REPORTABLE

IN THE SUPREME COURT OF INDIA  CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1541  OF 2019 (@ SPECIAL LEAVE PETITION (CRL.) NO.6687 of 2017)

RAJ KUMAR                            …APPELLANT(S)

Versus

THE STATE OF UTTAR PRADESH        …RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

Leave granted.

2. On  30.10.1995  a sample of  milk  was collected from  the

appellant  by the  Food Inspector.   The same  was sent to the

Public Analyst who received the same on 02.11.1995.   The

sample was analysed and Milk Fat (MF for short) was found to be

4.6% and Milk Solid Non­Fat (MSNF for short) was 7.7%, against

1

the prescribed standard of 8.5%.  The appellant was prosecuted

after obtaining consent of the  Chief  Medical  Officer, and  was

convicted  by trial court,  which conviction  was  upheld  by the

Sessions Court and the High Court.

3. Learned counsel for the appellant raised number of issues.

The first was that there was delay in analysing the sample and,

therefore, marginal shortfall in MSNF should be overlooked, since

it would have been caused by the delay in testing the sample.  We

cannot accept this contention because there  is  no material  on

record to support this  assertion.  The  appellant  did  not even

deem it fit to summon the Public Analyst for cross­examination

for this purpose.   In similar circumstances where the delay in

testing the  samples  was  of  44  days, this  Court in  Shambhu

Dayal vs.   State of U. P.1 held that since the sample had been

preserved by using formalin, as in the present case, the accused

cannot get any benefit.

4. The second contention raised  was that the  provisions of

Section 13(2)2  of the Prevention of Food Adulteration Act, 1954

1 (1979) 1 SCC 202

2 13.Report of public analyst.- (1) xxx            xxx            xxx

2

(hereinafter referred to as the Act) were not complied with in as

much as the appellant was not given an opportunity to send his

second sample to the Central Food Laboratory (CFL for short) for

analysis.  This argument is also without any merit.  All the courts

have given a finding of fact that notice under Section 13(2) of the

Act was sent to the appellant on 18.02.1996.  The appellant did

not choose to exercise his option to get his sample analysed by

the CFL.  Learned counsel for the appellant urges that this option

was given to him three months after the sample had been taken

and the second sample would have obviously become unfit for

analysis.   It is also contended that the complaint filed on

15.02.1996 was defective and the defects were removed only on

27.06.1996 and, thereafter, no option under Section 13(2) of the

Act was given.  This argument is totally without any merit.  The

appellant was given an option to have the second sample sent to

the CFL when the Magistrate took cognizance of the complaint.

(2) On receipt of the report of the result of the analysis under sub- section (1) to the effect that the article of food is adulterated, the Local (Health) Authority  shall,  after  the  institution  of  prosecution  against  the  persons  from whom the sample of the article of food was taken and the person, if any, whose name, address  and other particulars  have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

3

The complaint may not have been complete in the sense that the

list of witnesses was not filed but this, in any way, did not impact

the right given to the appellant to get the second sample analysed

from CFL.   If the  appellant  had exercised  his  option and the

Magistrate had not sent the second sample to the CFL, or if the

CFL had reported that the sample  is  not  fit for analysis,  then

alone the appellant could have got some benefit.   The appellant

waived his right by not applying to the Magistrate for sending the

second sample for analysis to the CFL, and he cannot have any

grievance in this behalf.

5. Another ground raised by the appellant is that he is

illiterate and cannot sign, but the Food Inspector has obtained

signatures.   All the courts have given a finding that the

signatures are of the appellant and this cannot be gone into in

these proceedings.

6. Learned counsel for the appellant quoted a large number of

judgments  of various  High Courts  viz.,  Dattappa  vs.Buldana

Municipality3;  Duli Chand   vs.   State of U.P4;  Karunan   vs.

3  AIR (38) 1951 Nagpur 191 41987 All.L.J.971

4

Food Inspector5; Ram Kumar  vs. The State of Punjab6; Hans

Raj   vs.   The State of Punjab7  and  Ujagar Singh   vs.  The

State of Punjab8, to submit that when there is a marginal

variation from the standards prescribed, the courts should give

benefit of doubt to the accused.  It is contended that the quality

of milk depends not only on the quality of food given to the cattle

but also on the health of the cattle and marginal deficiencies can

be caused due to natural causes beyond control of humans.

