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2003 DIGILAW 775 (PNJ)

Prem Parkash v. Union Territory, Chandigarh

2003-05-21

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - This criminal revision petition has been filed against the order dated 24.9.1997, passed by the learned Additional Sessions Judge, Chandigarh, whereby the appeal of the petitioner against the order of conviction and sentence dated 12.1.1996 passed by the learned Chief Judicial Magistrate, Chandigarh who convicted the Petitioner for the offence punishable under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- and further in the event of default of payment of fine to undergo rigorous imprisonment of one month, has been dismissed. 2. The facts leading to the case are that Shri O.P. Gautam Food Inspector, inspected the premises of the petitioner on 3.6.1992 at about 8.40 A.M. and found him having in his possession about 10 crates of 24 bottles each of S. Carbonated water (Lemon) admixture of sugar and saccharine for sale. The Food Inspector in accordance with the prescribed procedure under the Prevention of Food Adulteration Rules, 1955, took 1800 mls. i.e. 9 bottles of 200 mls each of sweetened carbonated water. After making the same homogeneous, he divided them into three equal parts and put them in three dry and clean bottles. The bottles were labelled, stoppered, secured, fastened and then wrapped in a strong thick paper. The same were further secured by means of strong twine thread and sealed with four different seals. The signature of the petitioner from whom the sample was taken, was affixed in such a manner that the paper slip and the wrapper both carry a part of signatures. One sealed bottle of the sample was sent to the Public Analyst, Chandigarh along with the prescribed memorandum of Form No. VII in a sealed packet. The Public Analyst sent its report according to which the sample gave total reducing sugar as sucrose 2.6% and saccharine 320 PPM against the minimum and maximum prescribed standard of 5.0% and 100 PPM respectively. Therefore, the sample was not in conformity with the specification and standard laid down under the Act and the Rules. Accordingly, a complaint was filed against the petitioner and he was ordered to be summoned. 3. Therefore, the sample was not in conformity with the specification and standard laid down under the Act and the Rules. Accordingly, a complaint was filed against the petitioner and he was ordered to be summoned. 3. The complainant led his pre-charge evidence in which the Food Inspector Shri O.P. Gautam examined himself as PW-1 and Bharose Lal, Clerk from the office of Local Health Authority, Chandigarh was examined as PW-2. On the basis of pre-charge evidence, it was prima facie found that the petitioner had committed an offence punishable under Section 16(1)(a)(i) read with section 7(i) of the Act. Accordingly, a charge was framed against him by the learned Additional Chief Judicial Magistrate, Chandigarh on 7.8.1993. After the charge the prosecution witnesses were re-called for cross-examination. One of the prosecution witnesses namely Navin Kumar was given up as having been won over by the accused. 4. The petitioner in his statement under Section 313 Criminal Procedure Code took the plea that he was made to sign on blank paper and he had not kept any sweetened carbonated water for sale. Besides, no witness was present at the time of taking sample and that he was innocent. He also stated that he had only one crate with him which was for use of his father who was to take less sugar as he was 75 years old and had been accordingly advised by the doctor. I have heard the learned counsel for the parties and with their assistance have gone through the records of the case. 5. Shri Tajender Joshi, learned counsel for the petitioner, submitted that there has been a mis-reading of the evidence on record and the learned Courts below have failed to notice the discrepancies in the statement of Shri O.P. Gautam, which are material in nature and which entitle the petitioner to acquittal. He further contends that this Court in the case of Parmod Kumar v. State of Haryana, 1993(1) Prevention of Food Adulteration Cases 132, has held that where there was nothing in the report of the Public Analyst to show that the presence of 300 PPM saccharine in the sample was injurious to health, the carbonated water found in possession of the accused therein, could not be held to be of sub-standard quality. 6. 6. On the other hand, Shri Ajay Lamba, Advocate, appearing for the U.T. Administration contended that the learned Courts below the rightly held the petitioner to be the guilty for the offence attributed to him and there was no material on record so as to entitle him to the benefit of doubt. 