Sambhu Dayal v. State of U.P.

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 137 of 1972. Appeal by Special Leave from the Judgment and Order dated 27-4-72 of the Allahabad High Court in Govt. Appeal No. 128/69. Yogeshwar Prasad, S. K. Bagga and Miss Meera Bali for the aPPellant. 0. P. Rana for the Respondent. The Judgment of the Court was delivered by KAILASAM, J. This appeal is by special leave by Sambhu Dayal against the judgment of the High Court of Allahabad allowing an appeal by the Government of U.P. and setting aside the order of 1.cquittal and restoring the conviction under sections 8 and 16 of the ·Prevention of Food Adulteration Act and th~ sentence of six months rigorous imprisonment passed by the Sub-Divisional Magistrate, Jalaun. On 1st November, 1966, Shri Raja Ram Bhatt, the Food Inspector, went to the village a~d found the appellant Shambhu Dayal bringing cow's milk to Orai for sale.

The Food Inspector served a notice on the petitioners and took sample of the milk weighing 660 grams against cash payment of 0.60 P. He divided it in three equal parti; and kept each part in a different bottle. He added 16 drops of formalin in each bottle and then sealed the same. One of the sealed bottles was ' .t. SAMBHU DAYAL v. U.P. STATE (Kailasam, J.) 3 43 given to the petitioner. Another bottle was sent to the Public Analyst, Lucknow, for analysis. The Public Analyst submitted his report dated 14th December, 1966 giving his opinion that the sample was deficient in non-fatty solid contents by about 15 per cent. The charge-sheet was filed on 5th February, 1967 by the Food Inspector after obtaining the sanction of the District Medical Officer of Health, Jalaun at (Kai. The appellant pleaded not guilty and d•onied that he had sold the milk.

According to him he was taking the milk to one Pandey of village Kharra when the Food Inspector took some of it without making any payment to him. The trial court accepted the case of the prosecution and on 10th November, 1967 convicted the appellant under s·~ction 8 read with section 16 of the Prevention of Food Adulreration Act and sentenced him to six months rigorous imprisonment. The appellant preferred a Criminal Appeal to the Court of Se.isions. By its judgment dared 12th October, 1968 the Sessions Judge allowed the appeal and set aside th~ conviction and sentence imposed upon the appellant. The State of U.P. preforred an appeal to the High Court of Allahabad. A Division Bench of the High Court allowed the appeal and restored the conviction and sentence impooed upon the appellant by the trial ·Co art. Miss Meera Bali, the learned advocate appearing for the appellant raised three contentions.

She submitted that the Prevention of Food Adulteration Act came into force in 1954 and before the amending Act 49 of 1964 came into force the power to appoint the Public Analyst .and Food Inspector rested with the State Government only. After the amending Act, Act 49 of 1964, sections 8 and 9 were substituted by new sections 8 and 9 which provided that the Central Government or the State Government may by notification in the Official Ga:>i:tle appoint a Public Analyst and a Food Inspector. The amending Act came into force in 1964. The State Government by notification da.ted 15th April, 1968, appointed Food Inspectors with effect from lst March, 1965 and by notification dated 23rd March, 1968 appointed Dr. R. S. Srivastava as the Public Analyst with effect from !st March, 1965.

The submission of the learned counsel is that when the offence took place on 1st November, 1966 neither the Food Inspector nor .the Public Analyst was empowered to function as Food Inspector or Public Analyst as the notification was made Yery much later on 15th April, 1968 and 23rd March, 1968 respectively. It was submitted that the notification cannot give retrosp·octive effect to the appointment from 1st March, 1965. The plea was accepted by the learned Sessions Judge but the High Court held following the decision of the Allahabad High Court in Nagar R A - Mahapalika v. Ram Dhani( 1) that the notification relating to tbe appointment of the Food Inspector and the Public Analyst issued under the unamended Act was valid even after the amendment. Sections 8 and 9 of th" Food Adulkration Act, 1950 before the amending Act 49 of 1964 stood thus : "8.

Public Aualysts.-The State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, and, possessinr; such qualifications as may be prescribed to be Public Analyst and define local areas over which they shall exercise jurisdiction. "9. (1) Subject to the provisions of Section 14, the State Government, may by notification in the Official Gazette, appoint persons in such numly::r as it thinks fit, having tl1•0 prescribed qualifications to be Food Iru;pectors for the purpose of this Act, and they ·;hall exercise their power within such local areas as that Governm::nt may assign to them;" The relevant amendment to sections 8 and 9 is contained in section 5c of the amendin~ Act which reads as fol:ows :- "5. Substitution of now Sections for Sections 8 and 9.·- For sections 8 and 9 of th•c Principal Act, the following sections shall be substituted, namely :--- 8. Public Analysts : The Central Government or the Star::

Government may, by notifications in the Official Gazette appoint snch persons a• it thinks fit. huing the prescribed qnalifications to be Public Ana!v1st for •nch local ar~as as may be assitned to them by the Central Government, as tl1c sam" may be : 9. Food Inspectors.-( 1) Th·2 Central Government or the State Government nioy, by notification in the Official Gazette, appoint such persons as it thinks fit, havini: the prescribed qualifications to be Food Inspecfors for such local areas as may b, a~signed to th2m by the Central Government or the State Government as the case may be : On the facts it is not disputed that on the date of the offence· neither a Public Analyst nor a Food Inspector was appointed after the amending Act 49 of 1964. The learned coun•el would like us to read: (I) A.l.R. 1971 All. 53. SAMBHU DAYAL v. U.P. STATE (Kai/Msam, J.)

