ORDER
J.C. Mishra, J.
1. This revision is directed against the judgment and order dated 25-9-94 passed by IV Additional Sessions Judge, Pilibhit dismissing the appeal preferred against the judgment and order dated 27-7-1984 passed by Special Judicial Magistrate (Economic Offences), Pilibhit convicting the revisionist under Section 7/16 Prevention of Food Adulteration Act and sentencing him to undergo rigorous imprisonment for six months and to fine of Rs. 1000/ - and further convicting him under Section 7/16 of Prevention of Food Adulteration Act read with Rule 50 of Prevention of Food Adulteration Rules and sentencing him to rigorous imprisonment of 3 months and fine Rupees 500/-.
2. The learned counsel for the revisionist contended that the alleged offence was committed on 25-5-82 and after such a long time it would not be desirable to send the accused to jail. He contended that the Courts below committed illegality in holding that the sample of cow milk was adulterated as it contained 14.3% solids which was more than the prescribed standard. The learned counsel contended that fatty contents were 6.8% i.e. 3.3% more than the prescribed standard and deficiency was with regard to non fetty solids which was marginal. He contended that as the total solids were more than the prescribed standard the only inference that will be drawn is that the Public Analyst did not take necessary precautions or the cow was not properly fed.
3. The view taken by different Benches of Allahabad High Court right from the enactment of Prevention of Food Adulteration Act has been varying and unfortunately this conflict is still continuing. It would be pertinent to refer to the available decisions of only of this Court but also of larger Benches of other High Courts and lastly of the Apex Court. Before considering the views expressed in the pronouncement in regard to the controversy whether milk marginally deficient in non-fatty solids is 'adulterated' despite the fatty solids being more than the requisite percentage, it would be convenient to refer to the relevant provisions of the Act.
4. The word 'adulterated' is defined in Prevention of Food Adulteration Act, 1954 in Section 2(i-a). An article of food shall be deemed to be 'adulterated' if it is one of the categories mentioned in clauses (a) to (m). Under Clause (m) an article is adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health;
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.
5. Sub-clause (1) provides that if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health such article is adulterated.
6. 'Food' within the meaning of Section 2(ii)(v) means any article used as food or drink for human consumption other than drugs and water and includes-
(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,
(b) any flavoring matter of condiments, and
(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act.
7. 'Primary food' within the meaning of Sub-clause (xii-a) means any article of food, being a produce of agriculture or horticulture in its natural form.
8. 'Milk' cannot be said to be 'Primary food' as it is neither produce of agriculture nor of horticulture. It is no doubt 'food' as it ordinarily enters the body and it is used in the composition and preparation of common food.
9. Rule 5 of the Food Adulteration Rules, 1955 contained in Part III provides that the standards or quality of the various articles of food specified in Appendix B to these Rules are as defined in that appendix.
10. A-11-01.11 prescribes standard for different classes and designations of milk. According to the chart the minimum milk fat for buffalo milk prescribed is 6.0% while minimum standard of milk solids non fat is 9.0%. For cow milk the standard prescribed is 3.5% for milk fat and 3.5% for milk solids non fat. Thus the total solids fatty and non-fatty is 15% for buffalo milk and 12% for cow milk.
11. The question is whether the milk deficient in non-fatty-solids is adulterated within the meaning of the Act despite the fact that the percentage of milk solids (fatty and non-fatty) is above the prescribed standard.
12. The views taken by different Single Benches of this Court are conflicting. After considering a catena of cases a Single Bench presided by Hari Swarup J., in Rajan Lal v. State reported in 1976 FAJ 422 : 1976 Cri LJ 516 evolved the following principles :-
An analysis of the cases metioned above shows that the Courts have thought it proper not to convict an accused provided the agegregate quantity of fat and non-fatty solids contents is either above the aggregate quantity of fat and non-fatty solid contents required under the Rules or that the deficiency in the aggregate required is so small that the Courts inferred that it could be due to the error which may have been committed in analysis by the Public Analyst. All these cases really are based on the appreciation of evidence in each case. From the cases mentioned above, the following principles can be deduced :-
1. That if the deficiency is either in the fat contents or non-fatty contents, the article of food would be deemed to be adulterated.
2. That if the aggregate of the fat and non-fatty solid contents in the milk is more than the aggregate of the minimum prescribed and the deficiency in one of the contents is marginal, the Courts may not punish the accused on the ground that the marginal deficiency may be due to the error in the analysis by the Public Analyst.
