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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: DEVINDER KUMAR & ORS.

DATE OF JUDGMENT07/04/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SEN, AMARENDRA NATH (J)

CITATION:  1983 AIR  545            1983 SCR  (2) 714  1983 SCC  (2) 384        1983 SCALE  (1)365

ACT:      Prevention of  Food Adulteration Act, 1954-Ss. 7(i), 11 (1) (b),  Prevention of  Food Adulteration Rules, 1955-Rules 22 and  22-A-Sample taken  after  opening  sealed  container having larger quantity than required-If valid.      Prevention of  Food Adulteration  Act, 1954-Ss.  19 (2) and 20-A-Whether  dealer and  manufacturer  can  be  jointly tried with vendor.      Criminal Procedure Code-S. 482-Scope of.      Interpretation-Rule of.

HEADNOTE:      On a complaint by the Food Inspector, who had purchased 1.5 k.g. of vanaspati as sample after opening one sealed tin of 16.5  k.g. out  of 20  such tins  kept by  the vendor for sale,  criminal  proceedings  were  instituted  against  the vendor, the  dealer and  the manufacturer  of vanaspati  for violation of  s.7 (i) of the Prevention of Food Adulteration Act, 1954  on the  ground that on analysis the vanaspati did not satisfy  the prescribed standard. The facts of all these cases are  more or  less the  same.  When  the  process  was issued, the  dealer and  the manufacturer filed petitions in the High  Court contending: (1) as the complainant had taken the sample after opening a sealed tin, he had violated r.22- A of  the Prevention  of Food  Adulteration Rules, 1955, (2) under s.  20-A of the Act the dealer or a manufacturer could be proceeded  against only  after the  vendor had  set up  a successful  defence  as  contemplated  under  s.  19(2)  and therefore  their  prosecution  along  with  the  vendor  was illegal.      The High  Court allowed  the petitions  and quashed the proceedings on  the ground that where the food was in sealed containers having  identical lable  declaration, the  entire contents of  one or  more  of  such  containers  as  may  be required to  satisfy the quantity prescribed in r. 22 should be taken  as a  part of  the sample  and  since  the  sealed container had been opened to draw the sample the prosecution was not tenable.      Allowing the appeals, ^      HELD: Rule  22-A states  that where  food  is  sold  or stocked for  sale or  for distribution  in sealed containers

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having identical  lable declaration,  the contents of one or more of  such containers  as may  be required to satisfy the quantity prescribed  in r.  22 shall be treated to be a part of the  sample. Rule 22-A does not state that where a sealed container contains a quantity larger 715 than what  is required for purposes of s. 11 read with r. 22 the sealed  container as  such should be taken as sample and that no  sample  can  be  taken  after  opening  the  sealed container. This  rule is  enacted apparently to get over the difficulty that  may arise  in taking sample and in dividing it into  three parts as required by s. 11 (1) (b) where such sealed container  containing the food in question contains a quantity less  than the  required quantity  to be  taken  as sample for  purposes of s. 11 read with r. 22. The matter is put beyond  doubt by  r. 22-B which, however, only reaffirms the legal  position existing  before  that  rule  came  into force. Rule  22-A  is  only  a  corollary  to  r.  22  which prescribes the  quantity of  sample to be sent to the Public Analyst for  analysis. The  inevitable  consequence  of  the acceptance of the argument of the accused which has appealed to  the   High  Court   is  that  where  a  manufacturer  or distributor sells  food-stuffs in  large  sealed  containers containing quantities  much larger  than what is required to be taken  as sample  under the  law and the contents of only one such  container are  exposed for  sale by a vendor after opening the container, a Food Inspector would not be able to take a  sample at  all for  proceeding under the Act against the  manufacturer,  distributor  or  even  the  vendor.  Any construction which  would lead  to such absurd result should be avoided  while construing the provisions of the Act. [718 F-G, 719 A,718 G-H, 719-G, 719 E, 718 F, 719 A-C]      State of  Kerala etc.  etc. v.  Alaserry Mohammad  etc. etc., [1978] 2 SCR, 820, referred to.      There seems  to be  no logically sound reason why, if a distributor or  a manufacturer can be subsequently impleaded under s.  20-A of  the Act,  he cannot  be joined  as a  co- accused initially  in a  joint trial if the allegations made justify such a course. [722 C]      Bhagwan Dass  Jagdish Chander  v. Delhi Administration. [1975] Supp. SCR 30, followed.      In the  instant  cases,  the  High  Court  committed  a serious  error  in  quashing  the  criminal  proceedings  in different   magistrates’   courts   in   exercise   of   its extraordinary  jurisdiction   under  s.   482  of   Criminal Procedure Code. These are not cases, where there is no legal evidence  at   all  in   support  of  the  prosecution.  The prosecution has  still  to  lead  evidence.  It  is  neither expedient nor  possible to  arrive at  a conclusion  at this stage on  the guilt  or innocence  of  the  accused  on  the material before  the  court.  High  Court  should  not  have therefore interfered at this interlocutory stage. [722 D-F]      State of  Punjab v. Sat Pal, Criminal Appeal No. 199 of 1983 decided on March 25, 1983, referred to.      While construing  food laws  such as  the Prevention of Food Adulteration  Act courts  should keep  in view that the need for  prevention of  future injury  is as  important  as punishing  a   wrong  doer  after  the  injury  is  actually inflicted. Merely because a person who has actually suffered in his  health after consuming adulterated food would not be before court  in such  cases, courts should not be too eager to quash  on slender  grounds the  prosecutions for offences alleged to have been committed under the Act. [718 D-E] 716

