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PETITIONER: OM PRAKASH

       Vs.

RESPONDENT: DELHI ADMINISTRATION & ANR.

DATE OF JUDGMENT10/12/1975

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. SARKARIA, RANJIT SINGH

CITATION:  1976 AIR  195            1976 SCR  (2) 981  1976 SCC  (1) 637

ACT:      Prevention of  Food  Adulteration  Act  (37  of  1954), section 7-Taking  of samples  from different  receptacles of food for  analysis at  one time-Whether one or several sales and one or several offences.

HEADNOTE:      Samples of  cow’s milk  were  taken  by  the  concerned officers from 6 out of several cans carried by the appellant in a  truck and  were sent for analysis. Finding the samples adulterated, the  appellant was  prosecuted for  an  offence punishable under  s. 16  read with s. 7 of the Prevention of Food Adulteration Act, 1954.      Both the  trial Court  and the  first  Appellate  Court treated the sales of six samples as forming part of the same transaction constituting one single offence. The High Court, in revision, held that the sale of each sample constituted a distinct and  separate  offence,  that  the  appellant  was, therefore, liable for 6 different offences, and remanded the case for re-trial of the appellant for 6 offences.      Dismissing the appeal to this Court, ^      HELD:  (a)   The  acts   prohibited  by  s.  7  include manufacturing for sale, storing, selling or distributing any adulterated article  of food.  Hence, not only is the act of storing for sale an offence, but also the act of selling out of the adulterated article of food so stored. The definition of  "sale"   in  s.  2(xiii)  includes  sale  for  analysis. Therefore,  where   samples  are  taken  for  analysis  from different receptacles,  whether at  one and the same time or at different  times, each  taking constitutes a distinct and independent sale,  because, each  sample would  be taken for determining, by  analysis, whether  the article of food in a particular receptacle  is adulterated  or not. The taking of each sample  would be  necessary and  justified, because, it may be  that the  article  of  food  in  one  receptacle  is adulterated while in the other it is not, or, the nature and degree  of   adulteration  may   vary  from   receptacle  to receptacle. It is only where samples are taken from the same receptacle at  one and  the same  time or  within reasonable proximity of  time that  it may  not be possible to say that the taking  of each  of those samples constitutes a distinct

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and separate sale. [984 F, H, 985 B-G]      Fecitt v. Walsh [1891] 2 Q.B. 304, applied.      (b)  In   Shankar  Lal   Agarwalla  v.  Corporation  of Calcutta, A.I.R.  1962 Cal.  611, the 3 prosecutions against the accused  were not  for three  different transactions  of sale constituted  by taking samples from three tins of ghee, but were  for three acts of storing adulterated ghee, and so the  decision  is  not  relevant.  But  observations  contra therein that the taking of sample from different receptacles at  the   same  time  from  the  same  place  for  analysis, constitutes only  one offence, are incorrect. [986 G, 987 A- D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 138 of 1971.      Appeal by  Special Leave  from the  Judgment and  Order dated the  22nd March  1971  of  the  Delhi  High  Court  in Criminal Revision No. 232 of 1969.      K. C.  Kalra, R.  C. Verma  and S.  L.  Aneja  for  the Appellant. 982      F. S.  Nariman, B. P. Maheshwari, N. K. Jain and Suresh Sethi for Respondent No. 2.      The Judgment of the Court was delivered by      BHAGWATI, J.-This  appeal, by  special leave,  raises a short and  interesting  question  of  law  relating  to  the interpretation of  the provisions  of the Prevention of Food Adulteration Act,  1954. The facts giving rise to the appeal are few and may be briefly stated as follows.      On 12th July, 1967, a raiding party headed by Dr. A. D. Kumar,  the   Assistant  Health  Officer  of  the  Municipal Corporation of  Delhi and comprising inter alia Shanti Nath, Navnit Lal,  H. R.  Sood and  H. K. Bhanot, Food Inspectors, intercepted a truck bearing No. DLL 1925 near Chandni Chowk, Delhi at  about 7  a.m. in  the morning. The truck contained twenty-five to  thirty cans  of cow’s  milk which  was being carried for  sale by  the appellant.  The raiding party took the truck  inside the  compound of  the Municipal office and there, samples  of cow’s  milk were  taken from  eight  cans chosen at  random by  different Food  Inspectors, one sample being drawn  from each  can. Each  sample was  divided  into three parts  and after  carrying out  the usual formalities, one part  of each  sample was sent to the Public Analyst for analysis. The  result of  the analysis  was that each sample was found  to be adulterated under s. 2, sub-s. (i), cl. (1) of the  Act, in  that the  percentage of  non-fat solids was lower than that prescribed by Item A 11.01.01 read with Item A  11.01.11   in  Appendix  B  to  the  Prevention  of  Food Adulteration Rules,  1955. The prescribed minimum percentage of non-fat  solids in  cow’s milk in Delhi was 8.5 while the percentage found  in each  of the  samples  was  below  that figure. In  fact, it varied from sample to sample and ranged between 5.47 and 8.06. On finding, as a result of the report of the  Public Analyst,  that each  sample  was  adulterated under s.  2, sub-s.  (i), cl. (1), the Municipal Corporation filed four  different complaints  against the appellant, one in respect  of four  samples, the  other in  respect of  two samples and  the third  and the fourth in respect of each of the remaining  two samples.  The cases  arising out  of  the first two  complaints were  consolidated and a single charge was framed  in respect of six samples on the ground that the appellant sold to the Food Inspectors samples of adulterated

