Holding

Rule 44A could not be applied because it was not notified in the official gazette until after the date of the alleged offence, and the public analyst’s report did not establish adulteration under Section 2(i)(c); therefore the conviction was unsustainable.

Summary

The appellant, a kirana shopkeeper in Madhya Pradesh, was prosecuted under Sections 7(1) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 for allegedly selling adulterated besan that contained kesari dal. The trial court acquitted him, holding that the ash content was within permissible limits and the mixture did not render the product adulterated. The High Court reversed the acquittal, relying on Rule 44A of the Prevention of Food Adulteration Rules, 1955, which prohibits the sale of kesari dal or its mixtures, and sentenced the appellant to six months’ imprisonment and a fine. On appeal, the Supreme Court examined whether Rule 44A was in force at the time of the alleged offence and whether the public analyst’s report established adulteration under Section 2(i)(c) of the Act. The Court found that the State Government had not notified Rule 44A in the official gazette until 6 April 2000, whereas the sample was taken on 29 March 1988, rendering the rule inapplicable. Moreover, the analyst’s report did not mention substitution of an inferior substance as required by Section 2(i)(c). Consequently, the High Court’s conviction was set aside and the appeal allowed.

Issues considered

Whether Rule 44A of the Prevention of Food Adulteration Rules, 1955 was applicable to the appellant at the time of the alleged offence.
Whether the presence of kesari dal in besan constituted "adulteration" under Section 2(i)(c) of the Prevention of Food Adulteration Act, 1954.
Whether a conviction under Sections 7(1) and 16(1)(a)(i) of the Act can be sustained in the absence of a valid rule and a proper finding of adulteration.

Legislation cited

Prevention of Food Adulteration Act, 1954s. 16(1)(a)(i), s. 2(i)(c), s. 7(1)
Prevention of Food Adulteration Rules, 1955s. 44A, s. 5

Subjects

food adulterationRule 44A applicabilityofficial gazette notificationkirana shopkeeperadulterated besansubstitution of inferior substancepublic analyst reportcriminal convictionstatutory interpretation

Judgment

;..
DINESH KUMAR A
v.
STATE OF M.P.

OCTOBER 27, 2004

[ARIJITPASAYAT ANDC.K. THAKKER,JJ.] B

Prevention of Food Adulteration Rules, 1955:

r. 44-A-Applicability of-Kirana shopkeeper-Prosecution offor selling
adulterated Besan-containing 'kesari dal-Held, State Government has to c
notify in official gazette the date with effect from which r.44-A becomes
applicable in the State-Sample having been collected, much prior to the
date with effect from which r.44-A was made operative in the State, Rule 44-
A could not have been applied-Even otherwise, in Public Analyst's report
there was no reference that the article was adulterated in terms of ss. 2(i)(c) D
of the Act-Prevention of Food Adulteration Act, 1954-ss. 2(J)(c), 7(1) and
16(l)(a)(i).
Appellant, a Kirana Shopkeeper in the State of Madhya Pradesh, was
prosecuted under section 7(1) read with section 16(1)(a)(i) of the Prevention
of Food Adulteration Act, 1954, as the 'Besan' kept in his shop was found to E
be adulterated. The appellant was acquitted by the trial court holding that the
ingredients were within the perm.issible limit and because of the mixture of.
'Kesari dal', the article could not be said to be adulterated. The High Court
convicted the appellant holding that since under Rule 44 A of the Prevention
of Food Adulteration Rules, 1955 sale of 'Kesari dal' in any form was
forbidden, even though the ash content in the article was within the permissible F
limit, the appellant was to be convicted for violation of the said Rule.

