Govind Ram vs State of Rajasthan

M.A.A. Khan, J.—On September 22, 1983 Mani Shankar, Food Inspector (P.W.1) purchased sample ''Gulab Jamuns'' from the petitioner at Chatri Chauraha, Deoli District Tonk for analysis. On analysis, the Public Analyst reported that the sample ''Gulab Jamuns'' was adulterated for the reason of its containing non-permitted coal tar metallic yellow colour. The learned Chief Judicial Magistrate, Tonk, on the complaint filed by the Food Inspector, tried the petitioner for the offence u/s 7/16 of the Prevention of Food Adulteration Act, 1954 (the Act), and found him guilty thereof. Accordingly he convicted the petitioner of the said offence and sentenced him to six months rigorous imprisonment plus Rs. 1,000/- fine. On appeal, the learned Sessions Judge, Tonk, confirmed the conviction and sentence and dismissed petitioner''s appeal. Hence this petition u/s 397, Cr.P.C. before this Court.

Mr. Narendra Jain, the learned counsel for the petitioner urged that since the mandatory provisions contained in Section 11(3) of the Act read with Rule 17 of the Prevention of Adulteration Rules, 1955 (the Rules) were not strictly complied with in as much as the sample was taken on 22-9-83 but the same was sent to Public Analyst on 24-9-1983, the trial of the petitioner stood vitiated and he was entitled to acquittal on this ground alone. A large number of case law from various High Courts and in main the decision of Apex Court in the case of Aundal Ammal Vs. Sadasivan Pillai, and of this Court in the case of Rajkumar v. State of Rajasthan R LW (1988) 1 187, were pressed in service in support of the above contention. I find it difficult to accept the contention of Mr. Jain.

Section 11(3) and Rule 17 read as under:-

Section 11(3): When a sample of any article of food (or adulterant) is taken under Sub-section (2) of Section 10, (the Food Inspector shall, by the immediately succeeding working day, send a sample of the food or adulterant or both, as the case may be), in accordance with the rules prescribed for sampling to the Public Analyst for the local area concerned.

Rule 17: The containers of the samples shall be despatched in the following manner, namely:

(a) The sealed container of one part of the sample for analysis and a memorandum in Form VII shall be sent in a sealed packet to the Public Analyst immediately but not later than the succeeding working day by any suitable means.

(b) The sealed containers of the remaining two parts of the sample and two copies of the memoranda in Form VII shall be sent in a sealed packet to the Local (Health) Authority immediately but not later than the succeeding working day by any suitable means.

Provided that in the case of a sample of food which has been taken from container bearing Agmark seal, the memorandum in Form VII shall contain the following additional information namely:

(a) Grade.

(b) Agmark label No./Batch No.

(c) Name of packing station.

A bare reading of the above provisions tells that they cast two obligations on the Food Inspector, namely, (i) to send one part of the sample to the Public Analyst and (ii) to send the same immediately but not later than the succeeding working day. Sending of one of the parts of the samples for analysis can enable the Public Analyst to furnish the evidence of adulteration in the food article which is to lay down the very foundation of the prosecution of the offender. If this obligation is not discharged no foundation for prosecution may be laid. Therefore, non-compliance of this part of the obligation or duty by the Food Inspector would go to the very root of the case. This part of the provisions is, therefore, mandatory in character and non-compliance thereof would, in fact, result in non-prosecution or no trial of the offender what to speak of vitiating the trial.

The second part of the obligation requires the Food Inspector to send the sample ''immediately but not later than the succeeding working day''. The expression ''but not later then the succeeding working day'' used just after the word ''immediately'' ordinarily connotes and means that the word immediately has not been used in the sense of the meaning of the words ''forthwith'' or ''at once''. Then again the word ''day'' has two attributes, one ''working'' and second ''succeeding''. The attribute ''working'' used in between the words ''succeeding'' and ''day'' clarifies that the period of time, fixed by the word ''immediately'' may extend till the arrival of the ''working day''. That, to my mind, shows that time is not the essence of this obligation. The time may extend to reasonable limit. What may be reasonable time would depend on the facts of individual case. But the stress is to discharge the obligation or duty as early as possible as unreasonable delay may not leave the sample fit for analysis. If a delay of one or two days is caused in sending the sample to the Public Analyst but the Public Analyst finds it fit for analysis and examines it and sends his report to the Food Inspector, no prejudice to the accused is caused and no failure of justice is occasioned. This part of the two provisions is therefore, directory and substantial compliance thereof would save the trial from being vitiated.

