Full Judgment Text
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PETITIONER:
JAGDISH PRASAD ALIAS JAGDISH PRASAD GUPTA
Vs.
RESPONDENT:
STATE OF WEST BENGAL
DATE OF JUDGMENT13/12/1971
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
DUA, I.D.
CITATION:
1972 AIR 2044 1972 SCR (2) 845
1972 SCC (1) 326
CITATOR INFO :
F 1973 SC1379 (9)
RF 1976 SC 394 (15,17)
E 1980 SC1141 (8)
ACT:
Prevention of Food Adulteration Act 54-Prevention of Food
Adulteration Rules, 1955-Appendix B A 17.06-Public Analyst-
Failure to report on all tests-Does not make report
ineffective-Section 16(i)--Sentence-Circumstances justifying
reduction-Sanction-Bengal Municipal Act, 1932.
HEADNOTE:
The appellant, manager of an Oil Mill, was convicted under
s. 7(i)/16(1)(a)(i) of the Prevention of Food Adulteration
Act, 1954, and sentenced to one year rigorous imprisonment.
His appeal to the Sessions Judge was without success and a
revision to the High Court, was also dismissed. In appeal
to this Court it was contended that (i) the sanction for
prosecution did not show (a) that the Chairman of the Muni-
cipality had applied his mind before giving the sanction,
(b) that it was invalid since it was not granted by the
local authority, namely, the municipality and (e) that since
the resolution of the Municipality had authorised the
Chairman to give the sanction, the new Chairman could not
avail himself of that authorisation and, therefore. the
trial was vitiated for want of valid and legal sanction;
(ii) the ’report of the Public Analyst was not a proper
report in law and was bad and incomplete for failure to
carry out all the tests required under A. 17.06 of Appendix
B to the Prevention of Food Adulteration Rules, 1955, and
also for failure to disclose the data in the report; and
(iv) the sentence awarded was harsh for a first offender.
Reducing the sentence and dismissing the appeal,
HELD : (i) Reading ss. 20 and 51 of the Bengal Municipal
Act, 1932, the Chairman of a municipality duly authorised by
the municipality can accord sanction for prosecution of
offences under the Act. The resolution of the Municipality
authorising the Chairman to perform all the functions and
exercise the powers of the local authority within the
meaning of the Prevention of Food Adulteration Act, 1954, is
not to grant power to any particular Chairman eo nominee,
but, is a general power exercisable by any Chairman, for the
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time being, of the municipality. The High Court has rightly
pointed out that under s. 15(2) of the Bengal Municipality
Act the Municipality is a body corporate and it has
perpetual succession and, as such, any authorisation granted
by it is not limited to the Chairman then in office but will
continue unless rescinded. [848 D; G-H]
(ii) It is. true that the Public Analyst in his report has
only indicated the result of the three tests out of which
two tests were as indicated in A 17.06, while, only one,
namely, the saponification test, was said to have exceeded
the maximum on the strength of which the Public Analyst
reported that the sample was adulterated. Omission
to.report on the other four tests does not make the report
ineffective or inconclusive. Even assuming that the other
four tests are normal, if the saponification test alone did
not conform to the standards indicated in A 17.06 of
Appendix B to the Rules, the sample cannot be said to have
come up to the standard and, therefore, it is adulterated.
It is in exercise of the powers conferred by s. 23 (i) (b)
that rule 5 was made authorising standards of quality of
846
the various articles of food specified in Appendix B to the
Rules. Standards having been fixed, any person who deals in
articles of food which do not conform to them contravenes
the provisions of the Act and is liable to punishment
thereunder. [849 A-C; 850 E]
Andhra Pradesh Grain and Seed Merchants Association and
others v. Union of India & Anr., A.I.R. [1971] S.C. 2346,
referred to.
If the report of the Public Analyst was not satisfactory it
was open to the appellant to make an application for sending
the sample which was in his possession to the Director. If
he had made such an application and sent the sample under s.
13(2) the certificate granted by the Director of the Central
Food Laboratory would have superseded the report given by
the Public Analyst. This has not been done.In the
circumstances he has been properly convicted. [850 H]
(iv) The reason for the legislature to makeexception
to the minimum of six months rigorous imprisonment
prescribedunder s. 16(1) is not that the offences
specified are not considered to be serious, but the gravity
of the offences, having regard to its nature can be less if
there are any special or adequate reasons. In the present
case having regard to the fact that the appellant has been
on bail since 1964 for a period of nearly seven years, and
also because not only the oil sample satisfied all the tests
except one but the main person concerned in the manufacture
of the oil has been acquitted, interests of justice would be
served if the sentence of one year is reduced to two months
rigorous imprisonment and the appellant is further directed
to pay a fine of Rs. 1000/-. [851 F, H]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 50 of
1969.
