped by thecourts and the Government cannot be directed to pass ‘formalcompliance order’. Therefore, a similar order cannot be passedby this Court because that is beyond the jurisdiction of this Court.C[Para 13][959-E]

5. The power under Article 142 cannot be exercised againstthe specific provision of law. Section 16(1)(a) of the Act lays downa minimum sentence of six months. Considering the bane ofadulteration and the deleterious effect of adulteration and sub-Dstandard food on the health of the citizens (especially childrenwhen milk is involved), the Legislature provided a minimumsentence of six months. Passage of time can be no excuse toaward a sentence lower than the minimum. Furthermore, thepower under Article 142 cannot be used in total violation of theElaw. When a minimum sentence is prescribed by law, this Courtcannot, in exercise of its power under Article 142, pass an ordertotally contrary to law. If such power could be used in a foodadulteration case to impose a sentence lower than the minimumprescribed, then even in cases of murder and rape, this Courtapplying the same principles could impose a sentence less thanFthe minimum. This, is not the purpose of Article 142. The powersunder Article 142 cannot be exercised in such a manner that theymake a mockery of the law itself. [Paras 14, 15][959-G-H; 960-A-B]

State of Kerala v. Parameswaran Pillai Vasudevan NairG1975 Crl. L.J. 97 – approved.

Santosh Kumar v. Municipal Corporation and Anr.(2000) 9 SCC 151; N. Sukumaran Nair v. Food–Inspector, Mavelikara (1997) 9 SCC 101 perincuriam.H

M.V. Joshi v. M.U. Shimpi and Anr. AIR (48) 1961 SC1494; Malwa Co-operative Milk Union Ltd., Indore &Ors. v. Bihari Lal & Anr. 1973 F.A.C. 375; MunicipalCommittee, Amritsar v. Hazara Singh (1975) 1 SCC 794– referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1541 of 2019.

From the Judgment and Order dated 26.04.2017 of the High Courtof Judicature at Allahabad in Criminal Revision No. 2331 of 1999.

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Shantanu Bansal, Adv. for the Appellant.

Ajay Kumar Mishra, Sr. Adv., Ardhendumauli Kumar Prasad andSanjay Maurya, Advs. for the Respondent.

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AThe Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. Leave granted.

2. On 30.10.1995 a sample of milk was collected from the appellantBby the Food Inspector. The same was sent to the Public Analyst whoreceived the same on 02.11.1995. The sample was analysed and MilkFat (MF for short) was found to be 4.6% and Milk Solid Non-Fat (MSNFfor short) was 7.7%, against the prescribed standard of 8.5%. Theappellant was prosecuted after obtaining consent of the Chief MedicalOfficer, and was convicted by trial court, which conviction was upheldCby the Sessions Court and the High Court.

3. Learned counsel for the appellant raised number of issues. Thefirst was that there was delay in analysing the sample and, therefore,marginal shortfall in MSNF should be overlooked, since it would havebeen caused by the delay in testing the sample. We cannot accept thisDcontention because there is no material on record to support this assertion.The appellant did not even deem it fit to summon the Public Analyst forcross-examination for this purpose. In similar circumstances where thedelay in testing the samples was of 44 days, this Court in ShambhuDayal vs. State of U. P.[1]held that since the sample had been preservedEby using formalin, as in the present case, the accused cannot get anybenefit.

4. The second contention raised was that the provisions of Section13(2)[2] of the Prevention of Food Adulteration Act, 1954 (hereinafterreferred to as the Act) were not complied with in as much as the appellantFwas not given an opportunity to send his second sample to the CentralFood Laboratory (CFL for short) for analysis. This argument is also 1 (1979) 1 SCC 202

2 13.Report of public analyst.- (1) xxx xxx xxx

(2) On receipt of the report of the result of the analysis under sub-section (1) to the effectthat the article of food is adulterated, the Local (Health) Authority shall, after the institutionGof prosecution against the persons from whom the sample of the article of food was takenand the person, if any, whose name, address and other particulars have been disclosed undersection 14A, forward, in such manner as may be prescribed, a copy of the report of theresult of the analysis to such person or persons, as the case may be, informing such personor persons that if it is so desired, either or both of them may make an application to thecourt within a period of ten days from the date of receipt of the copy of the report to getthe sample of the article of food kept by the Local (Health) Authority analysed by theHCentral Food Laboratory.

without any merit. All the courts have given a finding of fact that noticeunder Section 13(2) of the Act was sent to the appellant on 18.02.1996.The appellant did not choose to exercise his option to get his sampleanalysed by the CFL. Learned counsel for the appellant urges that thisoption was given to him three months after the sample had been takenand the second sample would have obviously become unfit for analysis.It is also contended that the complaint filed on 15.02.1996 was defectiveand the defects were removed only on 27.06.1996 and, thereafter, nooption under Section 13(2) of the Act was given. This argument is totallywithout any merit. The appellant was given an option to have the secondsample sent to the CFL when the Magistrate took cognizance of thecomplaint. The complaint may not have been complete in the sense thatthe list of witnesses was not filed but this, in any way, did not impact theright given to the appellant to get the second sample analysed from CFL.If the appellant had exercised his option and the Magistrate had not sentthe second sample to the CFL, or if the CFL had reported that the sampleis not fit for analysis, then alone the appellant could have got some benefit.The appellant waived his right by not applying to the Magistrate forsending the second sample for analysis to the CFL, and he cannot haveany grievance in this behalf.