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cow’s milk  out of  six cans  which he was carrying for sale and thereby committed an offence punishable under s. 16 read with s.  7 of  the Act.  Similar charges  were framed in the remaining two  cases, the  charge in one case being for sale of sample  of adulterated  cow’s milk out of the seventh can and the  charge in  the other  being for  sale of  sample of adulterated cow’s milk out of the eighth can.      So far  as the  first case  is  concerned  the  learned Magistrate accepted  the  prosecution  case,  including  the report of the Public Analyst and held that the appellant was guilty  of   selling  to  the  Food  Inspectors  samples  of adulterated cow’s  milk out  of six cans carried by him. But instead of  treating the  sale of  each sample as a distinct and separate  offence, the  learned Magistrate  regarded the sales of  the six  samples  as  forming  part  of  the  same transaction and constituting only one offence, since all the six samples were taken at the same time from the 983 cans which  the appellant  was carrying  in the  truck.  The learned Magistrate, in this view, convicted the appellant of a single  offence under  s. 16 read with s. 7 of the Act and sentenced him  to suffer  rigorous imprisonment for a period of six  months and to pay a fine of Rs. 1000/- or in default to suffer imprisonment for a further period of three months. The other  two cases  also, in  view of  the report  of  the Public Analyst  and other  prosecution evidence, resulted in the conviction  of the  appellant under s. 16 read with s. 7 of the Act and in each of those two cases, the appellant was sentenced by  the  learned  Magistrate  to  suffer  rigorous imprisonment for  a like  period and to pay a fine in a like amount as  in the  first case. The sentences of imprisonment in  the   three  cases   were,  however,   directed  to  run concurrently with one another.      The appellant preferred three appeals to the Additional Sessions Judge,  Delhi, one  in respect  of  conviction  and sentence  in  each  case.  So  far  as  the  first  case  is concerned, the  learned Additional Sessions Judge maintained the conviction, but taking the view that the only deficiency in the  quality  of  samples  of  cow’s  milk  sold  by  the appellant being in respect of non-fat solids and there also, the deficiency  being very  small, ranging only from 0.45 to 2.85, the  sentence awarded  to  the  appellant  was  rather excessive, the learned Additional Sessions Judge reduced the sentence to  rigorous imprisonment for three months, leaving the sentence of fine untouched. The conviction in the second case  was   also  maintained   in  appeal  but  the  learned Additional Sessions Judge held that the offence in that case would constitute a part of the offence in the first case and hence he  did not  think that  a separate  sentence would be called for  or justified  and in  this view he confirmed the conviction of  the appellant.  but set  aside  the  sentence imposed on  him. So  also in  the third  case,  the  learned Additional Sessions  Judge made  the same  order  in  appeal maintaining the  conviction of  the  appellant  but  setting aside the sentence passed on him.      It  does   not  appear  from  the  record  whether  the appellant preferred  any revision  application  against  the order passed by the learned Additional Sessions Judge in the second and  third cases  in  so  far  as  it  confirmed  the conviction of  the appellant  or  the  State  preferred  any revision application  against that order in so far as it set aside the  sentence imposed  on the appellant. But so far as the order passed by the learned Additional Sessions Judge in the first  case was  concerned, the  appellant  preferred  a revision application  against it in the High Court of Delhi.

