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PUNJAB & HARYANA HIGH COURT
P.C.Jain, D.S.Tewatia, I.S.Tiwana and K.P.S.Sandhu JJ.
Budh Ram (Deceased)
Versus
State Of Haryana
Criminal Revision No. 798 of 1980,
Decided On : JULY 30, 1984
PREVENTION OF FOOD ADULTERATION ACT - MILK - PRIMARY FOOD - SALE - REPORT OF PUBLIC ANALYST - SUMMARY TRIAL - [S.2(XI), 2(XIII), 7, 10, 16, 16A] - Milk is not primary food. Purchase of milk or sugar or tea by Food Inspector from tea vendor for preparation of tea for customers amounts to sale. Report of Public Analyst containing data regarding measure of various constituents and opinion whether sample was adulterated or not is sufficient. Trial of offences under S.16(1) in summary way is mandatory only if Judicial Magistrates are specially empowered.
Fact of the Case:
Petitioner, a tea vendor, was convicted and sentenced for selling adulterated milk under the Prevention of Food Adulteration Act. He challenged the conviction and sentence on various grounds, including that milk is primary food and therefore not covered by the Act, and that the purchase of milk by the Food Inspector was not a sale.
Finding of the Court:
The Court held that milk is not primary food within the meaning of the Act. It also held that the purchase of milk by the Food Inspector from the petitioner was a sale, as it was intended to be used for the preparation of tea for customers. The Court further held that the report of the Public Analyst was sufficient, as it contained the data regarding the measure of various constituents and the opinion whether the sample was adulterated or not. Finally, the Court held that the trial of offences under S.16(1) of the Act in a summary way is mandatory only if Judicial Magistrates are specially empowered.
Issues: 1. Whether milk is primary food within the meaning of S.2(xiia) of the Prevention of Food Adulteration Act? 2. Whether the purchase by Food Inspector in terms of S.10 of the Act of a sample of milk or sugar or tea kept by a tea vendor not for sale as such but for being used in preparation of tea for being served to his customers amounts to a sale in terms of the provisions of S.7 read with S.2(xiii) of the Act? 3. Whether the report of the Public Analyst which merely contains the data regarding the measure of various constituents of the given article of food and the opinion whether the given sample was adulterated or not can satisfy the legal requirement of a report of a Public Analyst? 4. Whether the provision of S.16A of the Act envisaging trial of offences under S.16(1) of the Act in the first instance in a summary way is mandatory in character?
Ratio Decidendi: 1. The definition of primary food in S.2(xiia) of the Act is limited to produce of agriculture or horticulture in its natural form. Milk is not a produce of agriculture or horticulture in its natural form, as it is a processed product. 2. The purchase of milk by the Food Inspector from the petitioner was a sale, as it was intended to be used for the preparation of tea for customers. The definition of sale in S.2(xiii) of the Act includes any transaction in which an article of food is transferred by one person to another for a valuable consideration. 3. The report of the Public Analyst was sufficient, as it contained the data regarding the measure of various constituents and the opinion whether the sample was adulterated or not. The Act does not require the report to contain information regarding the mode and manner of tests that the Public Analyst had carried out. 4. The trial of offences under S.16(1) of the Act in a summary way is mandatory only if Judicial Magistrates are specially empowered. S.16A of the Act provides that all offences under S.16(1) shall be tried in a summary way by a Judicial Magistrate specially empowered in this behalf by the State Government or by a Metropolitan Magistrate.
Final Decision: The petition was dismissed.
D.S.TEWATIA, J.
1. Criminal Revision No.798 of 1980 in the first instance came up for hearing before Punchhi, J. who referred it to the larger bench by his order dt. 8th Oct. 1982. The case then came up for hearing before a Division Bench to which besides Punchhi, J. I was a party. We referred the case to the larger Bench by our order dt. 2nd Feb. 1984.
2. Criminal Revision No.791 of 1983 which the admitting bench ordered to be heard along with Criminal Revision No.798 of 1980 came to be placed before the Division Bench along with the same and in view of the reference order in the latter revision petition the former too came to be referred to the larger Bench.
3. Criminal Revision No.1347 of 1982 was referred to the larger Bench by Bains, J. and the Division Bench comprising of Prem Chand Jain, Acting Chief Justice and I. S. Tiwana, J. vide their order dt. 30th Jan. 1984, referred it to a still larger Bench. That is how all the three aforesaid criminal revisions are placed before us for decision of some legal questions only. Since the questions of law that require decision are identical in all the three revision petitions, a common judgment is proposed.
4. The questions of law that arise for consideration of this larger Bench in the said three revision petitions when precisely formulated would read :-
1. Whether the milk is primary food within the meaning of S.2(xiia) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act)?
2. Whether the purchase by Food Inspector in terms of S.10 of the Act of a sample of milk or sugar or tea kept by a tea vendor not for sale as such but for being used in preparation of tea for being served to his customers amounts to a sale in terms of the provisions of S.7 read with S.2(xiii) of the Act?
3. Whether the report of the Public Analyst which merely contains the data regarding the measure of various constituents of the given article of food and the opinion whether the given sample was adulterated or not can satisfy the legal requirement of a report of a Public Analyst ?
4. Whether the provision of S.16A of the Act envisaging trial of offences under S.16(1) of the Act in the first instance in a summary way is mandatory in character?
5. For the purpose of viewing questions Nos.1 to 3 posed above in the perspective of facts, we may refer to the relevant facts in Criminal Revision No.798 of 1980, which can be stated thus :
Food Inspector, Rewari, Shri S.K.Sikri, along with the Senior Medical Officer Incharge Civil Hospital Rewari, and one Om Prakash went to the shop of Budh Ram petitioner, a tea vendor, on 10th Oct. 1977, at about 7.05 a.m. After giving notice in writing as envisaged under the Act, the Food Inspector purchased from the petitioner 660 ml. of milk for analysis, in lieu of Rs.1.30 from a bucket containing 4 litres of cow s milk. The sample sent to the Public Analyst as per report of the Public Analyst dt.25th Oct. 1977, in Form-III as provided in R.3 of the Prevention of Food Adulteration Rules, 1974 (hereinafter referred to as the Rules) contained milk fat 2.2 per cent and milk solids non fat 7.1 per cent. The milk fat was opined to be deficient by 45 per cent and milk solids non fat by 14 per cent of the minimum prescribed standards. The petitioner was tried by Judicial Magistrate 1st Class, Rewari, who found him guilty of offence under S.16(1)(a)(i) of the Act and sentenced him to six months rigorous imprisonment and fine of Rs.1,000/-, in default three months R.I. That sentence was the minimum imposable under S.16(1)(a)(i) of the Act. Petitioner s appeal failed which led him to file the present revision petition in this Court.
6. The concept of primary food came to be introduced in the Act with effect from 1-4-1976 by Act No.34 of 1976 known as Prevention of Food Adulteration (Amendment) Act of 1976 (hereinafter referred to as the Amendment Act).
7. The Amendment Act, inter alia, added two sub-cls.` l and m to cl.(ia) of S.2 which defines the express
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