5. Another ground raised by the appellant is that he is illiterate andcannot sign, but the Food Inspector has obtained signatures. All the courtshave given a finding that the signatures are of the appellant and thiscannot be gone into in these proceedings.

6. Learned counsel for the appellant quoted a large number ofjudgments of various High Courts viz., Dattappa vs.BuldanaMunicipality[3]; Duli Chand vs. State of U.P[4]; Karunanv s . F o o dInspector[5]; Ram Kumar vs. The State of Punjab[6]; Hans Raj v s .The State of Punjab[7]and Ujagar Singh vs. The State of Punjab[8], tosubmit that when there is a marginal variation from the standardsprescribed, the courts should give benefit of doubt to the accused. It iscontended that the quality of milk depends not only on the quality of foodgiven to the cattle but also on the health of the cattle and marginal 3 AIR (38) 1951 Nagpur 19141987 All.L.J.97151985 KLT.523

6 1982 (I) F.A.C. 68

71980(II) F.A.C. 396

81980 (I) F.A.C. 432

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Adeficiencies can be caused due to natural causes beyond control ofhumans.

7. We are constrained to point out that out of the judgments citedby the learned counsel above, several have been overruled. Referring tothe case of Karunan (supra), a Division Bench of the Kerala HighBCourt in Food Inspector, Palghat Municipality vs. KaringarappullyCo-op. Milk Society Ltd. & Ors.[9]has stated that the proposition laiddown in Karunan’s case is not good in law. The appellant has alsoplaced reliance on Ujagar Singh’s case (supra) as well as RamKumar’s case (supra). Ram Kumar’s case (supra) relied upon UjagarSingh’s case (supra) to conclude that the accused in that case is notCguilty of adulteration. However, a Division Bench of the Punjab andHaryana High Court, in the case of State of Punjab vs. RameshKumar[10]relying on a Full Bench judgment of the High Court in State ofPunjab vs. Teja Singh[11]has held that Ujagar Singh’s case (supra) isno longer good in law. It is unfortunate that at the Supreme Court levelDcounsel cite judgments which have been overruled.

8. We are of the considered view that once standards are laiddown by the Legislature then those standards have to be followed.Initems like milk which is a primary food, under the Act, it is not necessaryto also prove that the food item had become unfit for human consumptionEor injurious to health. In cases of food coming under the Act, it is notrequired to prove that article of food was injurious to health. In this case,the only question to be determined is whether the article complies withthe standards laid down or not? If it fails to comply with the standardsthen it will have to be treated as an adulterated article F9. We may point out that this Court in M.V. Joshi vs. M.U. Shimpiand Anr.[12]held as follows :- “7. …Therefore, if the quality or purity of butter falls below thestandard prescribed by the said rule or its constituents are in excessof the prescribed limits of variability, it shall be deemed to beGadulterated within the meaning of S. 2 of the Act. If the prescribedstandard is not attained, the statute treats such butter, by fiction,as an adulterated food, though in fact it is not adulterated. To put 9 1986 K.L.J. 29101984 Cri. L.J. 381111976 Cri. L.J. 1648H12AIR (48) 1961 SC 1494

it in other words, by reason of the fiction, it is not permissible foran accused to prove that, though the standard prescribed is notattained, the article of food is in fact not adulterated. Thenon-conformity with the standard prescribed makes such butteran adulterated food. Section 7 of the Act prohibits the manufacture,sale, storage or distribution of such food.…”

10. There were some observations in the judgment of this Courtin Malwa Co-operative Milk Union Ltd., Indore & Ors. vs. BihariLal & Anr.[13]decided on 14.08.1967, which were interpreted by someHigh Courts to mean that acquittal was justified in case there weremarginal deficiencies in meeting the requirements. Dealing with theMalwa Co-operative case (supra) this Court held as follows inMunicipal Committee, Amritsar vs. Hazara Singh[14]:- “4. …Indeed, this Court’s decision cited above discloses thatHidayatullah, J. (as he then was) was not laying down the lawthat minimal deficiencies in the milk components justified acquittalin food adulteration cases.…”

Further, this Court quoted with approval, the judgment of the FullBench of the Kerala High Court in State of Kerala vs. ParameswaranPillai Vasudevan Nair[15], which held as follows:-

“13. The Act is a piece of consumer legislation. It regulates tosome extent the consumer-supplier relations. Consumeristsdemand enforcement of discipline among the producers ormanufacturers of food to ensure safety in the realm of food. Theconsumer’s legitimate ignorance and his almost total dependenceon the fairness and competence of those who supply his dailyneeds have made him a ready target for exploitation. The Act isintended to protect him against outright frauds.