It is the fundamental rule of construction of statutes that a provision therein should be so construed and the words employed in the provision should be so interpreted as promotes and advances the smooth functioning of the provisions and go to achieve the object of the statute. The construction made above. I think, meets that test.

The cases relied upon by Mr. Jain to my understanding, do not lay down a different proposition when the language of Section 11(3) and Rule 17 of the Rules is construed and the words ''immediately'', ''succeeding working day'' are interpreted in the way I have done above.

In the instant case since the sample was sent on the third day and was found fit for analysis and the Public Analyst examined the same and sent a report to the Food Inspector, Section 11(3) and Rule 17 were substantially complied with and neither any prejudice was caused to the petitioner nor any failure of justice was occasioned. The argument advanced is dismissed.

It was next urged by Mr. Jain that the charge framed was defective in as much as the violation of specific provision of the Act and of the Rules was not mentioned therein. Reliance was placed on Jagan Nath v. State of Haryana (1985) FAC 194 P&H, in support of this contention.

In the same continuation it may also be mentioned that in respect to the report of the Public Analyst Mr. Jain advanced almost a similar argument. He submitted that since the report of the Public Analyst does not mention the necessary datas and the detailed account of the test carried on by him the report be rejected outright. Support for such a contention was derived from Mool Chand v. The State of Haryana (1976) 1 FAC 239 (P&H); Puran Chand v. The State of Punjab 1980 FAJ 409 P&H and Maya Ram v. State of Punjab (1987) 2 FAC 320 P&H.

Against both the above mentioned arguments advanced by Mr. Jain, the learned Asstt. Public Prosecutor took serious objection on the ground that no such objections were raised either before the trial court or before the appellate court. In rejoinder Mr. Jain submitted that new points can be raised at any stage of the proceedings and therefore, the points raised must be considered and decided by this Court. The cases of Salekh Chand and Another Vs. The State of Uttar Pradesh, Deepak Sarkar and Another Vs. State of Bihar and Another, and Rameshwar Dayal v. State of U.P. were referred to in this behalf.

A study of the provisions contained in Chapter XXXV of the Code of Criminal Procedure 1973, relating to irregularities in the trials of criminal cases, informs that it is not each and every irregularity that goes to vitiate the trial of criminal case. It is only that irregularity which has the character of illegality and which goes to the root of the case and vitiates the trial. Section 461, Cr.P.C. enumerates the instances of the later type of irregularities with reference to the inherent lack of jurisdiction to the Magistrate in doing the specified acts. In cases of initial lack of jurisdiction to the Magistrate no question of error or good faith arises as such proceedings have no existence in the eye of law. However, if the irregularity committed does not have relevance to the initial lack of jurisdiction and does not go to the root of the case, it is curable and the doctrine of ''failure of justice'' becomes relevant. Objection against such irregularities must be taken at the earliest available opportunity (Section 465(2), Cr.P.C). If objection against such an irregularity could have been taken at the proper stage but was not so taken despite having opportunity, the failure to take objection may disentitle the accused to contend prejudice having been caused to him and/or failure of justice having been occasioned. Honest errors, harmless omissions or innocent irregularities in a criminal trial, not hitting at the initial and inherent jurisdiction of the court, are unlikely to cause either prejudice to the accused or to occasion the failure of justice. The statutory mandate contained in Sections 464, 465(1) and (2) affords assistance to the statement made above. The view expressed above gets support. I think, from the proposition laid down in the cases cited by Mr. Jain.

Coming now to the merits of the arguments advanced by Mr. Jain I find that the charge framed against the petitioner clearly stated that the "gulab jamuns" sold by him to the Food Inspector were reported as adulterated by the Public Analyst. The substance of the offence was, therefore, communicated to the petitioner. He was told that his act was punishable u/s 7/16 of the Act. The charge framed was quite specific and described in unambiguous words. It was not vague. No objection against it was ever raised by the petitioner at any stage of the proceedings. The petitioner was not misguided in his defence.

