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PETITIONER: SAMBHU DAYAL

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT21/11/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. KOSHAL, A.D.

CITATION:  1979 AIR  310            1979 SCR  (2) 341  1979 SCC  (1) 202

ACT:      Prevention of  Food Adulteration  Act, 1950  Sections 8 and  9   as  amended  by  the  Amending.  Act  49  of  1964- Construction  of-Presumption  of  adulteration  of  milk  in respect  of samples after  a fixed period.

HEADNOTE:      The appellant  was convicted  under section 8 read with section 16 of the Prevention of Food Adulteration Act by the Sub-Divisional  Magistrate,  Jalaun  and  sentenced  to  six months rigorous imprisonment, the minimum sentence awardable under  the  P.O.F.A.  1950.  In  appeal  the  Session  Court reversed it,  but in further appeal by the State against his acquittal and reversal of the trial court decision, the High Court of  Allahabad  set  aside  the  Session’s  orders  and restored that of the trial court.      Dismissing the appeal by special leave the Court, ^      HELD: 1.  Sections 8  and 9  of the  Prevention of Food Adulteration Act,  1950 as  amended  by  section  S  of  the Amending Act  49 of 1964 cannot be read as repealing the old sections and  empowering the Central Government or the State Government  to  appoint  the  Public  Analyst  or  the  Food Inspector after  the coming  into force of the amending Act, implying that  any prior appointment o’. a Public Analyst or Food Inspector stood repealed. [345A]      2 Whether  the notifications  of the Government in 1968 appointing the  public Analyst  and the  Food Inspector with retrospective effect from March 05 are valid or not need not be  looked   into  because   being  an  amendment  Act,  the appointment of  the Public  Analyst and  the Food  Inspector made by the State Government  continued to be valid.  [345B-C]      3. The  amended sections  8 and  9 do  not in  any  way repeal sections  8 and 9 as they originally stood. As to the effect  of  the  amendment  the  language  of  the  amending sections will  have to  be examined  to find out whether the original  conditions  were  intended  to  be  repealed.  The amending provisions  should be  held as part of the original statute. [345D-E]      4. Whenever  the amended  section  has  to  be  applied subsequent to  the date  of  the  amendment,  the  unamended

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provisions of the Act have to be read along with the amended provisions as  though they  are  part  of  it.  Reading  the amended section,  it is  clear that  there is  no provision, express or implied, repealing the existing provisions or the rules made thereunder. The section will have to be construed as being in addition to what had already existed. The effect will be that the power of the State Government which already existed under  the unamended  section and  the  appointments made thereunder  preserved and  the action  taken under  the amended sections  with be  in addition  to the powers of the State Government and the appointments which had already been made. [345F-G] 342      Nagar Mahapalika,  Lucknow v.  Ram Dhani,  A.I.R.  1971 All. 53 approved.      5. The  contention that  the analysis of the milk after 44 days must yield to an adverse inference against the State as to adulteration cannot be accepted. [346A]      In the  present case  there is  evidence  of  the  Food Inspector that  he added  formalin as a preservative and the report of  the Public Analyst that no change had taken place in the constituents of milk which would have interfered with the  analysis.   This  statement  of  the  analyst  was  not challenged in  any of  the  courts  below.  Apart  from  the statement of the Analyst not having been questioned, in this case it  is admitted  that formalin was added to the milk by the Food  Inspector. The  Food Inspector  added 16  drops of formalin  in  each  of  the  bottles  and  had  them  sealed properly. Rule  20 of  the Prevention  of  Food  Aduleration Rules requires  that in  the case  of milk, cream Dahi, Khoa and Gur  a preservative known as "formalin", that is to say, a liquid  containing about  40 per cent of ’formaldehyde’ in aqueous solution  in the  proportion of  0.1 ml. (two drops) for 25  ml. Or  25‘grams shall  be added.  There is also the clear evidence  of Public  Analyst that  no change had taken place in the constituents of milk which would interfere with the analysis.[346D-G, 347A]      Babboo v. State, A.I.R. 1970 All 122; approved.      Dattappa  Mahadappa   v.  Secy.,  Municipal  Committee, Baldana, A.I.R. 1951 Nag.191 referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 137 Of 1972.      Appeal by  Special Leave  from the  Judgment and  order dated 27-4-72  of the  Allahabad High  Court in Govt. Appeal No. 128/69.      Yogeshwar Prasad,  S. K.  Bagga and Miss Meera Bali for the appellant.      O. P. Rana for the Respondent.      The Judgment of the Court was delivered by      KAILASAM, J.  This appeal is by special leave by Sambhu Dayal against  the judgment  of the  High Court of Allahabad allowing an  appeal by  the Government  of U.P.  and setting aside the  order of  acquittal and  restoring the conviction under  sections   8  and   16  of  the  Prevention  of  Food Adulteration Act  and the  sentence of  six months  rigorous imprisonment  passed   by  the   Sub-Divisional  Magistrate, Jalaun.      On 1st  November, 1966,  Shri Raja  Ram Bhatt, the Food Inspector, went  to the  village  and  found  the  appellant Shambhu Dayal bringing cow’s milk to Orai for sale. The Food Inspector served a notice OD the petitioners and took sample

