Holding

The amendment to the Rules is prospective; the appellant is not entitled to acquittal and the conviction stands.

Summary

Dayal Singh was convicted under Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954 for selling hard‑boiled sugar confectionery that contained mineral oil, which at the time was deemed an unwholesome ingredient and amounted to adulteration. While his appeal was pending, the Rules were amended to permit mineral oil up to 0.2% by weight, provided it was food‑grade and used as a lubricant. Singh argued that the amendment should apply retrospectively and that the public analyst’s report was defective for not stating the percentage of oil. The Supreme Court held that the amendment was prospective; the presence of mineral oil still constituted adulteration unless it met the new conditions, which were not proved. Consequently, the conviction and the minimum sentence of six months’ rigorous imprisonment were upheld and the appeal dismissed.

Issues considered

The amendment to the Prevention of Food Adulteration Rules allowing limited mineral oil is prospective or retrospective for pending criminal proceedings.
Whether a public analyst’s report lacking the percentage of mineral oil satisfies the statutory requirement at the time of the offence.
Whether an ex post facto law that merely softens the rigour of a criminal provision is permissible.
Whether the sentence can be further reduced in view of the amendment and the principle of leniency.

Legislation cited

Code of Criminal Procedures. 33
Prevention of Food Adulteration Act, 1954s. 16, s. 7
Prevention of Food Adulteration Rules, 1955s. Appendix B Item No.25.01
Probation of Offenders Act, 1958s. 11, s. 6

Subjects

Food adulterationMineral oilRetrospective legislationEx post factoCriminal lawAmendment of rulesConsumer protectionPublic analyst reportSentencing

Judgment

DAYAL SINGH
v.
STA TE OF RAJAS THAN

APRIL 13, 2004

[N. SANTOSH HEGDE AND B.P. SINGH, JJ.] B

Prevention of Food Adulteration Act, 195-i-Sections 7 and 16-
Prevention ofFood Adulteration Rules, 1955 (as amended in 1988)-Appendix
'B'-Jtem No.25:01-Sugar confectionery-Presence of mineral oil amounted C
to adulteration under the Rules-Mineral oil found in confectionery recovered
from shop of accused-Conviction-Rules amended permitting presence of
mineral oil upto 0.2%--Accused seeking acquittal based on amended
standard-Held, accused is not entitled to acquittal as the amendment does
not grant full exemption to presence of mineral oil-It is permissible only upto
0.20/~Report of Public Analyst does not state the percentage of mineral oil D
as there was no such requirement during the relevant time-Stringent law is
made to safeguard the health of consumers, hence court cannot take lenient
view.

Sample of hard boiled sugar confectionery recovered from the shop
of appellant was found to be adulterated due to presence of mineral oil E
and unpleasant smell and taste. Appellant was found guilty under
Prevention of Food Adulteration Act and sentenced to 2 years R.I. He
appealed to Sessions Judge. During pendency of appeal, the Rules were
amended, by virtue of which presence of mineral oil was per~itted subject
to conditions, that mineral oil was of food grade and used as a lubricant, F
and did not exceed 0.2% by weight. Sessions Judge upheld conviction but
reduced sentence to 6 months. Appellant unsuccessfully preferred revi5ion
before High Court. Hence the appeal.

Appellant contended that since the appeal was pending when the
amended Rules came into force, the Court was bound to take notice of it G
and hold that the sample was not adulterated; that the report of the Public
Analyst was defective inasmuch as it did not mention the percentage of
mineral oil found in the sample and that any law mollifying the rigour of
criminal law must be held to be retrospective in the sense that it must be

103 H
104 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A held to be applicable to pending proceedings, including appeal.
Dismissing the appeal, the Court

HELD: 1.1. It is well-settled that no person shall be convicted of any
offence except for violation of a law in force at the time of the commission
B of that act charged as an offence, nor be subjected to a penalty greater
than with which he might have been inflicted under the law in force at
the time of the commission of the offence. Penal statute which create new
offence is always prospective and a person can be punished for an offence
committed by him in accordance with law as it existed on the date on which
C an offence was committed. (110-E, G]

Rattan Lal v. State of Punjab, AIR (1965) SC 444, relied on.

