( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 271 OF 1999 The Ahmednagar Municipal Council, .. Appellant Ahmednagar, through Mohammad Munaf A.R., Food Inspector, Age. Major, Occ. Service, R/o. Ahmednagar. Versus 1. Dullabhadas Haridas Patel .. Respondents Age. Major, Occ. Business, R/o. Adat Bazar, Ahmednagar, Dist. Ahmednagar. 2. Smt. Jamukubai Haridas Patel Abated since deceased. 3. Chandrakant Ramnarayan Kabra Age. Major, Occ. Business, R/o. Tapidas Galli, Ahmednagar, Dist. Ahmednagar. 4. M/s. Punamchand Haridas 2989, Ganj Bazar, Ahmednagar, Dist. Ahmednagar. 5. Ramanlal Hastimal Gandhi Age. Major, Occ. Business, R/o. Burudgaon Road, Ahmednagar, Dist. Ahmednagar. 6. The State of Maharashtra ( 2 ) Shri V.S. Bedre, Advocate for the appellant. Shri Vijay Sharma, Advocate for respondent Nos. 1, 3 to 6. Shri B.V. Wagh, A.P.P. for respondent No.6/State. CORAM : P.R. BORKAR,J. DATED : 01.12.2009 ORAL JUDGMENT :- 1. This is an appeal preferred by the original complainant – Ahmednagar Municipal Council through its Food Inspector, being aggrieved by the judgment and order of acquittal passed by the learned Chief Judicial Magistrate in Criminal Case No.240 of 1992, decided on 30.05.1998. 2. Briefly stated facts giving rise to this appeal may be summarized as follows :- . On 15.01.1991, Food Inspector – Mohammad Munaf was working with Ahmednagar Municipal Council (which with the passage of time has become Municipal Corporation) visited the shop of respondent No. 4 – M/s. Poonamchand Haridas along ( 3 ) with panch Vasant Kantilal. At that time appellant No. 1 – Dullabhdas was present in the shop and was doing business of selling articles. Complainant Food Inspector Mohammad Munaf disclosed his identify and expressed purpose of his visit, inspected shop and took sample of Anand Masala Supari stored for selling in the shop. He purchased 750 grams of Anand Masala Supari and paid price of Rs. 45/-. He also issued notices under Section 14-A of the Prevention of Food Adulteration Act, 1954, so also Form No. VII. Thereafter, the sample was divided into three parts. The samples were taken in clean, empty, dry brown packets and packed with gum. The packets were labelled and sealed as required by law. Memorandum of acts done was prepared. Thereafter, one sample was sent to Public Analyst, Pune and other two samples were sent to the Chief Officer, Municipal Council, Ahmednagar, which was Local Health Authority. Respondent/Accused Nos. 1 to 3 are partners of respondent/accused No.4 firm. They claim to have purchased Anand Masala Supari from respondent No.5. The public analysis found saccharin in the food article, which was prohibited. Ultimately, complaint was filed against respondent Nos. 1 to 5 in the Court after following necessary procedure. ( 4 ) 3. At the time of evidence the complainant – Food Inspector examined himself, panch witness Vasant and Public Analyst Mrs. Aparna Pinge. Accused No. 2 had died pending trial. Original accused Nos. 1,3 and 4 claimed immunity under Section 19 of the Prevention of Food Adulteration Act, 1954. According to them they had purchased Anand Masala Supari from respondent/accused No.5, who was duly licenced manufacturer and distributor. They have claimed protection of warranty given by original accused No.5. The learned Chief Judicial Magistrate acquitted all the accused. It is this order of acquittal, which is challenged in this appeal. 4. Heard Adv. Shri V.S. Bedre for the appellant, Shri Vijay Sharma, Advocate for respondent Nos. 1,3 to 5 and A.P.P. Shri B.V. Wagh for respondent No.6/State. 5. The Trial Court has acquitted respondent Nos. 1,3 to 5 mainly on two grounds. Firstly, there was violation of Rule 14 of the Prevention of Food Adulteration Rules, 1955, in as much as sample was not properly taken in proper container and secondly the Court has come to a conclusion ( 5 ) that in the meantime there was amendment to the relevant rule and saccharin was permitted to a particular limit so far as the Supari is concerned. Maximum limit of saccharin sodium was allowed is 4000 p.p.m. and saccharin found in the sample was within permissible limits. However, the Court did not accept defence of accused Nos. 1,3 and 4 of warranty as the original purchase receipt was not placed on record. 6. The learned advocates Shri V.S. Bedre and Adv. Shri Vijay Sharma have taken me through the evidence of Food Inspector Mohammad Munaf recorded at Exh.45. Mohammad Munaf has stated that he had purchased three packets of 250 grams Supari. The sample of Supari purchased by him was divided into three separate parts and filled them in clean, empty, dry brown packets and packed them with gum. The packets were sealed with wax seal. Each of the packet was affixed with slip containing description of sample, code number of L.H.A. and signature of himself and panch witness thereon. Each part was wrapped in brown paper and packed and then the slip containing the code of L.H.A. and signature of Chief Office was affixed. It was slip No. 3294. Cross-signatures of himself, accused No.1 and panch witness were obtained. Each ( 6 ) of the part was tied with thread and sealed with wax seals; one seal was on the knot and others on the joint. 7. The learned Chief Judicial Magistrate has referred to the cross-examination of Food Inspector Mohammad Munaf in which he has admitted that the samples were already packed in polythene bags and wrapped in brown paper in the same condition. Thus in one breath witness Mohammad Munaf stated that he has not segregated food article from polythene bags which he had packed and sealed, but in another breath he had stated that he had divided samples into three parts. In para 11 of the judgment, it is observed by the learned Chief Judicial Magistrate that the polythene bags or thick paper are likely to be pierced and they are more susceptible to moisture, rodents, paste and may even burst with little more pressure put on them. Such type of container according to him was not suitable or appropriate. It is also stated that chances of thick paper becoming wet and unable to prevent moisture should be taken into consideration. According to the learned Chief Judicial Magistrate, thick brown paper or polythene bag are not suitable container within the meaning of Rule 14 of the Prevention of Food Adulteration Rules, ( 7 ) 1955. 