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PETITIONER:

JAGDISH PRASAD ALIAS JAGDISH PRASAD GUPTA

Vs.

RESPONDENT:

STATE OF WEST BENGAL

DATE OF JUDGMENT13/12/1971

BENCH:

REDDY, P. JAGANMOHAN

BENCH:

REDDY, P. JAGANMOHAN

DUA, I.D.

CITATION:

1972 AIR 2044 1972 SCR (2) 845

1972 SCC (1) 326

CITATOR INFO :

F 1973 SC1379 (9)

RF 1976 SC 394 (15,17)

E 1980 SC1141 (8)

ACT:

Prevention of Food Adulteration Act 54-Prevention of Food

Adulteration Rules, 1955-Appendix B A 17.06-Public Analyst-

Failure to report on all tests-Does not make report

ineffective-Section 16(i)--Sentence-Circumstances justifying

reduction-Sanction-Bengal Municipal Act, 1932.

HEADNOTE:

The appellant, manager of an Oil Mill, was convicted under

s. 7(i)/16(1)(a)(i) of the Prevention of Food Adulteration

Act, 1954, and sentenced to one year rigorous imprisonment.

His appeal to the Sessions Judge was without success and a

revision to the High Court, was also dismissed. In appeal

to this Court it was contended that (i) the sanction for

prosecution did not show (a) that the Chairman of the Muni-

cipality had applied his mind before giving the sanction,

(b) that it was invalid since it was not granted by the

local authority, namely, the municipality and (e) that since

the resolution of the Municipality had authorised the

Chairman to give the sanction, the new Chairman could not

avail himself of that authorisation and, therefore. the

trial was vitiated for want of valid and legal sanction;

(ii) the 'report of the Public Analyst was not a proper

report in law and was bad and incomplete for failure to

carry out all the tests required under A. 17.06 of Appendix

B to the Prevention of Food Adulteration Rules, 1955, and

also for failure to disclose the data in the report; and

(iv) the sentence awarded was harsh for a first offender.

Reducing the sentence and dismissing the appeal,

HELD : (i) Reading ss. 20 and 51 of the Bengal Municipal

Act, 1932, the Chairman of a municipality duly authorised by

the municipality can accord sanction for prosecution of

offences under the Act. The resolution of the Municipality

authorising the Chairman to perform all the functions and

exercise the powers of the local authority within the

meaning of the Prevention of Food Adulteration Act, 1954, is

not to grant power to any particular Chairman eo nominee,

but, is a general power exercisable by any Chairman, for the

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time being, of the municipality. The High Court has rightly

pointed out that under s. 15(2) of the Bengal Municipality

Act the Municipality is a body corporate and it has

perpetual succession and, as such, any authorisation granted

by it is not limited to the Chairman then in office but will

continue unless rescinded. [848 D; G-H]

(ii) It is. true that the Public Analyst in his report has

only indicated the result of the three tests out of which

two tests were as indicated in A 17.06, while, only one,

namely, the saponification test, was said to have exceeded

the maximum on the strength of which the Public Analyst

reported that the sample was adulterated. Omission

to.report on the other four tests does not make the report

ineffective or inconclusive. Even assuming that the other

four tests are normal, if the saponification test alone did

not conform to the standards indicated in A 17.06 of

Appendix B to the Rules, the sample cannot be said to have

come up to the standard and, therefore, it is adulterated.

It is in exercise of the powers conferred by s. 23 (i) (b)

that rule 5 was made authorising standards of quality of

846

the various articles of food specified in Appendix B to the

Rules. Standards having been fixed, any person who deals in

articles of food which do not conform to them contravenes

the provisions of the Act and is liable to punishment

thereunder. [849 A-C; 850 E]

Andhra Pradesh Grain and Seed Merchants Association and

others v. Union of India & Anr., A.I.R. [1971] S.C. 2346,

referred to.

If the report of the Public Analyst was not satisfactory it

was open to the appellant to make an application for sending

the sample which was in his possession to the Director. If

he had made such an application and sent the sample under s.

13(2) the certificate granted by the Director of the Central

Food Laboratory would have superseded the report given by

the Public Analyst. This has not been done.In the

circumstances he has been properly convicted. [850 H]

(iv) The reason for the legislature to makeexception

to the minimum of six months rigorous imprisonment

prescribedunder s. 16(1) is not that the offences

specified are not considered to be serious, but the gravity

of the offences, having regard to its nature can be less if

there are any special or adequate reasons. In the present

case having regard to the fact that the appellant has been

on bail since 1964 for a period of nearly seven years, and

also because not only the oil sample satisfied all the tests

except one but the main person concerned in the manufacture

of the oil has been acquitted, interests of justice would be

served if the sentence of one year is reduced to two months

rigorous imprisonment and the appellant is further directed

to pay a fine of Rs. 1000/-. [851 F, H]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 50 of

1969.

