A.P. Ravani, J.
1. The Parliament has by repeated amendments emphasized the statutory determination to stamp out food adulteration offences by severe sentences and being dissatisfied with the indulgent exercise of judicial discretion, the Legislature has deprived the court of its discretionary power in the matter of imposition of sentence. Then why the courts should continue to be soft towards offenders of food adulteration cases. When sentence of Simple Imprisonment, instead of Rigorous Imprisonment is imposed on such offenders, instead of the offender, is the society not punished? This question arises in the background of the facts that below (sic follow).
2. These two revision applications arise out of a criminal case pertaining to an offence under the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'). It was alleged that the accused sold cow milk to the complainant-Food Inspector on December 23, 1976. On analysis of the milk sold, it was found that it was adulterated one as it did not conform to the standards laid down under the Prevention of Food Adulteration Rules, 1955. Therefore, a complaint was filed by the Food Inspector and a Criminal Case No. 1 of 1977 was tried by the learned Metropolitan Magistrate, 6th Court, Ahmedabad. After recording evidence and after hearing the parties, the learned Metropolitan Magistrate held the accused guilty for the offence under Section 16(1)(a)(i) read with Section 7(1) of the Act and ordered that the accused shall undergo simple imprisonment for six month and also directed him to pay a fine of Rs. 1500/- in default of payment of fine to undergo simple imprisonment for a further period of four month. Against the aforesaid judgment and order of conviction and sentence which was passed on August 20, 1977, the accused preferred an appeal being Criminal Appeal No. 260 of 1977 in the court of learned City Sessions Judge, Ahmedabad. The learned City Sessions Judge, after hearing the parties, confirmed the judgment and order of conviction passed by the trial Court. However, the learned City Sessions Judge reduced the sentence imposed on the accused by the trial Court to three month simple imprisonment and also reduced the sentence of fine to Rs. 500/- in default to payment of fine to undergo simple imprisonment for a further period of 15 days. Being aggrieved by the orders passed by the lower courts the accused preferred Criminal Revision Application No. 671 of 1978 while the Food Inspector-original complainant preferred Criminal Revision Application No. 38 of 1979 praying for enhancement of the sentence.
3. Counsel for the petitioner-accused has contended that Rule 16(c) of the Prevention of Food Adulteration Rules, 1955 ('the Rules' for short) as it stands today, came into force on January 4, 1977. In the instant case, the offence has taken place on December 23, 1976. therefore, the provisions of Rule 16(c) were not applicable. Even so, the provisions of Rule 16(c) have been resorted to and the procedure laid down for packing the sample. The Rule 16(c) has been followed. Therefore, according to the counsel for the petitioner-accused, there is non-compliance with the provisions of Rule 16 and hence it should be held that the accused is entitled to acquittal.
5. It is an admitted position that prior to the amendment which came into force with effect from January 4, 1977, Rule 16 did not contain Clause (c). At that time, the present Clause (d) was numbered as Clause (c). It is also an admitted position that all the formalities required for packing, fastening and sealing the sample as contained in Clause (a), (b) and (d) [which has been re-numbered as '(d)' after the amendment and which was originally numbered as '(c)' have been complied with. It is also an admitted position that over and above the formalities required to be complied with as per the old provisions of the Rule, the further requirements of newly added clause have also been complied with. The newly added Clause (c) requires that the Food Inspector should cover the bottle by a paper slip which should bear the signature, the code and the serial number of the Local (Health) Authority and that should be pasted on the wrapper. The newly added Clause (c) also requires that the signature or thumb impression of the, person from whom the sample has been taken should also be affixed on the paper slip. This requirement has also been complied with over and above the requirement contained in other parts of Rule 16.
5. It is not understood how, if the additional formalities have also been gone into as per the requirements of newly added Clause (c) it can be said to be non-compliance with the provisions of Rule 16? It is an admitted position that Rule 16 which contained only three Clauses (a, b and c), has been fully complied with. It should be clear that the old Clause (c) has now been re-numbered as Clause (d). The non-compliance alleged is that the additional formalities required to be undergone as per the amended provision have also been taken care of by following the provisions of newly added Clause (c). This can never be said to be noncompliance with the provisions of Rule 16.