2. At the relevant time, mere presence of mineral oil, being an
unwholesome ingredient, amounted to adulteration and therefore, it was
D not necessary for the Public Analyst to mention the percentage of mineral
oil found in the sample. Moreover under the modified standard the mineral
oil found in the sample must be of food grade, if used as a lubricant. There
is no report on this aspect of the matter by the Public Analyst, since he
was not required to do so having regard to the standard then prescribed.
It is not as if the amended Rules permit the presence of mineral oil in any
E quantity and of any quality in hard boiled sugar confectionary. Presence
of mineral oil even after the amendment will amount to adulteration if it
is not of food grade, and not used as a lubricant, and it is more than 0.2%
by weight. In the instant case it was not disputed that for the offence
charged, a minimum sentence of 6 months rigorous imprisonment is
prescribed by law. The appellant has been sentenced to undergo 6 months
F rigorous imp~isonment. Strict adherence to Prevention of Food
Adulteration Act and the Rules framed thereunder is essential for
safeguarding the interest of consumers of articles of food. Stringent laws
will have no meaning if offenders could go away with mere fine.
(111-D-F; 112-A-CJ
G Municipal Corporation of Delhi v. Mai Ram alias Bhaya Ram, (1974)
Prevention of Food Adulteration Cases; Shyam Lal v. State, AIR (1968)
All. 392; Krishan Gopal Sharma and anr. v. Govt. of NC. T. of Delhi, (1996)
4 SCC 513; State of Orissa v. K. Rajehwar Rao, (1992) 1 SCC 365 and N.
Sukumaran Nair v. Food Inspector, Mavelikara, (1995) Crl. L.J. 3651,
H referred to.
DAYALSINGHv. STATEOFRAJASTHAN [B.P. SINGH,J.] 105

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. I 042 A
of 1997

From the Judgment and Order dated 1.8.97 of the Rajasthan High Court
in S.B. Crl. R.P. No. 200 of 1988.

M.N. Krishnanmani, S.P. Juneja, Soumyajit Pani and Baijyoanta Barooah B
for the Appellant.

Aruneshwar Gupta, Additional Advocate General for Rajasthan and
Amarjit Singh Bedi for the Respondent.

The Judgment of the Court was delivered by c
B.P. SINGH, J. The appellant herein was tried by the Chief Judicial
Magistrate, Jodhpur, Rajasthan charged of the offence under Section 7/16 of
the Prevention of Food Adulteration Act, 1954 since the sample of hard
boiled sugar confectionary taken from the appellant was found to be adulterated
in view of the presence of mineral oil, as also on account of its having a very D
unpleasant smell and taste. The learned Chief Judicial Magistrate by his
judgment and order of April 25, 1986 found the appellant guilty of the
offence charged and sentenced him to undergo rigorous imprisonment for 2
years and a fine of Rs. 2,000, in default of payment of fine to further undergo
rigorous imprisonment for 6 months. The appeal preferred by the appellant E
was dismissed by the District and Sessions Judge, Jodhpur by his order dated
August 4, 1988 who upheld the conviction but modified the sentence and
reduced it to 6 months' rigorous imprisonment and a fine of Rs. l,000, in
default of payment of fine to further undergo rigorous imprisonment for 1
month. This was the minimum sentence which could be imposed under the
Act for the charge proved against the appellant. The appellant thereafter F
preferred S.B. Criminal Revision No. 200 of l 988 before the High Court of
Rajasthan at Jodhpur but the same was dismissed by the High Court by its
judgment and order dated l st August, 1997. The appellant is before us by
special leave.

The facts of the case are not in dispute. On October 25, 1979 the Food G
Inspector took a sample of hard boiled sugar confectionary from the shop of
the appellant. After complying with the requirements of the Act and the
Rules the sample was sent to be Public Analyst and the report of the Public
Analyst dated November 16, 1999 showed that the sample was not according
to the prescribed standard as mineral oil was found present which was an H
106 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A unwholesome ingredient, and also that the sample had a very unpleasant
smell and taste. The Food Inspector filed.,a complaint on January 29, 1980.
After trial the learned Chief Judicial Magistrate by his judgment and order
dated J\pril 25, 1986 found the appel~ant guilty and sentenced him as earlier
noticed.

B The appellant preferred an appeal before the Court of the District and
Sessions Judge, Jodhpur. During the pendency of the appeal a Notification
was issued on April 8, 1988 whereby the Central Government in exercise of
powers conferred by sub-section (I) of Section 23 of the Prevention and
Food Adulteration Act amended the Prevention of Food Adulteration Rules,
C 1955. In Appendix 'B' item No.25.01 was amended and under the amended
Rules, the presence of mineral oil was permitted subject to two conditions,
namely - that the mineral oil was of food grade if used as a lubricant, and
did not exceed 0.2 % by weight. It will thus be seen that the amendment
brought about in the year 1988 did not unconditionally permit the presence
of mineral oil in hard boiled sugar confectionary but permitted only 0.2 %
D by weight provided it was of food grade and used as a lubricant.