Appeal from the judgment and order dated December 24, 1968
of the Calcutta High Court in Criminal Revisions No. 235 of
1966.
Nur-ur-din Ahmed, S. C. Agarwal and Indiraj Jaisingh, for
the appellant.
S.P. Mitra and G. S. Chatterjee for Sukumar Basu for the
respondent.
The Judgment of the Court was delivered by
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Jaganmohan Reddy, J. This appeal is by certificate under
Art. 134(1) (c) of the Constitution. The appellant is the
Manager of Sree Krishna Oil Mills, Midnapore, the proprietor
of which was one Srilal Bajoria. Both these persons were
tried jointly for an offence under S. 7(1)/16(1)(a)(i) of
the Prevention of Food Adulteration Act, 1954-hereinafter
referred to as ’the Act’. The proprietor Srilal Bajoria was
acquitted but the appellant was sentenced to one year
rigorous imprisonment. The offence in respect of which the
appellant was charged was that he being the Manager of the
Oil Mills for manufacturing mustard oil was responsible for
the adulteration. On July 10, 1964, at about II A.M. the
appellant was going in a truck carrying 100 tins of mustard
oil and was stopped by the Food Inspector, Kharagpore
Municipality. On being
847
questioned by the Food Inspector the appellant informed him
that the oil which he was carrying was manufactured at Sree
Krishna Oil Mills, Midnapore. As the Food Inspector
suspected that this oil may have been adulterated, he took
three samples according to the provisions of the Act. He
sent one sample to the Public Analyst-one he kept with
himself and the third he gave to the appellant. The Public
Analyst on examining the sample sent to him reported on
August 5, 1964, that saponification value of the oil was
181.6, Iodine value 107.2 and B. R. reading at 40’C was 60.1
and was of the opinion that the sample of mustard oil was
adulterated vide Ext. 5. After obtaining the sanction for
prosecution from the Chairman of the Municipality, the
appellant was prosecuted before, the Magistrate, 1st Class,
Midnapore. He pleaded not guilty but on the evidence and
the report of the Public Analyst he was convicted and
sentenced as aforesaid. An appeal to the Sessions Judge was
without success. Thereafter the appellant filed a revision
before the High Court and that was also dismissed.
Before us the learned counsel for the appellant has urged
similar points as were urged before the High Court, namely,
(i) that the trial was vitiated for want of valid and legal
sanction; (ii) that the report of the Public Analyst was not
a proper report in law and cannot form the basis of legal
conviction; and (iii) that the Public Analyst’s report Was
bad and incomplete for failure to carry out all the tests
required under A. 17.06 of Appendix B to the Prevention of
Food Adulteration Rules, 1955, and also for failure to
disclose the data in the report.
It is contended on behalf of the appellant that the sanction
to prosecute the appellant was given by the Chairman of
Kharagpore Municipality-Shri K C. Chaki-on August 19, 1964.
This sanction did not show (a) that tile Chairman had
applied his mind before giving the sanction; (b) that it was
valid as it was not granted by the Local Authority, namely,
the Municipality; and (c) that since the resolution of the
Municipality had authorised the Chairman to give the
sanction, the new Chairman cannot avail himself of that
authorisation as by that time there were fresh elections and
a new Chairman was elected. Accordingly it is submitted
that the sanction given by Mr. Chaki was not a proper
sanction.
It appears to us that the challenge to the validity of the
sanction is misconceived. As pointed out by the High Court,
s. 51 of the Bengal Municipal Act, 1932, enumerates the
powers of the Chairman as under:
"Save as hereinafter provided, the Chairman
shall for the transaction of the business
connected with this Act or for the purpose of
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making any order authorised
848
thereby, exercise all the powers, vested by
this Act in the Commissioners and whereby any
other law power is vested in the Commissioners
for any purpose, the Chairman may transact any
business or make any order authorised by that
law in the exercise. of that power, unless it
is otherwise expressly provided in that law."