7. We are constrained to point out that out of the judgments

cited by the learned counsel above, several have been overruled.

Referring to the case of Karunan (supra), a Division Bench of the

Kerala High Court in Food Inspector, Palghat Municipality vs.

Karingarappully Co­op. Milk Society Ltd. & Ors.9 has stated

that the proposition laid down in Karunan’s case is not good in

law. The appellant has also placed reliance on  Ujagar Singh’s

case  (supra) as well as  Ram Kumar’s  case (supra).  Ram

Kumar’s case (supra) relied upon Ujagar Singh’s case (supra) to

51985 KLT.523 6 1982 (I) F.A.C. 68 71980(II) F.A.C. 396 81980 (I) F.A.C. 432 9 1986 K.L.J. 29

5

conclude that the accused in that case is not guilty of

adulteration.   However, a Division Bench of the Punjab and

Haryana High Court, in the case of State of Punjab vs. Ramesh

Kumar10 relying on a Full Bench judgment of the High Court in

State of Punjab vs. Teja Singh11 has held that Ujagar Singh’s

case (supra) is no longer good in law.   It is unfortunate that at

the Supreme Court level counsel cite judgments which have been

overruled.

8. We are of the considered view that once standards are laid

down by the Legislature then those standards have to be

followed.   In items like milk which is a primary food, under the

Act, it is  not  necessary to  also  prove that the food item had

become unfit for human consumption or injurious to health.  In

cases of food coming under the Act, it is not required to prove

that article of food was injurious to health.  In this case, the only

question to be determined is whether the article complies with

the standards laid down or not?   If  it  fails to comply with the

standards then it will have to be treated as an adulterated article

101984 Cri. L.J. 381 111976 Cri. L.J. 1648

6

even  if it is  not rendered  injurious  to  health.  Even marginal

deviation from the prescribed standard cannot be ignored.

9. We may point out that this Court in  M.V. Joshi  vs.  M.U.

Shimpi and Anr.12 held as follows :­

“7.   …Therefore, if the quality or purity of butter falls below the standard prescribed by the said rule or its constituents are in excess of the prescribed limits of variability, it shall be deemed to be adulterated within the meaning of S. 2 of the Act. If the prescribed  standard is  not  attained, the statute treats such butter, by fiction, as an adulterated food, though in fact it is not adulterated. To put it in other words, by reason of the fiction, it is not permissible for an accused to prove that, though the standard prescribed is not attained, the article of food is in fact not adulterated. The non­conformity with the standard prescribed makes such butter an adulterated food. Section 7 of the Act prohibits the manufacture, sale, storage or distribution of such food.…”

10. There were some observations in the judgment of this Court

in  Malwa Co­operative  Milk  Union  Ltd., Indore  & Ors.  vs.

Bihari Lal & Anr.13  decided on 14.08.1967, which were

interpreted  by some  High  Courts to  mean that acquittal  was

justified in case there were marginal deficiencies in meeting the

requirements.   Dealing with the  Malwa Co­operative case

(supra)  this Court held as follows in  Municipal  Committee,

Amritsar  vs. Hazara Singh14:­

12AIR (48) 1961 SC 1494 131973 F.A.C. 375 14(1975) 1 SCC 794  

7

“4.   …Indeed, this Court’s decision cited above discloses that Hidayatullah, J. (as he then was) was not laying down the law that minimal deficiencies in the milk components justified acquittal in food adulteration cases.…”

Further,  this Court quoted with approval, the  judgment of  the

Full Bench of the Kerala High Court in  State of Kerala   vs.

Parameswaran Pillai Vasudevan Nair15,  which held as

follows:­

“13.  The Act  is a piece of consumer legislation. It regulates to some extent the consumer­supplier relations. Consumerists demand enforcement of discipline among the producers or manufacturers of food to ensure safety in the realm of food. The consumer's legitimate ignorance and his almost total dependence on the fairness and competence of those who supply his daily needs have made him a ready target for exploitation. The Act is intended to protect him against outright frauds.

