Ramjee Prasad and Alok Kumar Gupta vs The State of Bihar

S.N. Pathak, J.—This revision is directed against the judgment dated 8.12.99 passed by 4th Additional Sessions Judge, Gaya in Cr. Appeal No. 21/98/69/95 confirming. The judgment of the trial Court dated 29.8.95 rendered by S.D.J.M., Gaya, in G.R. Case No. 11/93, Tr. No. 355/95. The revisionists were convicted for an offence u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act. The appellate Court confirmed the aforesaid judgment of the trial Court against which this revision has been preferred.

It was submitted before me by the revisionists'' lawyer that in the lower Court the public analyst and the Director, who has endorsed the report (Ext. 12) of the public analyst, (Ext. 7) were not examined and, so, the report of the public analyst and the Director were unreliable. It was further submitted that the informant of the case on the basis of whose report the case was initiated was not examined. Moreover, offence u/s 16(1)(a)(i) was not proved because the report of the public analyst indicated that the "chhena" was mixed with starch and starch is a food article. The analyst report did not show that the starch, with which the alleged sweet-meat made of chhena, was injurious to health and, therefore, the revisionists should not have been convicted nor they were liable to be convicted for the offence u/s 16(1)(a)(i). The order of conviction and sentence was, therefore, illegal and hence the judgments of the two lower Courts may be set aside.

On perusal of the lower Court''s records, I find that the Food Inspector who collected the samples from the shop of the revisionists was examined as P.W. 3. He said that he collected samples of sweetmeat of chhena from the hotel of the revisionists and got it tested by public analyst. So, non-examination of the in formant of the case on whose report the case was initiated will not fatally and vitally affect the prosecution case. Now, the question is as to what offence the accused committed as per the allegation of P.W. 3. P.W. 3 had said that he had collected samples of sweet-meat purported to be made of chhena and as per the report of the public analyst, this sample collected from the Petitioners'' hotel or shop contained starch and so in the opinion of the public analyst the sweet-meat made of chhena was adulterated. The contention of the revisionists'' lawyer is that he did not commit any offence u/s 16(1)(a)(i) because u/s 2(ia)(m) the starch, with which chhena sweetmeat was adulterated was net injurious to her Section 2(ia)(m) has laid down that unless adulterant is injurious to health, no body can be punished u/s 16(1)(a)(i) In this connection, I am of the opinion that an accused has to be convicted for at offence which he commits upon the allegations and facts alleged and proved. If the trial Court or the appellate Court misapplies the penal provisions for convicting the particular accused, I do not think that he will escape from the liability of his pan(sic) act. If the facts alleged and facts proves bring him within the mischief of any culpable act, he may be legitimately convicted and sentenced there under. In this connection, Section 16(1)(a)(ii) may be mentioned. Section 16(1)(a)(i) has penalized a culprit who sells or stores an adulterated article and the adulterant is injurious to health within the meaning of Section 2(ia)(m). forever, Section 16(1)(a)(ii) has penanced a culprit who sells an article of food other than the same referred to in Clause (sic) in contravention of any provisions of this Act (Food and Adulteration Act) or of any Rule made there u/s 7 of the aforesaid Act has laid down that no person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute:

any adulterated food" Section 7(i). Section 2(1)(ia)(a) has defined the word "adulterated" by the words following:

If the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be", that article of food shall be deemed to be adulterated.

The aforesaid definition of the word adulterated would clearly indicate that if any article of food is sold purported to be made of a particular article and if it is adulterated with any other article, the article sold shall be deemed to be adulterated. In the instant case, sweet-meat was sold purported to be made of chhena and it contained starch and this starch was an adulterant with which the sweet-meat was adulterate even though the starch was not injurious to health. In all circumstances, therefore, the sweet-meat sold by the accused revisionists was adulterated and it was not made purely of chhena as it was reported to be. So, in all circumstances, the accused-revisionists had sold an adulterated food article and, therefore, they were liable to be punished u/s 16(1)(a)(ii) of the Act. The trial Court awarded minimum sentence of six months imprisonment to the revisionists and he also awarded a sentence of fine of Rs. 1000/- which is also the minimum sentence provided under the aforesaid Section. So, I do not think that the sentence was also so severe or beyond the limits prescribed u/s 16 of the Act which would call for interference by this Court.

The order of conviction is altered to one u/s 16(1)(a)(ii) of the Food Adulteration Act, but the sentence awarded by the Court below is maintained.

In the result, this revision is dismissed.