Section 20 of the Act provides for sanction of the Local
Authority for prosecutions under the Act which includes a
Municipality. Reading these two provisions together the
Chairman of a Municipality duly authorised by the
Municipality can accord sanction for prosecution of offences
under the Act. In compliance with the aforesaid power under
s. 51 of the Bengal Municipal Act, the Municipality by
resolution dated July 28, 1960 authorised the Chairman "to
perform all the functions and exercise the. powers of the
Local Authority within the meaning of the Prevention of Food
Adulteration Act, 1954." (Exe. 7). This power, it may be
noticed, is not granted to any particular Chairman Eo
nominee, but is a general power exercisable by any Chairman
for the time being of the Municipality. It is true that a
fresh election of the Chairman was held after the resolution
of the Municipality but that does not deprive the new
Chairman of the power to grant sanction in under that,
resolution.
The appellant in Criminal Miscellaneous Petitions Nos. 450 &
515 of 1970 seeks permission to allow him to adduce
additional evidence to show that there was another
resolution by the Kharagpore Municipality dated August 18,
1965, which had given a, fresh authorisation to the Chairman
to grant sanctions for prosecution under the Act which would
show that the previous authorisation was not really valid
when sanction was given to prosecute the appellant. Apart
from the fact that, no case has been made out to adduce any
fresh evidence, the resolution itself has been passed after
the sanction for the prosecution was. given and even that
resolution as can be noticed is in similar terms to the
earlier resolution passed by the Municipality. This
subsequent resolution does not in any way indicate that the
previous power could not be availed of by the Chairman who
in fact had granted the sanction. At, the most it may have
been passed by way of abundant caution, having regard to the
contentions raised during the trial of the appellant. The
High Court has pointed out, and we think rightly, that under
s. 15(2) of the Bengal Municipal Act, the Municipality is a
body corporate and it has perpetual succession, if so any
authorisation granted by it is not limited to the Chairman
then in office, but will continue unless otherwise
rescinded.
Nextly it has been strenuously urged before us on behalf of
the appellant that the report of the Public Analyst is not a
complete report in that out of the seven tests that he had
to make under
849
A 17.06 of Appendix B to the Rules he had only made three
tests and secondly the report does not give the basis on
which. the Public Analyst came to the conclusion that the
sample of the mustard oil was adulterated. It is true that
the Public Analyst in his report has only indicated the
result of the three tests out of which two tests were as
indicated in A 17.06 while only one, namely, the
saponification test was said to have exceeded the maximum on
the strength of which the Public Analyst reported that the
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sample was adulterated. Omission to report on the other
four tests does not, in our view make the reporter
ineffective or the report inconclusive. Even assuming that
the other four tests are normal, if the saponification test
alone did not conform to the standards indicated in A 17.06
of Appendix B to the Rules the sample cannot be said to have
come up to the standard and, therefore, it is adulterated.
An attempt was made to refer us to certain technical books
and the decisions in Jagadish Chandra Jain v. Corporation of
Calcutta(1) Messrs. Netai Chandra and Surendra Nath Dey v.
Corporation of Calcutta,(2) and In re. Perumal & Co.(3) for
the proposition that the standard prescribed by A 17.06 in
Appendix B to the Rules is not conclusive because in some
places mustard can yield a higher reading. We cannot allow
any fresh evidence to be used, nor do we think that the
decisions referred to, even if they justify that contention,
can alter or vary the standard fixed in exercise of the
powers conferred by the Act in Appendix B to the Rules.
Section 3 of the, Act authorises the Central Government to
constitute a Committee called the Central Committee for Food
Standards to advise the Central Government and the State
Governments on matters arising out of the administration of
the Act and to carry out the other functions assigned to it
under the Act. Under s. 23 ( 1 ) (b) of the Act the Central
Government may, after consultation with the Committee and
subject to the condition of previous publication, make rules
"defining the standards of quality for, and fixing the
limits of variability permissible in respect of, any article
of food." It is in exercise of this power that r. 5 was made
authorising standards of quality of the various articles of
food specified in Appendix B to the Rules. In view of this
provision any article of food which does not conform to the
standards specified in Appendix B to the Rules which under
s. 2 (1) of the Act is said to be adulterated because "the
quality or purity of the article falls below the prescribed
standard or its constituents are present in quantities which
are in excess of the prescribed limits of variability."
The contention that the standards cannot be conformed to by
an ordinary vendor who is not versed in the technicalities
is also
(1) 57 C.W.N. 839.
(3) A.I.R. 1943 Mad. 47.
(2) A.I.R. 1967 Cal. 65.
850
not of significance. In this regard it was pointed out by
Shah, J., as he then was, speaking for this Court in Andhra
Pradesh Grain and Seed Merchants Association and others v.