The appeal preferred by the appellant was dismissed by the District and
Sessions Judge, Jodhpur, by his judgment and order dated August 4, 1988
and as observed earlier while upholding the conviction the appellate court
reduced his sentence to the minimum prescribed sentence of 6 months rigorous
E imprisonment. Revision preferred by the appellant before the High Court was
dismissed.

Shri Krishnamani, senior advocate appearing on behalf of the appellant
argued before us with great vehemence that the courts below have committed
F a clear error of law in not noticing the amended provisions of the Rules.
Since the appeal was pending when the amended Rules came into force, the
Court was bound to take notice of it and hold that the sample was not
adulterated. He further submitted that the report of the Public Analyst was
defective inasmuch as it did not mention the percentage of mineral oil found
in the sample. He placed reliance on several decisions to support his submission
G that any law mollifying the rigour of criminal law must be held to be
retrospective in the sense that it must be held to be applicable to pending
proceedings, including appeal. He submitted that the courts below were in
error in holding that.the amendment was only prospective in operation and
did not benefit the appellant since the date on which the offence is alleged
H to have been committed, the sample was adulterated as per the standard
DAYAL SINGHv. STATE OF RAJASTHAN [B.P. SINGH,J.] 107

prescribed. A
Learned counsel for the appellant placed considerable reliance on a
decision of the Division Bench of the Delhi High Court reported in 1974
Prevention of Food Adulteration Cases page 21 : Sunder Lal v. Municipal
Corporation of Delhi. In that case it was urged before the High Court that
during the pendency of the appeal before the High Court the standard of B
compounded Hing was changed by Notification dated· March 9, 1966 and
that the sample conformed to the new standard. Consequently, it was argued
that the appellant was entitled to acquittal. While considering the submission,
the learned Judges observed that the new standard having taken away the
rigours of law and being in favour of the accused, it should be given a C
retrospective operation. For this proposition reliance was placed on a decision
of the Division Bench of the Allahabad High Court in AIR 1968 All. 392 :
Shyam Lal v. State wherein after quoting from Crawford's Construction of
Statute (1940 Edition) at page 599, the Court observed :-

"The above rule of construction is based on principle that until D
the proceedings have reached final judgment in the Court of last
resort, that Court, when it comes to announce its decision, must
conform to the law then existing".

It further quoted with approval the following passage from the judgment
of the Allahabad High Court :- E
"It seems to us clear that the true rule of construction of a penal
statute is that where the legislature evinces its intention to modify the
law, in favour of the accused, so as to reduce the rigors of the law
in the light of past experience and changed social conditions, so long F
as prosecution of the accused has not concluded by a judgment of
conviction, the proceedings against him are regarded as inchoate and
the law applicable to him would be the law as amended by the
legislature. The Court trying an accused person has to take into
consideration the law as it exists on the date of the judgment. It
seems reasonable that an accused person cannot render himself liable G
to a higher punishment under a statute which has ceased to exist and
has been substituted to be a new which favours him. Where the
question as to the interpretation of a penal statute is concerned, the
Court must construe its . provisions beneficially in regard to their
applicability to the accused. It would be violating the spirit of the law I

and the will of the Legislature as expressed in the amending statute
H
l 08 SUPREME COURT REPORTS [2004] SUPP. 1 S.C.R.

A to sentence an accused person on the basis of the original Act which
has been considered by the Legislature to be harmful and harsh against
public interest."

The High Court also relied upon the principle laid down by this Court
in AIR (1965) SC 444 : Rattan Lal v. State of Punjab.
B
In our view the reliance placed on the judgment of this Court in Rattan
Lal (supra) was clearly misplaced. Indeed the principle laid down in that
judgment supports the case of the prosecution. In Rattan .Lal (supra) this
Court was not concerned with the retrospective operation of a penal statute.
The question which arose for consideration by this Court was a question of
C jurisdiction of an appellate court to ·exercise its powers under Section 6 of the
Probation of Offenders Act, 1958. In that case the High Court did not act
under Section 11 of the Probation of Offenders Act and failed to pass orders
under Sections 3, 4 and 6 thereof granting benefit of probation to the accused.
In that context a question arose whether the power under Section 11 of the
D Aci could be exercised by the High Court in an appeal pending before it,
even if such a power could not be exercised by theitrial court, since the
offence was committed at a time when the Probation of Offenders Act had
not been enacted. This Court observed :-