14. The Act does not make a distinction between cases comingunder it on the basis of the degree of adulteration. It does notprovide for aggravation of offence based on the extent ofcontamination. The offence and punishment are the same whetherthe adulteration is great or small. Food pollution, even if it be onlyto the slightest extent, if continued in practice, would adversely 131973 F.A.C. 375

14(1975) 1 SCC 794

151975 Cri. L.J. 97

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affect the health of every man, woman and child in the country.Hence even marginal or border line variations of the prescribedstandards under the Act are matters of serious concern for alland as public interests are involved in them, the maxim, De MinimisNon Curat Lex. law does not concern itself about trifles, does notapply to them.

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15. The standard fixed under the Act is one that is certain. If it isvaried to any extent the certainty of a general standard would bereplaced by the vagaries of a fluctuating standard. Thedisadvantages of the resulting unpredictability, uncertainty andimpossibility of arriving at fair and consistent decisions, are great.

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16. The Act does not provide for exemption of marginal or borderline variations of the standard from the operation of the Act. Insuch circumstances to condone such variations on the ground thatthey are negligible is virtually to alter the standard itself fixedunder the Act.

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17. The standards of qualities of the articles have been fixed bythe Government under the provisions of the Act after duedeliberation and after consulting a committee of competent men.It is for them to give due allowance for probable errors beforefixing a standard. They may have done it also. There is no reasonto assume otherwise. Therefore the conclusion is that for an articleof food when a standard has been fixed under the Act it has to beobserved in every detail.”

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11. In view of the above settled law, we hold that if the standardsare not complied with, the Court is not justified in acquitting the accusedFcharged with adulteration only on the ground that the deficiency ismarginal.

12. The last submission of the counsel was that this Court mayfollow what was done in Santosh Kumar vs. Municipal Corporationand Anr.[16], where under similar circumstances the sentence of six monthsGimprisonment was commuted and the State Government was directedto pass formal orders of commutation. It appears that the Bench inSantosh Kumar’s case (supra) followed the judgment in N. SukumaranNair vs. Food Inspector, Mavelikara[17], and we find that in both these 16 (2000) 9 SCC 151H17 (1997) 9 SCC 101

cases there is no discussion of scope and ambit of Section 433 of theCriminal Procedure Code, 1973 (for short the Cr.PC). We are, therefore,of the view that these judgments are per incuriam and do not lay downany legal proposition that provisions of Section 433 of Cr.PC can beinvoked in such cases.

13. Section 433 of Cr.PC reads as follows :- “433. Power to commute sentence.–The appropriateGovernment may, without the consent of the person sentencedcommute- (a) a sentence of death, for any other punishment provided by theIndian Penal Code (45 of 1860);

(b) a sentence of imprisonment for life, for imprisonment for aterm not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonmentfor any term to which that person might have been sentenced, orfor fine; (d) a sentence of simple imprisonment, for fine.”

A bare perusal of Section 433 of Cr.PC shows that the powersunder Section 433 can only be exercised by the appropriate Government.These powers cannot be exercised by any court including this Court. Atbest, the court can recommend to the State Government that such powermay be exercised but the power of the appropriate Government cannotbe usurped by the courts and the Government cannot be directed to pass‘formal compliance order’. We are, therefore, not inclined to pass asimilar order because that is beyond the jurisdiction of this Court.

14. It was also urged that we may exercise powers under Article142 of the Constitution of India because the occurrence took place morethan twenty years back. We are clearly of the view that the powerunder Article 142 cannot be exercised against the specific provision oflaw. Section 16(1)(a) of the Act lays down a minimum sentence of sixmonths. Considering the bane of adulteration and the deleterious effectof adulteration and sub- standard food on the health of the citizens(especially children when milk is involved), the Legislature provided aminimum sentence of six months. Passage of time can be no excuse toaward a sentence lower than the minimum.

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A15. Furthermore, the power under Article 142, in our consideredview, cannot be used in total violation of the law. When a minimumsentence is prescribed by law, this Court cannot, in exercise of its powerunder Article 142, pass an order totally contrary to law. If such powercould be used in a food adulteration case to impose a sentence lowerthan the minimum prescribed, then even in cases of murder and rape,Bthis Court applying the same principles could impose a sentence lessthan the minimum. This, in our opinion, is not the purpose of Article 142.We have no doubt in our mind that powers under Article 142 cannot beexercised in such a manner that they make a mockery of the law itself.

16. In view of the above discussion we find no merit in the caseCand the same is dismissed. Application(s), if any, shall also standdismissed. The bail bonds of the accused-appellant are cancelled and heis directed to surrender within four weeks and undergo the remainingpart of the sentence. A copy of this judgment be forwarded to the trialcourt so that if the appellant does not surrender, appropriate action beDtaken against him.

Devika Gujral

Appeal dismissed.

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