6. Counsel for the petitioner-accused has relied upon a decision of the Andhra Pradesh High Court in the case of Anakapalli Municipality v. Polipilli reported in 1978 Cri. L.J. 1353. In that case the Food Inspector had followed the provisions of Section 11(1)(b) as it stood subsequent to the amendment. As per the old provisions of Section 11 of the Act, the Food Inspector was required to give a sample bottle to the accused. That is what he did. After the amendment which came into force on April 1, 1976, the Food Inspector ought to have sent the second and third bottle of samples to the Local (Health) Authority and he ought to have obtained the signature or thumb impression of the accused on these samples. This he failed to do. Thus, there was non-compliance with the provisions of the Act which was in force at the time of occurrence of the offence. In the instant case, there is no question of non-compliance with any of the provisions of Rule 16. On the contrary, additional formalities of newly added Clause (c) has (sic have) also been complied with. Therefore reliance placed on the aforesaid decision is of no help whatsoever to the petitioner-accused.
7. Counsel for the petitioner-accused submitted that the accused was not informed regarding his right to send the sample to the Central Food Laboratory. According to him, as per the provisions of Section 13(2) of the Act and the provisions of Rule 9(j) of the Rules, after the prosecution is launched, within 10 days he should have been sent a copy of the report of the Public Analyst and should have been informed that he had a right to get the sample analysed by the Central Food Laboratory. In support of this contention, he has relied upon an unreported decision of this High Court (Coram: S.L. Talati and G.T. Nanavati, JJ.) in Criminal Appeal No. 209 of 1979 decided on February 24, 1981 and also on the decision of this High Court (Coram: A.M. Ahmadi & R.C. Mankad, JJ.) in Criminal Appeal No. 120 of 1979 decided on December 19, 1980. In Criminal Appeal No. 209 of 1979 it has been specifically held that if the accused is not informed about his right to get the sample analysed by the Central Food Laboratory, then it causes prejudice to him and he is entitled to be acquitted. In the latter case, i.e. in Criminal Appeal No. 120 of 1979, it appears that the result of the case turned on the facts of that case. No principle is laid down by the Court. Hence it is not necessary to discuss the same in details.
8. In the instant case, the facts may be examined. The Food Inspector stated in the deposition that he had sent a copy of the report of the Public Analyst by registered AD Post and that was refused by the accused. A sealed cover was produced in Court at Mark 3/1. There is no cross-examination whatsoever of the Food Inspector on this point. It also appears that the envelope Mark 3/1 has remained on file without having been opened. Moreover, the accused himself has availed of his right to get the sample analysed by the Central Food Laboratory. Therefore, it cannot be said that the accused has in any way been prejudiced. As a matter of fact, the report of the Director, Central Food Laboratory, Poona, was received by the Court and it was found that the sample of food, i.e. cow milk in the instant case, was not in accordance with the standards laid down under the provisions of the Rules. As there was wide discrepancy between the two reports, a contention was raised by the Counsel for the petitioner-accused that the discrepancy should be explained by the, prosecution and unless the discrepancy between the two reports (i.e. the report of the Public Analyst and the report of the Director of Central Food Laboratory) is not explained, the benefit should be given to the accused and he should be acquitted. On this point a reference was made to the Full Bench and the Full Bench ultimately held that the report of the Director of Central Food Laboratory, supersedes the earlier report of the Public Analyst and the report of the Public Analyst is not t be looked into at all. The Full Bench held that it was not necessary for the prosecution to explain the discrepancy. Therefore, in the instant case it cannot be said that there was any prejudice whatsoever to the accused on account of the alleged non-compliance to the effect that he was not informed by the Food Inspector regarding his light to get the sample of food analysed by Central Food Laboratory, Poona.
