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PETITIONER: VIJAY KUMAR

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT14/12/1973

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. BEG, M. HAMEEDULLAH

CITATION:  1974 AIR  687            1974 SCR  (2) 701  1974 SCC  (3) 769

ACT: Prevention  of  Food Adulteration Act,  s.  16(i)(a)(b)  and Rules-Whether  ’Elachi  Dana’  sold  by  the  appellant  was insect-infested   and  contained  less  than  the   required percentage of volatile oil.

HEADNOTE: The appellant runs a sweetmeat shop in a village in  Punjab. The  food inspector took a sample of ’Elachi Dana, kept  for sale  by the appellant and it was found from the  report  of the  Public  Analyst  that  the  sample  was  infested  with insects’ to the extent of 9.7 per cent and the volatile  oil content thereof was 0.5 per cent instead of 1 per cent. On  these  facts,  tile  appellant  was  convicted  by   the Magistrate  under s. 16(1)(a)(i) of the Prevention  of  Food Adulteration  Act  1954.   On  appeal,  the  sessions  court confirmed  the  conviction and sentence and the  High  Court summarily dismissed the appeal therefrom. In this Court, the following points were urged : (i) On  the date  when the Food Inspector took the sample,  neither  the Act nor the Rules thereunder had prescribed any standard for the purity of ’Elachi Dana’ and therefore, deficiency in the volatile  oil content could not attract penal  consequences. (ii)  One  of  the prosecution  witnesses  admitted  in  his evidence  that  the stock of ’Elachi Dana’  from  which  the sample  was taken was not insect infested and therefore,  it follows  that the infestation must have  supervened  between the  date on which the sample was taken and the date of  the analysis. Dismissing the appeal, HELD  : (i) On the relevant date, Rule A-05-09 of the  Rules then in force provided that the seed of ’Badi Elachil  shall not contain less than 1 per cent of volatile essential  oil. The new Rule No. A 05.04.01 prescribes the same  requirement with  the  difference that the article is now  described  as ’Badi  Elachi seeds’ ’instead of ’Badi Elachi’.  This  is  a distinction  with a difference because the substance of  the matter  is that ’Badi Elachil (which must include the  ’Badi Elachi seeds’ Ought to contain 1 per cent volatile oil.  The Badi Elachi fruit contains the Elachi seeds. and the  kernel has  no edible value apart from the seeds contained  in  the fruit. [702E]

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(ii)  The sample, in the present case was analysed  12  days after it was taken During’ this short period of 12 days, the sample could not get infested to the extent of 9.7 per cent. To the naked eye the insects may not be noticeable and  that was  why the prosecution witness inferred that the stock  of ’Elachi  dana’ was not insect-infested.  Obviously, what  he meant was that it did not appear to be infested with insects and therefore, the inference said to arise from the evidence of the prosecution witness is impossible to accept. [702H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION :Criminal Appeal No. 170  of 1970. Appeal  by special leave from the judgment and  order  dated the  16th  September  1970 of the Punjab  and  Haryana  High Court, at Chandigarh in Criminal Revision No. 753 of 1970. Nuruddin Ahmad, B. P. Singh and A. K. Verma, for the  appel- lant. S.   K. Mehta and R. N. Sachthey, for the respondent. 702 The Judgment of the Court was delivered by CHANDRACHUD, J.-The appellant, Vijay Kumar, runs a sweetmeat shop in a village called Baba Bakala in Punjab.  On June 10, 1968  the Food Inspector, Amritsar, took a sample  from  the Elachi  Dana which was kept for sale by the appellant.   The report  of  the Public Analyst shows that  the simple  was infested with insects to the extent of 9.7 per cent and  the voltaile  oil content thereof was .5 per cent instead  of  1 per cent. On  these facts the learned Judicial Magistrate. 1st  Class, Amritsar  convicted the appellant under section  16(1)(a)(1) of  the  Prevention  of  Food  Adulteration  Act,  1954  and sentenced him to rigorous imprisonment for six months and  a fine  of Rs. 1,000/-.  The order of conviction and  sentence was  confirmed in appeal by the learned Additional  Sessions Judge,  Amritsar  and the appeal against that  judgment  was dismissed summarily by the High Court of Punjab and Haryana. This Court granted to the appellant special leave to  appeal from the judgment of the High Court. In his statement under section 342, Code of Criminal  Proce- dure,  the appellant admitted that he was in  possession  of the  Elachi Dana for purposes of sale but he  disputed  that the Elachi Dana was insect-infested or that its volatile oil content was deficient. It is contended on behalf of the appellant that on June  10, 1968  when the Food Inspector took the sample of the  Elachi Dana from the appellant’s shop neither the Act nor the Rules there  under had Prescribed any standard for the  purity  of Elachi  Dana  and therefore deficiency in the  volatile  oil content could not attract penal consequences.  This argument overlooks  that on the relevant date, Rule A-05-09  of  the- Rules  then in force provided that the seeds of Badi  Elachi shall not contain less than 1 per cent of volatile essential oil.   The  new  Rule No. A-05-04.01,  prescribes  the  same requirement  with  the difference that the  article  is  now described  as  Badi Elachi seeds instead  of  Badi  Elaichi. This  is  a  distinction without a  difference  because  the substance  of the matter is that ’Badi Elachi’  (which  must include the ’Badi Elachi seeds’) ought to contain 1 per cent volatile  oil.   The Badi Elachi fruit contains  the  Elachi seeds  and  the, kernel has no edible value apart  from  the seeds contained in the fruit. The  only other point urged on behalf of the appellant  is

