- (1.) In this case P.W. 2 Devi Singh, Food Inspector purchased the sample of Ice-candy from the petitioner on 9-6-78 at his business premises known as Raj Dalip Ice-candy Factory, Karauli Distt. Sawai Madhopur. On analysis, the Public Analyst reported that the sample was adulterated by reason of absence of can (Sic) (Candy) sugar and presence of prohibited artificial sweetener "saccharine" in it. On trial, the learned Chief Judicial Magistrate, Sawai Madhopur held the petitioner guilty of offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (the Act), convicted him as such and sentenced him to six months R.I. and Rs. 1,000/- fine. The order of conviction and sentence of the petitioner having been confirmed in appeal by the learned Addl. Sessions Judge, Karauli, the petitioner has approached this Court by way of this revision petition under S. 397, Cr. P.C. Despite notifying the date of hearing of the petition on 19-11-96 to the counsel for the petitioner, none appeared. The petition and the impugned orders were examined in the light of the material on the records of the Courts below with the help of the Asstt. Public Prosecutor.
(2.) In this petition, the petitioner has challenged the judgment and orders of the two Courts below on the following grounds, viz.: (a) Use of saccharine in the preparation of Ice-candy was not prohibited on the date of commission of alleged offence. (b) Charge framed was defective. (c) Right of the petitioner under Section 13(2) was defeated by non-compliance of relevant provision in the Act and the rules framed there under. (d) Sanction granted under S. 20 was bad in law for non-application of mind. (e) Evidence relating to adulteration was not put to the petitioner in his examination under Section 313, Cr. P.C. (f) Sentence awarded was excessive.
(3.) On examination of the objections raised with reference to the material on records of the Courts below in the light of the relevant provisions in the Act and the rules framed thereunder and the law applicable thereto I find no force in any of them for the following reasons : (a) The first objection is that the standard for ice-candy as prescribed in item A.07-04-01 of Appendix B to the Food Adulteration Rules 1955 (the Rules) was brought on the statute Book w.e.f. 11-2-1982 and prior to that use of saccharine in the preparation of any food article was not prohibited under Rule 47 of the Rules. The objection is misconceived. Item A.07-4-01, before its substitution by G.S.R. 57(E) dated 11-2-82 and Rule 47 before its substitution by G.S.R. 454(3) dated 15-4-88 provided as under : "A07-04-01 - "Ice-candy" means the frozen ice produce (which may contain fruit, fruit juices, Cocoa, nuts, citric acid, permitted flavours and colours. It may also contain permitted stabilizers and/or emulsifiers not exceeding 0.5 per cent.) It shall contain sugar not less than 10 per cent by weight. It shall not contain any artificial sweetner. Rule 47 - Restriction on use and sale of artificial sweeteners.- (1) No artificial sweetener shall be used in any article of food : Provided that artificial sweeteners may be used in following food article in quantities not exceeding the limits shown against them and shall bear the label declaration as provided in (1) of sub-rule (ZZZ) of Rule 42 : @@1852.htm@@ Provided that saccharin sodium or as pertame (methylester) may be sold as table to sweeteners and may contain carrier-or filler articles : Provided further that saccharin sodium and as pertame (methylester) should conform to be standards laid down under item A.07. 10 and A.07.12 of Appendix 'B' of these rules. (2) No mixture of artificial sweetener shall be added to any article of food or in manufacture of table top sweeteners. (3) No person shall sell as pertame as table top sweeteners, except for diabetic use and only under medical advice under label declaration as provided in (2) of sub-rule (ZZZ) of Rule 42." On a combined reading of item A.07.04.01 and Rule 47, as they stood before their substitution, as mentioned above, it is clear that use of saccharine in the preparation of Ice-candy was prohibited. Instead sugar at 10% minimum as a sweetening agent of Ice-candy had been stressed. Presence of saccharine in Ice-candy and absence of sugar therefrom, as was found the position in the instant case, would make in an adulterated article of food. The learned Addl. Sessions Judge has dealt with this aspect of the case quite thoroughly and critically and I approve of his conclusions in that behalf. There is thus no merits in this objection and it is rejected. (b) I find no defect in the charge which clearly informed the petitioner of the nature of accusation against him. That he was accused of having sold adulterated Ice-candy to the Food Inspector was mentioned in the charge. No objection against any defect in the charge framed was taken. The objection raised is rejected. (c) The objections raised with reference to the loss of his right under Section 13(2) also have no merits. In the first place issues relating to preparation, sealing, packing the samples and sending one of them to Public Analyst and sending the report of the Public Analyst to the accused are all issues of fact on which there is concurrent finding of both the Courts below against the petitioner. Their findings are based on correct appreciation of the relevant evidence. Such findings are, therefore, not to be disturbed in the revisory powers of this Court under S. 397, Cr. P.C. I find no good reasons to discard the sworn testimony of P.W. 2 Devi Singh, Food Inspector to the effect that he had duly packed and sealed the containers of the Ice-candy and had sent to the Public Analyst one sample container with outer cover duly sealed along with a separate envelop containing specimen impression of the seal used to seal the sample and the outer cover. Recitals in Public Analyst's report fully corroborated that fact. Similarly P.W. 1 Kajod, an employee of the Postal Deptt. had stated on oath that the petitioner had refused to receive the Registered letter (containing the report of the Public Analyst). I thus find that all the relevant provisions contained in Sections 10, 11, 13 of the Act and Rules 7, 9, 14, 17 and 18 of the Rules had been duly complied with. Even after examination of P.W. 11 Kajod in the Court, the petitioner never required the learned Magistrate to send the second sample to the Director, Central Food Laboratory, for analysis. There is thus no merits in this objection either. (d) The objection that Sanction under Section 20 was granted without applying mind is rejected for the specific mention by the sanctioning authority in his written consent Ex.P. 9 of the fact that he had perused the relevant documents and satisfied of the necessity of the prosecution of the petitioner. There is no reasonable ground to reject this evidence. That is to the factual aspect to the case. On legal aspect the proposition that grant of written consent under Section 20 of the Act needs no application of mind has the approval of the Apex Court in the case of Dhian Singh v. Municipal Board, Saharanpur, 1973 FAC 404 : (1970 Cri LJ 492). There is thus no merits in this objection also. (e) The petitioner was thrice informed once at the time of explaining the substance of the accusation against him, twice explaining the charge to him and thrice putting the incriminating circumstances in the evidence recorded while examining him under Section 313, Cr. P.C. that he sold adulterated Ice-candy. The result of analysis of the Public Analyst was put to him under Section 313, Cr. P.C. He was given opportunity to explain that circumstances. No prejudice was caused to him. No failure of justice occasioned. The objection has no merits and is rejected. (f) The offence committed by the petitioner is punishable under Section 16(1). Offences punishable under Section 16(1) attract minimum penalty of six months in jail and Rs. 1,000/- as fine. The statutory mandate is required to be given effect to particularly in the context of socio-economic offences However, the Proviso to Section 16(1) gives discretion to the Court to scale down the minimum punishable but now lower than three months imprisonment and fine of Rs. 500/- for adequate and special reasons. The delayed end of this litigation, increased obligations of the petitioner towards his family with simultaneous increase in his age are considered as adequate and special reasons for reducing the sentence awarded to him. ;