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal Nos. 286-292 of 1981.      Appeals by  special leave  from the  Judgment and Order dated the  24th April,  1980 of  the Punjab  & Haryana  High Court in  Criminal Misc.  Nos. 196,  198, 1565,  1567, 1569, 1571 and 1573-M/80.      D.D.Sharma for the appellant      K.C. Dua for the Respondents (Not present)      The Judgment of Court was delivered by      VENKATARAMIAH. J. The above Criminal Appeals by Special leave are filed against a common judgment delivered on April 24, 1980 by the High Court of Punjab and Haryana in Criminal Misc. Nos.  196, 198,  1565, 1567,  1569, 1571 and 1573-M of 1980.      By its judgment under appeal the High Court has quashed certain  criminal   proceedings  instituted   in   different Magistrates’ courts  against different parties for violation of section 7 (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ’the Act’). Since the facts in all  these cases  are more  or less  the same,  we  shall briefly state  the facts  in one of them i.e. Criminal Misc. No. 196-M  of 1980 on the file of High Court filed by Daljit Vig. Works  Manager, Kishan  Chand &  Co. Oil Industry Ltd., Manufacturers of  Vanaspati at  Ludhiana  in  which  he  had prayed for  quashing the criminal proceedings which had been initiated by  a  complaint  filed  by  the  Government  Food Inspector, District  Faridkot. In  that case the complainant alleged that  when he  visited the  premises of  Darshan Lal (Accused No.  1) on  July 30, 1979 he found that Darshan Lal had in  his possession  for purposes  of sale  about  twenty sealed tins  each containing  16.5 K.  G. of crown vanaspati and he  demanded a  sample of  crown vanaspati  by serving a notice on  Darahan Lal  in the  form  prescribed  under  the Prevention of  Food Adulteration  Rules,  1955  (hereinafter referred to  as ’the  Rules’). Thereafter  he purchased  1.5 K.G. of  crown vanaspati  after opening  a  sealed  tin  for analysis by paying him Rs. 15/-. The sample was divided into three equal parts and put into three dry and cleaned bottles which were  labelled and  duly closed and sealed. One of the bottles  containing  the  sample  was  sent  to  the  Public Analyst, Punjab  in a  sealed container,  through a  special messenger alongwith  a memorandum  (Form No. VII) containing the specimen of the seal and the 717 remaining two  bottles were  deposited with the Local Health Authority, Faridkot  in accordance  with the  Rules. He also seized the entire stock of vanaspati under section 10 (4) of the Act.  After the  receipt of  the Report  of  the  Public Analyst  dated  August  24,  1979  he  filed  the  complaint annexing the  Report as  an enclosure to it. The said Report stated that  on analysis  he (the Public Analyst) found that the sample  sent to  him did  not contain  sesame oil at all whereas vanaspati  was required  to contain not less than 5% by weight  of sesame  oil. The  three accused  named in  the complaint were  Darshan Lal,  the vendor, M/s. Hem Raj Pawan Kumar, the  dealers and  Kishan Chand  & Co.,  Oil  Industry Ltd., the  manufacturers of  the vanaspati  contained in the aforementioned sealed  tons. The complainant alleged that as the vanaspati  in question  did not  satisfy the  prescribed standard the  accused  were  liable  to  be  punished  under section 16 (1) (a) (i) of the Act for having contravened the provisions of  section 7  (i)  of  the  Act.  The  names  of