Appeal from the judgment and order dated December 24, 1968

of the Calcutta High Court in Criminal Revisions No. 235 of

1966.

Nur-ur-din Ahmed, S. C. Agarwal and Indiraj Jaisingh, for

the appellant.

S.P. Mitra and G. S. Chatterjee for Sukumar Basu for the

respondent.

The Judgment of the Court was delivered by

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Jaganmohan Reddy, J. This appeal is by certificate under

Art. 134(1) (c) of the Constitution. The appellant is the

Manager of Sree Krishna Oil Mills, Midnapore, the proprietor

of which was one Srilal Bajoria. Both these persons were

tried jointly for an offence under S. 7(1)/16(1)(a)(i) of

the Prevention of Food Adulteration Act, 1954-hereinafter

referred to as 'the Act'. The proprietor Srilal Bajoria was

acquitted but the appellant was sentenced to one year

rigorous imprisonment. The offence in respect of which the

appellant was charged was that he being the Manager of the

Oil Mills for manufacturing mustard oil was responsible for

the adulteration. On July 10, 1964, at about II A.M. the

appellant was going in a truck carrying 100 tins of mustard

oil and was stopped by the Food Inspector, Kharagpore

Municipality. On being

847

questioned by the Food Inspector the appellant informed him

that the oil which he was carrying was manufactured at Sree

Krishna Oil Mills, Midnapore. As the Food Inspector

suspected that this oil may have been adulterated, he took

three samples according to the provisions of the Act. He

sent one sample to the Public Analyst-one he kept with

himself and the third he gave to the appellant. The Public

Analyst on examining the sample sent to him reported on

August 5, 1964, that saponification value of the oil was

181.6, Iodine value 107.2 and B. R. reading at 40'C was 60.1

and was of the opinion that the sample of mustard oil was

adulterated vide Ext. 5. After obtaining the sanction for

prosecution from the Chairman of the Municipality, the

appellant was prosecuted before, the Magistrate, 1st Class,

Midnapore. He pleaded not guilty but on the evidence and

the report of the Public Analyst he was convicted and

sentenced as aforesaid. An appeal to the Sessions Judge was

without success. Thereafter the appellant filed a revision

before the High Court and that was also dismissed.

Before us the learned counsel for the appellant has urged

similar points as were urged before the High Court, namely,

(i) that the trial was vitiated for want of valid and legal

sanction; (ii) that the report of the Public Analyst was not

a proper report in law and cannot form the basis of legal

conviction; and (iii) that the Public Analyst's report Was

bad and incomplete for failure to carry out all the tests

required under A. 17.06 of Appendix B to the Prevention of

Food Adulteration Rules, 1955, and also for failure to

disclose the data in the report.

It is contended on behalf of the appellant that the sanction

to prosecute the appellant was given by the Chairman of

Kharagpore Municipality-Shri K C. Chaki-on August 19, 1964.

This sanction did not show (a) that tile Chairman had

applied his mind before giving the sanction; (b) that it was

valid as it was not granted by the Local Authority, namely,

the Municipality; and (c) that since the resolution of the

Municipality had authorised the Chairman to give the

sanction, the new Chairman cannot avail himself of that

authorisation as by that time there were fresh elections and

a new Chairman was elected. Accordingly it is submitted

that the sanction given by Mr. Chaki was not a proper

sanction.

It appears to us that the challenge to the validity of the

sanction is misconceived. As pointed out by the High Court,

s. 51 of the Bengal Municipal Act, 1932, enumerates the

powers of the Chairman as under:

"Save as hereinafter provided, the Chairman

shall for the transaction of the business

connected with this Act or for the purpose of

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making any order authorised

848

thereby, exercise all the powers, vested by

this Act in the Commissioners and whereby any

other law power is vested in the Commissioners

for any purpose, the Chairman may transact any

business or make any order authorised by that

law in the exercise. of that power, unless it

is otherwise expressly provided in that law."