3. That in case the deficiency is in one of the contents namely fat or non-fatty solids and the aggregate is also below the aggregate of the two as prescribed in the rules, the article would be deemed to be adulterated.
4. That if the deficiency in either of the two contents namely fat and non-fatty solids contents is such that the deficiency cannot normally be assigned to the error in analysis by the Public Analyst, benefit may not be available to the accused by holding that the milk was not adulterated.
13. The aforesaid principles were affirmed in Vidyanand v. State of U.P. 1976 Cri LJ 1820 by Hari Swarup, J.
14. In Sultan Shah v. State of U.P. reported in 1973 FAC 342 : 1973 Cri LJ 1413 (All), the learned single Judge, Hon'ble B.D. Gupta, J. relying on earlier decision in Bhoop Singh v. Nagar Swasthya Adhikari Criminal Revn. No. 1475 of 1966 decided on 11-3-88 held that the fat content found in the milk solid much higher than the minimum prescribed by the rules leads necessarily to the inference that no water had been added to the milk and that in such a case the mere circumstance that non-fatty solid content was below the standard prescribed by the rules could not justify the inference either that the cow from the udders of which milk was drawn was not given the proper food or that Public Analyst report was erroneous but not the inference that the milk in question was not pure.
15. In Dhani Ram v. State reported in 1979 FAJ 107 decided by Hon'ble M.P. Sexena, J. the sample of goats milk was found in excess of fat contents of mustard the double of the prescribed standard but found deficient in non-fatty solids by about 13%. It was held that by no stretch of imagination it could be said that the milk which was deficient suitably in non-fatty solids was adulterated. Reliance was placed on an earlier decision in Kadam Singh v. State Criminal Revision No. 2042 of 1972 reported in (1978) 1 FAC 160 (All) and Sultan Shah v. State Reported 1973 FAC 342 : 1973 Cri LJ 1413.
16. In State v. Sarajuddin reported in (1982) 1 FAC 41 (All) decided by Hon'ble S. Malik, J., the sample of milk was found deficient in milk solids not fat. The fat contents were more than the prescribed standard. It was held that the report of the public analyst cannot be relied upon. Similar view was taken in Nagar Swasthya Adhikari v. Sabhash Chandra reported in (1982) 1 FAC 97 (All) decided by Hon'ble S. Malik, J. It was held that there is no known method by which non-fatty solids could be extracted from the milk without disturbing the fat contents in it.
17. In Rameshwar Singh v. State reported in (1981) 1 FAC 18, the non-fatty solids were deficient by about 24% and the fat contents were found to much higher than the prescribed standard of 4.5. It was held that the sample could not be held to be adulterated.
18. In Darshan Singh v. State reported in (1981) 1 FAC 98 : 1981 All LJ 521 decided by Hon'ble Murlidhar, J. It was observed that if a cow on account of bad health bad feed or through physiological accident produces milk with unusual variation in constituents such as fatless milk or milk with too low fat content or milk with meagre non-fatty-solid contents such milk would, under the amended law, be unadulterated. It was observed that if deficiency has arisen solely due to natural causes and beyond the control of human agency ordinarily the cases in which the marginal error in analysis can be regarded as cause of shortage would also be the case. In which it may be safe to presume that the shortage issue to natural causes and beyond the control of human agency.
19. In Jagdish v. State reported (1981) 1 FAC 100 (All) the accused was exonerated as the public analyst found only 3% of linseed oil in the sample which was too marginal. In Abdul Latif v. the State of U.P. (1981) 1 FAC 4 (All), non-fatty solids were deficient by 20% while fat contents were much higher than the prescribed standard. It was held that the accused could not be convicted. In Municipal Board, Etah v. State reported in (1981) 2 FAC 1 sample of goat's milk was found deficient in non-fatty solids by 10% while fat found existed more than 45%. It was held that it is clearly marginal, deficiency as on the aggregate of fat and non-fatty solid, the total exceeds the required 12%. The accused was, therefore, acquitted. Reference was made to a Division Bench case State v. Ajimullah reported 1981 (1) FAC 22 (sic). In Dhanoo v. State of U.P. (1981) 2 FAC 2 there was shortage of 3.6% in non-fatty solids and an excess of 1.2% in the fat contents of the sample of milk. It was held that an excess of fat content can in marginal cases be taken to off-set the deficiency in non-fatty contents on the basis that the analysis may not be wholly accurate.
