Dayal
Singh Vs. State of Rajasthan [2004] Insc 259 (13 April 2004)
N. Santosh
Hegde & B.P. Singh. B.P. Singh, J.
The
appellant herein was tried by the Chief Judicial Magistrate, Jodhpur, Rajasthan
charged of the offence under Section 7/16 of the Prevention of Food
Adulteration Act, 1954 since the sample of hard boiled sugar confectionary
taken from the appellant was found to be adulterated in view of the presence of
mineral oil, as also on account of its having a very unpleasant smell and
taste. The learned Chief Judicial Magistrate by his judgment and order of April
25, 1986 found the appellant guilty of the offence charged and sentenced him to
undergo rigorous imprisonment for 2 years and a fine of Rs.2,000/-, in default
of payment of fine to further undergo rigorous imprisonment for 6 months. The
appeal preferred by the appellant was dismissed by the District and Sessions
Judge, Jodhpur by his order dated August 4, 1988 who upheld the conviction but
modified the sentence and reduced it to 6 months' rigorous imprisonment and a
fine of Rs.1,000/-, in default of payment of fine to further undergo rigorous
imprisonment for 1 month. This was the minimum sentence which could be imposed
under the Act for the charge proved against the appellant.
The
appellant thereafter preferred S.B. Criminal Revision No.200 of 1988 before the
High Court of Rajasthan at Jodhpur but
the same was dismissed by the High Court by its judgment and order dated 1st August, 1997. The appellant is before us by
special leave.
The
facts of the case are not in dispute. On October 25, 1979 the Food Inspector took a sample of
hard boiled sugar confectionary from the shop of the appellant. After complying
with the requirements of the Act and the Rules the sample was sent to be Public
Analyst and the report of the Public Analyst dated November 16, 1999 showed
that the sample was not according to the prescribed standard as mineral oil was
found present which was an unwholesome ingredient, and also that the sample had
a very unpleasant smell and taste. The Food Inspector filed a complaint on January 29, 1980. After trial the learned Chief
Judicial Magistrate by his judgment and order dated April 25, 1986 found the appellant guilty and sentenced him as earlier
noticed.
The
appellant preferred an appeal before the Court of the District and Sessions
Judge, Jodhpur. During the pendency of the appeal
a Notification was issued on April 8, 1988
whereby the Central Government in exercise of powers conferred by sub-section
(1) of Section 23 of the Prevention and Food Adulteration Act amended the
Prevention of Food Adulteration Rules, 1955. In Appendix 'B' item No.25.01 was
amended and under the amended Rules, the presence of mineral oil was permitted
subject to two conditions, namely - that the mineral oil was of food grade if
used as a lubricant, and did not exceed 0.2 % by weight. It will thus be seen
that the amendment brought about in the year 1988 did not unconditionally
permit the presence of mineral oil in hard boiled sugar confectionary but
permitted only 0.2 % by weight provided it was of food grade and used as a
lubricant.
The
appeal preferred by the appellant was dismissed by the District and Sessions
Judge, Jodhpur, by his judgment and order dated August 4, 1988 and as observed earlier while
upholding the conviction the appellate court reduced his sentence to the
minimum prescribed sentence of 6 months rigorous imprisonment. Revision
preferred by the appellant before the High Court was dismissed.
Shri Krishnamani,
senior advocate appearing on behalf of the appellant argued before us with
great vehemence that the courts below have committed a clear error of law in
not noticing the amended provisions of the Rules. Since the appeal was pending
when the amended Rules came into force, the Court was bound to take notice of
it and hold that the sample was not adulterated. He further submitted that the
report of the Public Analyst was defective inasmuch as it did not mention the
percentage of mineral oil found in the sample. He placed reliance on several decisions
to support his submission that any law mollifying the rigour of criminal law
must be held to be retrospective in the sense that it must be held to be
applicable to pending proceedings, including appeal. He submitted that the
courts below were in error in holding that the amendment was only prospective
in operation and did not benefit the appellant since the date on which the
offence is alleged to have been committed, the sample was adulterated as per
the standard prescribed.
Learned
counsel for the appellant placed considerable reliance on a decision of the
Division Bench of the Delhi High Court reported in 1974 Prevention of Food
Adulteration Cases page 21 : Sunder Lal vs. Municipal Corporation of Delhi. In that case it was urged before
the High Court that during the pendency of the appeal before the High Court the
standard of compounded Hing was changed by Notification dated March 9, 1966 and that the sample conformed to
the new standard.
Consequently,
it was argued that the appellant was entitled to acquittal. While considering
the submission, the learned Judges observed that the new standard having taken
away the rigours of law and being in favour of the accused, it should be given
a retrospective operation. For this proposition reliance was placed on a
decision of the Division Bench of the Allahabad High Court in AIR 1968 All. 392
: Shyam Lal vs. State wherein after quoting from Crawford's Construction of
Statute (1940 Edition) at page 599, the Court observed :- "The above rule
of construction is based on principle that until the proceedings have reached
final judgment in the Court of last resort, that Court, when it comes to
announce its decision, must conform to the law then existing".
