2019 Supreme(SC) 1109

SUPREME COURT OF INDIA
DEEPAK GUPTA, ANIRUDDHA BOSE, JJ.
Raj Kumar - Appellant
Versus
The State Of Uttar Pradesh - Respondent
Criminal Appeal No. 1541 of 2019 (@ Special Leave Petition (Crl.) No.6687 of 2017)
Decided on : 04-10-2019

IMPORTANT POINTS
(1) Food Adulteration – In items like milk, it is not necessary to also prove that food item had become unfit for human consumption or injurious to health.
(2) Power under Article 142 cannot be exercised against specific provision of law.
(3) Powers under Section 433 of Cr.P.C. can only be exercised by appropriate Government.

Headnote:

(A) Prevention of Food Adulteration Act, 1954 – Sections 13(2) and 16 – Constitution of India – Article 142 – Seizure of adulterated milk – Conviction and sentence – There is no material on record to support this assertion that marginal shortfall in MSNF should be overlooked, since it would have been caused by delay in testing sample – Appellant did not even deem it fit to summon Public Analyst for cross-examination for this purpose – Since sample had been preserved by using formalin, accused cannot get any benefit – Appellant was given option to have second sample sent to CFL when Magistrate took cognizance of complaint – Appellant did not choose to exercise his option to get his sample analysed by CFL – Appellant waived his right by not applying to Magistrate for sending second sample for analysis to CFL and he cannot have any grievance in this behalf – All courts have given a finding that signatures are of appellant and this cannot be gone into in these proceedings – Once standards are laid down by Legislature then those standards have to be followed – In items like milk which is a primary food, under the Act, it is not necessary to also prove that food item had become unfit for human consumption or injurious to health – In cases of food coming under the Act, it is not required to prove that article of food was injurious to health – If standards are not complied with, Court is not justified in acquitting accused charged with adulteration only on the ground that deficiency is marginal – Power under Article 142 cannot be exercised against specific provision of law – Section 16(1)(a) of Act lays down minimum sentence of six months – Considering bane of adulteration and deleterious effect of adulteration and substandard food on health of citizens (especially children when milk is involved), Legislature provided a minimum sentence of six months – Passage of time can be no excuse to award a sentence lower than minimum – Appeal dismissed. (Paras 3, 4, 5, 8, 11, 14 and 16)

(B) Criminal Procedure Code, 1973 – Section 433 – Commutation of sentence – Powers under Section 433 can only be exercised by appropriate Government – These powers cannot be exercised by any court including this Court – At best, court can recommend to State Government that such power may be exercised but power of the appropriate Government cannot be usurped by courts and Government cannot be directed to pass formal compliance order. (Para 13)

(c) Constitution of India – Article 142 – Power under Article 142 cannot be used in total violation of law – When a minimum sentence is prescribed by law, this Court cannot, in exercise of its power under Article 142, pass an order totally contrary to law – Powers under Article 142 cannot be exercised in such a manner that they make mockery of law itself. (Paras 14 and 15)

Facts of the Case:

Sample of milk was collected from appellant by Food Inspector and same was sent to Public Analyst. Sample was analysed and Milk Fat was found to be 4.6% and Milk Solid Non-Fat was 7.7%, against prescribed standard of 8.5%. Appellant was prosecuted after obtaining consent of Chief Medical Officer, and was convicted by trial court, which conviction was upheld by Sessions Court and High Court.

Findings of the Court:

Power under Article 142 cannot be exercised against specific provision of law. Section 16(1)(a) of the Act lays down a minimum sentence of six months. Considering bane of adulteration and deleterious effect of adulteration and substandard food on the health of the citizens (especially children when milk is involved), Legislature provided a minimum sentence of six months. Passage of time can be no excuse to award a sentence lower than minimum.

Result : Appeal dismissed.