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The first  case, as  already pointed  out above,  related to sales of  samples of  adulterated cow’s  milk out of the six cans carried  by the  appellant. Both the learned Magistrate and the  learned Additional  Sessions Judge  had treated the sales of  these six  samples as  forming part  of  the  same transaction and  constituting one  single offence.  The High Court, however,  took the  view that the sale of each sample constituted  a   distinct  and   separate  offence  and  the appellant was,  therefore, liable  to be  tried not  for one single offence  but for six different offences in respect of sales of  six samples. The High Court observed that the sale of each  sample was  a separate  sale  and  each  such  sale constituted a  separate breach  of the provisions of s. 7 of the Act leading to a separate offence punishable under s. 16 of the Act. 984 The High Court accordingly set aside the order of conviction and sentence  passed against  the appellant and remanded the case to  the learned Magistrate for retrial of the appellant for each  of the  six different  offences constituted by the sales of  six samples. This led to the filing of the present appeal with special leave obtained from this Court.      The appellant contended that the gravamen of the charge against him  was that  he had  stored for  sale  adulterated cow’s milk  in six cans carried by him in the truck. The act of storing  was one single act and it was immaterial whether the storing  was in  one can  or  in  several  cans.  Merely because samples  were taken  by  the  Food  Inspectors  from different cans,  it did  not mean  that  so  many  different offence were  committed by  the appellant, for the different samples  only  confirmed  that  cow’s  milk  stored  by  the appellant in these cans was adulterated. The offence was one and single  and that  was storing adulterated cow’s milk for sale, whether  in one  can or more. It was alleged on behalf of the  appellant that  even if  the offence charged against the appellant  were not  storing adulterated  cow’s milk for sale, but  selling samples  of adulterated cow’s milk out of six cans  to the  Food Inspectors  for analysis,  taking  of sample from  each can  did not  constitute  a  distinct  and separate offence  of selling  adulterated cow’s  milk. There was only  one sale  by the  taking of  sample from six cans, since all  the samples  were of  the same  article of  food, namely, cow’s  milk and  were taken at the same place and at the same  time.  Otherwise,  contended  the  appellant,  the result would  be that  if the  Food Inspector goes on taking samples from  the same  stock of cow’s milk or other article of food,  the  sale  of  each  sample  would  constitute  an independent offence  and there  would be as many offences as the number  of  samples  taken,  though  the  stock  of  the commodity is  the same.  That would  be a most startling and unjust consequence.  Therefore, said  the appellant,  though samples were taken by the Food Inspectors from six different cans, there  was only  one offence  of  selling  adulterated cow’s milk committed by the appellant and the High Court was in error  in holding  that the  appellant was  liable to  be tried  for  six  different  offences.  These  were  the  two contentions urged  on behalf  of the appellant in support of the appeal.  Neither of  these two  contentions is,  in  our opinion, well founded and both must be rejected.      It is  clear on a plain reading of s. 7 of the Act that the acts  prohibited by  that section  include manufacturing for sale,  storing, selling  or distributing any adulterated article of food. The law is now well settled that the act of storing an  adulterated article  of food would be an offence only if  storing is for sale. If adulterated article of food

