.A c .E VIJAY KUMAR I'.. STATE OF PUNJAB L>en•mber 14, 1973 [M. H. BEG A1'D Y. V. CHANDRACHUD, 11.] _ Pr~1·er11io11 of f'ood Adulter11tio11 A<.·t, s. 16(/)(a)lb) and Rules-Whether 'f:.lt1<'f11 l>t111a' sold b,v the appella11t was i11sect·i11/ested anti ro11tai11ed les.r tl1P11 Jiit• rrquirttJ. per<.·~11ftjgt of 1·oltuile oil.
_ The appellant runs a swcatmeat shop in a village in Punjab. The food 1nspi!ctor took a sample of ''Elachi Dana', kept for sale by the appellant nnd it w~s f~:n111J from the report of the Public Analyst that the sample was infested with insects to the extent of 9.7 ~r cent and the volatile oil content thereof w:is 0.S per cent instead of l per Cent.
()n these facts, the appellant was convicted by the l\Iagistrate under s. J(>( I )(a)(i) of the Frevention of Food Adulteration Act 1954. On appeal, the sessions court confirn1ed the ·conviction and sentence and tho High Court ~ummarity disn1~ssed th~ appeal therefrom.
In this Court, the fonOwing points were ur&ed : (i). On the date when tile FC*.l lnspector took the sample, ~neither the Act nor the Rules thereunder h:id prescribed .any standard for the Purity of 'Elacbi Dana' and therefore, defi- ciency in the. volatile oil content could not attract penal consequences. (ii) One of the prosecution witnesses admitted in his evidence that the stock of 'Elachi · D<1na' frorn which the san1ple was taken· was not insect infested and therefore, it follows that the infestatiQn must have supervened· bcnveen the dato 00 1 which the s:\n1ple wus t:iken nnll the d<lt~ of the analysis.
DismiS&ing the "appenl, H.ELD: (i) On the relevant date, Rule ·A-05·09 of .the Rules then in force pro\·ided that the seed of 'Badi Elncbi' shall not cOntain Jess than 1 tter cent of \'Olatile essential oil. ·The new Rule No. A 05.04.01 prescribes the same requirement \\'ith the differenct' that; the article is now described as 'Badi Elachi seeds' 'instead of 'Badi Elachi'. This is a distinction With a difference because the substance of the ·matter is that 'Badi Elachi' (which must include the 'Badi Elachi seeJs' ought to OOntain l per cent ''olatile oil. The Badi Elachi fruit contains the ~lachi seedi; and the kernel has .no edible value apart front the se.eds conti:.incJ. in the fruit.
[702E] (ii) The ~mple. in the present case, was aaalystd 12 days after ·it was t:.ikCn. Durinp: this sbort pCriod of 12 days, the sample could not get infested 10 the extent of 9.7 per cent. To the naked eye the insects may not be notice.: nblo und that was why the prosecution witness inferred that the stock of 'Elachi duna' was not insect-infested. Obviously, what he meant was that it did not appear to be infested with insects and therefore, the inference saiJ to· arise from the e\·idencr. of the prosecution witness is impossible to accept. [70!Hl
CRIM11'.AL APPELLATE JURISDICTION: Criminol Appeal No. 170 of 1970. Appeal by· special )eave (rom the judgment and order dated the 16th September J 970 of the Punjab and Haryana High Court, at Chandigarh in Criminal Revision No. 753 of 1970.
N11rucldi11.Ahmad, B. P. -Singh and A. K. Vemra, for the appel- lant. S. K. Mthta and R. N. Sachilrey, for the respondent. (1974) 2 S.C.R. The Judgment of the Court was delivered by
CHA:-iDRACHUD, J.-The appellant, Vijay Kumar, runs a sweet- meat shop in a villai:c called Baba Hakala in Punjab. On June 10, 1968 the Food Inspector, Amritsar, took a sample from the Elachi Dana which was kept for sale by the appellant.
The report of the Public Analyst shows that the simple was infested with insects to the extent of 9.7 per cent and the voltaile oil content thereof was .5 per cent instead of 1 per cent.