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that  the Panch Sohan Singh, a Prosecution  witness,  having admitted in his evidence that the stock of Elachi Dana  from which  the  sample was taken by the Food Inspector  was  not insect-infested,  it must follow that the  infestation  must have  supervened between the date oil which the  sample  was taken and the date of the analysis.  The sample was analysed on  June 22, 1968, that is 12 days after it was taken.   The inference said to arise..-from the evidence of the Panch  is impossible .to accept.  To the naked eye the insects may not be  noticeable and that is why the Panch inferred  that  the stock  of Elachi Dana was not  insect-infested.   Obviously, what he meant was that it did not appear 703 to be infested by insects.  We do not agree that during the, short period of 12 days the sample could get infested to the extent of 9.7 per cent. On  September  7.  1964  instructions  were  issued  by  the Director,  Health Services Punjab, that due to  pressure  of work samples sent for analysis could not be analysed for two or three days, that there was a possibility that the samples may  get  infested  during that period  and  therefore  Food Inspectors should mention in the forwarding letters  whether the  sample  was infested at the time of  seizure.   In  the instant   case  the  Food  Inspector  had  not  taken   this precaution and on his omission is founded the argument  that the sample may have got infested between its seizure and the analysis.   The  instructions on which  reliance  is  placed relate  to  articles  of  food like  Atta  and  Maida.   The instructions  show that it is in the rain season  that  such articles  of food get infested within 15 days or one  month. The sample in case was seized before the rains had come  and the article of food, of which the sample was taken is not of the  same variety referred to in the instructions issued  by the Director. Learned  counsel for the appellant argued that the  sentence is  to(> severe especially in view of the fact  that  Elachi seeds  are  used more as a luxury item than as  an  item  of necessity and because the appellant is a petty shopkeeper in a small village.  What is the proper sentence to impose is a matter primarily for the trial court to decide.  The learned Magistrate  exercised  his  discretion  judicially  and  the sentence  has been confirmed by the Sessions Court  and  the High  Court.   We  see  no  justification  for   interfering therewith.   Besides,  the  article  being  insect-infested. falls within the definition contained in section 2(i) (f) of the  Act  and therefore the first clause of the  proviso  to section  16 of the Act. under which the Court can  impose  a sentence   less   than  the  minimum  prescribed,   has   no application.   The second clause of the proviso has also  no application as the offence falls under section 16(1) (a) (i) and not under section 16(1) (a) (ii) of the Act. For  these reasons we confirm the, order of  conviction  and sentence and dismiss the appeal. S.C. Appeal dismissed 5-L748Sup.Cl/74 704