Vijay Kumar Vs. State of Punjab 
INSC 244 (14 December 1973)
BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 687 1974 SCR (2) 701 1974
SCC (3) 769
Prevention of Food Adulteration Act, s.
16(i)(a)(b) and Rules-Whether 'Elachi Dana' sold by the appellant was
insect-infested and contained less than the required percentage of volatile
The appellant runs a sweetmeat shop in a
village in Punjab.
The food inspector took a sample of 'Elachi
Dana, kept for sale by the appellant and it was found from the report of the
Public Analyst that the sample was infested with insects' to the extent of 9.7
per cent and the volatile oil content thereof was 0.5 per cent instead of 1 per
On these facts, tile appellant was convicted
by the Magistrate under s. 16(1)(a)(i) of the Prevention of Food Adulteration
Act 1954. On appeal, the sessions court confirmed the conviction and sentence
and the High Court summarily dismissed the appeal there from.
In this Court, the following points were
urged : (i) On the date when the Food Inspector took the sample, neither the
Act nor the Rules there under had prescribed any standard for the purity of
'Elachi Dana' and therefore, deficiency in the volatile oil content could not
attract penal consequences.
(ii) One of the prosecution witnesses
admitted in his evidence that the stock of 'Elachi Dana' from which the sample
was taken was not insect infested and therefore, it follows that the
infestation must have supervened between the date on which the sample was taken
and the date of the analysis.
Dismissing the appeal,
HELD : (i) On the relevant date, Rule A-05-09
of the Rules then in force provided that the seed of 'Badi Elachil shall not
contain less than 1 per cent of volatile essential oil.
The new Rule No. A 05.04.01 prescribes the
same requirement with the difference that the article is now described as 'Badi
Elachi seeds' 'instead of 'Badi Elachi'. This is a distinction with a
difference because the substance of the matter is that 'Badi Elachil (which
must include the 'Badi Elachi seeds' Ought to contain 1 per cent volatile oil.
The Badi Elachi fruit contains the Elachi seeds. and the kernel has no edible
value apart from the seeds contained in the fruit. [702E] (ii) The sample, in
the present case was analysed 12 days after it was taken During' this short
period of 12 days, the sample could not get infested to the extent of 9.7 per
To the naked eye the insects may not be
noticeable and that was why the prosecution witness inferred that the stock of
'Elachi dana' was not insect-infested. Obviously, what he meant was that it did
not appear to be infested with insects and therefore, the inference said to
arise from the evidence of the prosecution witness is impossible to accept.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 170 of 1970.
Appeal by special leave from the judgment and
order dated the 16th September 1970 of the Punjab and Haryana High Court, at
Chandigarh in Criminal Revision No. 753 of 1970.
Nuruddin Ahmad, B. P. Singh and A. K. Verma,
for the appel- lant.
S. K. Mehta and R. N. Sachthey, for the
702 The Judgment of the Court was delivered
by CHANDRACHUD, J.-The appellant, Vijay Kumar, runs a sweetmeat shop in a
village called Baba Bakala in Punjab. On June 10, 1968 the Food Inspector,
Amritsar, took a sample from the Elachi Dana which was kept for sale by the
appellant. The report of the Public Analyst shows that the simple was infested
with insects to the extent of 9.7 per cent and the voltaile oil content thereof
was .5 per cent instead of 1 per cent.
On these facts the learned Judicial
Magistrate. 1st Class, Amritsar convicted the appellant under section
16(1)(a)(1) of the Prevention of Food Adulteration Act, 1954 and sentenced him
to rigorous imprisonment for six months and a fine of Rs. 1,000/-. The order of
conviction and sentence was confirmed in appeal by the learned Additional
Sessions Judge, Amritsar and the appeal against that judgment was dismissed
summarily by the High Court of Punjab and Haryana.
This Court granted to the appellant special
leave to appeal from the judgment of the High Court.
In his statement under section 342, Code of
Criminal Proce- dure, the appellant admitted that he was in possession of the
Elachi Dana for purposes of sale but he disputed that the Elachi Dana was
insect-infested or that its volatile oil content was deficient.
It is contended on behalf of the appellant
that on June 10, 1968 when the Food Inspector took the sample of the Elachi
Dana from the appellant's shop neither the Act nor the Rules there under had
Prescribed any standard for the purity of Elachi Dana and therefore deficiency
in the volatile oil content could not attract penal consequences. This argument
overlooks that on the relevant date, Rule A-05-09 of the- Rules then in force
provided that the seeds of Badi Elachi shall not contain less than 1 per cent
of volatile essential oil. The new Rule No. A-05-04.01, prescribes the same
requirement with the difference that the article is now described as Badi
Elachi seeds instead of Badi Elaichi.
This is a distinction without a difference
because the substance of the matter is that 'Badi Elachi' (which must include
the 'Badi Elachi seeds') ought to contain 1 per cent volatile oil. The Badi
Elachi fruit contains the Elachi seeds and the, kernel has no edible value
apart from the seeds contained in the fruit.
The only other point urged on behalf of the
appellant is that the Panch Sohan Singh, a Prosecution witness, having admitted
in his evidence that the stock of Elachi Dana from which the sample was taken
by the Food Inspector was not insect-infested, it must follow that the
infestation must have supervened between the date oil which the sample was
taken and the date of the analysis. The sample was analysed on June 22, 1968,
that is 12 days after it was taken. The inference said to arise..-from the
evidence of the Panch is impossible .to accept. To the naked eye the insects
may not be noticeable and that is why the Panch inferred that the stock of
Elachi Dana was not insect-infested. Obviously, what he meant was that it did
not appear 703 to be infested by insects. We do not agree that during the,
short period of 12 days the sample could get infested to the extent of 9.7 per
On September 7. 1964 instructions were issued
by the Director, Health Services Punjab, that due to pressure of work samples
sent for analysis could not be analysed for two or three days, that there was a
possibility that the samples may get infested during that period and therefore
Food Inspectors should mention in the forwarding letters whether the sample was
infested at the time of seizure. In the instant case the Food Inspector had not
taken this precaution and on his omission is founded the argument that the
sample may have got infested between its seizure and the analysis. The
instructions on which reliance is placed relate to articles of food like Atta
and Maida. The instructions show that it is in the rain season that such
articles of food get infested within 15 days or one month.
The sample in case was seized before the
rains had come and the article of food, of which the sample was taken is not of
the same variety referred to in the instructions issued by the Director.
Learned counsel for the appellant argued that
the sentence is to(> severe especially in view of the fact that Elachi seeds
are used more as a luxury item than as an item of necessity and because the
appellant is a petty shopkeeper in a small village. What is the proper sentence
to impose is a matter primarily for the trial court to decide. The learned Magistrate
exercised his discretion judicially and the sentence has been confirmed by the
Sessions Court and the High Court. We see no justification for interfering
therewith. Besides, the article being insect-infested.
falls within the definition contained in
section 2(i) (f) of the Act and therefore the first clause of the proviso to
section 16 of the Act. under which the Court can impose a sentence less than
the minimum prescribed, has no application. The second clause of the proviso
has also no application as the offence falls under section 16(1) (a) (i) and
not under section 16(1) (a) (ii) of the Act.
For these reasons we confirm the, order of
conviction and sentence and dismiss the appeal.