Khushi Ram vs State of Punjab

S.C. Malte, J.

The petitioner in this case was convicted and sentenced for the offence under the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The allegations were that he sold the turmeric powder which was found to be adulterated. On April 26, 1990, the Food Inspector visited the shop of the petitioner and seized the turmeric powder after following the usual procedure under the Act. Sample was sent to the Public Analyst who opined that the turmeric powder contained ash insoluble contents 2.72% against the maximum prescribed standards of 1.5%. Besides that it contained rice starch as an admixture. Further, the grit contents were 1.26%. Thus, the sample did not conform with the required standard.

The papers further indicate that the other sample of the same turmeric powder which was seized by the Food Inspector, was sent to the Central Food Laboratory, who found that ash insoluble contents were 2.68% by weight as against the maximum specified limit of 1.5% by weight. The Central Food Laboratory further found that it contained artificial unpermitted oil disoluable colouring matter and extraneous matter which was identified as rice bran. The trial Court found the petitioner guilty under the said Act and sentenced him to undergo rigorous imprisonment for one year and fine of Rs. 1,000/. In default of payment of fine to further undergo rigorous imprisonment for three months. The Additional Sessions Judge upheld the conviction and sentence awarded by the trial Court. Hence the petitioner has now preferred this revision against that order.

Learned counsel for the petitioner confined his argument to the quantum of sentence. He submitted that the petitioner was of seventycontainingtwo years of age. Further, the alleged adulteration in the turmeric powder was not injurious to health. It is submitted that the petitioner is in custody since September 23, 1996, and in these circumstances of the case, the petitioner''s sentence already undergone may be considered as sufficient. The learned A.A.G., Punjab on the other hand has submitted that there is no material to show that the petitioner is an old person of seventytwo years of age. He has brought my attention to the provisions of the Act to emphasis the point that the Act does not permit sentence below six months.

In view of the various rulings to which the learned counsel for the petitioner has made reference, and which I will discuss at a later stage, it appears necessary to consider the provisions of the Act to ascertain in which cases, the Court is in a position to take into consideration the various factors for showing leniency and in that case, to what extent leniency can be shown. These offence under the Act are penalties as per Section 16. Section 16 is divided in various clauses and subclauses. In the present case, clause (i) of subsection 1 of Section 16 would be applicable. It provides punishment in respect of adulteration of food article as indicated in sub clause (m) of clause (ia) of Section 2. It pertains to adulteration of a food article of which the quality or purity falls below the prescribed standard by reason of such adulteration which does not render it injurious to health. It may be recalled that one of the arguments was that leniency be shown because the alleged adulteration was not injurious to health. In that context, it may be mentioned that the penalising portion of Section 16 provides that in such cases also, the imprisonment shall not be less than six months which may extend to three years. In addition to that, the accused has to be penalised with fine which shall not be less than one thousand rupees. Briefly stated therefore, even in this case, the imprisonment cannot be less than the one mentioned above.

Learned counsel for the petitioner invited my attention to Joginder Singh v. State, 1980 C.L.R. 197 in which the Full Bench of this Court considered the provisions of Sections 360 and 361 of the Code of Criminal Procedure and Sections 4 and 6 of the Probation of Offenders Act, and observed that minimum punishment prescribed under the Act does not create a bar to the application of the provisions of Sections 360 and 361 of the Code of Criminal Procedure and Sections 4 and 6 of the Probation of Offenders Act. The provisions of Probation of Offenders Act and Sections 360 and 361 of the Code of Criminal Procedure were also considered by the Single Bench of this Court in Ved Parkash v. State of Haryana, 1996(1) R.C.R. 171. While doing so, his Lordship relied on the aforesaid case of Joginder Singh.

In Ved Parkash''s case (supra), his Lordship extended the benefit of Probation of Offenders Act and Section 360 of the Code of Criminal Procedure. In that case, the complaint was dated December 3, 1986. The offence had taken place when Section 20AA of the Act was in force. The attention of his Lordship was not invited to these provisions while deciding that case. I, thus, find that in view of Section 20AA mentioned above, the provisions of Sections 360 and 361 of the Code of Criminal Procedure and Probation of Offenders Act would not be applicable in this case.

That takes me to consider the other cases in which the Courts have taken lenient view and reduced the sentence. In Ram Chand v. State of Punjab, 1984(1) R.C.R. 422, the sample of tea was taken in 1978. In that case his Lordship extended the benefit of Probation of Offenders Act. In that case also the attention of his Lordship was not invited to Section 20AA of the Act. The same Hon''ble Judge gave another decision in Satya Mohan v. State of Haryana, 1985(2) R.C.R. 604 in which edible oil was found adulterated. On that occasion also, the attention of his Lordship was not invited to Section 20AA. The same Hon''ble Judge took lenient view in Suresh Chand v. State of Haryana, 1985(1) R.C.R. 324. In that case, the living worms were found in wheat flour. With respect to the Hon''ble Judge, I find that I was not able to subscribe his view for lenient sentence below the minimum prescribed because Section 20AA of the Act lays down a total bar to such lenient view in those cases where the Act itself has provided the minimum sentence as a mandatory provisions.

The petitioner''s counsel invited my attention to Braham Dass v. State of H.P., 1988(2) R.C.R. 185 in which their Lordships of the Supreme Court were considering the case of masoor whole which was found to be mixed with living and dead insects and damaged grains. That case would be certainly distinguishable on the ground that under Section 16(1) subclause (1) proviso, which pertains to such adulteration found in case of primary food in which case leniency can be extended under the Act. The term primary food is defined under clause (xii) of Section 3A of the Act, which means article of food being a produce of agriculture or horticulture in its natural form. In this case, the turmeric powder cannot be termed as a primary food because the turmeric powder is made by either grinding or pounding the turmeric, thus, it loses its identity as a primary food as defined under the Act.

Therefore, I find that even if I happened to take a lenient view, sentence cannot be reduced below minimum sentence of six months, and a fine of Rs. 1000/. In this case, the petitioner appears to be of seventytwo years of age. It further appears that he was a petty vendor, who seems to have purchased the article. The sample in this case was taken before about six years. He has already faced the order of prosecution in the lower Courts.

In view of these circumstances, I reduce his period of sentence to six months, instead of one year imposed by the trial Court, in addition to Rs. 1000/ as fine, in default of payment of fine, rigorous imprisonment for three months as awarded by the trial Court.

With this modification, this Revision is disposed of.