Ved Singh vs State of U.P. and Another

V.P. Mathur, J.—Mr. Rama Kant Sharma, the then Judicial Magistrate First of Muzaffarnagar convicted Ved Singh u/s 7(3) read with Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act and Rule 50 of the Prevention of Food Adulteration Rules and sentenced him to three months'' rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine, he was further sentenced to two months'' rigorous imprisonment. The learned Magistrate also convicted Ved Singh u/s 7(1) read with Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act and sentenced him to a fine of Rs. 1000/- and to undergo rigorous imprisonment for a period of six months. In default of payment of fine, further rigorous imprisonment of three months was also provided. This order is dated 27-1-1981.

A criminal appeal being Criminal Appeal No. 53 of 1981 was preferred by Ved Singh and it came up for hearing before the Vth Additional Sessions Judge, Muzaffarnagar. Vide his order dated October 3, 1981 he dismissed the appeal in toto and maintained the order of conviction and sentence.

Now Ved Singh has come up to this Court through this revision.

The prosecution case was that on 30-6-1977 at 6 P.M. Ved Singh was found carrying about 20-22 liters of buffalo milk in two containers for sale on his cycle and was accosted by Mr. Jeet Singh, Food Inspector near the Jamuna Canal Bridge Mundet Khurd in police station Shamli, District Muzaffarnagar. After due formalities, the sample of the milk was taken against cash payment. It was sent to the Public Analyst who submitted a report that it lacked in fatty solids by 23 per cent and non-fatty substances by 10 per cent. There a complaint was filed in Court after obtaining sanction from the Chief Medical Officer on 29-9-1977.

On the prosecution side the Food Inspector Jeet Singh appeared as a witness as PW 1.

The contention of the accused was that he was taking this milk for personal use of his Master Dharam Pal Adhati when the Food Inspector took the sample without making any payment to him. He also took the plea that he had not received the copy of the Analyst''s report and hence he could not file any application for the sending of this sample to the Director, Food Laboratory, Calcutta, and was thus prejudiced. Some other legal points were also raised.

The learned Magistrate passed the order of conviction and sentence as I have mentioned above and the learned Additional Sessions Judge confirmed the order.

The arguments which have been canvassed before me are almost the same as were advanced before the learned Sessions Judge and they have been dealt with by him also. The first point raised was that there was absence of compliance of Section 10(7) of the Prevention of Food Adulteration Act. On the contrary, the evidence was that the sample was taken in presence of two independent witnesses, namely, Pala and Bhoora, both sons of Lakhi. Section 10 only lays down that two independent witnesses should be called at the time when the sample is taken. There was complete compliance of this provision of law. Of course, these witnesses were not examined because in his statement the Inspector gave out that they had been won over. This fact appears to be correct when we peruse the statement of Pala. He was examined as a defence witness in this case. He said that the sample was taken in his presence and he had signed all the documents but his contention is that no price was paid to the accused and that the accused had told that he was carrying milk to the house of his employer. Now in this respect Pala''s statement has rightly been discarded because it goes against the record on which he has also placed his signatures. Moreover, the story that the accused revisionist had disclosed that he was taking the milk to his employer is also falsified by the very fact that according to the statement of the accused recorded u/s 313 Code of Criminal Procedure the employer was Dharampal but according to DW 2 Raj Kumar, he was the employer and not Dharampal, There is thus contradiction and it appears that Raj Kumar is a made up witness and that Dharampal has not been examined because he would not have supported the defence version. Even the sale to the Inspector is sale for the purposes of the Act and in this ease the sale of milk for price is established beyond doubt from the testimony of the Inspector and the documentary evidence, the execution of which is admitted even to the witness Pala. There is no absence of compliance of Section 10(7) of the Prevention of Food Adulteration Act.

The next argument was about the non-compliance of Section 13(2) of the Prevention of Food Adulteration Act. The contention was that the Public Analyst''s report and the memo as contemplated by the provisions of law were never served on the accused. Ext. Ka. 11, however, shows that this is something against facts. The Inspector Jeet Singh in his statement has clearly said that this bears the signature of Ved Singh and there is date 5-10-77 also mentioned on it. The memo has been proved as Ext. Ka. 9 and its dispatch has also been stated on oath by Sri Jeet Singh. He has not been cross-examined on this aspect of the matter and, therefore, it is established beyond doubt that the report of the Public Analyst as well as the memo as required by law were sent by registered post to the revisionist and were received by him on 5-10-77. Even otherwise also the accused moved an application on 23-11-78 before the court below to the effect that he wanted to plead guilty. It means, therefore, that at least on that date he had full knowledge of his prosecution. Even if he could be believed to say that he was not served with the report of the Public Analyst on 5-10-77 and with the memo there was nothing to stop him from moving an application within ten days from 23-11-78, on which date he presented himself in court and could move the application, for sending the sample to the Director Central Food Laboratory. He does not do so and, therefore, he cannot now turn round and say that he has been prejudiced.