"The first question is whether the High Court, acting under S. 11
E of the Act, can exercise the power conferred on a court under S.6 of
the Act It is said that the jurisdiction of the High Court under S.
11(3) of the Act is confined only to a case that has been brought to
its file by appeal or revision and, therefore, it can only exercise such
jurisdiction as the trial court had, and in the present case the trial
F court could not have made any order under S. 6 of the Act, as at the
time it made the order the Act had not been extended to Gurgaon
District. On this assumption, the argument proceeds, the Act should
not be given retrospective operation, as, if so given, it would affect
the criminal liability of a person for an act committed by him before
the Act came into operation. In support of this contention a number
G of decisions bearing on the question of retroactivity of a statute in the
context of vested rights have been cited. Every law that takes away
or impairs a vested right is retrospective. Every ex post facto law is
necessarily retrospective. Under Art. 20 of the Constitution, no person
shall be convicted of any offence except for violation of a law in
H force at the time of the commission of that act charged as an offence,
DAY AL SINGH v. STATE OF RAJ AST HAN [B.P. SINGH , J.] 109

nor be subjected to a penalty greater than that which might have been A
inflicted under the law in force at the time of the commission of the
offence.

But an ex post facto law which only mollifies the rigour of a
criminal law does not fall within the said prohibition.
B
If a particular law makes a provisions to that effect, though
retrospective in operation it will be valid. The question whether such
a law is retrospective and, if so, to what extent depends upon the
interpretation of a particular statute, having regard to the well settled
rules of construction".
c
In the light of the principle enunciated, this Court proceeded to consider
the question whether the High Court, as the appellate court, had the power
under Section I I to extend to the accused the benefit under the Act. In doing
so this Court noticed that it was dealing not with a case where an act which
was not an offence is made an offence under the Act ; nor was it a case where
under the Act a punishment higher than that obtaining for an offence before D
the Act is imposed. This Court further observed :-

. "This is an instance where neither the ingredients of the offence
nor the limits of the sentence are disturbed, but a provision is made
to help the reformation of an accused through the agency of the
court. Even so the statute affects an offence committed before it was E
extended to the area in question. It is, therefore, a post facto law and
has retrospective operation. In considering the scope of such a
provision we must adopt the rule of beneficial construction as
enunciated by the modern trend of judicial opinion without doing
violence to the provisions of the relevant section. Section l I (3) of F
the Act, on the basis of which the learned counsel for the State
advances most of his arguments, has no relevance to the present
appeal, the said sub-section applies only to a case where no appeal
lies or is preferred against°the order of a court declining to deal with
an accused under S. 3 or S. 4 of the Act, and in the instant case an
appeal lay to the Sessions Judge and indeed an appeal was preferred G
from the order of the Magistrate. The provision that directly applies
to the present case is S. 11 (I) of the Act, whereunder an order under
f the Act may be made by any Court empowered to try and sentence
the offender to imprisonment and also by the High Court or any other
court when the case comes before it on appeal or in revision. The H
110 SUPREME COURT REPORTS [2004) SUPP. I S.C.R.

A sub-section ex facie does not circumscribe the jurisdiction of an
appellate court to make an order under the Act only in a case where
the trial court could have made that order. The phraseology used
therein is wide enough to enable the appellate court or the High
Court, when the case comes before it, to make such an order. It was
purposely made comprehensive, as the Act was made to implement
B a social reform. As the Act does not change the quantum of the
sentence, but only introduces a provision to reform the offender,
there is no reason why the Legislature should have prohibited the
exercise of such a power, even if the case was pending against the
acpused at one stage or other in the hierarchy of tribunals".
c The decision approves of the principle that ex post facto law which ·,
only mollifies the rigour of the criminal law, though retrospective in operation,
will be valid. After enunciating this principle the Court interpreted Section 11
of the Probation of Offenders Act and came to the conclusion that on a true
interpretation of the provision the High Court had jurisdiction to exercise the
D power at the appellate stage, and this power was not confined to a case where
..
the trial court could have made that order. The phraseology of the Section
was wide enough to enable the appellate court or the High Court when the
case came before it, to make such an order. We, therefore, do not find that
Rattan Lal made a departure from the well settled principle that no person
E shall be convicted of any offence except for violation of a law in force at the
time of the commission of that act charged as an offence,' nor be subjected
to a penalty greater than with which he might have been inflicted under the
law in force at the time of the ·commission of the offence. 'This Court only
· laid down the principle that an ex post facto law which only mollifies the
rigour of a criminal law did not fall within the said prohibition, and if a
F particular law made a provision to that effect, though retrospective in operation,
it will be valid. Rattan Lal was, therefore, decided on an interpretation of
Section 11 of the Probation of Offenders Act which was not a penal statute
in the sense that it did not create an offence and provide for punishment
thereof. We, therefore, do not find that principles laid down ·in Rattan Lal
G depart from the well settled principles that a penal statute which create new
offences is always prospective and a person can be punished for an offence
committed by him in accordance with law as it existed on the date on which
an offence was committed.