In the appeal filed by the shopkeeper, it was contended that on the date
on which his shop was inspected and the sample was taken by the Food
Inspector, Rule 44A was not in operation in the State of Madhya Pradesh and,
therefore, his conviction as recorded by the High Court was not maintainable. G
Allowing the appeal, the Court

HELD: 1. Rule 44 A of the Prevention of Food Adultration Rules, 1955,

- provides that the State Government concerned has to notify in the official
715 H
716 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A gazette the date with effect from which the said rule becomes applicable in
the State. So far as State of M.P. is concerned, the required notifi,cation was
issued for application of Rule 44-A with effect from 6th April, 2000.
Admittedly the samples were collected much prior to that date i.e. 29.3.1988. ....
Since Rule 44A was not applicable and was not in operation in the State of
M.P. on the date of alleged collection of samples. The same could not have
B been applied to hold the accused guilty. (719-A-B]

2. Section 2(i) of the Prevention of Food Adulterated Rules, 1954 defines
"adulterated", and Section 2(i)(c) deals with substitution of an article by
inferior or cheaper substance which affects injuriously the nature, substance
c or quality thereof. In the Public Analyst's report there was no reference to ---
this aspect. On that score alone the High Court's judgment is indefensible
and is accordingly set aside. (719-B-C]

CRJMINAL APPELLATE JURJSDICTION: Criminal Appeal No. 1096 of
1999.
D
From the Judgment and Order dated 3.2.99 of the Madhya Pradesh High
Court in Cr!. A. No. 216of1994.

Rajeev K.Virmani and P.N. Puri for the Appellant.

Siddhartha Dave, Manu Shrivastav, S~ddhartha Sharma and Ms. Vibha
E
Datta Makhija for the Respondent.

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. Appellant faced trial for alleged commission of
offence punishable under Section 7(1) read with Section 16(1 )(a)(i) of the
F
Prevention of Food Adulteration Act, 1954 (in short the 'Act'). While the trial
Court acquitted him, Madhya Pradesh High Court by the impugned judgment
upset it.

Factual position as projected by prosecution in nutshell is as follows:
G
S.B. Dubey (PW-1) was appointed by the Government as Food Inspector;
The accused Dinesh Kumar was having a kirana shop at Itava Road, Bhind.
He used to sell Besan. On 29.3.1988 at about 3.00 p.m. the said Food Inspector
went to his shop and inspected the articles and suspecting adulteration took

H
a sample of Besan. He prepared Form No.6 and thereafter 750 gms. of Besan
was taken before the witnesses and Rs.4.50 being the price was given to the -
DINESHKUMARv. STATEOFM.P. [PASAYAT,J.] 717

accused and receipt was obtained. The sample was divided into three equal A
parts and he sealed it in separate containers. Panchnama (Ex.P-4) was prepared
on the spot. One sample was sent to Public Analyst, Bhopal and remaining
two were deposited in the office of Local Health Officer. A report (Ex.P-8) was
received and it was found that Besan was adulterated, on the basis of which
a complaint was filed. The accused was charged under Section 7(1) read with
Section 16(l)(a)(i) of the Act. He denied the charge, but claimed that on the B
date of occurrence the Food Inspector went to his shop and demanded
Besan, but Besan was not at his shop and hence be brought from the
neighbouring flour mill which, had come there for grinding. The sample was
taken of that Besan. The prosecution examined Vimal Kumar Jain as (PW-2),
beside S.B. Dubey (PW-I). Besides, it relied upon the documents Ex.P-1 to C
Ex.P-10. After considering the entire material on record and hearing the parties
the accused was acquitted by the learned Chief Judicial Magistrate. The State
of M.P. filed an appeal before the Madhya Pradesh High Court, Gwalior
Bench. By the impugned judgment a learned Single Judge of the High Court
held that the appellant has contravened relevant provisions of the Act and
was, therefore, to be convicted. Reference was made to Rule 44A of the D
Prevention of Food Adulteration Rules, 1955 (in short 'the Rules') and it was
observed that sale of Kesari dal in any form was forbidden and even though
the ash content was within permissible limit, accused-appellant was to be
convicted for violation of Rule 44A of the Rules. Accordingly, he was
sentenced to undergo imprisonment of six months and to pay a fine of E
Rs.1,000 with default stipulation.