Union of India & Anr. (1) :
"The various items in the Schedule setting out
standards of quality use technical expressions
with which an ordinary, retail dealer may not
be familiar, and also set out percentages of
components which the dealer with the means at
his command cannot verify. But by s. 3, the
Central Government has to set up the Central
Committee for Food Standards to advise the
Central and the State Governments on matters
arising out of the administration of the
Act.................. Under s. 23 ( 1 ) (b)
the Central Government makes rules prescribing
the standards of quality and the limits of
variability permissible in any article of
food. The rules are made after consultation
with the Committee for Food Standards. The
standards set out in the Appendix to the Rules
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are prescribed after consultation with the
Committee for Standards."
It appears to us therefore that standards having been fixed
as aforesaid any person who deals in articles of food which
do not confirm to them contravenes the provisions of the Act
and is liable to punishment thereunder.
It was again urged that the Public Analyst had not given the
basis for his conclusion that the saponification test did
not conform to the standards specified in A 17.06 of
Appendix B to the Rules which contention is also not
tenable. Under s. 13 (5) of the Act any document purporting
to be a report signed by a Public Analyst, unless it has
been superseded under sub-s. (3), or any document purporting
to be a certificate signed by the Director of the Central
Food Laboratory, may be used as evidence of the facts stated
therein in any proceeding under the Act or under ss. 272 to
276 of the Indian Penal Code. Under the proviso to that
sub-section any document purporting to be a certificate
signed by the Director of the Central Food Laboratory shall
be final and conclusive evidence of the facts stated
therein. If the report of the Public Analyst was not
satisfactory, it was open to the appellant to have made an
application for the sample which was in his possession to be
sent to the Director of the Central Food Laboratory for
examination. If he had made such an application and sent
the sample under s. 13 (2) the certificate granted by the
(1) A.I.R. 1971 S.C. 2346.
851
Director of the Central Food Laboratory would have
superseded the report given by the Public Analyst. This he
has not done. In the circumstances he has been properly
convicted.
Lastly it has to be considered whether the sentence awarded
in the circumstances requires any modification. It was
urged that the prosecution of the appellant was prior to the
amendment of sub-s. (1) of S. 16 of the Prevention of Food
Adulteration Act with effect from March 1, 1965, under which
the sentence has to be a minimum of six months rigorous
imprisonment, but there is no such injunction under the
unamended section and yet the maximum sentence has been
awarded to the appellant which is harsh for a first
offender. Offences under the Act being antisocial crimes
affecting the health and well-being of our people, the
Legislature having regard to the trend of courts to impose
in most cases only fines or where a sentence of imprisonment
was passed a light sentence was awarded even in cases where
a severe sentence was called for, a more drastic step was
taken by it in prescribing a minimum sentence and a minimum
fine to be imposed even for a first offence. An exception
was however made in cases falling under sub-cl. (i) of cl.
(a) of s. 16(1) and in respect of an article of food which
was considered to be adulterated under s. 2 cl. (i),(i) or
misbranded under S. 2 cl. (ix) or for an offence under sub-
clause (ii) of clause (a) of S. 16(1), in which case the
Court is given the discretion, for any adequate and special
reasons to be mentioned, to award a lesser sentence than six
months or impose a fine lesser than one thousand rupees or
of both lesser than the minimum prescribed. If for the
offence of which the appellant is convicted even under the
amended section a lesser sentence can be awarded, if there
were adequate and special reasons, it would be much more so
under the unamended section. The reasons for the
Legislature to make the exception is not that the offences
specified are not considered to be serious, but the gravity
of the offence having regard to its nature can be less if
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there are any special or adequate reasons.
In our view though offences for adulteration of food must be
severely dealt with, no doubt depending on the facts of each
case which cannot be considered as precedents in other
cases, in this case having regard to the fact that the
appellant has been on bail since 1964 for a period of nearly
seven years, and also because not only the mustard oil
sample satisfied all the tests except one but the main
person concerned in the manufacture of the said oil has been
acquitted, interests of justice would be served if the
sentence of one year is reduced to two months rigorous
imprisonment and the appellant is further directed to pay a
fine of
852
Rs. 1,000/- failing which to be directed to undergo a
further term of rigorous imprisonment for one month. We
accordingly so direct.
Subject to this modification, the appeal and the Criminal
Miscellaneous Petitions Nos. 450 and 515 of 1970 are
dismissed.
K.B.N. Appeal and petitions dismissed.
853