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witnesses including  the name  of the person in the presence of whom  the sample  had been  taken were  furnished in  the complaint. When process was issued on the basis of the above complaint Daljit  Vig, the Works Manager of the manufacturer of the  vanaspati in question filed Criminal Misc. No. 196-M of 1980  on the  file of  the High Court. Criminal Misc. No. 198-M of 1980 was filed by Pawan Kumar of M/s. Hem Raj Pawan Kumar. In these two petitions they pleaded that the criminal proceedings initiated against them were liable to be quashed on various grounds. They contended, inter alia, that because the complainant  had taken  the sample  of  vanaspati  after opening a sealed tin, he had violated Rule 22-A of the Rules and that  because under  section 20-A of the Act, the dealer or a  manufacturer could be proceeded against only after the vendor had set up a successful defence as contemplated under section 19  (2) of  the Act, their prosecution alongwith the vendor was  illegal.  In  the  connected  cases  which  were disposed of by the common judgment under appeal, the grounds were more  or less  the same. The High Court allowed all the petitions  quashing   all  the  criminal  proceedings  filed against the  petitioners before  it on the ground that where the food sold or stocked for sale or for distribution was in sealed containers  having identical  label declaration,  the entire contents  of one or more of such containers as may be required to  satisfy the  quantity  prescribed  in  Rule  22 should be taken as a part of the sample in a sealed form and since the  sealed container had been opened in each of these cases to draw the sample the prosecution was not tenable. In the instant  case it may by recalled that each of the sealed containers  contained  16.5  K.G.  of  vanaspati  and  after opening one such sealed container the complainant had 718 taken 1.5 K.G. of vanaspati as sample. The method adopted by the complainant  was found  by the High Court to be contrary to the  relevant Rules.  These appeals  by Special Leave are filed against  the judgment  and order of the High Court. It may be  stated  here  that  the  High  Court  following  its decision in  these cases  quashed  the  proceedings  against Darshan Lal,  the vendor  of the  vanaspati in  question, in Criminal Misc.  No. 2197-M  of 1980  by its order dated June 17, 1980  against which  a separate petition is filed before this Court  in Special Leave Petition (Criminal) No. 2570 of 1980 which  is also  being disposed  of today  by a separate order.      Adulteration and misbranding of food stuffs are rampant evils in our country. The Act is brought into force to check these  social  evils  in  the  larger  public  interest  for ensuring public  welfare. In  certain cases the Act provides for imposition  of penalty  without proof  of a guilty mind. This shows  the degree of concern exhibited by Parliament in so far  as public health is concerned. While construing such food laws  Courts should  keep in  view that  the  need  for prevention of  future injury  is as important as punishing a wrongdoer after  the injury  is actually  inflicted.  Merely because a  person who  has actually  suffered in  his health after consuming  adulterated food  would not be before court in such  cases, courts  should not  be too eager to quash on slender grounds  the prosecutions  for offences,  alleged to have been committed under the Act.      Section 11  of the  Act prescribes  the procedure to be followed by  the Food  Inspectors in  taking samples of food for analysis.  The quantity  of sample  to be  sent  to  the Public Analyst  for analysis is prescribed by Rule 22 of the Rules. In  the case  of vanaspati  500 grams (approximately) should be  sent to  the Public Analyst under that Rule. Rule