20. This controversy came before a Division Bench in Puran Singh v. State of U.P. 1978 FAJ 169. In that case the Public Analyst opined that the sample of milk was adulterated as it contained 11% of milk fat and only 1.9% of non-fatty milk solids. The Division Bench expressed grave grounds regarding the correctness of the report of Public Analyst and consequently set aside the conviction. It was observed that it would also not be out of place to observe that when milk is stored the fat contents come to the top as the milk cools and if sample is taken from the top portion without stirring the milk thoroughly, the sample taken will be very high in fat content and would not give a correct picture or in other words, would not be a correct sample of the quality of the milk. It was further observed 'As will appear from instruction given to Analysts, even during analysis they are advised to thoroughly shake the sample of milk because the milk fat generally accumulates at the top and if only the top portion of the sample is analyzed; it will show a very high percentage of milk fat and corresponding low percentage of non-fatty solids'.
21. A decision of the same Bench has been reported in Kadam Singh and Puran v. State of U.P., (1978) I FAC 160. The Bench observed that the percentage of milk fat and non-fatty milk solids depends not only on proper feeding, but also the health of the animal from whose udder the milk was extracted.
22. Thus in view of these decisions benefit of doubt was given to the accused where the aggregate of fat and non-fatty solid contents in the milk was more than the aggregate of minimum prescribed and deficiency in one of the constituents was marginal. The reason assigned was that marginal deficiency in fat or non-fatty solids may be on account of some inaccuracy in the reading or on account of lack of observation of the necessary precaution.
23. This view was not accepted by some other Benches. A divergent opinion was expressed in Nanhey v. State of U.P. 1982 Cri LJ 158 (All). The learned Judge relying on the report of the Public Analyst held that the accused was rightly convicted. The reasoning adopted by the Bench contained in paragraph 18 is reproduced below.
In the instant case the public Analyst found fat content 3.6% and non-fat solids content 5.6% according to the standard prescribed for cow milk; thus the sample was deficient in non-fat solids content by about 33%. The mere fact that there was deficiency only in non-fat solid contents in the sample cannot lead to the conclusion that the milk was not adulterated or that the report of the Public Analyst was erroneous. If the Legislature thought that the non-fatty solids contents would not be deficient in a sample in which the fat content is not less than the prescribed standard, it would not have prescribed standard for both fat and non-fat solid contents. It should be taken that the Legislature was aware that there could be a sample of milk in which fat content may be according to the prescribed standard but which may still be deficient in the non-fat solids content. It is likely that in the instant sample the non-fat solid content was below the prescribed standard because of the milk being sub-standard. It is also likely that the applicant falsely gave out that the milk was of cow while it was in fact Buffalo's milk which was deficient both in fat and non-fat solids content. So far no test has been discovered which would distinguish between cow's milk and buffalo's milk. The applicant had very opportunity to get the report of the Public Analyst checked up by getting another part of the sample analyzed by the Director of the Central Food Laboratory. No attempt was made by the applicant to get such analysis done. For all these reasons I am not prepared to infer from the circumstance that the sample was found deficient in only non-fat solids content that the milk was not adulterated and the report of the Public Analyst to the contrary was erroneous and unworthy of reliance.
24. Similar controversy arose for consideration before a Full Bench in Prem Das v. State : AIR1961All590 . In that case the . accused had sold a mixture of buffalo milk and cow milk, a sample of which was taken by an Inspector and sent for chemical analysis. The Public Analyst reported that the sample contained 5.9 per cent milk fats and 7.0 per cent non-fatty solids. The question arose whether the sample could be treated as adulterated since no standard was prescribed for mixture milk. The Bench held that whether might (sic) have been the proportion in which the two kinds of milks were mixed together, the total quantity of the non-fatty solids could not have been less than 8.5% fixed for cow's milk, if neither of them was adulterated. Since in the instant case the percentage of non-fatty solids was less than the prescribed minimum for cow's milk, the mixture of cow milk and buffalo milk was adulterated within the meaning of Section 2(I)(I), and the accused was guilty under Section 16'.
25. In view of the Full Bench decision a sample of milk will be deemed to be adulterated if the milk fats are less than the prescribed minimum or the non-fatty solids are less than the prescribed minimum within the meaning of Section 2(I)(I).