8. Rule 14 of the Prevention of Good Adulteration Rules, 1955, is as follows :- “14. Manner of sending samples for analysis. - Samples of good for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable container which shall be closed sufficiently tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed.” 9. The learned Chief Judicial Magistrate relied upon a ruling of Punjab and Haryana High Court. In my considered opinion, it all depends upon the facts and circumstances and the nature of article of which sample is taken. However, in this case the evidence of Food Inspector is contradictory in as much as one breath he wants us to believe that three polythene bags in which Supari was purchased were treated as parts of sample. On the other hand he wants also us to believe that he has divided the sample of 750 grams into three parts and then separately packed, labelled and sealed them in brown paper. This creates doubts whether procedure of taking sample is properly followed. As per evidence of ( 8 ) panch Vasant, Supari was Anand Supari in sealed packs three in number. Said samples were packed, labelled and sealed. As per panchanama Exh.49 supari purchased was put into three brown paper bags and same were packed sealed and labelled. There is material inconsistency about vital aspect and benefit of same must go to the accused. 10. The question of suitability of container depends upon the nature of the food article of which sample is taken and there cannot be rigid rule that no sample of food article should be taken in paper bags. However, one must bear in mind that whenever samples are taken in paper bags, they are susceptible to becoming wet & bursting due to various reasons such as pressure, moisture etc. 11. The learned advocate Shri Vijay Sharma for respondent Nos. 1,3 to 5 has referred to amended Rule 47 of the Prevention of Food Adulteration Rules, 1955. As per the amendment carried out by G.S.R. 284 (E) dated 29.05.1997, which came into force on same day, earlier G.S.R. 695 (E) dated 09.11.1993 was replaced and thereby total prohibition of saccharin was substituted by allowing saccharin sodium to ( 9 ) the extent of 4000 p.p.m. (parts per million) in Supari. 12. In this case, Public Analyst Mrs. Aparna Pinge is examined at Exh.87. She proved her report Exh.88 dated 27.03.1991 and she stated in para 2 of her deposition that on analyzing the sample for the presence of artificial sweetener which was prohibited under the said rules, it was found that the sample was containing saccharin as artificial sweetener to the amount of 635 p.p.m. (parts per million) mg. Per kg. therefore, the sample was found to be not confirming the rules. In cross-examination, she admitted that by Amendment to Rule 47, since 1993 the saccharine is given standard. Till the amendment there was no standard provided for Supari, Paan Masal with respect to saccharin. 13. It is argued before this Court by learned advocate Shri Bedre that such amendment will not have retrospective effect. When the offence has taken place, saccharin was totally prohibited. Under the circumstances, it cannot be said that no offence is committed. Penal provision, which creates of offence has to be interpreted as prospective and not as retrospective. The learned advocate Shri Vijay Sharma ( 10 ) cited case of Krishan Gopal Sharma and Another V/s. Govt. of N.C.T. Of Delhi (1996) 4 S.C.C.513. In that case as observed in para 8 therein similar situation has arisen as in the present case. At the relevant time when samples of pan masala and the mouth freshner were taken, the saccharin content as found by the public analyst in the said articles of good was in violation of Rule 47 of the Prevention of Food Adulteration Rules. The pan masala and the mouth freshner are undoubtedly within the meaning of ‘food’ under Section 2 (v) of the Prevention of Food Adulteration Act. In that case the validity of Rule 47 prior to amendment in 1993 restricting use of saccharin in pan masala was challenged on the ground that it was arbitrary, unjust and capricious by the rule making authority. The Supreme Court has held that rule as stood prior to the amendment was valid and it cannot be struck out as being arbitrary and capricious. It is observed in para 8 as follows:- “8. .......... It has not been demonstrated that despite widely accepted view by the experts about the effect on saccharin on human system on the basis of information flowing from research and analysis, the restriction of user of saccharin in pan masala or mouth freshner as imposed in Rule 47 of the Rules at the relevant ( 11 ) time was wholly arbitrary, unjust and capricious. Human knowledge is not static. The conception about the harmful effect of saccharin on human system has undergone changes because of information derived from further research and analysis. The knowledge about the effect of saccharin on human system as accepted today may undergo a change in future on the basis of further knowledge flowing from subsequent research and analysis and it may not be unlikely that previous view about saccharin may be found to be correct later on. If the rule- making authority on the basis of human knowledge widely accepted by the expert framed rule by imposing restriction of user of saccharin in pan