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22-A states  that where  food is sold or stocked for sale or for distribution in sealed containers having identical lable declaration, the  contents of one or more of such containers as may  be required  to satisfy  the quantity  prescribed in Rule 22  shall be  treated to  be a part of the sample. This Rule is  enacted apparently  to get over the difficulty that may arise  in taking  sample and  in dividing  it into three parts as  required by  section 11  (1) (b)  of the Act where each  sealed  container  containing  the  food  in  question contains a  quantity less  than the  required quantity to be taken as  sample for  the purposes  of section  11 read with Rule 22.  Rule 22-A  of the  Rules was  promulgated for  the purpose of  overcoming an  objection to  the effect that the contents of two or more different sealed containers 719 could not  form the  parts of  the same sample. Rule 22-A of the Rules  does not  state that  where  a  sealed  container contains  a  quantity  larger  than  what  is  required  for purposes  of  section  11  read  with  rule  22  the  sealed container as  such should  be taken  as sample  and that  no sample can  be taken  after opening the sealed container. It may be  stated here  that the  inevitable consequence of the acceptance  of  this  argument  of  the  accused  which  has appealed to  the High  Court is that where a manufacturer or distributor sells  food stuffs  in large  sealed  containers containing quantities  much larger  than what is required to be taken  as sample  under the  law and the contents of only one such  container are  exposed for  sale by a vendor after opening the container, a Food Inspector would not be able to take a  sample at  all for  proceeding under the Act against the manufacturer,  distributor or  even the  vendor. We feel that any construction which would lead to such absurd result should be  avoided while  construing the  provisions of  the Act. The  precautions prescribed  in section  11 of  the Act which have  to be  observed while  taking samples are indeed adequate to  prevent effectively any false sample being sent to the  Public Analyst.  If there is any prejudice caused to accused by  any negligence  on the  part of  the authorities concerned in taking or sending the true sample to the Public Analyst, the  prosecution may  have to  fail. But  there is, however,  no   legal  requirement  which  compels  the  Food Inspector to send the sealed container as such to the Public Analyst even  though it contains a quantity much larger than what is  required to  be taken as sample under Rule 22. Rule 22-A is  only a corollary to Rule 22. Rule 22-B sets at rest many  doubts   which  were   being  raised   prior  to   its promulgation. It says :           "22-B. Quantity of sample sent to be considered as      sufficent. Notwithstanding  anything contained  in Rule      22 quantity  of  sample  sent  for  analysis  shall  be      considered as  sufficient unless  the public analyst or      the Director reports to the contrary."      Even prior  to the  coming into force of Rule 22-B, the legal position  was the  same as  what was  attempted to  be achieved by  Rule 22-B of the Rules. In State of Kerala etc. etc v.  Alaserry Mohammed etc. etc. (1) this Court held Rule 22 which prescribed the quantity of food that should be sent to  the  Public  Analyst  was  only  directory  and  that  a prosecution could not fail merely on the 720 ground that the quantity sent to the Public Analyst was less than what  was prescribed,  provided the  quantity which was actually sent  was  sufficient  for  purposes  of  analysis. Untwalia, J.  speaking on  behalf of the five learned Judges who heard that case observed at page 828 thus :

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         "It would  thus be  seen that  the whole object of      section 11  and Rule  22 is  to find  out by  a correct      analyis subject  to further  verification and  tests by      the Director of the Central Laboratory or otherwise, as      to whether the sample of food is adulterated or not. If      the quantity sent to the Public Analyst, even though it      is less than that prescribed, is sufficient and enables      the Public  Analyst  to  make  correct  analysis,  then      merely because  the quantity  sent was  not  in  strict      compliance  with  the  Rule  will  not  result  in  the      nullification  of   the  report   and  obliterate   its      evidentiary value.  If the quantity sent is less, it is      for the  Public Analyst to see whether it is sufficient      for his  analysis or  not. If he finds it insufficient,      there is an end of the matter. If, however, he finds it      sufficient but  due to  one reason or the other, either      because of further tests or otherwise, it is shown that      the report  of the  Public Analyst based upon the short      quantity sent  to him  is  not  trustworthy  or  beyond      doubt, the case may fail. In other words, if the object      is frustrated  by the  sending of the short quantity by      the  Food  Inspector  to  the  Public  Analyst,  it  is      obvious, that the case may end in acquittal. But if the      object  is   not  frustrated   and  is   squarely   and      justifiably achieved  without any shadow of doubt, then      it will  endanger public  health to acquit offenders on      technical grounds which have no substance. To quote the      words of  Sir George  Rankin, C.J. from the decision of      the Calcutta  High Court  in  Chandra  Nath  Bagchi  v.      Nabadwip Chandra  Dutt and  others A.I.R. 1931 Calcutta      476 at  page 478,  it would  "be merely piling unreason      upon technicality......."  In our  considered  judgment      the Rule  is directory  and not  mandatory. But we must      hasten to  reiterate what we have said above that, even      so, Food  Inspectors should  take case to see that they      comply with the Rule as far as possible..............           We may,  in passing,  note that the Rules have now      been amended and Rule 22B has been added in 1977 ... 721      In our  opinion, the  new Rule  has been  added for the      purpose of  clarifying  the  law  and  not  by  way  of      amending it.  The law, as we have enunciated it, was so      even without Rule 22B and it is stated here to place it      beyond any debate or doubt."      It may  be noted  that in  none of  these cases has the Public Analyst  expressed the  opinion that  the quantity of sample sent  to  him  was  inadequate  for  the  purpose  of analysing it and to make a report as required by the Act. It is unfortunate  that the  High Court  in deciding  the cases before it  failed to  appreciate  and  follow  the  approach adopted by  this Court  in Alaserry Mohammed’s case (supra). The decision  of the  High Court  on the above point cannot, therefore, be sustained.      The other  ground namely  that the dealer, manufacturer or distributor  cannot be prosecuted alongwith the vendor by impleading all  of  them  initially  as  the  accused  in  a prosecution under  the Act  is unsustainable  in view of the decision of  this Court  in Bhagwan  Dass Jagdish Chander v. Delhi Administration (1). In that case after considering the effect of section 19 (2), section 20 and section 20-A of the Act, Court observed at pages 36-37 thus:           "We are also unable to accept as correct a line of      reasoning found  in V.  N. Chokra v. The State A. I. R.      1966   Punjab   421   and   Food   Inspector,   Palghat      Municipality v.  Setharam Rice & Oil Mills (1974) F. A.

