Nagar Mahapalika v. Ram Pansari — 1979 DIGILAW 807 (ALL)

JUDGMENT H.N. Kapoor, J. - This appeal has been filed by the Nagar Mahapalika, Varanasi against the order dated 12-10-1973 of the Magistrate, First Class, Varanasi acquitting the respondent of the charge under Section 7/16 Prevention of Food Adulteration Act. 2. The prosecution case was that on 30-6-1970 at about 11 a. m. the Food Inspector had taken a sample of powdered Chilli from the shop of the respondent Sri Ram Pansari. He had purchased 450 grams of the same and had sealed it into three phials. He paid the price and the receipt for the same is Ext. Ka-2. The notice given to the respondent is Ext. Ka-1. The sample was sent to the Public Analyst, U.P. at Lucknow. The report is Ext. Ka-3. It was found that it was not according to the prescribed standard and some foreign matter too had been mixed up. The Food Inspector then submitted a report to the Nagar Swasthya Adhikari and after the sanction was obtained, a complaint (Ext. Ka-6) was filed by the Nagar Swasthya Adhikari Mahapalika, Varanasi. The complaint is in the printed form. It was filed on 1-2-1971. 22-2-1971 was the date fixed for the appearance of the accused. It appears that the case could not be taken up on that date because the learned Magistrate could not attend the court as he was busy in connection with law and order duty. But there is an endorsement that the copy of the complaint had been received by the counsel of the accused on 22-2-1971. The next date fixed was 19-3-1971. But the accused could not appear on that date. 13-4-1971 was then fixed. The accused did not appear even on 13-4-1971. An application was moved by counsel on that day for exemption of attendance from the court. It appears that the learned Magistrate was under a wrong impression that 15-4-1971 was the date fixed for the appearance of the accused when complaint was filed on 1-2-1971. An application was then moved on 17-2-1971, for sending another sample to the Director, Central Food Laboratory, Calcutta. That application was not accompanied by the treasury challan showing that the requisite fee of Rs. 40/- had been deposited. That application was ordered to be put up for orders on 22-2-1971. An application was then moved on 17-2-1971, for sending another sample to the Director, Central Food Laboratory, Calcutta. That application was not accompanied by the treasury challan showing that the requisite fee of Rs. 40/- had been deposited. That application was ordered to be put up for orders on 22-2-1971. However, it appears that the order of the learned Magistrate was actually passed on this application on 30-11-1971 which was to the effect that the sample be sent after the prescribed fee had been deposited. The accused did not care to deposit the prescribed fee of Rs. 40/-. He deposited the fee on 31-1-1973. The sample was then at once sent on 2-2-1973 with the covering letter of the Magistrate to the Director, Central Food Laboratory at Calcutta for analysis. The Director, however, informed the Court vide his letter dated 9-2-1973 that the sample had become highly decomposed and was unfit for analysis. The learned Magistrate then recorded the evidence of the other witness Tribuan Chaubey, Safai Havaldar (P.W.2) on 23-5-1973. The evidence of the Food Inspector S.K. Bhatia (P.W.1) had already been recorded on 22-2-1972. First statement of the accused was recorded on 7-6-1971. He had admitted that the sample had been taken from his shop. He had, however, stated that the report of the Public Analyst was suspicious and that the powdered Chilli which he was selling was not adulterated. His final statement was recorded on 21-7-1973. The learned Magistrate took the view that there was delay in filing the complaint and further delay in sending the sample to the Director, Central Food Laboratory, Calcutta. He obviously held the prosecution responsible for these laches and acquitted the accused. 3. Feeling aggrieved, this appeal has been filed by the Nagar Mahapalika, Varanasi after special leave was granted. Sri A. S. Srivastava, learned counsel for the respondent raised a preliminary objection that the appeal could not have been filed by the Nagar Mahapalika and it must have been filed by the Nagar Swasthya Adhikari only. In support of this contention, he has placed reliance on the case of State v. Baljit 1978 Allahabad Criminal Rulings, p. 93. That case is distinguishable. In that case the original complaint had been filed by the Food Inspector after obtaining sanction of the District Medical Officer of Health while the appeal was filed by the State. In support of this contention, he has placed reliance on the case of State v. Baljit 1978 Allahabad Criminal Rulings, p. 93. That case is distinguishable. In that case the original complaint had been filed by the Food Inspector after obtaining sanction of the District Medical Officer of Health while the appeal was filed by the State. That would change the very nature of the case and it would become a State case from the complaint case. In the present case the original complaint was also filed on behalf of the Nagar Mahapalika, Varanasi through the Nagar Swasthya Adhikari who had actually signed. He had been authorised by the Nagar Mahapalika to file such a complaint. The appeal which was filed on behalf of the Nagar Mahapalika cannot be considered to be illegal within the meaning of section 378 (4) Cr. P.C. (new). 