Bhagwati Prasad vs State of U.P.

P.N. Bakshi, J.—The applicant has been convicted u/s 7/16 of the Prevention of Food Adulteration Act and sentenced to 6 months R.I. and a fine of Rs. 1000/- by the Judicial Magistrate, Ballia. His conviction and sentence has been maintained in appeal by the Sessions Judge, Ballia. Hecne this revision.

I have heard learned Counsel for the applicant and have also perused the impugned orders and the record of the case.

According to the prosecution case, the Food Inspector purchased a sample of Pera which the applicant was selling at his shop at 11-30 A.M. on 18th July, 1974, in accordance with law. Out of the three sample phials prepared on the spot, one was sent for analysis. The report of the Public Analyst disclosed that the milk fat contents in the sample in question was only 1.1 percent, whereas the minimum permissible under the U.P. Pure Food Rules, 1952, was 5 percent. After obtaining sanction, the applicant has been prosecuted and convicted as above.

Both the Courts below have, on a consideration of the evidence on the record, come to the conclusion that the sample of ''pera'' was adulterated and that the offence in question have been fully established. I do not find any illegality or perversity in the finding of fact recorded by the Courts below.

It is not disputed that the ''Pera'' in the question was made out of khoya'' and ''sugar''. The standard for ''khoya'' has been prescribed and a minimum of 5 percent of milk fat is required under the U.P. Pure Food Rules, 1952. The report of the Public Analyst, detailed above, to the effect that the milk fat contents were less than the permissible minimum limit of 5 percent prescribed under the U.P. Pure Food Rules, 1952 has not been challenged. Under the U.P. Pure Food Act, 1950, ''Food'' means any article of food or drink.... used for human consumption including any substance which is ordinarily mixed in the preparation of Food. Under the Prevention of Food Adulteration Act, 1954, also Food included any article used as food or drink other than drugs and water for human consumption, as also any article which is used in the composition or preparation of human food. Even after the Amendment of the Prevention of Food Adulteration Act, 1954, by Act No. 34 of 1976, the same definition of ''food'' has been given. There can be no doubt that ''khoya'' is prepared out of the ''milk'' and ''pera'' is made out of ''khoya'' and ''sugar''. For khoya, a standard has been prescribed which requires a minimum milk fat of 5 per cent. Therefore, when specimen of ''pera'' is taken as a sample for analysis, it must contain the minimum amount of milk fat as prescribed under the Rules. The report of the Public Analyst disclosed that the milk fat contents was only 1.1%. Therefore, the sample in question was clearly adulterated.

Learned Counsel has argued that when sugar is mixed with Khoya, it undergoes a chemical change and its milk fat contents can not be analysed. This question has been considered by a Division Bench of this Court reported in State of U.P. Vs. Janki Prasad, , wherein the Public Analyst Sri. S.B. Singh was summoned and this Court held that: "In view of this statement, it was possible for the Public Analyst even after Khoya had been mixed with sugar and converted into ''Pera'' to find out the milk fat contents of Khoya used in the preparation of ''pera''. In view of this decision there is no substance in the learned Counsel''s submission.

Learned Counsel wanted to raise a new point that the U.P. Pure Food Rules have ceased to exist. The U.P. Pure Food Rules, 1952 have been repealed u/s 25 of the Prevention of Food Adulteration Act and as such the applicant cannot be convicted for their infringement. This argument is devoid of merits, as is clear from the saving clause viz. Section 25(2) of the Prevention of Food Adulteration Act which runs as under:

25(2):Notwithstanding the repeal by this Act, of any corresponding law, all rules, regulations and by-laws relating to the prevention of adulteration of food made under such corresponding law and in force immediately before the commencement of this Act shall except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended, or repealed by rules under this Act.

Neither is there any force in this argument, nor has it been urged before the Courts below.

Lastly the applicant''s counsel has submitted that the sentence awarded to the accused is excessive. Adulteration of articles of food is becoming a very common feature of the day. It can not be treated lightly. A sentence of 6 months'' R.I. and a fine of Rs. 1000/- is by no means excessive. I do not find any adequate reasons for reducing the sentence imposed upon the accused.

There is no merit in this revision, which is hereby dismissed. The applicant is on bail. He shall be taken into custody forthwith to serve out the unexpired portion of the sentence of imprisonment. The interim order passed by this Court on 4-4-1979 staying realization of fine is hereby vacated.