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    C. P. 534 and P. B. Kurup v. Food Inspector, Malappuram      Panchayat (1969) Kerala Law Times, P. 845 that in every      case under  the  Act,  there  has  to  be  initially  a      prosecution of  a particular seller only, but those who      may have  passed on  or sold the adulterated article of      food the vendor, who is being prosecuted, could only be      brought in  subsequently after  a warranty set up under      section 19  (2)  has  been  pleaded  and  shown  to  be      substantiated. Support  was sought  for such  a view by      referring to  the special provisions of Section 20A and      Section 19  (2) and Section 20 of the Act. A reason for      section 20A  seems to  be that  the  prosecution  of  a      person impleaded as an accused under Section 20A in the      course of a trial does not require a separate sanction.      Section 20A  itself lays  down that,  where  the  Court      trying the offence is itself satisfied 722      that a  "manufacturer, distributor  or dealer  is  also      concerned with  an offence",  for which  an accused  is      being tried,  the necessary  sanction to prosecute will      be deemed  to have  been given. Another reason seems to      be that such a power enables speedy trial of the really      guilty parties.  We are  in agreement  with the view of      the Delhi  High Court  that these special provisions do      not take  away or  derogate  from  the  effect  of  the      ordinary provisions of the law which enable separate as      well as  joint trials  of accused persons in accordance      with the  provisions of the old. Sections 233 to 239 of      Criminal Procedure Code. On the other hand, there seems      no logically  sound reason  why, if  a distributor or a      manufacturer  can   be  subsequently   impleaded  under      Section 20A  of the  Act, he  cannot be joined as a co-      accused initially  in a  joint trial if the allegations      made justify such a course." (emphasis added)      Before concluding we should observe that the High Court committed a  serious error  in these  cases in  quashing the criminal proceedings  in different  magistrates’ courts at a premature   stage   in   exercise   of   its   extraordinary jurisdiction under  section  482  Criminal  Procedure  Code. These are  not cases  where it  can be said that there is no legal evidence  at all  in support  of the  prosecution. The prosecution has  still to  lead its  evidence. It is neither expedient nor  possible to  arrive at  a conclusion  at this stage on  the guilt  or innocence  of  the  accused  on  the material before  the Court. While there is no doubt that the onus of  proving the  case is  on  the  prosecution,  it  is equally clear  that the  prosecution should  have sufficient opportunity to adduce all available evidence.      We are  of the  view that  on  the  facts  and  in  the circumstances of  these criminal proceedings, the High Court should not  have interfered  at  this  interlocutory  stage. These were  not cases  of that  exceptional character  where continuance of  prosecution would  have resulted  either  in waste of  public time and money or in grave prejudice to the accused concerned. On the other hand this undue interference by  the   High  Court   has  been   responsible  for   these prosecutions in respect of grave economic offences remaining pending for  a long  time. In  a similar  case in  State  of Punjab v.  Sat Pal  decided by  us on March 25, 1983 we have set aside  the order of the High Court and remanded the case for disposal to the trial court. 723 Accordingly, we set aside the judgment and order of the High Court in  each of  these appeals and remand the cases to the respective magistrates’  courts for  disposal in  accordance

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with law. All the other contentions are left open.      The appeals are accordingly allowed. H.S.K.                                      Appeals allowed. 724