7. In order to appreciate the respective contentions of the parties, the provisions of Sections 7 and 16(1)(a)(i), which have been attributed to the petitioner may be noticed. THe same reads as under :- 7. "Prohibitions of manufacture, sale, etc., of certain articles of food. - No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute - (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health; (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; (iv) any adulterant Explanation. - For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if the stores such food for the manufacture therefrom of any article of food for sale". 16. Penalties. - For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if the stores such food for the manufacture therefrom of any article of food for sale". 16. Penalties. - (1) Subject to the provisions of sub-section (1A) if any person - (a) whether by himself or by any other person on his behalf, imports into India or manufacturers for sales or stores, sells or distributes any article of food - (i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that Section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority : (ii) x x x x x x x x (b) x xxx xxxx xxxxxx xxxxxxx (c) xxxx xxxxxx xxxxxx xxxxxxx xxxxxx (d) xxxx xxxxxx xxxxxxxx xxxxxxxx xxxxxxxx (e) xxxxxxx xxxxxxxx xxxxxxxx xxxxxxx xxxxxxxx (f) xxxxxxxxxxx xxxxxxxxx xxxxxxxxx xxxxxxxx (g) xxxxxxxxx xxxxxxxxxxxx xxxxxxx xxxxxxxxx he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend three years, and with fine which shall not be less than one thousand rupees; Provided that - (i) if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of Section 2; or (ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub- section (2) of section (2) of section 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees: Provided further that if the offence is under sub-clause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or clause (g) of sub-section (1A) of section 23 or under clause (b) of sub- section (2) of section 24, the Court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to five hundred rupees." 8. The contention which deserves to be noticed is that in the report of the Public Analyst, the sample gave total reducing sugar as sucrose 2.6% and saccharine 320 PPM against the minimum and maximum prescribed standard of 5.0% and 100 PPM respectively. In this regard a learned Single Judge of this Court in Parmod Kumars case (supra) dealt with carbonated water and observed as under :- "Carbonated water means potable water impregnated with carbon dioxide under pressure and may contain any of the following singly or in combination : "Sugar, liquid glucose, dextrose monohydrate, invert sugar fructose, honey saccharine not exceeding 100 PPM, fruits and vegetables extractives and permitted flavouring colouring matter preservatives emulsifying and stabilizing agents citric acid, (fumaric acid and sorbitol), tartaric acid, phosphoric acid, lactic acid, ascorbic acid malic acid (edible gums such as sugar, karaya, arabic carobean, furcellaran, tragacanth, gum ghatti), edible gelatin, albumin, licorice and its derivatives salts of sodium calcium and magnesium, vitamins, caffeine not exceeding 200 parts per million, and quinine salts not exceeding 100 parts per million (expressed as quinine sulphate). Provided that in the case of sweetened carbonated waters other than tonic water and dyginerale the percentage of (total sugars expressed as sucrose shall not be less than five). The aforesaid definition shows that no standard of carbonated water sweetened with saccharine is a food. An article of food will be considered as adulterated if its qualify or purity falls below the prescribed standard or its contents are present in quantities which are in excess of prescribed limit of variability. It is not the case of the prosecution that saccharine affects injuriously the health of a person. The carbonated water found in possession of the accused-petitioner contained saccharine 300 PPM, which was added to sweeten the same. There is nothing in the report of the Public Analyst to show that the presence of 300 PPM saccharine in the sample was injurious to health. Thus, the carbonated water found in possession of the accused- petitioner could not be held to be of sub-standard quality." 9. The ratio of the above judgment applies to the case in hand inasmuch as it has not been shown by the prosecution that the carbonated water which has been taken as sample from the petitioner, has been found to be injurious to health in the report of the Public Analyst. The ratio of the above judgment applies to the case in hand inasmuch as it has not been shown by the prosecution that the carbonated water which has been taken as sample from the petitioner, has been found to be injurious to health in the report of the Public Analyst. Accordingly, the revision-petition is accepted and the impugned order passed by the learned Additional Sessions Judge, Chandigarh is set aside and the petitioner stands acquitted of the offence. Petition allowed.