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of the  milk weighing 660 grams against cash payment of 0.60 P. He  divided it in three equal parts and kept each part in a different  bottle. He  added 16  drops of formalin in each bottle and  then sealed  the same. One of the sealed bottles was 343 given to  the petitioner.  Another bottle  was sent  to  the Public Analyst,  Lucknow, for  analysis. The  Public Analyst submitted his  report dated  14th December,  1966 giving his opinion that  the sample  was deficient  in non-fatty  solid contents by about 15 per cent. The charge-sheet was filed on 5th February, 1967 by the Food Inspector after obtaining the sanction of  the District  Medical officer of Health, Jalaun at Orai. The appellant pleaded not guilty and denied that he had sold  the milk.  According to him he was taking the milk to one Pandey of village Kharra when the Food Inspector took some of  it without  making any  payment to  him. The  trial court accepted  the case  of the  prosecution  and  on  10th November, 1967  convicted the appellant under section 8 read with section  16 of  the Prevention of Food Adulteration Act and sentenced  him to  six months rigorous imprisonment. The appellant preferred  a  Criminal  Appeal  to  the  Court  of Sessions. By  its judgment  dated  12th  October,  1968  the Sessions  Judge   allowed  the  appeal  and  set  aside  the conviction and  sentence imposed  upon  the  appellant.  The State of  U.P. preferred  an appeal  to the  High  Court  of Allahabad. A  Division Bench  of the  High Court allowed the appeal and restored the conviction and sentence imposed upon the appellant by the trial court.      Miss Meera Bali, the learned advocate appearing for the appellant raised  three contentions.  She submitted that the Prevention of  Food Adulteration Act came into force in 1954 and before  the amending  Act 49 of 1964 came into force the power to  appoint the  Public  Analyst  and  Food  Inspector rested with  the State  Government only.  After the amending Act, Act  49 of  1964, sections  8 and 9 were substituted by new sections  8  and  9  which  provided  that  the  Central Government or  the State  Government may  by notification in the official  Gazette appoint  a Public  Analyst and  a Food Inspector. The  amending Act  came into  force in  1964. The State Government  by notification  dated 15th  April,  1968, appointed Food  Inspectors with  effect from 1st March, 1965 and by  notification dated 23rd March, 1968 appointed Dr. R. S. Srivastava  as the  Public Analyst  with effect  from 1st March, 1965.  The submission  of the learned counsel is that when the  offence took  place on  1st November, 1966 neither the Food  Inspector nor  the Public Analyst was empowered to function  as   Food  Inspector  or  Public  Analyst  as  the notification was  made very  much later  on 15th April, 1968 and 23rd March, 1968 respectively. It was submitted that the notification  cannot   give  retrospective   effect  to  the appointment from 1st March, 1965.      The Plea was accepted by the learned Sessions Judge but the High  court held following the decision of the Allahabad High Court in Nagar 344 Mahapalika v. Ram Dhani(1) that the notification relating to the appointment of the Food Inspector and the Public Analyst issued under  the unamended  Act was  valid even  after  the amendment. Sections  8 and  9 of  the Food Adulteration Act, 1950 before the amending Act 49 of 1964 stood thus:           "8. Public  Analysts. The State Government may, by      notification in  the  official  Gazette,  appoint  such      persons  as   it  thinks   fit,  and,  possessing  such      qualifications. as  may  be  prescribed  to  be  Public