Section 20 of the Act provides for sanction of the Local

Authority for prosecutions under the Act which includes a

Municipality. Reading these two provisions together the

Chairman of a Municipality duly authorised by the

Municipality can accord sanction for prosecution of offences

under the Act. In compliance with the aforesaid power under

s. 51 of the Bengal Municipal Act, the Municipality by

resolution dated July 28, 1960 authorised the Chairman "to

perform all the functions and exercise the. powers of the

Local Authority within the meaning of the Prevention of Food

Adulteration Act, 1954." (Exe. 7). This power, it may be

noticed, is not granted to any particular Chairman Eo

nominee, but is a general power exercisable by any Chairman

for the time being of the Municipality. It is true that a

fresh election of the Chairman was held after the resolution

of the Municipality but that does not deprive the new

Chairman of the power to grant sanction in under that,

resolution.

The appellant in Criminal Miscellaneous Petitions Nos. 450 &

515 of 1970 seeks permission to allow him to adduce

additional evidence to show that there was another

resolution by the Kharagpore Municipality dated August 18,

1965, which had given a, fresh authorisation to the Chairman

to grant sanctions for prosecution under the Act which would

show that the previous authorisation was not really valid

when sanction was given to prosecute the appellant. Apart

from the fact that, no case has been made out to adduce any

fresh evidence, the resolution itself has been passed after

the sanction for the prosecution was. given and even that

resolution as can be noticed is in similar terms to the

earlier resolution passed by the Municipality. This

subsequent resolution does not in any way indicate that the

previous power could not be availed of by the Chairman who

in fact had granted the sanction. At, the most it may have

been passed by way of abundant caution, having regard to the

contentions raised during the trial of the appellant. The

High Court has pointed out, and we think rightly, that under

s. 15(2) of the Bengal Municipal Act, the Municipality is a

body corporate and it has perpetual succession, if so any

authorisation granted by it is not limited to the Chairman

then in office, but will continue unless otherwise

rescinded.

Nextly it has been strenuously urged before us on behalf of

the appellant that the report of the Public Analyst is not a

complete report in that out of the seven tests that he had

to make under

849

A 17.06 of Appendix B to the Rules he had only made three

tests and secondly the report does not give the basis on

which. the Public Analyst came to the conclusion that the

sample of the mustard oil was adulterated. It is true that

the Public Analyst in his report has only indicated the

result of the three tests out of which two tests were as

indicated in A 17.06 while only one, namely, the

saponification test was said to have exceeded the maximum on

the strength of which the Public Analyst reported that the

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sample was adulterated. Omission to report on the other

four tests does not, in our view make the reporter

ineffective or the report inconclusive. Even assuming that

the other four tests are normal, if the saponification test

alone did not conform to the standards indicated in A 17.06

of Appendix B to the Rules the sample cannot be said to have

come up to the standard and, therefore, it is adulterated.

An attempt was made to refer us to certain technical books

and the decisions in Jagadish Chandra Jain v. Corporation of

Calcutta(1) Messrs. Netai Chandra and Surendra Nath Dey v.

Corporation of Calcutta,(2) and In re. Perumal & Co.(3) for

the proposition that the standard prescribed by A 17.06 in

Appendix B to the Rules is not conclusive because in some

places mustard can yield a higher reading. We cannot allow

any fresh evidence to be used, nor do we think that the

decisions referred to, even if they justify that contention,

can alter or vary the standard fixed in exercise of the

powers conferred by the Act in Appendix B to the Rules.

Section 3 of the, Act authorises the Central Government to

constitute a Committee called the Central Committee for Food

Standards to advise the Central Government and the State

Governments on matters arising out of the administration of

the Act and to carry out the other functions assigned to it

under the Act. Under s. 23 ( 1 ) (b) of the Act the Central

Government may, after consultation with the Committee and

subject to the condition of previous publication, make rules

"defining the standards of quality for, and fixing the

limits of variability permissible in respect of, any article

of food." It is in exercise of this power that r. 5 was made

authorising standards of quality of the various articles of

food specified in Appendix B to the Rules. In view of this

provision any article of food which does not conform to the

standards specified in Appendix B to the Rules which under

s. 2 (1) of the Act is said to be adulterated because "the

quality or purity of the article falls below the prescribed

standard or its constituents are present in quantities which

are in excess of the prescribed limits of variability."

The contention that the standards cannot be conformed to by

an ordinary vendor who is not versed in the technicalities

is also

(1) 57 C.W.N. 839.

(3) A.I.R. 1943 Mad. 47.

(2) A.I.R. 1967 Cal. 65.

850

not of significance. In this regard it was pointed out by

Shah, J., as he then was, speaking for this Court in Andhra

Pradesh Grain and Seed Merchants Association and others v.