4. Learned counsel for the Nagar Mahapalika has placed reliance on the case of Ajit Pd. Ram Kishan Singh v. State of Maharashtra, 1972 FAC 545 in which it was held that mere delay and laches on the part of the complainant in getting the summons served was in the absence of evidence to show that the sample had deteriorated when the summons was served, not sufficient to hold that the accused was prejudiced by reason of the expiration of the right under section 13(2). In the present case there was, no doubt, some delay in filing the complaint. But the summons were served immediately and the copy of the complaint was actually received by the counsel for the respondent on 22-2-1971. The accused could have very well applied for sending the other sample to the Director, Central Food Laboratory, Calcutta immediately after the summons was served and a copy of the complaint had been received. He waited till 17-9-1971 when he made the application for sending the other sample to the Director, Central Food Laboratory, Calcutta. Even then he did not remit the prescribed fee of Rs. 40/- before making an application for the same. The learned Magistrate passed the order for sending the sample to the Director, Central Food Laboratory, Calcutta on 30-11-1971 subject to the payment of the prescribed fee. That fee was, however, paid on 31-1-1973. Even then he did not remit the prescribed fee of Rs. 40/- before making an application for the same. The learned Magistrate passed the order for sending the sample to the Director, Central Food Laboratory, Calcutta on 30-11-1971 subject to the payment of the prescribed fee. That fee was, however, paid on 31-1-1973. Section 13(2) as it stood before the recent amendment clearly provided that an application could be made by the accused-vendor for sending part of the sample to the Director, Central Food Laboratory on payment of prescribed fee. That fee, therefore, had to be paid even before moving the application on 17-9-1971. The accused certainly cannot get advantage of his own laches and omissions. It could have been a different matter in case he had properly applied for sending the sample soon after 22-2-1971 and had paid the requisite fee. The accused would have been entitled to get the benefit if in that case laches were on the part of the court or it was found by the Director, Central Food Laboratory that the sample had deteriorated even by that time and was not fit for analysis. The observations made by Hon. the Supreme Court in the above cited decision apply on all fours to the facts of the present case. Under the circumstances of this case the accused cannot get any advantage simply because the complaint was filed on 1-2-1971 and he was summoned for 22-2-1971. 5. The case, therefore, has to be decided on the basis of the report of public analyst (Ex. Ka-3). It has not been disputed by the accused that such a sample had been taken by the Food Inspector. The sample was not even according to the prescribed standard as is given in Appendix A.05.05.01. The relevant report of the public analyst is as follows : "Mirch structure present along with foreign matter and I am of the opinion that the ash insoluble in dilute HC1 exceeds the maximum prescribed limit of 1.3% and non-volatile-ether extract is less than the maximum prescribed limit of 12.0%. Microscopic shows the presence of foreign matter also." 6. Learned counsel for the respondent has placed reliance on the case of Radhey Lal Gupta v. State and another 1979 (II) FAC 91. Microscopic shows the presence of foreign matter also." 6. Learned counsel for the respondent has placed reliance on the case of Radhey Lal Gupta v. State and another 1979 (II) FAC 91. He has laid much stress on the following observation of Bakshi, J. in that decision : "But in order to assess the correct value and reliability of the report, it becomes very essential that while expressing his opinion in Form III, the public analyst should not only give the result of the analysis but also express an opinion as to whether the article of food analysed by him is injurious to health and unfit for human consumption. A close scrutiny of section 2 of the Act indicates that in several sub-sections mentioned therein, it is necessary for the prosecution to prove that the sample contains a constituent, partly or wholly, which injuriously effects the health of a citizen or renders it unfit for human consumption. Unless the injurious effect on human life is established it would not constitute an