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is stored  by any  person for consumption or for any purpose other than  sale, it would not come within the inhibition of the section.  Now, when,  out of adulterated article of food stored for sale, a quantity is sold, the sale constitutes an offence distinct and independent from the offence of storing for sale. Not only is the act of storing for sale an offence but also  the act  of selling out of the adulterated article of food  so stored.  Here in  the present  case, the  charge against the  appellant was  not of storing adulterated cow’s milk for  sale. It  was a  charge of  selling  to  the  Food Inspector samples  of adulterated cow’s milk out of six cans carried by the appellant. It is, therefore, unnecessary to 985 consider whether  storing of  adulterated cow’s milk in each of the  six cans constituted a distinct and separate offence and we  do not  express any  opinion on  it. The  only issue which requires to be considered by us is whether the sale of sample of adulterated cow’s milk from each can constituted a distinct and  separate offence or there was only one offence committed by the appellant by selling samples of adulterated cow’s milk from six cans.      Now,  the  definition  of  ’sale’  in  section  2(xiii) includes within  it sale of any article of food for analysis and it  would seem that even if several samples are taken by the Food  Inspector for  analysis from  the  same  stock  of adulterated article  of food,  taking of  each sample  would constitute a  distinct and  independent sale  and each  such sale  would   be  an  offending  act  attracting  the  penal provisions of  the Act.  The position would indeed be beyond doubt where  samples are  taken from  different receptacles. whether at  one and  the same  time or  at different  times, because each  sample would  be taken for determining whether the  article   of  food   in  a   particular  receptacle  is adulterated or  not. It  may be  that the article of food in one receptacle is adulterated, while in the other it is not, and even the nature and degree of adulteration may vary from one  receptacle   to  another.   Each  sample  taken  would, therefore, be  really and truly for the purpose of analysis. So also  there would  be no scope for argument where samples are taken  from the  same  receptacle  at  different  times, because sample,  taken at an earlier point of time, if found adulterated on  analysis, would merely show that the article of food  in the  receptacle at that particular point of time was adulterated  and it would not dispense with the analysis of the article of food in the receptacle at a later point of time, for  at such  later point of time, the article of food in the  receptacle may  not be adulterated or it may consist of different  proportions or  the adulteration  in it may be much more  deleterious or  injurious to  human  health.  The taking of  each sample  would be necessary and justified for the purpose  of analysis,  and hence  each taking  of sample would constitute a distinct and independent sale. It is only where samples  are taken from the same receptacle at one and the same time or within reasonable proximity of time that it may not  be possible to say that the taking of each of these samples constitutes  a distinct  and separate  sale. When  a sample is once taken from the receptacle for analysis, there cannot be any question of taking another sample for analysis at the  same time.  The taking of the second sample would be wholly unnecessary  so far  as the  purpose of  analysis  is concerned and  it would lay itself open to an attack that it is not  really and  truly for the purpose of analysis. It is only where  a sample  is taken  for analysis that its taking constitutes a  sale. The  taking of  the second sample would not, therefore,  amount to  a sale involving an offence. But