masala or mouth freshner at a particular point of time, such exercise of power must be held to have been validly made, founded on good reasons; and challenge of the Rule on the score of arbitrary and capricious exercise of power must fail. ...........” . In that case in para 12 facts of particular case were considered, which were similar to the case in hand and it is observed that there was no dispute that saccharin was not added to pan masala and mouth freshner. It is contended that even if addition of saccharin to the extent as stated to have been found by the analyst is accepted to have been correctly determined, such addition as a matter of fact, was neither injurious to health or it degenerated the articles sold, so that they could be branded as adulterated food. The ban on the use of saccharin in pan masala and mouth freshner was imposed on a misconception and erroneous view of its ( 12 ) injurious effect on human system. But, later on, it has been accepted by the rule-making authority that use of saccharin to the extent of 8000 p.p.m. in pan masala will not be harmful for human consumption and Rule 47 of the Rules has been amended. So, in para 14 and 15 of the said case it is further observed that in the special facts of those cases, a deterrent punishment of imprisonment is not called for and imposition of fine would meet the ends of justice. These criminal cases were initiated on the basis of samples taken in 1987. The accused-appellants had already faced the ordeal of criminal trials for a number of years. In the facts of the case, the accused were released on fine. 14. The point that was not raised in the case of Krishan Gopal Sharma (Supra) but which is raised before this Court is that whether such amendment will have retrospective effect. The learned advocate for the respondents relied upon certain observations in Zile Singh V/s. State of Haryana and Ors., (2004) 8 SCC, 1. The Supreme Court was considering whether disqualification for membership of municipality of a person having more than two children on and [upto] the expiry of one year of commencement of Haryana Municipal Act, 1973, ( 13 ) has retrospective or prospective effect. It is held that it is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. However, it is further held that, the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. The presumption against retrospective operation is not applicable to curative or declaratory statutes. In this case amendment to Rule 47 is not declaratory, but it can be said to be curative statute, as it wants to correct the position of standard of saccharine with reference to the latest research on the effect of saccharine on human health and it wanted to permit saccharin to a particular extent. 15. Another case cited by Adv. Shri Vijay Sharma is Vijay V/s. State of Maharashtra and Others, (2006) 6 S.C.C. 289. In that case also it is laid down that general rule of construing statute is to have prospective effect. It does not apply to disqualifying, curative or clarificatory statutes. If on a plain or literal reading legislative intendment is clear that it is to have retrospective effect ( 14 ) and it does not produce any absurdity or ambiguity thereby, court will give effect thereto. Statute which takes away a right under the existing law is retrospective in nature. Statute enacted for the benefit of the community as a whole may be construed to have retrospective operation. 16. In the present case the saccharin was totally prohibited when the alleged offence took place, but pending the trial, the rule making authority under Section 23 of the Prevention of Food Adulteration Act, in its wisdom thought it right to allow saccharin to the extent of permissible limit. It is not disputed that when the rule was amended, trial of respondent Nos. 1 to 5 was pending. The amendment is for the benefit of community as a whole and it was not taking away any vested interest or creating any new obligation or creating new offence. It, in-fact, declared addition of saccharine to Supari within certain limits, as no more offence under the Prevention of Food Adulteration Act. So, relying on law laid down in paras 10, 11 and 12 of the case of Vijay (Supra), in my opinion, in the present case, Rule 47 can be considered as retrospective in as much as it wanted to declare saccharine contents in Supari to certain limits i.e. ( 15 ) 4000 p.p.m. as permissible in law and no more offence. I quote certain portion from paras 10 and 12 of Vijay (Supra) for ready reference :- “10. ......... The inhibition against retrospective construction is not a rigid rule. It does not apply to a curative or a clarificatory statute. If from a perusal of the statute, intendment of the legislature is clear, the court will give effect thereto. For the said purpose, the general scope of the statute is relevant. Every law that takes away a right vested under the existing law is retrospective in nature. .............. 12. ........ It is not well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed to be only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislature, but to apply it in such a case is a doctrine of fairness. When a law is enacted for the benefit of the community as a whole, even in the absence of a provision, the statute may be held to be retrospective in nature. ................” 17. Since the rule was amended pending the Trial and since evidence of Public Analyst Mrs. Aparna Pinge showed that the saccharine contents were within permissible limit as per the amended Rule 47, in my opinion, it is not case where any interference with the order of acquittal is called for. ( 16 ) 18. In the result, the order passed by the Trial Court acquitting the accused is hereby confirmed. The appeal is dismissed. [P.R. BORKAR,J.] snk/2009/DEC09/crap271.99