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CASE NO.: Appeal (crl.)  1042 of 1997

PETITIONER: Dayal Singh

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 13/04/2004

BENCH: N. SANTOSH HEGDE  & B.P. SINGH.

JUDGMENT: J U D G M E N T  

B.P. SINGH, J.

The appellant herein was tried by the Chief Judicial  Magistrate, Jodhpur, Rajasthan charged of the offence under  Section 7/16 of the Prevention of Food Adulteration Act, 1954  since the sample of hard boiled sugar confectionary taken from  the appellant was found to be adulterated in view of the  presence of mineral oil, as also on account of its having a very  unpleasant smell and taste.   The learned Chief Judicial  Magistrate by his judgment and order of  April 25, 1986 found  the appellant guilty of the offence charged and sentenced him to  undergo rigorous imprisonment for 2 years and a fine of  Rs.2,000/-, in default of payment of fine to further undergo  rigorous imprisonment for 6 months.   The appeal preferred by  the appellant was dismissed by the District and Sessions Judge,  Jodhpur by his order dated August 4, 1988 who upheld the  conviction but modified the sentence and reduced it to 6  months’ rigorous imprisonment and a fine of Rs.1,000/-, in  default of payment of fine to further undergo rigorous  imprisonment for 1 month.  This was the minimum sentence  which could be imposed under the Act for the charge proved  against the appellant.  The appellant thereafter preferred S.B.  Criminal Revision No.200 of 1988 before the High Court of  Rajasthan at Jodhpur but the same was dismissed by the High  Court by its judgment and order dated 1st August, 1997.  The  appellant is before us by special leave.   

The facts of the case are not in dispute.  On October 25,  1979 the Food Inspector took a sample of hard boiled sugar  confectionary from the shop of the appellant.  After complying  with the requirements of the Act and the Rules the sample was  sent to be Public Analyst and the report of the Public Analyst  dated November 16, 1999 showed that the sample was not  according to the prescribed standard as mineral oil was found  present which was an unwholesome ingredient, and also that  the sample had a very unpleasant smell and taste.  The Food  Inspector filed a complaint on January 29, 1980.  After trial the  learned Chief Judicial Magistrate by his judgment and order  dated April 25, 1986 found the appellant guilty and sentenced  him as earlier noticed.

The appellant preferred an appeal before the Court of the  District and Sessions Judge, Jodhpur.  During the pendency of  the appeal a Notification was issued on April 8, 1988 whereby  the Central Government in exercise of powers conferred by

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sub-section (1) of Section 23 of the Prevention and Food  Adulteration Act amended the Prevention of Food Adulteration  Rules, 1955.  In Appendix ’B’ item No.25.01 was amended and  under the amended Rules, the presence of mineral oil was  permitted subject to two conditions, namely - that the mineral  oil was of food grade if used as a lubricant, and did not exceed  0.2 % by weight.  It will thus be seen that the amendment  brought about in the year 1988 did not unconditionally permit  the presence of mineral oil in hard boiled sugar confectionary  but permitted only 0.2 % by weight provided it was of food  grade and used as a lubricant.   

The appeal preferred by the appellant was dismissed by  the District and Sessions Judge, Jodhpur, by his judgment and  order dated August 4, 1988 and as observed earlier while  upholding the conviction the appellate court reduced his  sentence to the minimum prescribed sentence of 6 months  rigorous imprisonment.  Revision preferred by the appellant  before the High Court was dismissed.   

Shri Krishnamani, senior advocate appearing on behalf of  the appellant argued before us with great vehemence that the  courts below have committed a clear error of law in not  noticing the amended provisions of the Rules.  Since the appeal  was pending when the amended Rules came into force, the  Court was bound to take notice of it and hold that the sample  was not adulterated.  He further submitted that the report of the  Public Analyst was defective inasmuch as it did not mention the  percentage of mineral oil found in the sample.  He placed  reliance on several decisions to support his submission that any  law mollifying the rigour of criminal law must be held to be  retrospective in the sense that it must be held to be applicable to  pending proceedings, including appeal.  He submitted that the  courts below were in error in holding that the amendment was  only prospective in operation and did not benefit the appellant  since the date on which the offence is alleged to have been  committed, the sample was adulterated as per the standard  prescribed.

