Dev Raj S/o Ram Chand vs State of Punjab

B.S. Yadav, J.

The present petitioner was prosecuted under section 16(1)(a)(i) of the Prevention of Food Adulteration Act (for short the Act) in the Court of the Sub Divisional Judicial Magistrate, Pathankot. The learned Magistrate convicted and sentenced him to undergo rigorous imprisonment for nine months and to pay a fine of Rs. 1,000/. It was also ordered that in default of payment of fine, he would further undergo rigorous imprisonment for three months. The petitioner filed an appeal which was heard by the learned Additional Sessions Judge, Gurdaspur. He did not find any merit in the appeal and dismissed the same.

The prosecution story, as gathered from the evidence, is that on 17.11.1979, PW 2 Dr. Mohinder Singh visited the shop of the accused, situated at Madhopur in the area of Pathankot. The petitioner was found having about 20Kg. of mixed milk, in a tin, for sale. After disclosing his identity, he purchased 660 ml. of milk from the petitioner on payment of Rs. 1.50. Usual documents were prepared. The accused and Surat Singh who had been associated in the proceedings attested the documents. The purchased milk was divided into 3 separate parts and was put into 3 neat and dry bottles. 18 drops of formalise were added to each bottle. The bottles were stopped, labelled, wrapped and sealed in accordance with the procedure laid down in the Act and the Rules. The signatures of the petitioner on each bottle were obtained. Dr. Mohinder Singh prepared 3 copies of the memorandum bearing the impression of the seal used. He deposited all the bottles and the three memos in the office of the Local (Health) Authority on that very day. On the same day, PW 1 Iqbal Singh who was posted as Head Clerk in the Office of the Local (Health) Authority, sent one sample bottle and one memo containing the impression of the seal used to the Public Analyst through a special messenger, Mehnga Ram and one memorandum containing the seal impression was also sent separately. These proceedings were conducted by him in the presence Dr. Mohinder Singh. Vide report dated 11th of December, 1979, the Public Analyst found that the milk fat contents of the sample were 5.9% while milksolids not fat 7.6%. Thus, the milksolids not fat were 11% deficient of the minimum prescribed standard. After receipt of the report of the Public Analyst, the Food Inspector filed the complaint against the petitioner. During the pendency of the proceedings, the petitioner exercised his right under section 13(2) of the Act. One part of sample kept with the Local (Health) Authority was sent to the Central Food Laboratory From there report Ex. CX was received to the effect that the milk fat contents were 5.6% while milk solids not fat were 8.1.%. The Director of the said Laboratory opined that sample did not conform to the standard of mixed milk laid down in clause A.11.01.11 of the Food Adulteration Act (Appendix B) of the Prevention of Food Adulteration Rules, 1955, as the milk solids not fat were below the minimum prescribed standard.

After the close of the prosecution evidence, the petitioner was examined under section 313 of the Code of Criminal Procedure. He pleaded that there was a board hanging in his shop on which it was mentioned that it was teastall and milk was not meant for sale and tea was prepared from cow''s milk. In his defence, he has examined DW 1 Surat Singh who had been associated by the Food Inspector in the proceedings. This witness supported the plea of the petitioner.

The learned counsel for the petitioner vehemently argued that clause (c) of subsection (1) of section 11 of the Act was not complied with by the Food Inspector. At this stage, it will be better to quote section 11(1)(c) of the Act which reads as under.

"11(1). When a food inspector takes a sample of food for analysis, he shall :

(a) ... ... ...

(b) ... ... ...

(c) (i) send one of the parts for analysis to the public analyst under intimation at the Local (Health) Authority, and (ii) send the remaining two parts to the Local (Health) Authority for the purposes of subsection (2) of this section and subsection (2A) and (2E) of section 13."

The learned counsel for the petitioner argued that the said provision is mandatory and the Food Inspector was bound to send one part of the sample directly to the Public Analyst under intimation to the Local (Health) Authority and only the remaining two parts of the sample were to be sent to the said authority. He argued that in the present case, it is an admitted case of the prosecution that all the three parts of the sample, along with the three memos containing the sample of the seal used, were deposited with the Local (Health) Authority.