The validity of sanction was challenged before the learned Sessions Judge but this point has not been argued before me. The sanction in this case has been granted on the report of the Food Inspector. It is Ext. Ka. 8. The sanction order has been typed out below the report of the Food Inspector and in the report full details of the case including the names of the witnesses, the facts of the matter, the details of the report of the Analyst, the spot memo and copy of the memo in Form 7 have all been mentioned. The Chief Medical Officer who is the sanctioning authority mentions in his order that he had seen the papers and then accorded the sanction. There is application of mind and the sanction cannot be said to be invalid for any reason whatsoever.

It is contended that in the memo sent to the accused vide Ext. Ka. 10 it was mentioned that he may have the sample examined by the Director of Central Food Laboratory by moving an application within ten days before the Judicial Magistrate, Kairana. The contention is that the case was taken cognizance of not by the Judicial Magistrate, Kairana, but by the Judicial Magistrate, 1st Class, Muzaffarnagar, on 29-9-77. In my opinion, that will not make any difference. Even otherwise, had the cognizance been taken by another Court, it would not have helped the accused since after appearing before the Court concerned where the case was pending, he never took action within ten days of his alleged knowledge of prosecution to have the sample sent to the Director of Central Food Laboratory for analysis. Therefore, he cannot take any benefit of this fact either.

The last point that was raised before me and which I consider to be of some importance is that the revisionist cannot be convicted both for non-production of the licence under Rule 50 of the Rules and for adulteration u/s 7 read with Section 16 of the Act at the same time. The learned Sessions Judge has not accepted this argument. But in this respect his decision is not correct. Section 16(1) of the Prevention of Food Adulteration Act reads as under:

16(1) Subject to the provisions of Sub-section (1-A) if any person-

(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food-

(i) Which is adulterated within the meaning of Sub-clause (m) of Clause (ia) of Section 2 or misbranded within the meaning of Clause (ix) of that Section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;

(ii) other than an article of food referred to in Sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or... ".

The importance of the words in Sub-clause (ii) cannot be minimised. Sub-clause (ii) clearly lays down the words "other than an article of food referred to in Sub-clause (i),". In other words, the two Sub-clauses (i) and (ii) are mutually exclusive of each other. If offence is committed under Sub-clause (i) when a person is found selling an article of food which is adulterated....and is to be punished for that offence, he cannot be punished under Sub-clause (ii) which will refer only to such cases to which Sub-clause (i) is not applicable. A person can be convicted u/s 16(1)(a)(ii) of the Act, if two conditions are satisfied. Firstly, that person should import, manufacture for sale, or store for sale or distribution any article of food other than the article of food referred to in Sub-clause (i) and secondly, his act should be in contravention of the Act and the Rules made thereunder. Unless both these conditions are satisfied, a person cannot be held guilty u/s 16(1)(a)(ii) of the Act. In the present case the revisionist is proved to have sold adulterated milk which is an article of food referred to in Sub-clause (i) of Section 16(1)(a) of the Act. Undoubtedly adulterated milk is also an article of food. This is clear from the prohibitory clause of Section 7 of the Act, which lays down that "no person for himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food...". Thus adulterated milk is also an adulterated food, referred to in Sub-clause (i) of Section 16(1)(a) of the Act. It means, therefore, that if any person is prosecuted for selling adulterated milk, even though the sale may be in contravention of the rules framed under the Act, i.e. without obtaining licence as required by the rules, the first condition for applicability of Section 16(1)(a)(ii) of the Act cannot be deemed to have been satisfied.

This legal position was considered by a Division Bench of the Madhya Pradesh High Court in Vasudeo Bhat, Food Inspector v. Ganpat, 1975 (2) FAC 404. It also came up for consideration before a Division Bench of the Delhi High Court in the matter of Municipal Corporation of Delhi v. Shri Darshan Kumar and State 1979 (1) FAC 124 and the same view was taken by this Court, placing reliance upon both the above cases in the matter of Mohammad Ali v. State of U.P. 1981 (1) FAC 3.

It means, therefore, that while the applicant has been rightly convicted and sentenced for the offence of selling adulterated milk, punishable u/s 7 read with Section 16 of the Prevention of Food Adulteration Act, he could not be convicted and sentenced for breach of Rule 50.

In the result, the revision is allowed to this extent that the conviction of the revisionist for breach of Rule 50 of the Rules framed under the Prevention of Food Adulteration Act and on that basis u/s 7(3)/(16)(1)(a)(ii) and the sentence of fine of Rs. 500/- is set aside. With it default clause shall also go; but his conviction for selling adulterated milk and the sentence of six months'' rigorous imprisonment and a fine of Rs. 1000/- are upheld. In default of payment of fine, he shall undergo three months'' rigorous imprisonment as provided by the learned Magistrate and confirmed by the learned Sessions Judge. He is on bail. His bonds are cancelled. He shall surrender and be taken into custody forthwith to serve out his sentence and steps will be taken for realisation of fine. The record shall be sent down forthwith to the court below for proceeding with the matter without delay.