Learned counsel for the appellant placed considerable  reliance on a decision of the Division Bench of the Delhi High  Court reported in 1974 Prevention of Food Adulteration Cases  page 21 : Sunder Lal  vs.  Municipal Corporation of Delhi.   In  that case it was urged before the High Court that during the  pendency of the appeal before the High Court the standard of  compounded Hing was changed by Notification dated March 9,  1966 and that the sample conformed to the new standard.   Consequently, it was argued that the appellant was entitled to  acquittal.  While considering the submission, the learned Judges  observed that the new standard having taken away the rigours  of law and being in favour of the accused, it should be given a  retrospective operation.  For this proposition reliance was  placed on a decision of the Division Bench of the Allahabad  High Court in AIR 1968 All. 392 : Shyam Lal  vs.  State  wherein after quoting from Crawford’s Construction of Statute  (1940 Edition) at page 599, the Court observed :-      

"The above rule of construction is based on  principle that until the proceedings have reached  final judgment in the Court of last resort, that  Court, when it comes to announce its decision,  must conform to the law then existing".

       It further quoted with approval the following passage

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from the judgment of the Allahabad High Court :-  

"It seems to us clear that the true rule of  construction of a penal statute is that where the  legislature evinces its intention to modify the law,  in favour of the accused, so as to reduce the rigors  of the law in the light of past experience and  changed social conditions, so long as prosecution  of the accused has not concluded by a judgment of  conviction, the proceedings against him are  regarded as inchoate and the law applicable to him  would be the law as amended by the legislature.   The Court trying an accused person has to take  into consideration the law as it exists on the date of  the judgment.  It seems reasonable that an accused  person cannot render himself liable to a higher  punishment under a statute which has ceased to  exist and has been substituted to be a new which  favours him.  Where the question as to the  interpretation of a penal statute is concerned, the  Court must construe its provisions beneficially in  regard to their applicability to the accused.  It  would be violating the spirit of the law and the will  of the Legislature as expressed in the amending  statute to sentence an accused person on the basis  of the original Act which has been considered by  the Legislature to be harmful and harsh against  public interest."

       The High Court also relied upon the principle laid down  by this Court in AIR 1965 SC 444 : Rattan Lal  vs.  State of  Punjab.  

       In our view the reliance placed on the judgment of this  Court in Rattan Lal (supra) was clearly misplaced.  Indeed the  principle laid down in that judgment supports the case of the  prosecution.  In Rattan Lal (supra) this Court was not  concerned with the retrospective operation of a penal statute.   The question which arose for consideration by this Court was a  question of jurisdiction of an appellate court to exercise its  powers under Section 6 of the Probation of Offenders Act,  1958.  In that case the High Court did not act under Section 11  of the Probation of Offenders Act and failed to pass orders  under Sections 3, 4 and 6 thereof granting benefit of probation  to the accused.  In that context a question arose whether the  power under Section 11 of the Act could be exercised by the  High Court in an appeal pending before it, even if such a power  could not be exercised by the trial court, since the offence was  committed at a time when the Probation of Offenders Act had  not been enacted.   This Court observed:-    

"The first question is whether the High  Court, acting under S. 11 of the Act, can exercise  the power conferred on a court under S.6 of the  Act.  It is said that the jurisdiction of the High  Court under S. 11(3) of the Act is confined only to  a case that has been brought to its file by appeal or  revision and, therefore, it can only exercise such  jurisdiction as the trial court had, and in the present  case the trial court could not have made any order  under S. 6 of the Act, as at the time it made the  order the Act had not been extended to Gurgaon  District.  On this assumption, the argument  proceeds, the Act should not be given retrospective

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operation, as, if so given, it would affect the  criminal liability of a person for an act committed  by him before the Act came into operation.  In  support of this contention a number of decisions  bearing on the question of retroactivity of a statute  in the context of vested rights have been cited.   Every law that takes away or impairs a vested right  is retrospective.  Every ex post facto law is  necessarily retrospective.  Under Art. 20 of the  Constitution, no person shall be convicted of any  offence except for violation of a law in force at the  time of the commission of that act charged as an  offence, nor be subjected to a penalty greater than  that which might have been inflicted under the law  in force at the time of the commission of the  offence.              But an ex post facto law which only  mollifies the rigour of a criminal law does not fall  within the said prohibition.    

