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Thursday, May 29, 2014

Food Adulteration case - High court reduced the sentence to 3 months minimum sentence - No further reduction - Clause (m) postulates a situation where the articles fall below the prescribed standard even if it is not injurious to health. It is clear from this provision that if salt is added to chillies even if it would not be rendered injurious to health, nevertheless the quality/purity of the article would fall below the prescribed standards/its constituents as prescribed in A.05.05.01 limit. It would be adulterated.- Apex court held that We are of the view that no further benevolence can be shown to the appellant, more so, when it is a case of food adulteration. There is no special circumstances which may warrant reducing the sentence below the minimum. The appeal is accordingly dismissed= MITHILESH APPELLANT VERSUS STATE OF NCT,DELHI RESPONDENT= 2014(May.Part) http://judis.nic.in/supremecourt/filename=41547

Food Adulteration case - High court reduced the sentence to 3 months minimum sentence - No further reduction  - Clause (m) postulates a situation where the articles fall  below the prescribed standard even if it is not injurious to health.  It is clear from this provision that if salt is added to chillies even if it would  not be rendered injurious to health, nevertheless  the  quality/purity  of  the article would fall  below  the  prescribed  standards/its  constituents  as prescribed in A.05.05.01 limit.  It would be adulterated.- Apex court held that We are of the view that no further benevolence can be  shown  to  the appellant, more so, when it is a case of food adulteration.   There  is  no special circumstances which may warrant reducing  the  sentence  below  the minimum.  The appeal is accordingly dismissed=

They lifted a sample of red chilly powder (Lal Mirch) from an  open
container of 2 kg. capacity from the shop of the appellant.  
The sample  was
weighed on scale in a brown sheet and divided into three parts.  The  entire
sample collected was of 450 gms.  It was  sent  for  examination  by  Public
Analyst.  The report dated 7.4.1993 was  submitted  by  the  Public  Analyst
which, inter alia, affirmed that sample  adulterated  because  it  contained
salt as an adulterant. Relevant portion of the report is as under:
         “Moisture-8.22% Total ash – 7.44% A insoluble in dil.Ncl.  -  0.34%
         Non Voletile other extract – 20.97% Crude fibre – 19.25%  Test  for
         coaltar dye – negative Test for starch – negative Insect & Fungus –
         nil Microscopy-Chillies structures seen.  Test for sodium  chloride
         – positive Sodium chloride (common salt) – 2.54%”.

Confronted with the sample, the appellant exercised his right under  Section
13(2)  of  the  Prevention  of  Food  Adulteration  Act,  1954  (hereinafter
referred to as  'PFA  Act').   
Accordingly,  another  sample  was  sent  for
examination which was examined by  the  Director  of  the  Central  Forensic
Laboratory (CFL).  In its report dated 30.6.1993 even this sample was  found
to be adulterated on two counts, namely:
“(a)  Total ash content exceeds the  maximum  specified  limit  of  8.0%  by
weight.
(b) It is not free from the presence of sodium chloride.”
      Total ash was found to be 9.72% by weight and Sodium Chloride  content
was 2.5% by weight.  =

Learned  Metropolitan  Magistrate  found  that  the
appellant  had  violated  the  provisions  of  Section  2   (ia)(a)(m)   and
therefore, he was found guilty for the offence punishable  under  Section  7
read with Section 16(1) of the PFA Act.   Vide  order  dated  6.4.2002,  the
appellant was sentenced to undergo rigorous imprisonment for  one  year  and
also was also imposed a fine of Rs.3000/-; in default of  payment  of  fine,
to undergo simple imprisonment for three months. =
However,  in  so  far  as  the
quantum of sentence is concerned, the High Court has reduced the  same  from
RI of one year to a  period  of  three  months  RI,  which  is  the  minimum
sentence.  The reasons for reducing the sentence has been given by the  High
Court in paragraph 25 of its judgment.
We are of the view that no further benevolence can be  shown  to  the
appellant, more so, when it is a case of food adulteration.   There  is  no
special circumstances which may warrant reducing  the  sentence  below  the
minimum.  The appeal is accordingly dismissed

2014(May.Part) http://judis.nic.in/supremecourt/filename=41547
B.S. CHAUHAN, A.K. SIKRI

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO(S).1570 OF 2010

MITHILESH                                         APPELLANT

                                VERSUS
STATE OF NCT,DELHI                                RESPONDENT

                                  O R D E R
A.K. SIKRI,J.