It
further quoted with approval the following passage from the judgment of the Allahabad
High Court :- "It seems to us clear that the true rule of construction of
a penal statute is that where the legislature evinces its intention to modify
the law, in favour of the accused, so as to reduce the rigors of the law in the
light of past experience and changed social conditions, so long as prosecution
of the accused has not concluded by a judgment of conviction, the proceedings
against him are regarded as inchoate and the law applicable to him would be the
law as amended by the legislature.
The
Court trying an accused person has to take into consideration the law as it
exists on the date of the judgment. It seems reasonable that an accused person
cannot render himself liable to a higher punishment under a statute which has
ceased to exist and has been substituted to be a new which favours him. Where
the question as to the interpretation of a penal statute is concerned, the
Court must construe its provisions beneficially in regard to their
applicability to the accused. It would be violating the spirit of the law and
the will of the Legislature as expressed in the amending statute to sentence an
accused person on the basis of the original Act which has been considered by
the Legislature to be harmful and harsh against public interest." The High
Court also relied upon the principle laid down by this Court in AIR 1965 SC 444
: Rattan Lal vs. State of Punjab.
In our
view the reliance placed on the judgment of this Court in Rattan Lal (supra)
was clearly misplaced. Indeed the principle laid down in that judgment supports
the case of the prosecution. In Rattan Lal (supra) this Court was not concerned
with the retrospective operation of a penal statute.
The
question which arose for consideration by this Court was a question of jurisdiction
of an appellate court to exercise its powers under Section 6 of the Probation
of Offenders Act, 1958. In that case the High Court did not act under Section
11 of the Probation of Offenders Act and failed to pass orders under Sections
3, 4 and 6 thereof granting benefit of probation to the accused. In that
context a question arose whether the power under Section 11 of the Act could be
exercised by the High Court in an appeal pending before it, even if such a
power could not be exercised by the trial court, since the offence was
committed at a time when the Probation of Offenders Act had not been enacted.
This Court observed:- "The first question is whether the High Court,
acting under S. 11 of the Act, can exercise the power conferred on a court under
S.6 of the Act. It is said that the jurisdiction of the High Court under S.
11(3) of the Act is confined only to a case that has been brought to its file
by appeal or revision and, therefore, it can only exercise such jurisdiction as
the trial court had, and in the present case the trial court could not have
made any order under S. 6 of the Act, as at the time it made the order the Act
had not been extended to Gurgaon District. On this assumption, the argument
proceeds, the Act should not be given retrospective operation, as, if so given,
it would affect the criminal liability of a person for an act committed by him
before the Act came into operation. In support of this contention a number of
decisions bearing on the question of retroactivity of a statute in the context
of vested rights have been cited.
Every
law that takes away or impairs a vested right is retrospective. Every ex post
facto law is necessarily retrospective. Under Art. 20 of the Constitution, no
person shall be convicted of any offence except for violation of a law in force
at the time of the commission of that act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence.
But an
ex post facto law which only mollifies the rigour of a criminal law does not
fall within the said prohibition.
If a
particular law makes a provisions to that effect, though retrospective in
operation it will be valid. The question whether such a law is retrospective
and, if so, to what extent depends upon the interpretation of a particular
statute, having regard to the well settled rules of construction".
In the
light of the principle enunciated, this Court proceeded to consider the
question whether the High Court, as the appellate court, had the power under
Section 11 to extend to the accused the benefit under the Act. In doing so this
Court noticed that it was dealing not with a case where an act which was not an
offence is made an offence under the Act ; nor was it a case where under the
Act a punishment higher than that obtaining for an offence before the Act is
imposed. This Court further observed :- "This is an instance where neither
the ingredients of the offence nor the limits of the sentence are disturbed,
but a provision is made to help the reformation of an accused through the
agency of the court. Even so the statute affects an offence committed before it
was extended to the area in question. It is, therefore, a post facto law and
has retrospective operation. In considering the scope of such a provision we
must adopt the rule of beneficial construction as enunciated by the modern
trend of judicial opinion without doing violence to the provisions of the
relevant section.
Section
11 (3) of the Act, on the basis of which the learned counsel for the State
advances most of his arguments, has no relevance to the present appeal, the
said sub-section applies only to a case where no appeal lies or is preferred
against the order of a court declining to deal with an accused under S. 3 or S.
4 of the Act, and in the instant case an appeal lay to the Sessions Judge and
indeed an appeal was preferred from the order of the Magistrate. The provision
that directly applies to the present case is S. 11 (1) of the Act, whereunder
an order under the Act may be made by any Court empowered to try and sentence
the offender to imprisonment and also by the High Court or any other court when
the case comes before it on appeal or in revision. The sub-section ex facie
does not circumscribe the jurisdiction of an appellate court to make an order
under the Act only in a case where the trial court could have made that order.
The phraseology used therein is wide enough to enable the appellate court or
the High Court, when the case comes before it, to make such an order. It was
purposely made comprehensive, as the Act was made to implement a social reform.
As the Act does not change the quantum of the sentence, but only introduces a
provision to reform the offender, there is no reason why the Legislature should
have prohibited the exercise of such a power, even if the case was pending
against the accused at one stage or other in the hierarchy of tribunals".