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    Analyst and  define local  areas over  which they shall      exercise jurisdiction.           "9. (1)  Subject to  the provisions of Section 14,      the  State  Government,  may  by  notification  in  the      official Gazette,  appoint persons in such number as it      thinks fit,  having the prescribed qualifications to be      Food Inspectors  for the  purpose of this Act, and they      shall exercise  their power  within such local areas as      that Government may assign to them;" The relevant  amendment to  sections 8 and 9 is contained in section 5 of the amending Act which reads as follows:-           "5. Substitution  of new  Sections for  Sections 8      and 9.           For sections  8 and  9 of  the Principal  Act, the      following sections shall be substituted, namely:-           8. Public  Analysts: The Central Government or the      State Government  may, by notifications in the official      Gazette appoint  such persons  as it thinks fit, having      the prescribed  qualifications to be Public Analyst for such local areas as may be  assigned to  them by  the Central Government, as the same may be:           *             *           *              *           9. Food  Inspectors .(1) The Central Government or      the  State  Government  may,  by  notification  in  the      official Gazette,  appoint such-persons  as  it  thinks      fit, having  the & prescribed qualifications to be Food      Inspectors for  such local  areas as may be assigned to      them  by   the  Central   Government  ,  or  the  State      Government as the case may be:           *            *            *              *      On the facts it is not disputed that on the date of the offence neither  a Public  Analyst nor  a Food Inspector was appointed after  the amending  Act 49  of 1964.  The learned counsel would like us to read      (1) A.I.R. 1971 All. 53. 345 sections 8  and 9  of the  Act as repealing the old sections and  empowering   the  Central   Government  or   the  State Government  to  appoint  the  Public  Analyst  or  the  Food Inspector after  the coming  into force  of the amending Act implying that  any prior  appointment of a Public Analyst or Food Inspector  stood repealed. We are usable to accept this contention. lt  is not  necessary for  us  to  go  into  the question whether the notifications of the Government in 1968 Appointing the  Public Analyst  and the  Food Inspector with retrospective effect  from March,  1968 are valid or not for we can  rest our  decision  on  the  ground  that  being  an amending Act  the appointment  of the Public Analyst and the Food Inspector  made by  the  State  Government  before  the amendment continued to be valid. In Nagar Mahapalika Lucknow v. Ram  Dhani, (supra)  it  was  held  that  when  the  Food Inspector  and  the  Public  analyst  were  appointed  under notifications  Dated   27th  July,  1959  issued  under  the provisions of Prevention of Food Adulteration Act, 1954, the effect of  the amending  Act, Act of 49 of 1964, was only to the extent  that the Central Government was given concurrent powers  with   the  State   Government  in   the  matter  of appointment of  Public Analyst through notification and that Act 49  of  1964  did  not  repeal  any  part  of  the  Food Adulteration Act  which then  existed and  amendments in the specific provisions  of the said Act which were  affected by Act 49  of 1964  will not  have the effect of repeal of any. part of  the said  Act. We  agree with the view taken by the Bench of  the Allahabad  High Court.  The amended sections 8

