Judgment

B.P. Singh, J.—The appellant herein was tried by the Chief Judicial Magistrate, Jodhpur, Rajasthan charged of the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 since the sample of hard boiled sugar confectionary taken from the appellant was found to be adulterated in view of the presence of mineral oil, as also on account of its having a very unpleasant smell and taste. The learned Chief Judicial Magistrate by his judgment and order of April 25, 1986 found the appellant guilty of the offence charged and sentenced him to undergo rigorous imprisonment for 2 years and a fine of Rs. 2,000/-, in default of payment of fine to further undergo rigorous imprisonment for 6 months. The appeal preferred by the appellant was dismissed by the District and Sessions Judge, Jodhpur by his order dated August 4, 1988 who upheld the conviction but modified the sentence and reduced it to 6 months’ rigorous imprisonment and a fine of Rs. 1,000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 month. This was the minimum sentence which could be imposed under the Act for the charge proved against the appellant. The appellant thereafter preferred S.B. Criminal Revision No. 200 of 1988 before the High Court of Rajasthan at Jodhpur but the same was dismissed by the High Court by its judgment and order dated 1st August, 1997. The appellant is before us by special leave.

2. The facts of the case are not in dispute. On October 25, 1979 the Food Inspector took a sample of hard boiled sugar confectionary from the shop of the appellant. After complying with the requirements of the Act and the Rules the sample was sent to be Public Analyst and the report of the Public Analyst dated November 16, 1999 showed that the sample was not according to the prescribed standard as mineral oil was found present which was an unwholesome ingredient, and also that the sample had a very unpleasant smell and taste. The Food Inspector filed a complaint on January 29, 1980. After trial the learned Chief Judicial Magistrate by his judgment and order dated April 25, 1986 found the appellant guilty and sentenced him as earlier noticed.

3. The appellant preferred an appeal before the Court of the District and Sessions Judge, Jodhpur. During the pendency of the appeal a Notification was issued on April 8, 1988 whereby the Central Government in exercise of powers conferred by sub-section (1) of Section 23 of the Prevention of Food Adulteration Act amended the Prevention of Food Adulteration Rules, 1955. In Appendix ‘B’ item No. 25.01 was amended and under the amended Rules, the presence of mineral oil was permitted subject to two conditions, namely - that the mineral oil was of food grade if used as a lubricant, and did not exceed 0.2% by weight. It will thus be seen that the amendment brought about in the year 1988 did not unconditionally permit the presence of mineral oil in hard boiled sugar confectionary but permitted only 0.2% by weight provided it was of food grade and used as a lubricant.

4. The appeal preferred by the appellant was dismissed by the District and Sessions Judge, Jodhpur, by his judgment and order dated August 4, 1988 and as observed earlier while upholding the conviction the appellate court reduced his sentence to the minimum prescribed sentence of 6 months rigorous imprisonment. Revision preferred by the appellant before the High Court was dismissed.

5. Shri Krishnamani, senior advocate appearing on behalf of the appellant argued before us with great vehemence that the courts below have committed a clear error of law in not noticing the amended provisions of the Rules. Since the appeal was pending when the amended Rules came into force, the Court was bound to take notice of it and hold that the sample was not adulterated. He further submitted that the report of the Public Analyst was defective inasmuch as it did not mention the percentage of mineral oil found in the sample. He placed reliance o