The
decision approves of the principle that ex post facto law which only mollifies
the rigour of the criminal law, though retrospective in operation, will be
valid. After enunciating this principle the Court interpreted Section 11 of the
Probation of Offenders Act and came to the conclusion that on a true
interpretation of the provision the High Court had jurisdiction to exercise the
power at the appellate stage, and this power was not confined to a case where
the trial court could have made that order. The phraseology of the Section was
wide enough to enable the appellate court or the High Court when the case came
before it, to make such an order. We, therefore, do not find that Rattan Lal
made a departure from the well settled principle that no person shall be
convicted of any offence except for violation of a law in force at the time of
the commission of that act charged as an offence, nor be subjected to a penalty
greater than with which he might have been inflicted under the law in force at
the time of the commission of the offence. This Court only laid down the
principle that an ex post facto law which only mollifies the rigour of a
criminal law did not fall within the said prohibition, and if a particular law
made a provision to that effect, though retrospective in operation, it will be
valid. Rattan Lal was, therefore, decided on an interpretation of Section 11 of
the Probation of Offenders Act which was not a penal statute in the sense that
it did not create an offence and provide for punishment thereof. We, therefore,
do not find that principles laid down in Rattan Lal depart from the well
settled principles that a penal statute which create new offences is always
prospective and a person can be punished for an offence committed by him in
accordance with law as it existed on the date on which an offence was
committed.
In
another decision of the Delhi High Court reported in the same
volume at page 19 : Municipal Corporation of Delhi vs. Mai Ram alias Bhaya Ram; Sunder Lal was followed and
reference was made to the decision of this Court in Rattan Lal (supra). We have
no doubt that the High Court of Delhi in Sunder Lal vs. Municipal Corporation
of Delhi (supra) and Municipal Corporation of Delhi vs. Mai Ram alias Bhaya Ram
(supra) and the Allahabad High Court in Shyam Lal vs, State (supra) have erred
in law in holding that Notification substituting new standards in place of the
old under the Prevention of Food Adulteration Act must, while judging the guilt
of an accused, be given retrospective operation. We are clearly of the view
that this Court in Rattan Lal did not lay down such a proposition.
We
also find that in such cases application of the modified standards to cases
which arose before the amendment of the Rules, would be impracticable as is
demonstrated by the facts of this case. As pointed out by the learned senior
counsel appearing for the appellant, the report of the Public Analyst did not
mention the percentage of mineral oil present in the sample.
This
was obviously for the reason that at the relevant time mere presence of mineral
oil, being an unwholesome ingredient, amounted to adulteration and, therefore,
it was not necessary for the Public Analyst to mention the percentage of
mineral oil found in the sample. Moreover under the modified standard the
mineral oil found in the sample must be of food grade, if used as a lubricant.
There is no report on this aspect of the matter by the Public Analyst,
obviously because he was not required to do so having regard to the standard
then prescribed. On the record there is nothing to show that mineral oil found
in the sample was of food grade and was used as a lubricant and did not exceed
0.2 % by weight as prescribed under the amended Rules.
It is
not as if the amended Rules permit the presence of mineral oil in any quantity
and of any quality in hard boiled sugar confectionary. Presence of mineral oil
even after the amendment will amount to adulteration if it is not of food
grade, and not used as a lubricant, and if it is more than 0.2 % by weight.
Learned
counsel for the appellant then cited before us several judgments in which,
having regard to the long pendency of such cases, a lesser sentence was
imposed. In (1996) 4 SCC 513 : Krishan Gopal Sharma and another vs. Govt. of
N.C.T. of Delhi, this Court having regard to the technical violation of the
Rules, and having regard to the fact that no minimum sentence was prescribed at
the time when the offence was committed, found that a deterrent punishment for
imprisonment was not called for and imposition of fine will meet the ends of
justice. Similar was the approach of this Court in (1992) 1 SCC 365 : State of Orissa vs. K. Rajehwar Rao and 1995 Crl.
L. J. 3651 : N. Sukumaran Nair vs. Food Inspector, Mavelikara.
In the
instant case it was not disputed that for the offence charged a minimum
sentence of 6 months rigorous imprisonment is prescribed by law. The appellant
has been sentenced to undergo 6 months rigorous imprisonment which is the
minimum sentence. We are not inclined to modify the sentence by passing an
order of the nature passed in N. Sukumaran Nair (supra) where this Court in
exercise of its extra ordinary jurisdiction imposed only a sentence of fine and
directed the State to exercise its powers under Section 433 of the Code of
Criminal Procedure to commute the sentence of simple imprisonment for fine. In
the instant case the appellant has been sentenced to undergo 6 months rigorous
imprisonment. Moreover we are firmly of the view that strict adherence to
Prevention of Food Adulteration Act and the Rules framed thereunder is
essential for safeguarding the interest of consumers of articles of food. Stringent
laws will have no meaning if offenders could go away with mere fine.
We,
therefore, find no reason to interfere with the sentence imposed against the
appellant.
Finding
no merit, we dismiss this appeal.
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