In the report of the Public Analyst necessary details of the test conducted were given. The report reads as under:

--------------------------------------------------------------------------- B.R. reading at 40�C of extracted fat -- 47�C Bonding test of extracted fat -- Negative Melting point as determined by capil- lary slip method of extracted fat -- 35�C Added colouring matter -- Non-permitted coal tar colour Metanil yellow present ---------------------------------------------------------------------------

The above details in the report about the tests conducted to find out the purity of the vanaspati used in the preparation of the "gulab jamuns" do not, I am sure, make it a vague report. The petitioner, if he considered the report as vague, could have requested the Magistrate to summon and examine the Public Analyst. That was not done and no reasons for not having done that were given by Mr. Jain.

A point of law may no doubt be raised by a party to the proceedings at any stage of the proceedings, including the proceedings before the appellate and/or revisional courts. But the point of law sought to be raised must be such as goes to the very root of the case and if accepted may affect the final decision in the case. It should not ordinarily necessitates investigation or enquiry into facts in order to establish it and to accept it. Reasons for its not taking at earlier stage of proceedings should also be given. So that seriousness and sincerity in raising such a point at a belated stage of proceedings may be appreciated in the light of the conduct of the party raising such point. Not only that the two points raised by Mr. Jain have no substance at all but also that had they been having any substance, the supposed defects or errors stood fully cured by the provisions contained in Sections 464 and 465, Cr.P.C. and Section 13(5) of the Act. Both the arguments of Mr. Jain are dismissed.

It was next urged by Mr. Jain that there was simply deficiency in flavour and such deficiency should not be mis-understood as use of non-permitted coal tar colour. In this behalf Rules 23 to 30 in Part VI of the Rules were referred to and reliance was placed on State of Maharashtra v. Ashok Kumar Netram (1975) 2 FAC 248 : 1995 Cri LJ 1576. The argument advanced is totally misconceived.

Rule 28 enumerates the chemical classes of specific colour index going by specific names. It makes coal tar dye of Tartrazine variety of yellow colour a permissible food colour. The sample in question was found containing ''Metanil'' variety of yellow colour which was not a permissible colour as per Rule 28. The sample was adulterated due to its not conforming the prescribed standard as per Rules. It is settled position of law that where standards are fixed by the statutes it is not for the courts to consider their reasonableness or correctness (see M.V. Joshi Vs. M.U. Shimpi and Another, The case relied upon by Mr. Jain is distinguishable on facts which, in view of the clear position of facts and law in this case, I do not consider necessary to discuss.

In the end Mr. Jain prayed for release of the petitioner on probation or, in the alternative, the imprisonment for 58 days already undergone by him, as urged by the learned counsel, be considered sufficient punishment for him.

Adulteration of food is a serious and grave offence affecting the health of the people at large. Showing misplaced sympathy to the offenders of such offences and adoption of lenient view in their cases not only encourages the offenders to indulge in more and more acts of adulteration thus imperiling the health of the innumerable innocent consumers, a State which we find this State in, but also causes erosion in the faith of the people in the sentencing policy and system being adopted in the dispensation of criminal justice in the field of socio-economic offences, committed against them. Such a state has to be avoided in the larger interest of the system of governance as also of the people.

Section 16(1) provides for a minimum of six months jail and Rs. 1,000/ - line for the offender under the Act. This legislative mandate has by now received judicial approval also from the Apex Court in the cases of Pyarali K. Tejani Vs. Mahadeo Ramchandra Dange and Others, and State of Andhra Pradesh Vs. S.R. Rangadamappa, wherein the necessity of imposing minimum sentence, as prescribed by the statute, has been specifically dealt with and stressed upon. In view of the nature of the adulteration made, exposure of the adulterated food stuff at a densly populated place, where casual visitors do generally get down to purchase some consumable articles, the motive of profit making at the cost of the health of countless consumers. I see no adequate and special reasons to scale down the sentence of the petitioner further.

In the result there is no merit in this petition and it is dismissed as such.