14. The Act does not make a distinction between cases coming under it on the basis of the degree of adulteration. It does not provide for aggravation of offence based on the extent of contamination. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country.  Hence  even marginal  or  border line  variations  of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, De Minimis Non Curat Lex. law does not concern itself about trifles, does not apply to them.  

15. The standard fixed under the Act is one that is certain. If it is varied to any extent the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantages of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions, are great.

151975 Cri. L.J. 97

8

16. The Act does not provide for exemption of marginal or border line variations of the standard from the operation of the Act. In such circumstances to condone such variations on the ground that they are  negligible is  virtually to  alter the standard  itself fixed under the Act.  

17. The standards of qualities of the articles have been fixed by the Government under the provisions of the Act after due deliberation and after consulting a committee of competent men. It is  for them to give due allowance  for probable errors before fixing a standard. They may have done it also. There is no reason to assume otherwise. Therefore the conclusion is that for an article of food when a standard has been fixed under the Act it has to be observed in every detail.”

11. In view of the above settled law, we hold that if the

standards are not  complied with, the  Court is  not justified  in

acquitting the  accused charged  with  adulteration  only on the

ground that the deficiency is marginal.

12. The last submission of the counsel was that this Court may

follow what was done in  Santosh Kumar  vs.  Municipal

Corporation and Anr.16, where under similar circumstances the

sentence  of  six  months imprisonment  was commuted and  the

State Government was directed to pass formal orders of

commutation.   It appears that the Bench in  Santosh Kumar’s

case (supra) followed the judgment in N. Sukumaran Nair    vs.

16(2000) 9 SCC 151

9

Food Inspector, Mavelikara17,  and  we find that in both these

cases there is no discussion of scope and ambit of Section 433 of

the Criminal Procedure Code, 1973 (for short the Cr.PC).  We are,

therefore, of the view that these judgments are per incuriam and

do not lay down any legal proposition that provisions of Section

433 of Cr.PC can be invoked in such cases.   

13. Section 433 of Cr.PC reads as follows :­

“433.  Power to commute sentence.–The appropriate Government may, without the consent of the person sentenced commute­ (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b) a  sentence of imprisonment  for  life, for  imprisonment  for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine.”

A bare perusal of Section 433 of Cr.PC shows that the powers

under Section 433 can only be exercised by the appropriate

Government.  These powers cannot be exercised by any court

including this Court.   At best, the court can recommend to the

State  Government that such  power  may  be exercised  but the

power of the appropriate Government cannot be usurped by the

17 (1997) 9 SCC 101

10

courts and the Government cannot be directed to pass  ‘formal

compliance order’.  We are, therefore, not inclined to pass a

similar order because that is beyond the jurisdiction of

this Court.   

14. It was also urged that we may exercise powers under Article

142 of the  Constitution  of India  because the  occurrence took

place more than twenty years back.   We are clearly of the view

that the power under Article 142 cannot be exercised against the

specific provision of law.   Section 16(1)(a) of the Act lays down a

minimum sentence of six months.   Considering the bane of

adulteration and the deleterious effect of adulteration and sub­

standard food on the health of the citizens (especially children

when milk is involved), the Legislature provided a minimum

sentence of six months.   Passage of time can be no excuse to

award a sentence lower than the minimum.

15. Furthermore, the power under Article 142, in our

considered  view,  cannot  be  used in total violation  of the law.

When a minimum sentence is prescribed by law, this Court

cannot, in exercise of its power under Article 142, pass an order

totally contrary to law.   If such power could be used in a food

11

adulteration case to impose a sentence lower than the minimum

prescribed, then even in cases of murder and rape, this Court

applying the same principles could impose a sentence less than

the minimum.  This, in our opinion, is not the purpose of Article

142.   We have no doubt in our mind that powers under Article

142 cannot  be exercised  in such a manner  that they  make a

mockery of the law itself.   

16. In view of the above discussion we find no merit in the case

and the same is dismissed.   Application(s), if any, shall also

stand  dismissed.  The  bail  bonds  of the  accused­appellant  are

cancelled and he is directed to surrender within four weeks and

undergo the remaining part of the sentence.   A copy of this

judgment be forwarded to the trial court so that if the appellant

does not surrender, appropriate action be taken against him.

…………………………J. (Deepak Gupta)

…………………………J. (Aniruddha Bose)

New Delhi October 04, 2019

12

13