offence, even if the article of food does not prescribe to the recognised standard. In my opinion, therefore it is all the more necessary that the Public Analyst must express his opinion in his report, which he submits of Form III of Rule 7(3) of the aforesaid rules, as to whether the foreign impermissible ingredient present in the sample of analysis is deleterious to health or unfit for human consumption." These observations are confined to the facts of that case. In that case the report was that the article (suji) was insects-infested. That was covered by section 2 (f) of the Act. Mr. Singh, the public analyst was, however, called. He stated that the article became unfit for human consumption because it was infested with insects. Bakshi, J. was then satisfied and held that the article was adulterated within the meaning of section 2 (f) of the aforesaid Act. The revision was ultimately allowed on a different ground. 7. I do not think that the above observations made by Bakshi, J. should be deemed to be applicable generally to all cases which are even covered by section 2 (1) or 2 (m) after the amendment. The revision was ultimately allowed on a different ground. 7. I do not think that the above observations made by Bakshi, J. should be deemed to be applicable generally to all cases which are even covered by section 2 (1) or 2 (m) after the amendment. It is significant that before the amendment of 1976, the words "which renders it injurious to health" did not exist in clause 2(1) (m) and the article was deemed as adulterated simply because the quality or purity of the article fell below the prescribed standard. Now sub-clause (I) has been divided into two parts. The words "which renders it injurious to health" have been added to sub-clause (1) while the new clause (m) has been added. It is as follows : "2(1)(m). If the quality or purity of the article falls below the prescribed standard or its constituent are present in quantities not within the prescribed limits of variability but which does not render it injurious to health : Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this sub-clause". It clearly means that under certain circumstances the article of food can be deemed to be adulterated simply because it falls below the prescribed standard even though it may not be such that it is injurious to health. For example, if sufficient water is mixed to milk and the sample of milk falls short of the prescribed standard, it can certainly not be said that the sample is not adulterated because only mixing water may not render the sample injurious to health. I have felt it necessary to deal with this matter at some length as the above observations of Bakshi, J. may not be misconstrued. I do not consider it necessary to refer the matter to a larger Bench because I have no doubt that Bakshi, J. had made these observations while considering the language of section 2(f) according to which the article is "insects-infested or is otherwise unfit for human consumption." 8. I do not consider it necessary to refer the matter to a larger Bench because I have no doubt that Bakshi, J. had made these observations while considering the language of section 2(f) according to which the article is "insects-infested or is otherwise unfit for human consumption." 8. There can thus be no doubt that the sample of powdered chilli was found to be adulterated as it fell short of the prescribed standard. 9. Learned counsel for the respondent next argued that a lenient view should be taken in this case. The Food Inspector himself stated that it is an old and reliable shop and that in the past several samples were taken from that shop but none was found to be adulterated. It was also brought to ray notice that only 3 kgs. of such powdered chilli was present at the shop. The sample was taken about nine years back on 30-6-1970. 10. After considering all the circumstances, I am of the opinion that it is possible to take a lenient view. Learned counsel for Jthe Nagar Mahapalika, however, has drawn my attention to the latest Full Bench Decision of this Court in Cr. Ref. No. 833 of 1972 (Pooran Singh v. State) decided on 15-1-1979 in which it was held that sentence of imprisonment is mandatory. However, since the matter is of 1970 and before the amendment made in 1976, it is not necessary to award the minimum sentence of three months R. I. 11. In the result the appeal is allowed and the order of acquittal is set aside. The respondent Sri Ram Pansari is convicted under section 7/16 of the Prevention of Food Adulteration Act and is sentenced to imprisonment till the rising of the court. In addition, he shall pay a fine of Rs. 500/- (five hundred). In default of payment of fine, he shall undergo further R. I. for three months. The respondent is allowed three months time to deposit the fine and to put in appearance before the lower court. The record of this case shall be sent back to the lower court forthwith within three weeks.