In support of the appeal, learned counsel for the accused-appellant
submitted that the occurrence took place on 29.3.1988, and at that point of
time Rule 44A was not in operation in the State of the Madhya Pradesh and,
therefore, the conviction as recorded is not maintainable. F
Learned counsel for the State, however, supported the judgment
submitting that sale of Kesari dal in any form is prohibited and, therefore, the
mixture of Bengal Gram and Kesari dal exhibited for sale clearly was in
contravention of the Act and Rules and, therefore, conviction was rightly
recorded. G
Under Rule 5 the definitions and standards of quality have been laid
down in Appendix-B. Rule 5, inter alia, provides that the standard of quality
of the various articles specified in Appendix-Bare as defined in that Appendix.
So far as Besan is concerned, standard is provided in serial A 18.04 of H
718 SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R.

A Appendix-B. The same reads as follows:

"A 18.04: BESAN means the product obtained by grinding dehusked
Bengal gram (Cicer arietinum) and shall not contain any added
colouring matter or any other foreign ingredient.

B Besan shall conform to the following standards:-

(a) Total ash Not more than 5 per cent.

(b) Ash insoluable in dilute hydrochloric acid Not more than
0.5 per cent"

C The trial Court had held though the ingredients were within the
permissible limit but because of the mixture of Kesari Dal, the article could not
be said to be adulterated. It noted that there was no finding recorded by the
Public Analyst that .the percentage of powder of Kesari as had been found
in the sample, affected injuriously the nature, substance and quality of the
food article analysed. Accordingly, it was held that the sample collected was
D not adulterated. High Court only referred to Rule 44A and held that adulteration
was established.

Rule 44A reads as follows:

"44A: No person in any State shall, with effect from such date as the
E State Government concerned may by notification in the Official Gazette
specify in this behalf, sell or offer or expose for sale, or have in his
possession for the purpose of sale, under any description or for t,Se
as an ingredient in the reparation of any article of food intended for
sale-
F (a) Kesari gram (Lathyrus sativus) and its products.

(b) Kesari dal (Lathyrus sativus) and its products.

(c) Kesari dal flour (Lathyrus sativus) and its products.

(d) a mixture of Kesari gram (Lathyrus sativus) and Bengal-gram
G (Cicer arietinum) or any other dal.

(e) a mixture ofKesari gram (Lathyrus sativus) and Bengal-gram dal
(Cicer arietinum) or any other dal.

(t) a mi'xture of Kesari dal (Lathyrus sativus) flour and Bengal-gram
(Cicer arietinum) or any other dal."
H
DINESHKUMARv. STATEOFM.P. [PASAYAT,J.) 719

A bare reading of the Rule makes the position clear that the State A
Government concerned has to notify in the official gazette the date with effect
from which Rule 44A becomes applicable in the State.

We find that so far as State of M.P. is concerned, the notification No.F-
3/62/98/M-2/l 7 was issued for application of Rule 44A with effect from 6th
April, 2000. Admittedly the samples were collected much prior to that date i.e. B
29.3.1988. Since Rule 44A was not applicable and was not in operation in the
State of M.P. on the date of alleged collection of samples Rule 44A could not
have been applied to find the accused guilty. Besides Section 2(i)(c) of the
Act is relevant. Section 2(i) defines "adulterated". Section 2(i)(c) deals with
substitution of an article by inferior or cheaper substance which affects C
injuriously the nature, substance or quality thereof. In the Public Analysts'
report there was no reference to this aspect. What would happen if the Public
Analysts' report in this regard even if Rule 44A was not in operation, does
not, therefore, fall for consideration in this case. On that score alone the High
Court's judgment is indefensible and is accordingly set aside.
D
Appeal is allowed.

The bail bonds of the accused are discharged.

RP. Appeal allowed.
E

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