Union of India & Anr. (1) :

"The various items in the Schedule setting out

standards of quality use technical expressions

with which an ordinary, retail dealer may not

be familiar, and also set out percentages of

components which the dealer with the means at

his command cannot verify. But by s. 3, the

Central Government has to set up the Central

Committee for Food Standards to advise the

Central and the State Governments on matters

arising out of the administration of the

Act.................. Under s. 23 ( 1 ) (b)

the Central Government makes rules prescribing

the standards of quality and the limits of

variability permissible in any article of

food. The rules are made after consultation

with the Committee for Food Standards. The

standards set out in the Appendix to the Rules

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are prescribed after consultation with the

Committee for Standards."

It appears to us therefore that standards having been fixed

as aforesaid any person who deals in articles of food which

do not confirm to them contravenes the provisions of the Act

and is liable to punishment thereunder.

It was again urged that the Public Analyst had not given the

basis for his conclusion that the saponification test did

not conform to the standards specified in A 17.06 of

Appendix B to the Rules which contention is also not

tenable. Under s. 13 (5) of the Act any document purporting

to be a report signed by a Public Analyst, unless it has

been superseded under sub-s. (3), or any document purporting

to be a certificate signed by the Director of the Central

Food Laboratory, may be used as evidence of the facts stated

therein in any proceeding under the Act or under ss. 272 to

276 of the Indian Penal Code. Under the proviso to that

sub-section any document purporting to be a certificate

signed by the Director of the Central Food Laboratory shall

be final and conclusive evidence of the facts stated

therein. If the report of the Public Analyst was not

satisfactory, it was open to the appellant to have made an

application for the sample which was in his possession to be

sent to the Director of the Central Food Laboratory for

examination. If he had made such an application and sent

the sample under s. 13 (2) the certificate granted by the

(1) A.I.R. 1971 S.C. 2346.

851

Director of the Central Food Laboratory would have

superseded the report given by the Public Analyst. This he

has not done. In the circumstances he has been properly

convicted.

Lastly it has to be considered whether the sentence awarded

in the circumstances requires any modification. It was

urged that the prosecution of the appellant was prior to the

amendment of sub-s. (1) of S. 16 of the Prevention of Food

Adulteration Act with effect from March 1, 1965, under which

the sentence has to be a minimum of six months rigorous

imprisonment, but there is no such injunction under the

unamended section and yet the maximum sentence has been

awarded to the appellant which is harsh for a first

offender. Offences under the Act being antisocial crimes

affecting the health and well-being of our people, the

Legislature having regard to the trend of courts to impose

in most cases only fines or where a sentence of imprisonment

was passed a light sentence was awarded even in cases where

a severe sentence was called for, a more drastic step was

taken by it in prescribing a minimum sentence and a minimum

fine to be imposed even for a first offence. An exception

was however made in cases falling under sub-cl. (i) of cl.

(a) of s. 16(1) and in respect of an article of food which

was considered to be adulterated under s. 2 cl. (i),(i) or

misbranded under S. 2 cl. (ix) or for an offence under sub-

clause (ii) of clause (a) of S. 16(1), in which case the

Court is given the discretion, for any adequate and special

reasons to be mentioned, to award a lesser sentence than six

months or impose a fine lesser than one thousand rupees or

of both lesser than the minimum prescribed. If for the

offence of which the appellant is convicted even under the

amended section a lesser sentence can be awarded, if there

were adequate and special reasons, it would be much more so

under the unamended section. The reasons for the

Legislature to make the exception is not that the offences

specified are not considered to be serious, but the gravity

of the offence having regard to its nature can be less if

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there are any special or adequate reasons.

In our view though offences for adulteration of food must be

severely dealt with, no doubt depending on the facts of each

case which cannot be considered as precedents in other

cases, in this case having regard to the fact that the

appellant has been on bail since 1964 for a period of nearly

seven years, and also because not only the mustard oil

sample satisfied all the tests except one but the main

person concerned in the manufacture of the said oil has been

acquitted, interests of justice would be served if the

sentence of one year is reduced to two months rigorous

imprisonment and the appellant is further directed to pay a

fine of

852

Rs. 1,000/- failing which to be directed to undergo a

further term of rigorous imprisonment for one month. We

accordingly so direct.

Subject to this modification, the appeal and the Criminal

Miscellaneous Petitions Nos. 450 and 515 of 1970 are

dismissed.

K.B.N. Appeal and petitions dismissed.

853