Ajitprasad Ramkishan Singh v. Tiie State of Maharasiitra

Judgment

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 243 of 1969. Appeal by special leave from the judgment and order dated November 18. 1969 of the Bombay High Court in Criminal Appeal No. 1459 of 1968. M. P. Kenya and K. Rajendra Chowdhary, for the appellant. B. N. Lokur and S. P. Nayar, for the res:xmdent. The Judgment of the Court was delivered by Mathew, J. This appeal, by special leave, is from the judgment of the High Court of Bombay, convicting the appellant under Section 16(1)(a)(i) read with section 7 (i) of the Prevention of Food Adulteration Act (Act 37 of 1954), hereinafter called the 'Act', and sentencing him to undergo R.I. for 6 months and pay a fine of Rs. 1,000/- and, in default of payment of fine, to undergo R.I. fur a further period of two months. The appellant was the owner of a sweet meat shop on Kurla- Andheri Road, Bombay.

On July 1, 1965; the Food Inspector of the Bombay Municipal Corporation visited his shop at 9.55 A.M. and took a samvle of unboiled buffalo milk after conforming to the formalities enjoined by the Act. The Food Inspector divided the sample into three parts, retained two parts with him and delivered the other part to accused No. 2, who alone was in the shop · at the time. The Food Inspector sent one part for analysis by the Public Analyst. _Exhibit 'B' is the report of the Analyst. That showed the fat content of the milk as only 2.7 per cent instead of 6 per cent as required by the rules framed under the A~t. On the basis of the report the accused were prosecuted. Ac~used No. 1, the appellant, admitted that he was the owner of the shop and that accused No. 2 'who actually sold the milk to the Food Inspector was his nephew. As the whereabouts of accused No. 2 could not be traced, the case as against him was dropped. The Magistrate acquitted the appellant.

His reasoning was as follows.: the sample was taken on July 1, 1965; the complaint was filed on August 13, 1965, summons was served on the appellant on November 13, 1965; the date for appearance of the accused was on November 26, 1965; the right to apply to the Court to have the part of the sample delivered to the Vendor sent for analysis by the Director, Central Food Laboratory, Calcutta, hereinafter referred to as the "Director'', accrued to the appellant only when the summons was served on him; since by that time the sample would have become decomposed, he Io~t the valuable right to have the part of the samole delivered to the vendor analysed by the Director arid so, the appellant should be acquitted. The High Court, on aooeal bv the Food Inspector reversed the order of acquittal.

The High Court held that the appellant was bound to make an annlication under section 13(2) of the Act after paying the prescribed fee and as no such application was filed by the appellant, it could not be said that the appellant had AJIT PRASAD v. STATE (Mathew, /.) been deprived of any valuable right : And as the fat content of milk was deficient. by 5 5 per cent, the food was adulterated and so, the appellant was guilty of the offence. In this appeal, counsel for the appellant contended that the appellant was deprived of his right to have the sample analysed by the Director on account of the delay in the service of summons.

He said that the appellant was acquitted by the Magistrate because the Magistrate found that on account of the delay it would be a futile exercise to have sent the sample for analysis to the Director and as the !aches of the complainant was the reason for the delay in the service of summons and the proximate cause of the appellant losing his right to get the part of the sample delivered to the vendor analysed by the Director, the appellant was entitled to be acquitted. He relied on the decision of this Court in Municipal Corporation of Delhi v. Ghisa Ram(') to support his contention. We do not think that the case would in any way assist the appellant. In that case, the part of the sample delivered to the vendor halt been sent to the Director on the application of the vendor bnt, the Director reported that the sample had become highly decomposed and could not be analysed.

