Ajitprasad Ramkishan Singh Vs. The
State of Maharashtra  INSC 131 (2 May 1972)
MATHEW, KUTTYIL KURIEN MATHEW, KUTTYIL KURIEN
REDDY, P. JAGANMOHAN MITTER, G.K.
CITATION: 1972 AIR 1631 1973 SCR (1) 483 1972
SCC (3) 180
Prevention of Food Adulteration Act, 1954 (37
of 1954), s.13(2) long delay between taking sample and launching prosecution
for adulteration of milk-If accused does not make application under s. 13(2) he
cannot claim that sample must, have deteriorated and he has lost valuable right
to have analysed by Director.
The appellant had a 'sweet meat shop in
Bombay whose running he had entrusted to his nephew. The food inspector acting
under the Prevention of Food Adulteration Act 1954 took a sample of buffalo
milk from 'he shop. One of the three portions of the sample was given to the
vendor, another was sent to the Public Analyst and the third was kept by the
inspector. The Analyst reported that the fat content of the milk was lower than
prescribed. The appellant was prosecuted under s. 116(1)(a)(i) of the Act; the
case against his nephew was dropped since he was untraceable.
The Magistrate acquitted the appellant. He
held that there was long delay between taking the sample and the commencement
of the prosecution and since the preservative added to the sample was less than
prescribed, the sample must have become decomposed. As a result according to
the Magistrate, the appellant lost his valuable right of having his portion of
the sample analysed by the Director. The High Court reversed the judgment of
acquittal holding that since the appellant did not make any application under
s. 13(2) he could not be said to have lost any valuable right. In appeal to
HELD : The High Court's view was in
consonance with the decision of this Court in the case of Babulal Hargovindas
that unless an application to send the sample to the Director is made, the
vendor cannot-complain that he was deprived of his right to have the sample
analysed by the Director. [486 A-C] The Magistrate was wrong in thinking that
no useful purpose would be served by sending the sample for analysis by the
Director. It was not for the Magistrate to decide without any date that the
samplewould be decomposed and was incapable of being analysed. There was no
evidence before him to justify this conclusion. [486 D] The conviction of the
appellant must accordingly be upheld.
[Sentence reduced on the special facts of the
Municipal Corporation of Delhi v. Ghisa Raw,,
 2 S.C.R. II 6, distinguished.
Babulal Hargovindas v. The State of Gujarat,
1971 (1) S.C.C. 767 applied.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 243 of 1969.
Appeal by special leave from the judgment and
order dated November 18. 1969 of the Bombay High Court in Criminal Appeal No.
484 M. P. Kenya and K. Rajendra Chowdhary,
for the appellant.
B. N. Lokur and S. P. Nayar, for the
The Judgment of the Court was delivered by
Mathew, J. This appeal, by special leave, is from the judgment of the High
Court of Bombay, convicting the appellant under Section 16(1)(a)(i) read with
section 7 (i) of the Prevention of Food Adulteration Act (Act 37 of 1954),
hereinafter called the 'Act', and sentencing him to undergo R.I. for 6 months
and pay a fine of Rs. 1,000/and, in default of payment of fine, to undergo R.I.
for a further period of two months.
The appellant was the owner of a sweet meat
shop on Kurla Andheri Road, Bombay. On July 1, 1965, the Food Inspector of the
Bombay Municipal Corporation visited his shop at 9.55 A.M. and took a sample of
unboiled buffalo milk after conforming to the formalities enjoined by the Act.
The Food Inspector divided the sample into three parts, retained two parts with
him and delivered the other part to accused No.
2, who alone was in the shop at the time. The
Food Inspector sent one part for analysis by the Public Analyst.
Exhibit 'B' is the report of the Analyst.
That showed the fat content of the milk as only 2.7 per cent instead of 6 per
cent, as required by the rules framed under the Act. On the basis of the report
the accused were prosecuted.
Accused No. 1, the appellant, admitted that
lie was the owner of the shop and that accused No. 2 who actually sold the milk
to the Food Inspector was his nephew. As the whereabouts of accused No. 2 could
not be traced, the case as against him was dropped.
The Magistrate acquitted the appellant. His
reasoning was as follows: the sample was taken on July 1, 1965; the complaint was
filed on August 13, 1965, summons was served on the appellant on November 13,
1965; the date for appearance of the accused was on November 26, 1965; the
right to apply to the Court to have the part of the sample delivered to the
Vendor sent for analysis by the Director, Central Food Laboratory, Calcutta,
hereinafter referred to as the "Director", accrued to the appellant
only when the summons was served on him; since by that time the sample would
have become decomposed, he lost the valuable right to have the part of the
sample, delivered to the vendor analysed by the Director and, so, the appellant
should be acquitted.
The High Court, on appeal by the Food
Inspector reversed the order of acquittal. The High Court held that the
appellant was bound to make an application under section 13(2) of the' Act
after paying the prescribed fee and as no such application was filed by the
appellant, it could not be said that the appellant had 485 been deprived of any
valuable right : And as the fat content of milk was deficient by 55 per cent,
the food was adulterated and so, the appellant was guilty of the offence.