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in the  other  two  cases,  where  samples  are  taken  from different receptacles,  though stocked  at one  place-at one time or  at different  times-or samples  are taken  from the same receptacle  at different  times,  the  taking  of  each sample would  constitute a  sale and  hence a  distinct  and separate offence.      This view, which we are taking, is clearly supported by the decision  of the  Queen’s Bench  Division in  Fecitt  v. Walsh(1). There, while the 986 appellant was  delivering at  a workhouse  milk contained in five cans  pursuant to  a contract  of sale, the respondent, acting under  s. 3  of  the  Sale  of  Food  and  Drugs  Act Amendment Act, 1879, procured a sample from each of the five cans and  on finding  that there  was a  large deficiency of cream in  two  of  the  samples,  the  respondent  laid  two separate informations  against the  appellant in  respect of those two  samples under  s. 9 of the Sale of Food and Drugs Act,  1875.  The  Justices  convicted  the  appellant  in  a separate penalty upon each information and on appeal against these convictions,  the  appellant  contended  that  on  the facts, there  could not be more than one information against him, since there was only one sale of milk by him and it was being delivered  in five  cans merely  because  that  was  a convenient  form   of  delivery.  Day,  J.,  negatived  this argument of  the appellant  and held  that procuring of each sample was  a separate  offence as to each can in respect of which an  information could  be laid  against  him  and  the convictions of  the  appellant  on  the  basis  of  separate informations laid  against him  were, therefore,  right. The learned Judge observed:           "As far  as  he  was  concerned  there  were  five      transactions; in  respect of each of those transactions      he must have proceeded under the statute and would then      be deemed  to have  purchased in  each  case  from  the      seller. It  seems to  me that the sergeant in procuring      these samples must be deemed to have been the purchaser      in each  particular  case,  and  that  as  he  was  the      purchaser of five samples, the purchase of each one was      a separate  transaction, and that in respect of each of      them an information would lie. As a matter of fact, the      respondent only  proceeded in  respect of  two  of  the      samples, obtaining  a separate conviction upon separate      informations in respect of each of them, and our answer      to the  first question  must be  that he was right, and      that more  than one  information could  be laid against      the appellant."      The analogy of this decision is striking and it clearly shows  that   where  samples   are  taken   from   different receptacles for  the purpose of analysis, the taking of each sample would be a separate transaction of sale and each such transaction of  sale would constitute a separate offence, if the sample is found to be adulterated.      The appellant  leaned heavily  on the  decision of  the Calcutta High  Court in  Sanker Lal Agarwalla v. Corporation of Calcutta(1)  where it  was held  by D.  N. Das Gupta, J., that where  three Food  Inspectors visit  the godown  of  an accused dealing  in ghee  the same  day and at the same time and each  takes samples of ghee from three different lots of tins and  the three samples collected are found adulterated, the  offence   committed  under   the  Prevention   of  Food Adulteration Act  by the  accused is  the same,  namely, the offence of  storing and  selling  adulterated  ghee  at  the particular hour  of the particular day and it cannot be said that three distinct offences under s. 7 of the Act have been

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committed  by  the  accused  and  consequently  when  "three separate prose- 987 cutions under s. 7 of the Act have been launched against the accused and  he is convicted in one of the prosecutions, the other two  prosecutions are  barred under  s. 403,  Criminal Procedure Code".  But we  do not  think this decision can be invoked in  aid of  the contention  of the  appellant. It is clear  from   the  facts   of  this   case  that  the  three prosecutions  against   the  accused   were  not  for  three different transactions  of sale constituted by the taking of samples from  three lots of tins of ghee, but were for three different acts  of storing  adulterated ghee  and it was for this reason  that D.  N. Das  Gupta, J.,  observed that  the single act of storing adulterated ghee could not be split up into three  different  acts  according  to  brands  and  the launching of three different prosecutions on the ground that three distinct  offences have  been committed by the accused was not  justified or warranted by law. We are not concerned with the  correctness or otherwise of this observation as it is not  relevant for  the purpose of the present case. It is no doubt  true that  some of  the observations  made in  the judgment seem  to support  the contention  of the  appellant that where  samples are  taken at  the same time on the same day from different receptacles kept at the same place-as the six cans  in the  present case were- and each of the samples is found adulterated, there is only one offence committed by the accused  and not  as many  offences  as  the  number  of samples taken  by the  Food Inspectors. But to the extent to which these observations refer to the offence constituted by the taking  of samples, we must express our dissent and hold that they do not represent the correct law on the subject.      We are,  therefore, of the view that the High Court was right in  coming to  the conclusion that the sale of each of the samples  taken from  the six cans constituted a distinct and separate  offence and  the appellant  was liable  to  be tried for  each of  the six offences. We accordingly dismiss the appeal. V.P.S.                                     Appeal dismissed. 988