On these facts the learned Judicial Magistrate. 1st Class, Amritsar convicted the appellant under section 16(1) (a) (I) of the Prevention o( Food Adulteration Act, 1954 and sentenced him to
rigorous imprisonment for six months and a fine of Rs. 1,000/-. The order of conviction and sentence was confirmed in appeal by the learned Additional Sessions Judge, Amritsar and the appeal against that judgment was dismissed summarily by the High Court of Pun- jab and Haryana.
This Court granted to the appellant special leave to appeal from the judgment of the High Court. In his statement under section 342, Code of Criminal Proce- dure, the appellant admitted that he was in possession of the Elachi Dana for purposes or sale but he disputed that the E[achi Dana WO'
inscct-infc~tctl o.r thnt its volatile oil content. was tlcfh::ient. It is contended on behalf of the appellant that on J unc l 0, 1968 when the Food Insocctor took tho sample of the Elachi Dana from the appellant's shop neither the Act nor the Rules there under had prescribed anv standard for the puritv of Elachi Dana and therefore Jcfi.ciencv in the volatile oil content could not attract penal co11sc- qucnccs.
This argument overlooks that on the relevant date, Rule A.05.09 of the Rules then in force provided that the seeds of Badi Elachi shall not contain less thai1 ·I per cent of volatile essential oil. The new Ruic No. A.05.04.01. ]'.ltescribes the same requirement with the difference that the article is now described as Badi Elachi seeds instead of Badi Elaichi.
1l1is is a distinction without a difference hecause the substance of the matter is that ·Badi Elachi' (which must include the 'lladi Elachi seeds') ought to contain 1 per cent vQ!atUc oil.
The lladi Elachi fruit contains the Elachi seeds am! the, kernel has no edible value apart from the seeds contained in lhe fruit. The oolv other point urged on behalf of the appellant is that the Panch Sohan Sin2h. a prosecut;on
witness, having admitted in his evidence that the stock of Elachi Dana from which the sample was taken by the Food Inspector was not insect-infested, it must follow that .the infestation must have suoervcned between the date 011 which the samplo was taken and the tlate of the analysis.
The sample was analvsed 011 June 22. 1968. that is 12 days after it was taken. The inference said to arise from the evidence of the Panch is impossible to accept. To the naked eve the insects may not be noticeable and
that is why the Panch inferred that the stock of Elachi Dana was nut insect-infested. Obviously, what he nlcant was that it did not appear ll c j) c VIJAY KUMM v. PUN.JAB (Chandrachud, /;)_
70 3 to be infested by insects. We do not agree that during the short period of 12 days the sample could get infested to the extent of 9.7 per cent. On September 7. 1964 instructions were issued by the Director, Health Services Punjab, that due to pressure of work samples sent for analysis could not be analysed for two or three days, that there was a possibility that the samples may .e;et infested durin.e; that period and therefore Food Inspectors should mention in the forwarding . letters whether the . sample was infested at the time of seizure. In the instant case the Food Inspector had not taken this precaution and on his omission is founded the arnment that the sample may have got infested between its seizure and the analysis. The instructions on which reliance is placed relate to articles of food like Atta and Maida. The instructions 'show that it is in the rainv season that such articles of food 2Ct infested within 15 davs or one month.
The sample in this case was seized before ·the rains had come and the article of food of which the sample was taken· is not of th.e same variety referr.P to in the instructions issued by the Director.
Learned counsel for the appellant ar.e;ued that the sentence is too severe especially in view of the fact that Elachi seeds are useli more as a luxury item than as an item of necessity and because the appel- lant is a petty shopkeeoer in a small
villa.e;e. What is the proper sentence to impose is a matter primarily for the trial court to decide. The learned Magistrate exercised his discretion judicially and th<> sentence has been confirmed bv the Sessions · Court and the High
Court. We see no justification for interfering therewith. Besides, the article beine insect-infested. Wis within the definition contained in section 2(i) (f) of the Act and therefore the first clause of the proviso to section 16 of the Act. tmder which the Court can ·impose a sentence less than the minimum prescribed, has no application. The second clause of the proviso has also no application as the ·offence falls under section 16(1 )(a)(i) and not under section 16(1 )(a)(ii) of the .Act. For these reasons we COI!fum the order of conviction and sentence and dismiss the aooeal.
s.c. Appeal dismissed 5-L748Sup,CI/74