Case: Ajitprasad Ramkishan Singh Vs. State of Maharashtra

1. This appeal, by special leave, is from the judgment of the High Court of Bombay, convicting the appellant under section 16 (1) (a) (I) read with Section 7 (I) of the Prevention of Food Adulteration Act (Act 37 of 1954), hereinafter called the Act, and sentencing him to undergo R. I. for 6 months and pay a fine of Rs.1,000/- and, in default of payment of fine, to undergo R. I. for a further period of two months3. Accused No. 1, the appellant, admitted that he was the owner of the shop and that accused No. 2 who actually sold the milk to the Food Inspector was his nephew. As the whereabouts of accused No. 2 could not be traced, the case as against him was dropped4. The Magistrate acquitted the appellant. His reasoning was as follows: the sample was taken on July 1, 1965; the complaint was filed on August 13, 1965, summons was served on the appellant on November 13, 1965; the date for appearance of the accused was on November 26, 1965; the right to apply to the Court to have the part of the sample delivered to the Vendor sent for analysis by the Director, Central Food Laboratory, Calcutta, hereinafter referred to as the "Director", accrued to the appellant only when the summons was served on him; since by that time the sample would have become decomposed, he lost the valuable right to have the part of the sample delivered to the vendor analysed by the Director and so, the appellant should be acquitted5. The High Court, on appeal by the Food Inspector reversed the order of acquittal. The High Court held that the appellant was bound to make an application under Section 13 (2) of the Act after paying the prescribed fee and as no such application was filed by the appellant, it could not be said that the appellant had been deprived of any valuable right. And as the fat content of milk was deficient by 55 per cent, the food was adulterated and so, the appellant was guilty of the offence

Reasoning:
7. The learned Magistrate was wrong in thinking that no useful purpose would be served by sending the sample for analysis by the Director. It was not for the Magistrate to decide without any data that the sample would be decomposed and was incapable of being analysed . The Food Inspector had sworn as P. W. 1 that he had added 8 drops of formalin to each part of the sample. Though under the rules he should have added 16 drops to each part, there is no reason to think that the sample became decomposed by the time the summons was served for that reason.There was no evidence before the Magistrate that for the reason that the prescribed quantity of formalin was not added to each part, the part of the sample delivered to the vendor was incapable of being analysed by the Director.Nor did the Magistrate rely on that circumstance for his conclusion that the sample would have become decomposed. The appellant could have summoned the Public Analyst and examined him if he was serious in his present contention that since the prescribed quantity of formalin was not added,the part of the sample would have become decomposed by the time the summon was served, and no useful purpose would have been served by sending the sample for analysis by the Director. There was, therefore, no evidence that the part of the sample available with the appellant had so deteriorated at the time the summon was served as to be incapable of being analysed.In Sukhmal Gupta v. The Corporation of Calcutta, Cri: Appeal No. 161 of 1966 D/- 3-5-1968 (SC) Sikri, J. as he then was, speaking for the Court, said:"............it was held by this Court in Municipal Corporation of Delhi v. Ghisa Ram, (1967) 2 SCR 116  = (AIR 1967 SC 970 ) that Section 13 (2) of the Act confers a valuable right to have the sample given to him analysed by the Director of the Central Food Laboratory but "the reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution". In this case no prejudice of the defence has been shown. It has not been established on the record that the sample of tea which was available with the appellant had deteriorated by the time the summon was received. He never utilised the right under Section 13 (2) of the Act of sending the sample to the Director of Central Food Laboratory"8. We are of the opinion that the High Court was right in coming to the conclusion that the appellant was guilty of the offence. But we do not think that the sentence of 6 months R. I. and fine of Rs. 1,000/- was called for in the circumstances of the case. Since the offence fell under proviso (1) of Section 16 of the Act, the Court was not bound to impose a sentence of imprisonment for a term of 6 months. The appellant had entrusted the running of the shop to the second accused, his nephew. There is no evidence to show that there was any mechanism in the shop by which the fat content could be extracted from un-boiled milk. There is also no evidence that any water had been added to the milk.