9. Further, it may be noted that the envelope, Mark 3/1, sent to the accused by Registered AD Post was refused by him. On this point, no cross-examination whatsoever has been made to the Food Inspector. In absence of any clarification sought by way of cross-examination of the Food Inspector, it would not be unreasonable to raise presumption under the provisions of Section 114 of the Indian Evidence Act, and hold that the Food Inspector had performed his official duties in regular manner. Had the accused any doubt on this point, he ought to have asked necessary questions to the Food Inspector in his cross-examination and he ought to have insisted for the opening of the envelope in Court. This has not been done by the accused. Therefore, it has got to be presumed that the envelope must have contained the details required to be communicated to the accused as per the provisions of Section 13(2) of the Act and Rule 90) of the Rules.
10. It may be noted that in the case of Ajitprasad v. State of Maharashtra reported in : 1972CriLJ1026 , the Supreme Court has held that delay in serving the summons to the accused and consequent deprivation of the right of the accused under Section 13(2) of the Act to get his sample analysed by the Director, Central Food Laboratory, cannot be pressed into service where the accused himself did not apply for getting the sample analysed. (In the instant case the accused did avail of the right and got his sample analysed.) The Supreme Court further held that in case the accused had applied for such analysis by the Director, Central Food Laboratory, and had the Director said that on account of delay or any other reason, the sample had become highly decomposed and could not be analysed, he might have got the benefit of provisions of Section 13(2) of the Act and probably could have urged that his right has been taken away. The Supreme Court in that case held that no prejudice whatsoever was caused to the accused on account of the delay in the service of summons. Thus, it is clear that the provisions of Section 13(2) have not been held to be mandatory by the Supreme Court. In the instant case, the accused did avail of the right and has got his sample analysed. Similarly, the provision of Rule 9(j) has been held to be directory in the case of Dalchcmd v. Municipal Corpn. Bhopal reported in A.I.R. 1983 SC 303. Therefore, the contention raised by the counsel for the petitioner regarding the alleged non-compliance of the provisions of Section 13(2) of the Act and Rule 9(j) of the Rules has got to be rejected.
11. Counsel for the petitioner-accused submitted that there is non-compliance of the provisions of Section 11(1)(c)(ii) of the Act inasmuch as the Food Inspector had sent the samples to the Acting Municipal Commissioner. According to him, the local authority has been defined under the provisions of Section 2(viii)(a) which means such authority as may be prescribed by the Central Government or the State Government under the Act. In the instant case, the Municipal Commissioner has been appointed as the 'local authority' for the area of city of Ahmedabad. On this point there is no dispute. Therefore, according to him, the samples should have been sent to the Municipal Commissioner and could not have been sent to the Acting Municipal Commissioner.
12. The provisions of Section 11(1)(c)(ii) reads as follows:
11. Procedure to be followed by food inspectors:
(1) When a food inspector takes a sample of food for analysis, he shall
(i) xxx xxx xxx (ii) send the remaining two parts to the Local (Health) Authority for the purposes of Sub-section (2) of this section and Sub-sections (2-A) and (2-E) of Section 13.
The aforesaid provision enjoins a duty upon the Food Inspector to send the samples to the Local (Health) Authority. Therefore, what is required is, sending of the samples to the Local (Health) Authority, i.e. in this case to the Municipal Commissioner, City of Ahmedabad. As per the provisions of this section, no duty whatsoever is required to be performed by the Local (Health) Authority, i.e. by the Municipal Commissioner, in other words, no duty is cast upon the Local (Health) Authority to receive the sample himself. The sample may be received even by a Peon of the Office of the Local (Health) Authority or the sample may be received by any subordinate, working in the office of the Local (Health) Authority. The provisions of Section 11(1)(c)(ii) of the Act cast a duty upon the Food Inspector to send the sample to the Local (Health) Authority. At the relevant time, if the Municipal Commissioner was not in the office and someone else was holding the charge of Municipal Commissioner and was working as Acting Municipal Commissioner, and if the samples are sent to him, it cannot be said that there was any non-compliance of the provisions of Section 11(1)(c)(ii) of the Act. In this connection provisions of the Bombay Provincial Municipal Corporations, Act, 1949 also may be seen. As per the provisions of Section 2(9) of the said Act, 'the Commissioner' means the Municipal Commissioner for the City appointed under Section 36 and includes an Acting Commissioner appointed under Section 39'. Therefore, even an Acting Municipal Commissioner has to be treated as Municipal Commissioner. Hence, if the sample is sent to or received by the Acting Municipal Commissioner, it cannot be said that there is any noncompliance of the provisions of Section 11(1)(c)(ii) of the Act. Counsel for the petitioner-accused has relied upon a decision of this High Court in the case of The State of Gujarat v. Dhirajlal reported in 16 G.L.R. 982. It was a case which arose in respect of the provisions of Gujarat Municipalities Act. Therein it was held that if the Chief Officer of the Municipality is required to perform his statutory duty, he cannot delegate his functions to any other subordinate officer. In the instant case, no such question arises. Hence the decision relied upon by the counsel for the petitioner-accused is of no help to him.