To support his arguments that noncompliance with section 11(1)(c) of the Act is fatal to the prosecution case, he has cited The Food Inspector, Anakapalli Municipality v. Kapusetti Polipilli, 1978 (II) FAC 132 (Andhra Pradesh High Court). In that case, the Food Inspector had handed over one of the samples to the person from whom the sample was taken and kept one bottle with him, while the third bottle was sent to the Public Analyst. Therein it was remarked :

"According to S. 11(1)(c) of the Act, he should send one of the parts for analysis to the Public Analyst under intimation to the local health authority and send the remaining two parts to the local health authority for purpose of preserving the same. In the instant case, the Food Inspector has not complied with these provisions of section 11 in spite of fact that two months have elapsed after the coming into force of the amended Act, as the new Act came into force on 1.4.1976, and the date of occurrence is 31.5.1976. The Food Inspector ought not to have given the second sample bottle to the accused, but ought to have sent the 2nd and 3rd bottles to the local healthy authority. Moreover, the Food Inspector ought to have also taken signature or thumbimpression of the accused on these samples which he has not done so. In these circumstances, to my mind, the trial Court was correct in acquitting the accused."

The learned counsel for the petitioner has also cited Jagdish Chandra v. State, 1980 (I) FAC 324 (Allahabad High Court). In that case also a question arose, whether there had been any infringement of section 11(1)(c) of the Act and after discussion, it was held that there had been full compliance of the procedure prescribed under the provisions. On the basis of the above case, the learned counsel for the petitioner argued that section 11(1)(c) i mandatory in nature.

The learned counsel for the petitioner has also cited State of Maharashtra v. Ranchhoddas Mooljibhai and others, 1979 (II) FAC 348 (Bombay High Court). That case related to the violation of clause (b) of subsection (1) of section 11 of the Act and it was held that the said provision was mandatory. That ruling is, of course, not applicable.

I am of the opinion that section 11(1)(c) of the Act cannot be said to be mandatory. Such provision can be considered as mandatory if its violation would cause prejudice to an accused. Section 11(1)(c) only lays down how the 3 parts of the sample are to be dealt with. If there is a slight infraction of that provision, the accused would not be entitled to acquittal merely on that ground. He will have to show that on account of the violation, prejudice has been caused to him.

In the present case, the learned counsel for the petitioner has not been able to show how the petitioner was prejudiced if instead of sending one part of the sample direct to the Public Analyst, the Food Inspector deposited three bottles with the Local (Health) Authority. The accused exercised his right under section 13(2) of the Act and one part of the sample which was laying deposited with the Local (Health) Authority was sent to the Central Food Laboratory for analysis. That part was found fit for analysis and the Director of the Central Food Laboratory has sent his report which has already been noticed.

Moreover, section 11(1)(c) of the Act might not have been complied with in letter by the Food Inspector, but it has been complied with in spirit. In the case in hand, the person who took the sample was a doctor of the hospital and he had been appointed as Food Inspector. The Local (Health) Authority is the Civil Surgeon or some doctor subordinate to him. Therefore PW 2 Dr. Mohinder Singh took the three parts of the sample to his office, as he had no separate office like that of Government Food Inspector. The expenses of sending a messenger or registered covers had to be borne by the hospital authorities. PW 1 Iqbal Singh, Head Clark of the Office of the Local (Health) Authority has stated that after Dr. Mohinder Singh had deposited the three sample bottles, along with three memorandum forms, containing the impression of the seal used, on that very day, one sample bottle and one memo containing the seal impression was sent to the Public Analyst through messenger Mehnga Ram. One memorandum containing seal impression was also sent separately in presence of the doctor to the Public Analyst. By the word `doctor'' he means Dr. Mohinder Singh. Thus, instead of himself sending one bottle to the Public Analyst, along with one memorandum, I do not think that there has been any violation of the provision in question. It is, therefore, held that in the present case, there has been no violation of section 11(1)(c) of the Act.

I may also quote here State of Punjab v. Devinder Kumar and others, AIR 1983 SC 545 wherein it was remarked :

"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 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 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 prosecution for offences, alleged to have been committed under the Act."

Therefore, even if it be held that there has been a slight violation of section 11(1)(c), the petitioner cannot be acquitted on his slender ground. As noticed earlier, the learned counsel for the petitioner has not been able to show that the violation of this provision has caused any prejudice to his client.

The learned counsel for the petitioner also prayed for reduction in sentence on the ground that the petitioner is a teavendor. Section 16(1) lay down the minimum sentence of six months and a fine of Rs. 1,000/. In case the article food of which sample is taken is primary food, a lesser sentence can be awarded. It has already been held by a Division Bench of this Court in Cr. A. 392DB of 1981, State of Haryana v. Jagdish, decided on June 20, 1983 : 1983(2) Recent Criminal Reports 210 that milk is not a primary food. The petitioner has been awarded nine months'' rigorous imprisonment and a fine of Rs. 1,000/. Considering the fact that he is a teavendor and that the deficiency, was in milk solids not fat, I maintain his conviction, but reduce the sentence of rigorous imprisonment to six months. The sentence of fine and the sentence of rigorous imprisonment awarded in lieu of fine is maintained. This appeal is disposed of accordingly.