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and 9  do not  in any  way repeal  Sections 8  and 9 as they originally stood.  As to  the effect  of the  amendment  the language of  the amending  sections will have to be examined to field  out whether the original sections were intended to be repealed.  The amending provisions should be held as part of the original statute. Whenever the amended section has to be applied  subsequent to  the date  of  the  amendment  the unamended provisions  of the  Act have to be read along with the amended  provisions as  though  they  arc  part  of  it. Reading the  amended  section  we  find  that  there  is  no provision,  express   or  implied,  repealing  the  existing provisions or  the rules  made thereunder.  The section will have to  be construed  as being  in  addition  to  what  had already existed.  The effect  will be  that the power of the State Government  which already  existed under the unamended section  and   the  appointments  made  thereunder  will  be preserved and  the action  taken under  the amended sections will be  in addition  to the  powers of the State Government and the appointments which had already been made.      The second point that was raised by the learned counsel was that  the sample  was sent  to the Public Analyst on 5th November, 1966 4-978SCI/78 346 but was  analysed  only  on  14th  December,  1966.  As  the analysis was  after 44  days it  was submitted that the milk would not  have been  in a  fit condition for analysis. This contention was  not accepted  by the  learned Sessions Judge who found  that there  was no  evidence about  the sample of milk being  pasteurised or its despatch under refrigeration. But the  report of the Public Analyst clearly showed that no change had  taken place  in the  constituents of  milk which would have  interfered with  the analysis. Though this point was not  pressed before  the High  Court the learned counsel relying on  a decision  of the Nagpur High Court in Dattappa Mahadappa v.  Secretary, Municipal  Committee, Baldana,  (1) submitted that where milk is analysed by the Analysts a week after the  samples were taken no presumption of adulteration can be  drawn in the absence of proof of the manner in which the samples  were sent  and the  condition in which the milk was when the samples were received by him. The learned Judge after referring  to the  various passages  in the  text book "Milk: Production  and Control"  by Harvey and Hill observed that taking  into account  that the milk was analysed by the Analyst almost  a week  after the  samples were  taken,  the absence of  proof of  the manner  in which  the samples were sent and  the condition  in which  the  milk  was  when  the samples. were  received by  him detracts  from the  value of anlyst’s certificate.  In the present case there is evidence of  the   Food  Inspector   that  he  added  formalin  as  a preservative and  the report  of the  Public Analyst that no change had  taken place  in the  constituents of  milk which wold have  interfered with  the analysis.  This statement of the analyst  was not  challenged in any of the courts below. Apart from  the statement  of the  Analyst not  having  been questioned, in  this case  it is  admitted that formalin was added to  the milk by the Food Inspector. The Food Inspector added 16  drops of  formalin in  each of the bottles and had them sealed  properly. Rule  20 of  the Prevention  of  Food Adulteration Rules requires that in the case of milk, Cream, Dahi, Khoa  and Gur  a preservative known as ’formalin, that is to  say,  a  liquid  containing  about  40  per  cent  of formaldehyde in aqueous solution in the proportion of 0.1 ml (two drops)  for 25  ml or  25 grams shall be added The High Court of  Allahabad in  Babboo v.  State(2) held that in the

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case. of  cow’s milk to which necessary quantity of formalin has been added according to Rules and which has been kept in normal  circumstances,  it  retains  its  character  and  is capable of being usefully analysed for a period of about ten months. It  is unnecessary  for us to specify the period for which the  sample will  remain unaffected but so far as this case is  concerned there  is the  clear evidence  of  Public Analyst that no      (1) A.I.R. 1951 Nag. 191.      (2) A.I.R. 1970 All. 122. 347 change had  taken place  in the  constituents of  milk which would interfere with the analysis. As this statement has not been  challenged   we  see   no  reason  for  accepting  the contention of  the learned  counsel that the analysis of the milk after  44 days  cannot be accepted. This contention has also to be rejected.      Lastly,  the   learned  counsel   submitted  that   the prosecution has  not  established  that  the  appellant  was taking the  milk for  the purpose  of calc.  This  plea  was rejected by the High Court, accepting the evidence of P.W. 2 that he know the appellant personally and that the appellant carried  on  the  business  of  selling  milk  in  Orai  and possessed a  licence in  selling milk in the preceding years and also  in the  current year. According to the witness the appellant brought  milk from  the rural areas and sold it in Orai in  the current  year and  the milk  was sold by him to hotel keepers. True evidence of this witness was accepted by the High Court and we see no reason the reject the testimony of P.W. 2. T he plea of the appellant that he was taking the milk for  supplying it  to one  Triyugi  Narain  Pandey  was rightly rejected by the High Court.      In the  result we  are unable  to  accept  any  of  the submissions made  by the  learned counsel for the appellant. We confirm  the conviction  under  Section  8(1)  read  with section 16  of the  Prevention of Food Adulteration Act. The sentence being  the minimum  prescribed  under  the  Act  it cannot be  interfered with.  In the  result  the  appeal  is dismissed. S.R.                                       Appeal dismissed. 348