State of Punjab Vs. Devinder Kumar
& Ors [1983] INSC 36 (7 April 1983)
VENKATARAMIAH, E.S. (J) 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 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
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 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 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 :
"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. 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 with law. All the
other contentions are left open.
The appeals are accordingly allowed.
H.S.K. Appeals allowed.
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