13. Counsel for the petitioner submitted that the revision at the instance of a party is not maintainable in view of the provisions of Section 377 of the Criminal Procedure Code. In the instant case, the revision application has been filed by the Food Inspector under the provisions of Section 397 of the Criminal Procedure Code read with Section 401 of the Criminal Procedure Code. It is not the case of the Food Inspector-original complainant that his revision application be treated as an appeal under Section 377 of the Criminal Procedure Code. Section 377 of the Code does not say that revision by a private party for enhancement of sentence under the provisions of Section 401 of the Code, is barred. As provided under Section 401 of the Code, the High Court can call for the record of the case by itself or which otherwise comes to its knowledge. If the High Court can exercise its power suo motu, it is not understood as to why the High Court cannot exercise powers when the matter is brought to its knowledge by the original complainant, in the instant case the Food Inspector. On this point reference may be made to a decision of the Supreme Court in the case of Nadir Khan v. The State Delhi Administration reported in : 1976CriLJ1721 . In that case, the petitioner who was found with 7 k gs. of contraband opium was convicted and sentenced only to two month's imprisonment. While dismissing his revision application, the High Court felt the sentence to be grossly inadequate and invoking its revisional powers suo motu enhanced the sentence to six month. Therefore, the petitioner had preferred appeal before the Supreme Court and the Supreme Court inter alia held that the provisions of Section 377 of the Code which conferred right on the State Government to prefer an appeal against inadequacy of sentence, did not exclude the revisional jurisdiction of the High Court to act suo motu under the provisions of Section 401 of the Code. The Supreme Court further observed:
The High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to suo motu act where there is a flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court, prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a given case of public importance e. g. in now two familiar cases of food adulteration, reacts to public concern over the problem and may act suo motu on perusal of newspaper reports disclosing impression of grossly inadequate sentence upon such offenders.
In above view of the settled legal position, there is no bar to entertain application for enhancement of sentence by the Food Inspector the original complainant. Hence what is required to be seen is, 'Is there proper compliance with the provisions of law or not?'
14. The learned City Sessions Judge reduced the sentence by invoking proviso to Section 16 of the Act. In his opinion the milk was 'primary food' and therefore, proviso was applicable. However, in the facts and circumstances of the case, the learned City Sessions Judge was wrong in holding that the milk was 'primary food'. Primary food, has been defined in Section 2(xii-a) which reads as follows:
(xii-a) 'primary food' means any article of food, being a produce of agriculture or horticulture in its natural form.
As laid down by a Division Bench of this High Court in the case of Natvarlal C. Shah, Food Inspector, Ahmedabad v. Prabhatbhai Punjabhal and Anr. reported in 22 G.L.R. 76, all types of cow milk are not primary food. It is not shown by the accused that the milk sold by him was of the type which would fall within the ambit of 'primary food' as held-by the Division Bench of this Court. On this point also there is no dispute and hence it is not necessary to discuss this point at length. Thus, it is clear that the learned City Sessions Judge has committed error in invoking the proviso to Section 16(1) of the Act. In this view of the matter, the order directing to reduce the sentence passed by the learned City Sessions Judge is not in accordance with law and that part of the order has got to be quashed and set aside and the order passed by the trial court will have to be restored with the modification regarding the nature of imprisonment.