            The appellant was running a  small  kirana  shop  at  96-A,  MIG
Flats, Opposite  G.T.B.  Hospital,  G.T.B.  Enclave,  Shahdara,  Delhi.   On
11.3.1993, some officials from the Food Adulteration Department visited  his
shop which was being run under the name  and  style  “M/s  Mithlesh  General
Store”.  They lifted a sample of red chilly powder (Lal Mirch) from an  open
container of 2 kg. capacity from the shop of the appellant.  The sample  was
weighed on scale in a brown sheet and divided into three parts.  The  entire
sample collected was of 450 gms.  It was  sent  for  examination  by  Public
Analyst.  The report dated 7.4.1993 was  submitted  by  the  Public  Analyst
which, inter alia, affirmed that sample  adulterated  because  it  contained
salt as an adulterant. Relevant portion of the report is as under:
         “Moisture-8.22% Total ash – 7.44% A insoluble in dil.Ncl.  -  0.34%
         Non Voletile other extract – 20.97% Crude fibre – 19.25%  Test  for
         coaltar dye – negative Test for starch – negative Insect & Fungus –
         nil Microscopy-Chillies structures seen.  Test for sodium  chloride
         – positive Sodium chloride (common salt) – 2.54%”.

Confronted with the sample, the appellant exercised his right under  Section
13(2)  of  the  Prevention  of  Food  Adulteration  Act,  1954  (hereinafter
referred to as  'PFA  Act').   Accordingly,  another  sample  was  sent  for
examination which was examined by  the  Director  of  the  Central  Forensic
Laboratory (CFL).  In its report dated 30.6.1993 even this sample was  found
to be adulterated on two counts, namely:
“(a)  Total ash content exceeds the  maximum  specified  limit  of  8.0%  by
weight.
(b) It is not free from the presence of sodium chloride.”
      Total ash was found to be 9.72% by weight and Sodium Chloride  content
was 2.5% by weight.  On the basis of the aforesaid reports, a complaint  was
filed with the Metropolitan Magistrate, New Delhi and  trial  was  conducted
against the appellant.   Learned  Metropolitan  Magistrate  found  that  the
appellant  had  violated  the  provisions  of  Section  2   (ia)(a)(m)   and
therefore, he was found guilty for the offence punishable  under  Section  7
read with Section 16(1) of the PFA Act.   Vide  order  dated  6.4.2002,  the
appellant was sentenced to undergo rigorous imprisonment for  one  year  and
also was also imposed a fine of Rs.3000/-; in default of  payment  of  fine,
to undergo simple imprisonment for three months.
            Aggrieved, the  appellant  preferred  the  appeal  against  such
judgment which was dismissed by the Additional  Sessions  Judge,  New  Delhi
vide  order  dated  30.7.2002.   The  appellant  thereafter  filed  Revision
Petition in the High Court of Delhi.  This Criminal  Revision  Petition  has
also been dismissed  by  the  High  Court  vide  judgment  and  order  dated
4.11.2009 thereby maintaining the conviction. However,  in  so  far  as  the
quantum of sentence is concerned, the High Court has reduced the  same  from
RI of one year to a  period  of  three  months  RI,  which  is  the  minimum
sentence.  The reasons for reducing the sentence has been given by the  High
Court in paragraph 25 of its judgment.