In another decision of the Delhi High Court reported in the same volume
H at page 19 : Municipal Corporation of Delhi v. Mai Ram alias Bhaya Ram;
DAYAL SINGH v. STATE OF RAJASTHAN [B.P. SINGH, J.) 111
Sunder Lal was followed and reference was made to the decision of this A
Court in Rattan Lal (supra). We have no doubt that the High Court of Delhi
in Sunder Lal v. Municipal Corporation of Delhi (supra) and Municipal
Corporation of Delhi v. Mai Ram alias Bhaya Ram (supra) and the Allahabad
High Court in Shyam Lal v. State (supra) have erred in law in holding that
, Notification substituting new standards in place of the old under the Prevention B
of Food Adulteration Act must, while judging the guilt of an accused, be
given retrospective operation. We are clearly of the view that this Court in
Rattan Lal did not lay down such a proposition.

We also find that in such cases application of the modified standards
to cases which arose before the amendment of the Rules, would be C
impracticable as is demonstrated by the facts of this case. As pointed out by
the learned senior counsel appearing for the appellant, the report of the Public
Analyst did not mention the percentage of mineral oil present in the sample.
This was obviously for the reason that at the relevant time mere presence of
mineral oil, being an unwholesome ingredient, amounted to adulteration and,
therefore, it was not necessary for the Public Analyst to mention the percentage D
of mineral oil found in the sample. Moreover under the modified standard the
Il}ineral oil found in the sample must be of food grade, if used as a lubricant.
There is no report on this aspect of the matter by the Public Analyst, obviously
because he was not required to do so having regard to the standard then
prescribed. On the record there is nothing to show that mineral oil found in E
the sample was of food grade and was used as a lubricant and did not exceed
0.2 % by weight as prescribed under the amended Rules. It is not as if the
amended Rules permit the presence of mineral oil in any quantity and of any
quality in hard boiled sugar confectionary. Presence of mineral oil even after
the amendment will amount to adulteration if it is not of food grade, and not
used as a lubricant, and if it is more than 0.2 % by weight. F
Learned counsel for the appellant then cited before us several judgments
in which, having regard to the long pendency of such cases, a lesser sentence
was imposed. In [1996] 4 SCC 513 : Krishan Gopal Sharma and anr. v.
Govt. of N. C. T. of Delhi, this Court having regard to the technical violation
of the Rules, and having regard to the fact that no minimum sentence was G
prescribed at the time when the offence was committed, found that a deterrent
punishment for imprisonment was not called for and imposition of fine will
meet the ends of justice. Similar was the approach of this Court in [ 1992] 1
SCC 365 : State of Orissa v. K. Rajehwar Rao, and (1995) Cr!. L. J. 3651:
N. Sukumaran Nair v. Food Inspector, Mavelikara. H
112 SUPREME COURT REPORTS [2004] SUPP. I S.C.R.

A In the instant case it was not disputed that for the offence charged a
minimum sentence of 6 months rigorous imprisonment is prescribed by law.
The appellant has been sentenced to undergo 6 months rigorous imprisonment
which is the minimum sentence. We are not inclined to modify the sentence
by passing an order of the nature passed in N. Sukumaran Nair (supra) where
B this Court in exercise of its extra ordinary jurisdiction imposed only a sentence
of fine and directed the State to exercise its powers under Section ~33 of the
Code of Criminal Procedure to commute the sentence of simple .imprisonment
for fine. In the instant case the appellant has been sentenced to undergo 6
months rigorous imprisonment. Moreover we are firmly of the view that
strict adherence to Prevention of Food Adulteration Act and the Rules framed
C thereunder is essential for safeguarding the interest of consumers of articles
of food. Stringent laws will have no meaning if offenders could go away with
mere fine. We, therefore, find no reason to interfere with the sentence imposed
against the appellant.

Finding no merit, we dismiss this appeal.
D
D.G. Appeal dismissed.