26. A Division Bench of Delhi High Court in Municipal Corporation of Delhi v. Sri Ram 1975 Cri LJ 1071 after considering a catena of cases held that if the sample does not contain minimum percentage of milk fat or minimum percentage of milk solids non-fat it must be taken to be adulterated because it is an article sold by the vendor which is not of the nature, substance or quality demanded by purchaser. In that case although fat content of the milk was 5% the not fat solid was only 7.14%. The Division Bench followed the Full Bench decision of the Allahabad High Court in Prem Das v. State : AIR1961All590 and Supreme Court's decision in Babulal Hargovind Das v. State of Gujarat : 1971CriLJ1075 and held that the sample was adulterated.
27. Hon'ble B.N. Katju, J. in Nagar Swasthya Adhikari, Mahapalika, Kanpur v. Guru Prasad (1982) 1 FAC 237 : 1982 All LJ 149 referred to the Division Bench of Allahabad High Court in Katam Singh and Pooran Singh v. State (1978) 1 FAC 160 and under mentioned Single Bench decision in, Abdul Latif v. State (1981) 1 FAC 4 (2) Dhani Ram v. State (1979) 2 FAC 47 (All) (3) Ujagar Singh v. State of Punjab (1990) 1 FAC 432 (Punj & Hry) (4) Babu Lal v. State (1979) 1 FAC 267 (All), (5) Deokinandan v. State (1979) 1 FAC 274 (All), (6) Municipal Corporation of Delhi v. Jawahar Lal (1980) 2 FAC 145 (Delhi), (7) Ram Autar v. State (1990) 2 FAC 249 (All), (8) Halke v. State of U.P. (1980) 2 FAC 256 (All), (9) Devidatt v. State of U.P. (1980) 2 FAC 384 (All), (10) Hansraj v. State of Punjab (1980) 2 FAC 96 (Punj & Hry), but refused to follow them on the ground that the Full Bench decision of this Court in Prem Das v. State AIR 1961 All 590, which is binding was not considered.
28. A Single Bench of this Court in Ram Vishal v. State of U.P. (1996) 2 FAC 151 : 1996 All LJ 1422, decided by Hon'ble T.P. Garg on the Full Bench decision of Allahabad High Court referred to above and Supreme Court decision in Municipal Committee, Amritsar v. Hazara Singh reported in : [1975]3SCR914 held that the sample with deficiency of non-fatty solids will be treated as adulterated though the milk fats were found to be above the prescribed standard. Reliance was placed on the following observations of the Supreme Court in Municipal Committee, Amritsar's case referred to above (at p. 1089 of AIR) :
That standard fixed under the Act is one that is certain. If it is varied to any extent, the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantage of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions are great.
29. The learned counsel for the revisionist to an earlier decision of the Supreme Court in Malwa Co-operative Milk Union Ltd., Indore v. Biharilal 1973 FAC 375. In that case the milk which sent for analysis was examined by the Public Analyst and he found the contents to be as follows :
1st Sample.
Milk Fat 6%.
Solids non-fat 7.9%.
2nd Sample.
Milk Fat 5.9%.
Solids non-fat 7.7%.
The Supreme Court held that in the samples fatty solids mere almost 14% while non-fatty solids in the one case being only a percent less and in the other 4 per cent less. The fat contents were thus, proportionately less. The Supreme Court doubted whether the analyst was able to isolate the fat content so successfully as not to have left room for this slight variation. It observed that the variation was thus borderline. The Supreme Court in the case before it was considering the power of the revisional Court to set aside the acquittals in such borderline cases. It did not overrule the possibility of slight error in calculation or in isolation of fat but without speculating upon this aspect of the case held that this was hardly the kind of case in which the High Court should have exercised its powers to set aside an acquittal in revisional jurisdiction. The Supreme Court proceeded to observe that 'We do not think that the High Court really called upon to exercise its extraordinary powers of revision to set aside an acquittal which the policy of the Corporation and Government indicated was desirable, if the supply of milk to the city of Indore was to be regulated. The variations in the solid contents of the milk prima facie were not so great as to merit attention even in the first instance and we think that the High Court might well have left the acquittal endorsed by the Sessions Judge to stand. In these circumstances we think the appeals should be allowed and the order of the learned single Judge discharged and the acquittal restored. We order accordingly'.
30. This decision, therefore, cannot be read as an authority for the proposition that if there is borderline variation the accused cannot be convicted.