            Learned counsel for the appellant submitted that in  one  sample
analysis by the Public Analyst, only salt was found as adulterant which  was
common in such cases as the appellant was a petty shopkeeper  who  had  kept
the things in open and there was every chance of spilling of this salt  into
the container which contained red chilly powder.  He further submitted  that
even the total ash was found to be marginally  higher,  that  is,  9.72%  by
weight as against maximum specified limit of 8% by weight.  He  also  argued
that in view of this, it was  a  fit  case  where  the  sentence  should  be
reduced to the  period  already  undergone.   More  so,  even  the  incident
happened way back in the year 1993.
      Though, an  attempt  was  made  to  argue  that  the  sample  was  not
adulterated, it is difficult to accept the said submission.
      Definition of “adulterated” as contained in  Section 2(ia)clauses  (k)
 and (m) thereof are relevant. Section 2 (ia)(k) reads as under:
         “(k) if  the  article  contains  any  prohibited  preservative  of
         permitted preservative in excess of the prescribed limits;”


Section 2(ia)(m) reads as under :
         “(m) 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:”


           Clause (m) postulates a situation where the articles fall  below
the prescribed standard even if it is not injurious to health.  It is clear
from this provision that if salt is added to chillies even if it would  not
be rendered injurious to health, nevertheless  the  quality/purity  of  the
article would fall  below  the  prescribed  standards/its  constituents  as
prescribed in A.05.05.01 limit.  It would be adulterated.
      Having regard to the  aforesaid  provisions,  it  is  clear  that  an
article of food may be adulterated once it does not meet the specifications
and exceed the limit prescribed under the PFA Act.  As pointed  out  above,
the presence of salt, that is , Sodium Chloride by 2.5% weight as  well  as
presence of total ash exceeding the prescribed limit is sufficient to  hold
that the sample drawn was adulterated, even if one was to  proceed  on  the
basis that mere addition of common salt to the chilly powder did not render
it injurious to health.   The  High  Court  in  support  of  its  aforesaid
conclusion has referred to various judgments and we are in  full  agreement
with the view taken by the High Court on this count.
           Faced with the aforesaid position,  the  main  emphasis  of  the
learned counsel for the appellant was for showing  some  more  leniency  by
reducing the sentence to the one already undergone.
           It is not in dispute that the sentence of R.I. 3 months, awarded
by the High Court, is the minimum prescribed in law.  No doubt, as per  the
provisions which were  prevailing  at  the  relevant  time,  it  was  still
permissible for the court to reduce it to below minimum, by giving  special
reasons.  We find that  the  High  Court  has  already  shown  leniency  by
reducing the sentence from RI one year to RI three months.  While doing so,
the High Court has given the following reasons:


            “24. However, on the quantum of sentence, this Court  has  taken
         due regard of the fact that the petitioner herein was a petty  shop
         keeper,.  Matter relates to the  year  1993  i.e.  dating  back  to
         sixteen years; petitioner has suffered incarceration  of  about  12
         days out of the period of sentence  of  one  year  which  had  been
         awarded to him. There is no overemphasizing the  fact  that  speedy
         trial which is the essence of justice has been lost.   The  Supreme
         Court in Braham Das vs. State of Himachal Pradesh AIR 1988 SC  1789
         had held that 8 years having been lost, where part of the  sentence
         had been undergone, the petitioner had been sentenced to the period
         already undergone by him.  In Veer Singh Chauhan vs. State of Delhi
         1994 (2) CCC 253, the revision had come up for hearing after  seven
         years; the court reduced the sentence to the one already  undergone
         i.e. of a period of 3 months.


         25. In the instant case, the offence relates to the year 1993.  The
         nature  of  offence  i.e.  the  sample  having  been  found  to  be
         adulterated in terms of Section 2 (ia)(m); the period of 12 days of
         incarceration already undergone by the petitioner who would  as  on
         date be about 47 years of age, he having rooted himself in society,
         the ends of justice would be met if the sentence is reduced from RI
         one year to a period of RI three months.  No modification  is  made
         in the fine which has been imposed.”


      We are of the view that no further benevolence can be  shown  to  the
appellant, more so, when it is a case of food adulteration.   There  is  no
special circumstances which may warrant reducing  the  sentence  below  the
minimum.  The appeal is accordingly dismissed. The appellant is directed to
surrender within four weeks to serve the remaining sentence, failing  which
the Chief Judicial Magistrate, New Delhi  shall  take  the  appellant  into
custody and send him to jail to serve out the remaining sentence.
                                                  ................J.
                                                  [DR. B.S. CHAUHAN]




                                                  ................J.
                                                  [A.K. SIKRI]
NEW DELHI
DATE; MAY 28, 2014

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