Case Note & Summary
The appeal arose out of a prosecution under the Prevention of Food Adulteration Act, 1954. The appellant owned a sweet meat shop in Bombay and had entrusted its running to his nephew, accused No. 2. On July 1, 1965, a Food Inspector visited the shop and took a sample of unboiled buffalo milk after following statutory formalities. The sample was divided into three parts: one part delivered to accused No. 2, one sent to the Public Analyst, and one retained by the Inspector. The Public Analyst's report showed fat content of 2.7 per cent against the prescribed 6 per cent, indicating adulteration. The appellant and his nephew were prosecuted under Section 16(1)(a)(i) read with Section 7(i) of the Act. The case against the nephew was dropped because he was untraceable. The Magistrate acquitted the appellant, reasoning that there was a long delay between the taking of the sample and the commencement of prosecution, and because the preservative added (8 drops of formalin instead of 16) was less than prescribed, the sample must have decomposed, thereby depriving the appellant of the valuable right to have his portion analysed by the Director of Central Food Laboratory. The High Court reversed the acquittal, holding that since the appellant had not made any application under Section 13(2) of the Act, he could not be said to have lost any valuable right. On appeal by special leave, the Supreme Court examined whether the appellant could complain of deprivation of the right to have the sample analysed when he had not invoked Section 13(2), and whether the Magistrate could presume decomposition without evidence. The appellant contended that delay in service of summons and laches of the complainant caused the sample to become decomposed and that sending it to the Director would be futile; he relied on Municipal Corporation of Delhi v. Ghisa Ram. The respondent argued that the appellant was bound to apply under Section 13(2) and pay the prescribed fee, and having failed to do so, he could not claim denial of a right; the fat content deficiency of 55 per cent established adulteration. The Court held that Section 13(2) required the accused vendor to make an application after paying the prescribed fee for sending the sample to the Director. Unless such an application was made, the vendor could not complain of being deprived of his right. The decision in Babulal Hargovindas v. State of Gujarat applied. The Court distinguished Ghisa Ram, where the vendor had actually applied and the sample was found decomposed due to absence of preservative; here no application was made. The Court further held that the Magistrate was wrong in presuming that the sample would be decomposed without any evidence. The Food Inspector had added 8 drops of formalin per part, and although the rules prescribed 16 drops, there was no evidence that the sample had deteriorated by the time summons was served. The appellant could have summoned the Public Analyst to prove deterioration but did not. The Court upheld the conviction but reduced the sentence, noting the offence fell under proviso (1) to Section 16, which did not mandate six months' imprisonment. Considering that the appellant had entrusted the shop to his nephew, there was no mechanism for fat extraction, and no evidence of added water, the Court reduced the sentence to rigorous imprisonment for 3 months, fine of Rs.500, with default rigorous imprisonment of one month. The appeal was allowed only to the extent of sentence modification and dismissed otherwise; the appellant, if on bail, was directed to surrender.
Headnote
A) Criminal Law - Food Adulteration - Right to Get Sample Analyzed by Director - Prevention of Food Adulteration Act, 1954, Section 13(2) - The appellant failed to make an application under Section 13(2) to send the sample to the Director of Central Food Laboratory; therefore, he could not claim deprivation of the valuable right to have the sample analysed by the Director. The High Court correctly reversed the acquittal on this ground, applying Babulal Hargovindas v. State of Gujarat. Held that the statutory remedy must be invoked by the accused. B) Criminal Law - Food Adulteration - Presumption of Decomposition Without Evidence - Prevention of Food Adulteration Act, 1954, Section 13(2) - The Magistrate erred in concluding that the sample would have decomposed and sending it for analysis would be futile without any data or evidence. The Food Inspector had added 8 drops of formalin instead of prescribed 16, but there was no evidence that this caused decomposition before summons was served. Held that the court cannot speculate about sample deterioration in the absence of evidence; the accused could have examined the Public Analyst. C) Criminal Law - Food Adulteration - Distinguishing Precedents on Right to Sample Analysis - Prevention of Food Adulteration Act, 1954, Sections 7(i), 16(1)(a)(i), 13(2) - Municipal Corporation of Delhi v. Ghisa Ram distinguished because there the vendor had actually applied under Section 13(2) and the sample was found decomposed due to absence of preservative; here no application was made. Babulal Hargovindas v. State of Gujarat applied. Held that conviction is sustainable despite delay where accused did not avail statutory right. D) Criminal Law - Food Adulteration - Sentencing under Proviso to Section 16 - Prevention of Food Adulteration Act, 1954, Section 16 proviso (1) - Offence fell under proviso (1) to Section 16, so court was not bound to impose six months' imprisonment; considering appellant had entrusted shop to nephew, no evidence of fat extraction mechanism or water addition, sentence reduced to 3 months R.I., fine Rs.500, default R.I. one month. Held that special facts warranted lesser sentence.
Issue of Consideration
Whether the appellant, who did not apply under Section 13(2) of the Prevention of Food Adulteration Act, 1954, could complain of being deprived of the right to have the sample analysed by the Director due to delay and insufficient preservative; and whether the Magistrate was justified in acquitting on the ground that the sample would have decomposed without any evidence.
Final Decision
The Supreme Court upheld the conviction but reduced the sentence. The appellant was sentenced to rigorous imprisonment for 3 months, a fine of Rs.500, and in default of payment of fine, rigorous imprisonment for one month. The appeal was allowed only to the extent of sentence modification and dismissed in all other aspects. The appellant, if on bail, was directed to surrender to the bail.
Law Points
- Section 13(2) of Prevention of Food Adulteration Act
- 1954 requires accused to apply for sending sample to Director
- failure to apply precludes claim of deprivation of valuable right
- court cannot presume decomposition without evidence
- accused must invoke statutory remedy
- magistrate cannot speculate on sample condition