It was not disputed in that case that the Food Inspector had not taken the precaution of adding the necessary preservative to the sample.' So the Court held that the valuable right given to the vendor under section i.3(2) of the Act could not be availed of and that the conviction was bad. In the present case, the appellant never applied to the Court to have the part of the sample with him analysed by the Director. Section 13(2) of the Act states:

"After the institution of a prosecution under this Act the accused vendor or the'complainant may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample mentioned in subclause (i) or sub-clause (iii) of clause (c) of sub-section (1) of section 11 to the Director of the Central Food Laborato~y for 'a certificate; and on receipt of the application the Court shall first ascertain that the mark and seal or fastening as ·provided in clause (b) of sub-section (I) of section 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of die sample, specifying the r~ult of analysis."

It is clear from the sub-section that the appellant ;hould have made an application after paying the prescribed fee if he wanted ihe part of the sample available with him to be sent to the Director (I) (19671 2 S.C.R. 116. SUl'REMI! COTJB.T REPORTS [1973] l S.C.R. for analysis. If he had made the application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysi.SI by the Director. If in pur· suance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was inca?>able of analysis for the reason that it was decomposed, the appellant <;ould perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the !aches of the complainant and that he should be acquitted. But, since the appellant never applied under section 13(2) of the Act, he cannot complain that he )las b~en deprived of any right.

In Babula/ Hargovindas v. The State of Gujarat('), Jagarunohan Reddy, J., speaking for the Court, said that unless an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by the Director. The learned Magistrate was wrong in tl:inking that no useful purpose wonld 9e served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed.. The Food lnspec:or had sworn as P.W. l that he had added 8 drops of formalin to each part of the sample. thollgh under the rules he should have added 16 drops to each part, there is no reason to think that the sample became decomposed by the time the summons was served for that reason.

There was no evidence before the Magistrate that for the reason that the presctibed quantity of formalin was not added to each part, the part of the sample delivered to the vendor was incapable of being analysed by the Director. Nor did the Magistrate rely on that circumstance for his conclusion that the sample would have become decomposed. The appellant could have summoned the Public Analyst and examined him if he was serious in his present contention that since the prescribed quantity of formalin was not added, the part of the sample. would have become decomposed by the time the summons was served, and no useful purpose would have been served by sending the sample for analysis by the Director. There was, therefore, no evidence that the part of the. s'.llilple available with the appellant had so deteriorated at the time. the summons was served as to be incapable of being analysed, In Sukhmal Gupta and another v. The Corporation of Calcutta('), Sikri, J. as he then was, speaking for the Court, said :

" ..... it was held by this Court in Municipal Cor· poration of Delhiv. Ghisa Ram that section 13(2) of the Act confers a valuable right to have the sample given to him analysed by the Director of the Central Food Laboratory but "the reason why the conviction cannot be sus- (1) [1)71] (I) S.C.C. 767. (2) G.A. No 161 of 1966, dicirled on May 3, 1968. 11 AJIT PRASAD v. STATE (Mathew, /.) tained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the daliberate acts of fhe prosecution". In this case no prejudice of ihe defence has been shown. It has not been established on the. record t)iat the sample of tea which was available wiih the appellant had deteriorated by the time the summons was received. He never utilised the right under section 13(2) of the Act of sending the sample to the Director of. Central Food Laboratory''.

We are of the opinion that the High Court was right in coming t.o the conclusion that the appellant was guilty of the offence. But we do not think that the sentence of 6 months R.I. and fine of Rs. 1,000/- was called for in the circumstances of the case. Since the offence fell under proviso (1) of section 16 of the Act, the Court was not bound to impose a sentence of imprisonment for a term of 6 months. The ap.!)Cllant had entrusted the running of the shop to the second accused, his nephew. There is no ·evidence to show that there was any mechanism in the shop by which the fat content could be extracted from un-'boiled milk. There is also no evidence that a:uy water had been added to the milk. Taking into account all these circumstances, we reduce the sentence to R.I. for 3 months and the fine to Rs. 500/ • and we direct that in. default of payment of fine, the appellant will undergo R.I. for a further period of one month.

The appeal is allowed only to the etxent indicated bu~ is dismissed in all other aspects. The appellant, if on bail, shall surrender to the bail. G.C. Appeal allowed in part.