       If a particular law makes a provisions to   that effect,  though retrospective in operation it  will be valid.  The question whether such a law is  retrospective and, if so, to what extent depends  upon the interpretation of a particular statute,  having regard to the well settled rules of  construction".

       In the light of the principle enunciated, this Court  proceeded to consider the question whether the High Court, as  the appellate court, had the power under Section 11 to extend to  the accused the benefit under the Act.  In doing so this Court  noticed that it was dealing not with a case where an act which  was not an offence is made an offence under the Act ; nor was it  a case where under the Act a punishment higher than that  obtaining for an offence before the Act is imposed.  This Court  further observed :-

       "This is an instance where neither the  ingredients of the offence nor the limits of the  sentence are disturbed, but a provision is made to  help the reformation of an accused through the  agency of the court.  Even so the statute affects an  offence committed before it was extended to the  area in question.  It is, therefore, a post facto law  and has retrospective operation.  In considering the  scope of such a provision we must adopt  the rule  of beneficial construction as enunciated by the  modern trend of judicial opinion without doing  violence to the provisions of the relevant section.   Section 11 (3) of the Act, on the basis of which the  learned counsel for the State advances most of his  arguments, has no relevance to the present appeal,  the said sub-section applies only to a case where  no appeal lies or is preferred against the order of a  court declining to deal with an accused under S. 3  or S. 4 of the Act, and in the instant case an appeal  lay to the Sessions Judge and indeed an appeal was  preferred from the order of the Magistrate.  The  provision that directly applies to the present case is  S. 11 (1) of the Act, whereunder an order under the  Act may be made by any Court empowered to try  and sentence the offender to imprisonment and

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also by the High Court or any other court when the  case comes before it on appeal or in revision.  The  sub-section ex facie does not circumscribe the  jurisdiction of an appellate court to make an order  under the Act only in a case where the trial court  could have made that order.  The phraseology used  therein is wide enough to enable the appellate  court or the High Court, when the case comes  before it, to make such an order.  It was purposely  made comprehensive, as the Act was made to  implement a social reform.  As the Act does not  change the quantum of the sentence, but only  introduces a provision to reform the offender, there  is no reason why the Legislature should have  prohibited the exercise of such a power, even if the  case was pending against the accused at one stage  or other in the hierarchy of tribunals".       The decision approves of the principle that ex post facto  law which only mollifies the rigour of the criminal law, though  retrospective in operation, will be valid.   After enunciating this  principle the Court interpreted Section 11 of the Probation of  Offenders Act and came to the conclusion that on a true  interpretation of the provision the High Court had jurisdiction  to exercise the power at the appellate stage, and this power was  not confined to a case where the trial court could have made  that order.  The phraseology of the Section was wide enough to  enable the appellate court or the High Court when the case  came before it, to make such an order.  We, therefore, do not  find that Rattan Lal made a departure from the well settled  principle that no person shall be convicted of any offence  except for violation of a law in force at the time of the  commission of that act charged as an offence, nor be subjected  to a penalty greater than with which he might have been  inflicted under the law in force at the time of the commission of  the offence.  This Court only laid down the principle that an ex  post facto law which only mollifies the rigour of a criminal law  did not fall within the said prohibition, and if a particular law  made a provision to that effect, though retrospective in  operation, it will be valid.  Rattan Lal was, therefore, decided  on an interpretation of Section 11 of the Probation of Offenders  Act which was not a penal statute in the sense that it did not  create an offence and provide for punishment thereof.   We,  therefore, do not find that principles laid down in Rattan Lal  depart from the well settled principles that a penal statute which  create new offences is always prospective and a person can be  punished for an offence committed by him in accordance with  law as it existed on the date on which an offence was  committed.  

