1. Prosecution for sale of milk with deficient milk solid non-fat (MSNF) under the Prevention of Food Adulteration Act. (Para 2 )
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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
Advocates Appeared:
For the Petitioner(s):Shantanu Bansal, Advocates
For the Respondent(s):Ajay Kumar Mishra, Ardhendumauli Kumar Prasad, Sanjay Maurya, Advocates
For the Petitioner(s):Shantanu Bansal, Advocates
For the Respondent(s):Ajay Kumar Mishra, Ardhendumauli Kumar Prasad, Sanjay Maurya, Advocates
Important Points
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.
(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.
Subject
Food Adulteration - Milk Adulteration
Act Referred
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.
Legal Category Hierarchy
Table of Contents
2. Delay in analysis, non-compliance with Section 13(2) regarding CFL analysis, marginal deficiency, and request for sentence commutation under Section 433 CrPC or Article 142. (Para 3 , 4 , 5 , 6 , 12 , 14 )
3. Formalin preservation negates delay benefit; notice under Section 13(2) was served; legislative food standards are absolute and marginal deviations constitute adulteration. (Para 3 , 4 , 5 , 7 , 8 , 9 , 10 )
4. Marginal deviation from prescribed food standards constitutes adulteration; minimum sentences cannot be reduced by courts via Article 142 or Section 433 CrPC. (Para 8 , 11 , 13 , 14 , 15 )
5. Appeal dismissed; appellant directed to surrender and serve the remaining sentence. (Para 16 )
6. Does a marginal deficiency in the prescribed standards of a food item justify acquittal in an adulteration case?
No. Once standards are laid down by the legislature, they must be followed strictly. Even marginal deviations are treated as adulteration, as the law does not apply the maxim de minimis non curat lex to food safety. (Para 8 , 10 , 11 )
7. What is the effect of an accused failing to apply for analysis by the Central Food Laboratory (CFL) after receiving notice?
If the accused is given the option to have the sample analyzed by the CFL under Section 13(2) of the Act but fails to exercise that option, they waive their right and cannot later claim grievance. (Para 4 )
8. Can a court exercise the power to commute a sentence under Section 433 of the Criminal Procedure Code?
No. The power to commute sentences under Section 433 of the CrPC is vested exclusively in the appropriate Government and cannot be exercised or usurped by any court. (Para 13 )
9. Can the Supreme Court use its powers under Article 142 to award a sentence lower than the statutory minimum?
No. Power under Article 142 cannot be exercised against specific provisions of law or in total violation of the law, such as reducing a sentence below the statutory minimum. (Para 14 , 15 )
JUDGMENT :
Deepak Gupta, J.
Leave granted.
2. On 30.10.1995 a sample of milk was collected from the appellant by the Food Inspector. The same was sent to the Public Analyst who received the same on 02.11.1995. The sample was analysed and Milk Fat (MF for short) was found to be 4.6% and Milk Solid Non-Fat (MSNF for short) was 7.7%, against the prescribed standard of 8.5%. The appellant was prosecuted after obtaining consent of the Chief Medical Officer, and was convicted by trial court, which conviction was upheld by the Sessions Court and the High Court.
3. Learned counsel for the appellant raised number of issues. The first was that there was delay in analysing the sample and, therefore, marginal shortfall in MSNF should be overlooked, since it would have been caused by the delay in testing the sample. We cannot accept this contention because there is no material on record to support this assertion. The appellant did not even deem it fit to summon the Public Analyst for cross-examination for this purpose. In similar circumstances where the delay in testing the samples was of 44 days, this Court in Shambhu Dayal vs. State of U.P., (1979) 1 SCC 202 held that since the sample had been preserved by using formalin, as in the present case, the accused cannot get any benefit.
4. The second contention raised was that the provisions of Section 13(2) [13. Report of public analyst.- (1) xxx xxx xxx (2) On receipt of the report of the result of the analysis under subsection (1) to the effect that the article of food is adulterated, the Local (Health)Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.] of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) were not complied with in as much as the appellant was not given an opportunity to send his second sample to the Central Food Laboratory (CFL for short) for analysis. This argument is also without any merit. All the courts have given a finding of fact that notice under Section 13(2) of the Act was sent to the appellant on 18.02.1996. The appellant did not choose to exercise his option to get his sample analysed by the CFL. Learned counsel for the appellant urges that this option was given to him three months after the sample had been taken and the second sample would have obviously become unfit for analysis. It is also contended that the complaint filed on 15.02.1996 was defective and the defects were removed only on 27.06.1996 and, thereafter, no option under Section 13(2) of the Act was given. This argument is totally without any merit. The appellant was given an option to have the second sample sent to the CFL when the Magistrate took cognizance of the complaint. The complaint may not have been complete in the sense that the list of witnesses was not filed but this, in any way, did not impact the right given to the appellant to get the second sample analysed from CFL. If the appellant had exercised his option and the Magistrate had not sent the second sample to the CFL, or if the CFL had reported that the sample is not fit for analysis, then alone the appellant could have got some benefit. The appellant waived his right by not applying to the Magistrate for sending the second sample for analysis to the CFL, and he cannot have any grievance in this behalf.
5. Another ground raised by the appellant is that he is illiterate and cann
