RAJ KUMAR Vs THE STATE OF UTTAR PRADESH
Bench: HON'BLE MR. JUSTICE DEEPAK GUPTA, HON'BLE MR. JUSTICE SURYA KANT
Judgment by: HON'BLE MR. JUSTICE DEEPAK GUPTA
Case number: Crl.A. No.-001541-001541 / 2019
Diary number: 21734 / 2017
Advocates: SHANTANU BANSAL Vs
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)
THE STATE OF UTTAR PRADESH …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
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
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
(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.
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
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
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
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
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
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
“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
“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
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
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
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
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
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