Raj Kumar vs The State of Uttar Pradesh

Code of Criminal Procedure, 1973: s.433 – Scope of – Commutation of sentence – Held: The powers under s.433 can only be exercised by the appropriate Government – This power of the appropriate Government cannot be usurped by the courts and the Government cannot be directed to pass ‘formal compliance order’. Constitution of India: Art.142 – The power under Art.142 cannot be exercised against the specific provision of law – s.16(1)(a) of the PFA Act lays down a minimum sentence of six months – Considering the bane of adulteration and the deleterious effect of adulteration and sub-standard food on the health of the citizens (especially children when milk is involved), the Legislature provided a minimum sentence of six months – Passage of time can be no excuse to award a sentence lower than the minimum – Furthermore, the power under Art.142 cannot be used in total violation of the law – When a minimum sentence is prescribed by law, this Court cannot, in exercise of its power under Art. 142, pass an order totally contrary to law – If such power could be used in a food adulteration case to impose a sentence lower than the minimum prescribed, then even in cases of murder and rape, this Court applying the same principles could impose a sentence less than the minimum – This, is not the purpose of Art.142 – The powers under Art.142 cannot be exercised in such a manner that they make a mockery of the law itself – Administration of justice – Prevention of Food Adulteration Act, 1954.

Dismissing the appeal, the Court

HELD: 1. Plea of the appellant was that there was delay in analysing the sample and, therefore, marginal shortfall in MSNF should be overlooked, since it would have been caused by the delay in testing the sample. This contention is not accepted because there is no material on record to support this assertion. The appellant did not even deem it fit to summon the Public Analyst for cross-examination for this purpose. Since the sample had been preserved by using formalin the accused cannot get any benefit. [Para 3][954-D-E]

Shambhu Dayal v. State of U. P. (1979) 1 SCC 202 : [1979] 2 SCR 341 – referred to.

2. The second contention raised was that the provisions of Section 13(2) of the Prevention of Food Adulteration Act, 1954 were not complied with in as much as the appellant was not given an opportunity to send his second sample to the Central Food Laboratory (CFL) for analysis. This argument is also without any merit. All the courts have given a finding of fact that notice under Section 13(2) of the Act was sent to the appellant on 18.02.1996. The appellant did not choose to exercise his option to get his sample analysed by the CFL. The appellant urges that this option was given to him three months after the sample had been taken and the second sample would have obviously become unfit for analysis. It is also contended that the complaint filed on 15.02.1996 was defective and the defects were removed only on 27.06.1996 and, thereafter, no option under Section 13(2) of the Act was given. This argument is totally without any merit. The appellant was given an option to have the second sample sent to the CFL when the Magistrate took cognizance of the complaint. The complaint may not have been complete in the sense that the list of witnesses was not filed but this, in any way, did not impact the right given to the appellant to get the second sample analysed from CFL. If the appellant had exercised his option and the Magistrate had not sent the second sample to the CFL, or if the CFL had reported that the sample is not fit for analysis, then alone the appellant could have got some benefit. The appellant waived his right by not applying to the Magistrate for sending the second sample for analysis to the CFL, and he cannot have any grievance in this behalf. [Para 4][954-F; 955-A-D]

Dattappa v. Buldana Municipality AIR (38) 1951 Nagpur 191; Duli Chand v. State of U.P. 1987

All.L.J.971; Karunan v. Food Inspector 1985

KLT.523; Ram Kumar vs. The State of Punjab 1982 (I) F.A.C. 68; Hans Raj v. The State of Punjab 1980 (II) F.A.C. 396; Ujagar Singh v. The State of Punjab 1980 (I) F.A.C. 432; Food Inspector, Palghat Muncipality v. Karingarappully Co-op. Milk Society Ltd. & Ors. 1986 K.L.J. 29; State of Punjab v. Ramesh Kumar 1984 Crl.L. J. 381; State of Punjab v. Teja Singh 1976 Crl.L.J. 1648 – referred to.

3. Once standards are laid down by the Legislature then those standards have to be followed. In items like milk which is a primary food, under the Act, it is not necessary to also prove that the food item had become unfit for human consumption or injurious to health. In cases of food coming under the Act, it is not required to prove that article of food was injurious to health. In this case, the only question to be determined is whether the article complies with the standards laid down or not. If it fails to comply with the standards then it will have to be treated as an adulterated article even if it is not rendered injurious to health. Even marginal deviation from the prescribed standard cannot be ignored. If the standards are not complied with, the Court is not justified in acquitting the accused charged with adulteration only on the ground that the deficiency is marginal. [Para 8, 11][956-E; 958-F]

4. A bare perusal of Section 433 of Cr.PC shows that the powers under Section 433 can only be exercised by the appropriate Government. These powers cannot be exercised by any court including this Court. At best, the court can recommend to the State Government that such power may be exercised but the power of the appropriate Government cannot be usurped by the courts and the Government cannot be directed to pass ‘formal compliance order’. Therefore, a similar order cannot be passed by this Court because that is beyond the jurisdiction of this Court. [Para 13][959-E]

5. The power under Article 142 cannot be exercised against the specific provision of law. Section 16(1)(a) of the Act lays down a minimum sentence of six months. Considering the bane of adulteration and the deleterious effect of adulteration and substandard food on the health of the citizens (especially children when milk is involved), the Legislature provided a minimum sentence of six months. Passage of time can be no excuse to award a sentence lower than the minimum. Furthermore, the power under Article 142 cannot be used in total violation of the law. When a minimum sentence is prescribed by law, this Court cannot, in exercise of its power under Article 142, pass an order totally contrary to law. If such power could be used in a food adulteration case to impose a sentence lower than the minimum prescribed, then even in cases of murder and rape, this Court applying the same principles could impose a sentence less than the minimum. This, is not the purpose of Article 142. The powers under Article 142 cannot be exercised in such a manner that they make a mockery of the law itself. [Paras 14, 15][959-G-H; 960A-B] State of Kerala v. Parameswaran Pillai Vasudevan Nair 1975 Crl. L.J. 97 – approved.

Santosh Kumar v. Municipal Corporation and Anr. (2000) 9 SCC 151; N. Sukumaran Nair v. Food

Inspector, Mavelikara (1997) 9 SCC 101 – per

incuriam.

M.V. Joshi v. M.U. Shimpi and Anr. AIR (48) 1961 SC 1494; Malwa Co-operative Milk Union Ltd., Indore & Ors. v. Bihari Lal & Anr. 1973 F.A.C. 375; Municipal Committee, Amritsar v. Hazara Singh (1975) 1 SCC 794 – referred to.