In this appeal, counsel for the appellant
contended that the appellant was deprived of his right to have the sample
analysed by the Director on account of the delay in the service of summons. He
said that the appellant was acquitted by the Magistrate because the Magistrate
found that on account of the delay it would be a futile exercise to have sent
the sample for analysis to the Directorand as the laches of the complainant was
the reason for the delay in the service of summons and the proximate cause of
the appellant losing his right to get the part of the sample delivered to the
vendor analysed by the Director, the appellant was entitled to be acquitted. He
relied on the decision of this Court in Municipal Corporation of Delhi v.Ghisa
Ram(1) to support his contention. We do not think that the case would in any
way assist the appellant. In that case, the part of the sample delivered to the
vendor hard been sent to the Director on the application of the vendor but, the
Director reported that the sample had become highly decomposed and could not be
analysed. It was not disputed in that case that the Food Inspector had not
taken the precaution of adding the necessary preservative to the sample. So the
Court held that the valuable right given to the vendor under section 13(2) of
the Act could not be availed of and that the conviction was bad. In the present
case, the appellant never applied to the Court to have the part of the sample
with him analysed by the Director.
Section 13 (2) of the Act states :
" After the institution of a prosecution
under this Act the accused vendor or the complainant may, on payment of the
prescribed fee, make an application to the Court for sending the part of the
sample mentioned in sub clause (i) or sub clause (iii) of clause (c) of
sub-section (1) of section 1 1 to the Director of the Central Food Laboratory
for a certificate; and on receipt of the application the Court shall first ascertain
that die mark and seal or fastening as provided in clause (b) of sub-section
(1) of section 11 are intact and may then dispatch the part of the sample under
its own seal to the Director of the Central Food Laboratory who shall thereupon
send a certificate to the Court in the prescribed form within one month from
the date of receipt of the sample, specifying the result of analysis." It
is clear from the sub-section that the appellant should have made an
application after paying the prescribed fee if he wanted the part of the sample
available with him to be sent to the Director(1)  2 S.C.R. 116.
486 for analysis. If he had made the
application after paying the prescribed fee, the Magistrate would have had no
option but to send the part of the sample for analysis by the Director. If in
pursuance of the application the part of the sample was sent to the Director
and he had reported that the part of the sample was incapable of analysis for
the reason that it was decomposed, the appellant could perhaps, have contended
that he was deprived of his right to have the sample analysed by the Director
on account of the laches of the complainant and that he should be acquitted.
But, since the appellant never applied under section 13(2) of the Act, he cannot
complain that he has been deprived of any right.
In Babulal Hargovindas v. The State of
Gujarat(3), Jaganmohan Reddy, J., speaking for the Court, said that unless an
application to send the sample to the Director is made, the vendor cannot
complain that he was deprived of his right to have the sample analysed by the
The learned Magistrate was wrong in thinking
that no useful the Director. It was not for the Magistrate to decide without
any data that the sample would be decomposed and was incapable of being
analysed. The Food Inspector had sworn as P.W. 1. that he had added 8 drops of
formalin to each part of the sample. 'Though under the rules he should have
added 16 drops to each part, there is no reason to think that the sample became
decomposed 'by the time the summons was served for that reason. There was no
evidence before the Magistrate that for the reason that the prescribed quantity
of formalin was not added to each part, the part of the sample delivered to the
vendor was incapable of being analysed by the Director. Nor did the Magistrate
rely on that circumstance for his conclusion that the, sample would have become
decomposed. The appellant could have summoned the Public Analyst and examined
him if he was serious in his present contention that since the prescribed
quantity of formalin was not added, the part of the sample would have become
decomposed by the time the summons was served, and no useful purpose would have
been served by sending the sample for analysis by the Director. There was,
therefore, no evidence that the part of the sample available with the appellant
had so deteriorated at the time the summons was served as to be incapable of
being analysed. In Sukhmal Gupta and another v. The Corporation of Calcutta(2),
Sikri, J. as he then was, speaking for the Court, said:
"....... it was held by this Court in Municipal.
Corporation of Delhi v. Ghisa Ram that section 13 (2) of the Act confers a
valuable right to have the sample given co him analysed by the Director of the
Central Food Laboratory but, "the reason why the conviction cannot be sustained
(1) (1)S.C.C.767. (2)G.A.Nol61ofl966,dicided on May 3,1968.
487 is that the accused is prejudiced in his
defence and is denied a valuable right of defending himself solely due to the dale
berate acts of the prosecution". In this case no prejudice of the defence
has been Shown. It has not been established on the record that the sample of
tea which was available with the appellant had deteriorated by the time the
summons was received. He never utilised the right under section 13(2) of the
Act of sending the sample to the Director of Central Food Laboratory".
We are of the opinion that the High Court was
right in coming to the conclusion that the appellant was guilty of the offence.
But we do not think that the sentence of 6 months R.I. and fine of Rs. 1,000/was
called for in the circumstances of the case. Since the offence fell under
proviso (1) of section 16 of the Act, the Court was not bound to impose a
sentence of imprisonment for a term of 6 months. The appellant had entrusted
the running of the shop to the second accused, his nephew. There is no evidence
to show that there was any mechanism in the shop by which the fat content could
be extracted from un-boiled milk. There is also no evidence that any water had
been added to the milk.
Taking into account all these circumstances,
we reduce the sentence to R.I. for 3 months and the fine to Rs. 500//and we
direct that in default of payment of fine, the appellant will undergo R.I. for
a further period of one month. The appeal is allowed only to the extent
indicated but is dismissed in all other aspects.
The appellant, if on bail, shall surrender to
G.C. Appeal allowed in part.