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PETITIONER: AJITPRASAD RAMKISHAN SINGH

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA

DATE OF JUDGMENT02/05/1972

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN REDDY, P. JAGANMOHAN MITTER, G.K.

CITATION:  1972 AIR 1631            1973 SCR  (1) 483  1972 SCC  (3) 180

ACT: Prevention  of Food Adulteration Act, 1954 (37 of 1954),  s. 13(2)  long  delay  between  taking  sample  and   launching prosecution  for  adulteration of milk-If accused  does  not make application under s. 13(2) he cannot claim that  sample must,  have deteriorated and he has lost valuable  right  to have analysed by Director.

HEADNOTE: The appellant had a ’sweet meat shop in Bombay whose running he  had entrusted to his nephew.  The food inspector  acting under  the Prevention of Food Adulteration Act 1954  took  a sample  of  buffalo milk from ’he shop.  One  of  the  three portions of the sample was given to the vendor, another  was sent  to  the Public Analyst and the third was kept  by  the inspector.  The Analyst reported that the fat content of the milk   was  lower  than  prescribed.   The   appellant   was prosecuted  under  s.  116(1)(a)(i) of  the  Act;  the  case against  his  nephew was dropped since he  was  untraceable. The Magistrate acquitted the appellant.  He held that  there was  long delay between taking the sample and the  commence- ment of the prosecution and since the preservative added  to the  sample was less than prescribed, the sample  must  have become decomposed.  As a result according to the Magistrate, the appellant lost his valuable right of having his  portion of  the  sample analysed by the Director.   The  High  Court reversed  the judgment of acquittal holding that  since  the appellant  did  not make any application under s.  13(2)  he could  not  be  said to have lost any  valuable  right.   In appeal to this Court, HELD  :  The High Court’s view was in  consonance  with  the decision  of this Court in the case of Babulal  Hargovindas 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. [486 A-C] The Magistrate was wrong in thinking that no useful  purpose would  be served by sending the sample for analysis  by  the Director.It  was not for the Magistrate to  decide  without any date that the samplewould   be   decomposed   and   was incapable  of being analysed.  There was no evidence  before

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him to justify this conclusion. [486 D] The conviction of the appellant must accordingly be  upheld. [Sentence reduced on the special facts of the case]. Municipal  Corporation  of  Delhi v. Ghisa  Raw,,  [1967]  2 S.C.R. II 6, distinguished. Babulal Hargovindas v. The State of Gujarat, 1971 (1) S.C.C. 767 applied.

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. 484 M. P. Kenya and K.  Rajendra Chowdhary, for the appellant. B. N. Lokur and S. P. Nayar, for the respondent. 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. for  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 sample 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 Act.  On the basis of the report the accused were prosecuted. Accused  No.  1, the appellant, admitted that  lie  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 lost the valuable right  to have  the  part  of  the sample,  delivered  to  the  vendor analysed  by the Director and, so, the appellant  should  be acquitted. The High Court, on appeal by the Food Inspector reversed the order of acquittal.  The High Court held that the  appellant was bound to make an application 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

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that the appellant had 485 been deprived of any valuable right : And as the fat content of  milk  was  deficient  by  55  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 Directorand  as the  laches 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(1)  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 hard  been  sent to the Director on the application  of  the vendor but, 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 13(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 1 1 to  the  Director  of  the Central  Food  Laboratory  for  a certificate;  and  on receipt of the application  the  Court shall first ascertain that die mark and seal or fastening as               provided  in clause (b) of sub-section (1)  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 the sample, speci-               fying the result of analysis." It  is clear from the sub-section that the appellant  should have made an application after paying the prescribed fee  if he  wanted the part of the sample available with him  to  be sent to the Director- (1) [1967] 2 S.C.R. 116.  486 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  analysis  by  the Director.   If in pursuance of the application the  part  of the sample was sent to the Director and he had reported that the  part  of the sample was incapable of analysis  for  the reason that it was decomposed, the appellant could  perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the laches  of the complainant and that he should be acquitted.  But, since the appellant never applied under section 13(2) of the  Act,

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he  cannot complain that he has been deprived of any  right. In   Babulal  Hargovindas  v.  The  State   of   Gujarat(3), Jaganmohan  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 thinking that no useful 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  Inspector  had sworn  as P.W. 1. that he had added 8 drops of  formalin  to each part of the sample.  ’Though 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 prescribed quantity of fomialin 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 sample 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(2), Sikri, J. as he then was, speaking for the Court, said: "....... it was held by this Court in  Municipal.Corporation of Delhi v. Ghisa Ram that section 13 (2) of the Act confers a valuable right to have the sample given co him analysed by the Director of the Central Food Laboratory but, "the reason why the conviction cannot be sus- (1)   [1971](1)S.C.C.767. (2)G.A.Nol61ofl966,dicided on  May 3,1968. 487 tained  is that the accused is prejudiced in his defence and               is  denied  a  valuable  right  of   defending               himself  solely due to the daleberate acts  of               the  prosecution".  In this case no  prejudice               of  the  defence has been Shown.  It  has  not               been established on the record that the sample               of tea which was available with 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  to 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 appellant 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 any water had been added  to  the milk. Taking  into account all these circumstances, we reduce  the

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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  but  is dismissed in all other aspects. The appellant, if on bail, shall surrender to the bail. G.C.                                         Appeal  allowed in part. 488