31. The Full Bench decision of Delhi High Court in Municipal Corporation of Delhi v. Vishnu Swarup and Ors. interpreted the ratio decidendi of the decision of the Supreme Court in Malwa Co-operative Milk Union Ltd.'s case 1973 FAC 375 and remarked that the question considered by the Supreme Court was not on the merits of the order of acquittal but with reference to the broader issue namely, power of the High Court in revision to set aside acquittal in marginal cases like that one before that Court.
32. In Administrator of City of Nagpur v. Laxman 1995 SCC (Cri) 354 : (1996) 2 FAC 29 in an appeal against acquittal the fat percentage of the sample taken from small milk vendor was 6% as against 3.5% but there was shortfall of non-fatty solids. It was 7.3% against the prescribed strength of 8.5%. The Supreme court concluded that it cannot be said that both the Courts below have erred in acquitting them givng benefit of doubt to the respondents. The Supreme Court refused to examine the question of law raised by the parties.
33. In Prabhu v. State of Rajasthan, 1994 SCC (Cri) 895 : 1994 AIR SCW 2649 the Analyst found that the milk fat was 4.8% and milk solids non-fat was 6.36% against the prescribed standard of 4.5% for milk fat and 8.5% of milk solids non-fat. It was opined that the milk was adulterated. The Supreme Court considering the legal question involved found no force in the appeal and accordingly dismissed it.
34. In view of the above discussion I am of the view that the Supreme Court in the cases referred to above has not held that if the deficiency is marginal the sample could not be said to be adulterated. In view of the Full Bench decision of the Allahabad High Court in Prem Das v. State, reported in : AIR1961All590 a sample has to be treated as adulterated if it is less than the prescribed minimum standard. The conficting view expressed by the Division Bench and single Benches of this Court cannot be said to be good law.
35. A Full Bench of Punjab and Haryana High Court in the State of Punjab v. Teja Singh reported in (1976) 2 FAC 44 : 1976 Cri LJ 1648 reviewed all the previous Division Bench judgments, over ruled them and answered in the negative the relevant question the learned Judge had formulated for determination namely whether a negligible or a marginal deviation from the prescribed standard laid down in the Act can be ignored and acquittal recorded on that basis.
36. The Full Bench of this Court in Prem Das's case and Full Bench of Punjab and Haryana High Court are in consonance with some decisions of the Supreme Court. The contention that the standard fixed by the rules cannot be conformed to by an ordinary vendor who is not veised in the technicalities was rejected by the Supreme Court in Andhra Pradesh Grain and Seed Merchants Association v. Union of India reported in : 1971CriLJ1556 . Shah, J., speaking for the Bench observed'.
The various items in the Schedule setting out standards of quality use technical expressions with which an ordinary retail dealer may not be familiar, and also set out percentages of components which the dealer with the means as his command cannot verify. But by Section 3, the Central Government has to set up the Central Committee for Food Standards to advise the Central and the State Governments on matters arising out of the administration of the Act....Under Section 23(1)(b) the Central Government makes rules prescribing the standards of quality and the limits of variability permissible in any article of food. The rules are made after consultation with the Committee for Food Standards. The standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for Standards.
37. In a later case in Jagdish Prasad v. State of West Bengal reported in : 1972CriLJ1309 , the Supreme Court held that the standards having been fixed in Appendix B of the Rules any person who deals in articles of food which do not perform to them contravenes the provisions of the Act and is liable to punishment thereunder Paragraph 7 of the judgment is quoted below :-
An attempt, was made to refer us to certain technical books and the decisions in Jagdish Chandra Jain v. Corporation of Calcutta : AIR1953Cal706 ; Netai Chandra and Surendra Nath Dey v. Corporation of Calcutta : AIR1967Cal65 and in Re: Padmanabha Chetty Perumal and Co. AIR 1948 Madras 47 for the proposition that the standard prescribed by A. 17.06 in Appendix B to the Rules is not conclusive because in some places mustard can yield a higher reading. We cannot allow any fresh evidence to be used, nor do we think that the decisions referred to, even if they justify that contention, can alter or vary the standard fixed in exercise of the powers conferred by the Act in Appendix B to the Rules. Section 3 of the Act authorises the Central Government to constitute a Committee called the Central Committee for Food Standards to advise the Central Government and the State Governments on matters arising out of the administration of the Act and to carry out the other functions assigned to it under the Act. Under Section 23(1)(b) of the Act the Central Government may, after consultation with the Committee and subject to the condition of previous publication make rules 'defining the standards of quality for, and fixing the limits of variability permissible in respect of any article of food.' It is in exercise of this power that Rule 5 was made authorising standards of quality of the various articles of food specified in Appendix B to the Rules. In view of this provision any article of food which does not conform to the standards specified in Appendix B to the Rules which under Section 2(1) of the Act is said to be adulterated because 'the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.