In another decision of the Delhi High Court reported in  the same volume at page 19 :  Municipal Corporation of Delhi   vs.  Mai Ram alias Bhaya Ram; Sunder Lal was followed and  reference was made to the decision of this Court in Rattan Lal  (supra).  We have no doubt that the High Court of Delhi in  Sunder Lal  vs.  Municipal Corporation of Delhi (supra) and  Municipal Corporation of Delhi  vs.  Mai Ram alias Bhaya  Ram (supra) and the Allahabad High Court in Shyam Lal vs,  State (supra) have erred in law in holding that Notification  substituting  new standards in place of the old under the  Prevention of Food Adulteration Act must, while judging the  guilt of an accused, be given retrospective operation.  We are  clearly of the view that this Court in Rattan Lal did not lay  down such a proposition.   

We also find that in such cases application of the

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modified standards to cases which arose before the amendment  of the Rules, would be impracticable as is demonstrated by the  facts of this case.  As pointed out by the learned senior counsel  appearing for the appellant, the report of the Public Analyst did  not mention the percentage of mineral oil present in the sample.   This was obviously for the reason that at the relevant time mere  presence of mineral oil, being an unwholesome ingredient,  amounted to adulteration and, therefore, it was not necessary  for the Public Analyst to mention the percentage of mineral oil  found in the sample.  Moreover under the modified standard the  mineral oil found in the sample must be of food grade, if used  as a lubricant.  There is no report on this aspect of the matter by  the Public Analyst, obviously because he was not required to do  so having regard to the standard then prescribed.  On the record  there is nothing to show that mineral oil found in the sample  was of food grade and was used as a lubricant and did not  exceed 0.2 % by weight as prescribed under the amended Rules.   It is not as if the amended Rules permit the presence of mineral  oil in any quantity and of any quality in hard boiled sugar  confectionary.  Presence of mineral oil even after the  amendment will amount to adulteration if it is not of food  grade, and not used as a lubricant, and if it is more than 0.2 %  by weight.          

Learned counsel for the appellant then cited before us  several judgments in which, having regard to the long pendency  of such cases, a lesser sentence was imposed.  In (1996) 4 SCC  513 : Krishan Gopal Sharma and another  vs.  Govt. of N.C.T.  of Delhi, this Court having regard to the technical violation of  the Rules, and having regard to the fact that no minimum  sentence was prescribed at the time when the offence was  committed, found that a deterrent punishment for imprisonment  was not called for and imposition of fine will meet the ends of  justice.  Similar was the approach of this Court in (1992) 1 SCC  365 : State of Orissa   vs.   K. Rajehwar Rao and  1995 Crl. L. J.  3651 : N. Sukumaran Nair   vs.  Food Inspector, Mavelikara.       

In the instant case it was not disputed that for the offence  charged a minimum sentence of 6 months rigorous  imprisonment is prescribed by law.  The appellant has been  sentenced to undergo 6 months rigorous imprisonment which is  the minimum sentence.  We are not inclined to modify the  sentence by passing an order of the nature passed in N.  Sukumaran Nair (supra) where this Court in exercise of its  extra ordinary jurisdiction imposed only a sentence of fine and  directed the State to exercise its powers under Section 433 of  the Code of Criminal Procedure to commute the sentence of  simple imprisonment for fine.  In the instant case the appellant  has been sentenced to undergo 6 months rigorous  imprisonment.  Moreover we are firmly of the view that strict  adherence to Prevention of Food Adulteration Act and the  Rules framed thereunder is essential for safeguarding the  interest of consumers of articles of food.  Stringent laws will  have no meaning if offenders could go away with mere fine.   We, therefore, find no reason to interfere with the sentence  imposed against the appellant.         

Finding no merit, we dismiss this appeal.