3 45 ·sections 8 and 9 of the Act as repealing the old sections and empower- ,ing the Central Go~-ernment or the State Government to appoint the ,Public Analyst or the Food Inspector after the coming into force of .the amending Act implying that any prior appointment of a Public Analyst or Food Inspector stood repealed. We arc unable to acc.::pt this contention. lt is not rrccessary for us to go into the question whether the notifications of the Government in 1968 appointing the Public Analyst and the Food Inspector wilh restrospcctivc effect from March, 1965 arc valid or not for we can r~st our decision on the ground .that being an amending Act the appointment of the Public Analyst and the Food Inspector made by the State Government before the .amendment continued to be valid.

In Nagar Mahapa/ika, Lucknow v. .Ram Dlzani, (supra) it was held that when the Food lnsP'octor and the Public Analyst were appointed under notificatiuns dated 27th July, 1959 issued under the provisions of Prevention of Food Adulteration Act, 1954, the effect of the amending Act, Act of 49 of 1964, was only ;to the extent that the Central Government was given concurrent powers with the Slate Government in the matter of appointment of Public Analyst through notification and that Act 49 of 1964 did not repeal any part of the Food Adulteration Act which then existed and any .amendments in the specific provisions of the said Act which were affected by Act 49 of 1964 will 11ot have the effect of repeal of ""Y part of the said Act. We agree with the vi·ow taken by the Bench -of the Allahabad High Court. The amcnd•od sections 8 and 9 do not in any way repeal sections 8 and 9 as they originally stood.

As to the .effect of the amendment the language of the amending sections will have to be examined to find out whether the original sections were ·intended to be repealed. The amending provisions should be held as part of the original statute. Whenever the amended section has to be applied subsequent to tho date of the amendment the unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. Reading the amended section we find that there is no provision, express or implied, repealing the existing ·provisions or the rules made thereunder. The section will have to be construed as being in addition to what had already existed.

The effect will In that the power of the State Government which already existed under the unamended section and the appointments made thereunder will be preserved and tbe action tak:on under the amended section~ ·will be in addition to th~ powers of the State Government and the .appointments which had '1lready been made. The second point that was raised by the learned counsel was that 1lhe sample WaB sent to the Public Analyst on 5th November, J 966 > .l 4-978SCI178 [1979] 2 S.C.R- but was analysed only on 14th December, 1966, As the .rnnlysis was after 44 days it was submitted that the milk would not have been in a fit condition for analysis, This conP"ntion was not accepted by the learned Sessions Judge who found that there was no evidence about the sample of milk being pasteurised or its despatch under refrigeration, But the report of the Public Analyst clearly showed that no change had taken place in the constituents of milk which would have interfered with the analysis.

Though this point was not pressed before the High Court th~ learned couns•el relying on a decision of the N ag'?Ur High Court in Dattappa Mahadappa v, Secretary, Municipal Cc11"- mittee, Baldana, (') submitted that where milk is analysed by the Analysts a week after the samples were taken no presumption of adulteration can be drawn in the absence of proof of the manner in which the samples wem sent and the condition in which the milk was when the samples were received by him. The \•earned Judge after referring to the various passages in the text book "Milk :

Production and Control" by Harvey and Hill obserwd that taking into account that the milk was analysed by the Analyst almost a week after the samples were taken, the absence of proof of the manner in which the samples were sent and the condition in which the milk was when the samples. were .received by him detracts from the value of anlyst's certificate, In the present case there is, evidence of the Food Inspector that be added formalin as a preservative and the report of the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the analysis, This statement of the analyst was not challenged in any of the courts below. Apart from the c.tatement of the Analyst not having been questioned, in this case it is admitted that formalin was added to the milk by the Forni Inspector. The Foocr Inspector added 16 drops of formalin in each of the bottles and had them soaled properly.

Rule 20 of the Prevention of Food Adulteration Rules requires that in the case of milk, Cream. Dahi. Khoa and Gur a preservative known as 'formalin', that is to say, a liquid containing about 40 per cent of formaldehyde in aqueous solution in the proportion of 0.1 ml (two drops) for 25 ml or 25 grams shall be added. Th" High Court of Allahabad in Babboo v. State(') held that in the case of cow's milk to which necessary quantity of formalin has been added' according to Rules and which has been kept in normal circumstances, it rotains its charac~'T and is capable of being usefully analysed for a period of about ten months, It is unnecessary for us to specify th" period for which the sample will remain unaffected but so far as this case is concerned there is tho clear evidem:e of Public Analyst that no• (t) A.I.R, 1951 Nag, 191. (2) AJ.R. 1970 AIL 122. SAMBIIU DAYAL v. U.P. STATE (Kailasam, J.) change had taken place in the constituents of milk which would interfere with the analysis.

As this statement has not been challenged, we see no reason for accepting the contention of the learned counsel that the analysis of the milk after 44 days cannot be accepted. This contention has also to be rejected. Lastly, the learned counsel submitted that the prosecution has not. established that the appellant was lllking the milk for tho purpose of sale. This plea was rejected by the High Court, accepting the evidence <if P.W. 2 that he kn~w the appellant persona;ly and that the appellant carried on the business of selling milk in Orai and possessed a licence in selling milk in the preceding years and also in tho current year. According to th·.o witness the appellant brought milk from the rural areas and sold it in Orai in the current year and the milk was sold by him to hotel looepers. The evidence of this witness was acccpkd by the High Court and wo see no reason to reject the testimony of P.W. 2.

The plea of the appellant that he was taking th·o milk for supplying it 10 one Ttiyugi Narain Pandey was rightly rejected by the High Court. In the rc,ult we are unabk to accept any of the submissions made by the karncd counsel for the appellant. We confirm the conviction under section 8(1) read with section 16 of the Pr..,vention of Food Adu:teration Act. The sentence being the minimum prescribed under th" Act it cannot be intcrfored with. In the resul•. the appeal is disnlissed. S.R. Appeal dismissed.