38. A three Judge Bench of the Supreme Court finally set. the controversy at rest in Municipal Committee, Amritsar v. Hazara Singh reported in (1975) 1 FAC 271 : AIR 1978 SC 1087 when it observed (at p, 1088 of AIR) :-
It is plain from submission of counsel that the appellant's grievance is not so much against the acquittal as against a passing reference by the Sessions Court to an obiter observation of this Court in Malwa Co-operative Milk Union Limited, Indore v. Behari Lal 1973 FAC 375, Obviusly, the Sessions Judge had concluded that a minor error in the chemical analysis might have occurred. He was perhaps not right in saying so. Any way, a reading of this judgment shows that the mention of this Court's ruling (supra) was meant to fortify himself and not to apply the ratio of that case, Indeed, this Court's decision cited above discloses that Hidayatullah, J (as he then was) was not laying down the law that minimal deficiencies in the milk compounents justified acquittal in food adulteration cases. The point that arose in that case was whether the High Court was justified in upsetting an acquittal in revision, when the jurisdiction was invoked by a rival trader, the alleged adulteration having been so negligible that the State had withdrawn the prosecution resulting in the acquittal. Certainly, the revisional power of the High Court is reserved for setting (aside) miscarriage of justice, not for being invoked by private prosecutors. Such was the ratio but, in the course of the judgment Hidayatullah J., to drive home the point that the case itself was so marginal, referred to the microscopic difference from the set standard. To distort that passage, tear it out of context and devise a new defence out of it in respect of food adulteration cases, is to be grossly unjust to the judgment.
In the same judgment it was further observed :-
The standard fixed under the Act is one that is certain. If it is varied to any extent, the certainty of a general standards would be replaced by the vagaries of a fluctuating standard. The disadvantage of the resulting impredictability, uncertainty and impossibility of arriving at fair and consistent decision are great.
39. In view of the Three Judges decision of the Supreme Court referred to above it is apparent that the standard inter alia, for cow milk has been prescribed by a Committee known as the Central Committee for Food] Standard constituted by the Central Government in consonance with the provisions of Section 3 of the Act and Sub-clause (i-a) read with Sub-clause (1) and (m) of Section 2 thereof clearly lay down that an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed minimum standard or its constituents are present in quantities and with the prescribed limits of variability, whether the same renders it injurious to health or not.
40. I find that the sample is adulterated | and the Courts below committed no illegality in convicting the accused and awarding sentence.
41. In view of the facts and circumstances of the case that the alleged adulteration was made in the year 1981 it would not be proper to send the accused to jail after such a long time; moreso when he had served at least few day's sentence after his conviction. The Supreme Court in State of Orissa v. K. Rajeshwar Rao reported in : 1992CriLJ300 altered the sentence of imprisonment to sentence of fine on the ground that 15 years had passed by from the dated of offence and at this distance of time the ends of justice may not be served by sending the respondent to imprisonment; more so when he had undergone all these years the agony of the prosecution.
42. The offence in the case before the Supreme Court had occurred on March 13, 1976 before the Amending Act came into force. The Supreme Court observed that under the un-amended Act it was not mandatory to impose the minimum sentence. This decision, therefore, not applicable to the offence which occurred after the Amending Act came into force. Since the legislation has done away with the discretion of the Courts to award either sentence of imprisonment or fine and minimum sentence has been prescribed, the Courts have been left with no discretion but to award minimum or any sentence up to maximum limit prescribed. In my opinion, if, the legislation requires that on an offence being proved at least minimum sentence of imprisonment has to be awarded and the Courts cannot overlook the legislative mandate and award sentence of fine only though on equity it may feel justified to take lenient view. However, Courts can convert sentence of rigorous imprisonment into sentence of simple imprisonment.
43. Though the Courts have got no power to refuse to award minimum sentence of imprisonment yet under Clause (b) of Section 433 of Code of Criminal Procedure 'the appropriate government is empowered to commute the sentence of simple imprisonment and impose fine.