15. It is an admitted position that the offence falls within the provisions of Section 16(1)(a)(i) of the Act and the same is not covered by proviso to Section 16(1) of the Act. On this point there is no dispute. Therefore, it is clear that the accused has committed an offence which is punishable with imprisonment for a term which shall not be less than six month, but which may extend to three years and with fine which shall not be less than one thousand rupees. The trial court had rightly imposed the minimum sentence of imprisonment and that of fine. But it is not understood on what principles the lower courts thought it fit to impose sentence of simple imprisonment and not that of rigorous imprisonment. The object of the Act is to eliminate the danger to human life and health from the sale of unwholesome articles of food see Municipal Corporation of Delhi v. Shiv Shanker reported in : 1971CriLJ680 . It may be noted that the Act is meant for the protection of the society and the Parliament has by repeated amendments emphasized the statutory determination to stamp out food adulteration offences by severe sentences. It appears that being dissatisfied with the indulgent exercise of judicial discretion, the legislature has deprived the court of its discretionary power in the matter of imposition of sentence. It is so observed by the Supreme Court in the case of Pyareli K. Tejcmi v. Mahadeo Ramchandra Dange and Ors. reported in A.I.R. 1974 S.C. 278. It is unfortunate that both the courts did not take into consideration the legislative mandate and took lenient view towards the accused and preferred to award sentence of simple imprisonment. When accused is awarded sentence of simple imprisonment he becomes a 'State guest' in the prison. In modern days the prisoners are given almost all facilities in prisons which are available to an ordinary middle class family outside the prison. It may also be noted that when an accused is ordered to undergo sentence of rigorous imprisonment he is required to work in jail for limited number of hours and he does not work without remuneration being paid to him. Of course, the remuneration which may be paid to the prisoners will be as per the prescribed standards and it may not be according to the market rate of wages. But all the same, for the work done by him he gets some remuneration. When sentence of simple imprisonment is imposed no work whatsoever can be taken from the prisoners by prison authorities. The prisoner is required to be fed and provided shelter and other facilities also at the cost of the society. Thus, one who plays with the health of the society and becomes a health hazard by playing with the lives of poor and unwary people, when sent to jail, gets all facilities available to a middle class family and he is confined to 'forced rest' rather than deterrent punishment. He is deprived of his liberty for a very short period but he lives in comforts, forgetting all his worries of outside life. He enjoys rest and also enjoys other facilities at the expense of the society. For what? Because he plays with the health of people? Is this the object of the Act? Surely not. The Act has been enacted with a view to see that this widespread evil of adulteration in articles of food is eradicated. Such evil cannot be eradicated by giving soft treatment to the persons who play with the lives of people for satisfying their greed and lust for money. In this view of the matter, it is clear that the lower court failed to take into consideration the legislative mandate and also failed to perceive the spirit and object underlying the Act. There is no reason why an accused who is found guilty of an offence of adulteration of food should be awarded sentence of simple imprisonment instead of rigorous imprisonment. To do so, would amount to punishing the society rather than the offender. The argument that the accused is a petty trader and therefore he deserves mercy has also no merits. It must be realised that from petty traders, only the poor, ignorant and unwary people purchase their articles of food. Well-to-do people with sufficient means are never required to purchase their milk and other articles of food from hawkers and petty traders. They get their requirements supplied in packed condition. i.e. in pouches, or bottles or in tinned and sealed packings from dairies and departmental stores. When a petty trader is shown mercy, innumerable poor, ignorant and unwary people are penalised.
16. In the result, Criminal Revision Application No. 671 of 1978 filed by the petitioner-original accused is rejected. Rule discharged therein.
17. Criminal Revision Application No. 38 of 1979 filed by the original complainant Food Inspector is allowed. The judgment and order of conviction passed by the lower courts is confirmed. The order of sentence passed by the lower courts is modified.
18. The opponent No. 1 accused, i.e. Mohanlal Chunilal, is ordered to undergo R. I. for six month and to pay a fine of Rs. 1,500/- and in default of payment of fine to undergo R. I for a further period of two month for the offence under Section 16(1)(a)(i) read with Section 7(i) of the Act. Rule madexabsolute accordingly.
The counsel for the petitioner-accused requests that the petitioner be granted time to surrender. Time to surrender is granted up to October 16, 1985.