44. It is open to State Government to take lenient view considering the nature of the offence and circumstances, specially the sentence awarded long before, could not be implemented on account of delayed disposal of revision, or appeal may commute the sentence. In view of the legal position the Supreme Court in N. Sukumaran Nair v. Food Inspector, Mavelikara reported in (1977) 9 SCC 101 : 1995 AIR SCW 3229 considering the delayed disposal found the case appropriate for commutation of sentence and directed the appellant to deposit in the trial Court a sum of Rs. 6000/- as fine in commutation of the sentence of six months' simple imprisonment, within a period of six weeks and intimate to the appropriate government that such fine has been deposited. On deposit of such fine, the Supreme Court observed that the State Government may formalise the matter by passing appropriate orders under Clause (b) of Section 433 of the Code of Criminal Procedure.
45. On similar consideration the Supreme Court in Badri Prasad v. State, of Madhya Pradesh reported in 1996 SCC (Cri.) 79 passed the following order :-
There is some scope, however, towards the sentence because this Court granted in 1989 leave and the appellant is on bail. We would rather now scale down the sentence of six month's R.I. to three month's simple imprisonment while sustaining the fine of Rs. 1000/- as awarded by the Courts below. Subject to this modification in the sentence, the appeal otherwise fails. This has been made to enable the appellant to approach the State Government under Sub-clause (b) of Section 433 for conversion of simple imprisonment to fine. Since the adulteration was only by adding colouring contents in the chillies powder and that was possibly done to please the customer's eye, we recommend that the State Government, release the appellant on the charging of Rs. 2000/- as fine and that an appropriate order be passed by the State Government to that effect within a period of three months. The appellant shall deposit in the trial Court under two heads the fine imposed by the Court i.e. Rs. 1000/- as also the alterable fine of Rs. 2000/- within a period of three weeks from today and apprise the State Government of his having discharged his obligation. On his doing so, the appellant need not be arrested.
46. In my view it is not legally permissible to alter the minimum sentence of imprisonment in fine only but sentence of rigorous imprisonment can be altered into simple imprisonment and the State Government may be desired to formalise the imposition of sentence of fine by virtue of its powers, under Section 433(b) of the Code of Criminal Procedure.
47. Section 16(1) of the Prevention of Food Adulteration Act requires that an accused, if he manufactures for sale or stores, sales or distributes any article of food enumerated in clauses (a) to (g), he shall in addition to penalty to which he may be liable under the provisions of Section 6 be punishable with an imprisonment for a term which shall not be less than six months which may extend to three years and with fine shall not be less than Rs. 1000/-.
48. The minimum sentence of imprisonment of six months and fine of Rupees 1000/ - may be reduced for any special reasons to be mentioned in judgement to a sentence of imprisonment which shall not be less than three months and with fine which shall not be less than Rs. 500/- if the offence is under sub-clauses (1) and (ii) of (a) and is in with respect of primary food in the case covered by provisos (i) and (ii) as also in cases covered by the second proviso.
49. In view of Section 16 of the Act it is open to the Courts either to award R.I. or simple imprisonment but the period of imprisonment cannot be less than six months, and if the case is covered by the proviso to sentence of three months.
50. Considering the nature of the accusation and also the fact that the offence had taken long before I find it a fit case to award simple imprisonment and, therefore, the rigorous imprisonment awarded by the Magistrate and confirmed by the appellate Court is altered to minimum period but of simple imprisonment.
51. In view of the facts stated above provisionally instead of sentence of six months simple imprisonment, the revisionist is sentenced to a fine of Rs. 6000/- including the sentence of fine imposed by the trial Court for offence punishable under Section 7/16 of the Act on account of the milk being adulterated and Rs. 1000/- including fine for violation of Rule 50 with the direction to the revisionist to deposit the fine imposed in the trial Court within a period of two months from the date of the notice from the Court of Magistrate concerned and to apprise the State Government that the amount has been deposited with a copy of receipt and copy of this order. The revisionist on doing so need not be arrested. The State Government on receipt of the copy of the order and receipt evidencing deposit of fine may formalise the commutation in terms of the direction given by the Supreme Court in the case referred to above.
52. In case the accused fails to deposit the fine imposed within 2 months as ordered he shall serve out the sentence of simple imprisonment as ordered.
53. The Magistrate concerned shall intimate the alteration of the sentence to the. revisionist on receipt of this order.
54. The revision is disposed of with modification of sentence as aforesaid while maintaining the conviction.