PETITIONER:
SAMBHU DAYAL
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT21/11/1978
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
KOSHAL, A.D.
CITATION:
1979 AIR 310 1979 SCR (2) 341
1979 SCC (1) 202
ACT:
Prevention of Food Adulteration Act, 1950 Sections 8
and 9 as amended by the Amending. Act 49 of 1964-
Construction of-Presumption of adulteration of milk in
respect of samples after a fixed period.
HEADNOTE:
The appellant was convicted under section 8 read with
section 16 of the Prevention of Food Adulteration Act by the
Sub-Divisional Magistrate, Jalaun and sentenced to six
months rigorous imprisonment, the minimum sentence awardable
under the P.O.F.A. 1950. In appeal the Session Court
reversed it, but in further appeal by the State against his
acquittal and reversal of the trial court decision, the High
Court of Allahabad set aside the Session's orders and
restored that of the trial court.
Dismissing the appeal by special leave the Court,
^
HELD: 1. Sections 8 and 9 of the Prevention of Food
Adulteration Act, 1950 as amended by section S of the
Amending Act 49 of 1964 cannot be read as repealing the old
sections and empowering the Central Government or the State
Government to appoint the Public Analyst or the Food
Inspector after the coming into force of the amending Act,
implying that any prior appointment o'. a Public Analyst or
Food Inspector stood repealed. [345A]
2 Whether the notifications of the Government in 1968
appointing the public Analyst and the Food Inspector with
retrospective effect from March 05 are valid or not need not
be looked into because being an amendment Act, the
appointment of the Public Analyst and the Food Inspector
made by the State Government continued to be valid.
[345B-C]
3. The amended sections 8 and 9 do not in any way
repeal sections 8 and 9 as they originally stood. As to the
effect of the amendment the language of the amending
sections will have to be examined to find out whether the
original conditions were intended to be repealed. The
amending provisions should be held as part of the original
statute. [345D-E]
4. Whenever the amended section has to be applied
subsequent to the date of the amendment, the unamended
provisions of the Act have to be read along with the amended
provisions as though they are part of it. Reading the
amended section, it is clear that there is no provision,
express or implied, repealing the existing provisions or the
rules made thereunder. The section will have to be construed
as being in addition to what had already existed. The effect
will be that the power of the State Government which already
existed under the unamended section and the appointments
made thereunder preserved and the action taken under the
amended sections with be in addition to the powers of the
State Government and the appointments which had already been
made. [345F-G]
342
Nagar Mahapalika, Lucknow v. Ram Dhani, A.I.R. 1971
All. 53 approved.
5. The contention that the analysis of the milk after
44 days must yield to an adverse inference against the State
as to adulteration cannot be accepted. [346A]
In the present case there is evidence of the Food
Inspector that he added formalin as a preservative and the
report of the Public Analyst that no change had taken place
in the constituents of milk which would have interfered with
the analysis. This statement of the analyst was not
challenged in any of the courts below. Apart from the
statement of the Analyst not having been questioned, in this
case it is admitted that formalin was added to the milk by
the Food Inspector. The Food Inspector added 16 drops of
formalin in each of the bottles and had them sealed
properly. Rule 20 of the Prevention of Food Aduleration
Rules requires that in the case of milk, cream Dahi, Khoa
and Gur a preservative known as "formalin", that is to say,
a liquid containing about 40 per cent of 'formaldehyde' in
aqueous solution in the proportion of 0.1 ml. (two drops)
for 25 ml. Or 25`grams shall be added. There is also the
clear evidence of Public Analyst that no change had taken
place in the constituents of milk which would interfere with
the analysis.[346D-G, 347A]
Babboo v. State, A.I.R. 1970 All 122; approved.
Dattappa Mahadappa v. Secy., Municipal Committee,
Baldana, A.I.R. 1951 Nag.191 referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
137 Of 1972.
Appeal by Special Leave from the Judgment and order
dated 27-4-72 of the Allahabad High Court in Govt. Appeal
No. 128/69.
Yogeshwar Prasad, S. K. Bagga and Miss Meera Bali for
the appellant.
O. P. Rana for the Respondent.
The Judgment of the Court was delivered by
KAILASAM, J. This appeal is by special leave by Sambhu
Dayal against the judgment of the High Court of Allahabad
allowing an appeal by the Government of U.P. and setting
aside the order of acquittal and restoring the conviction
under sections 8 and 16 of the Prevention of Food
Adulteration Act and the sentence of six months rigorous
imprisonment passed by the Sub-Divisional Magistrate,
Jalaun.
On 1st November, 1966, Shri Raja Ram Bhatt, the Food
Inspector, went to the village and found the appellant
Shambhu Dayal bringing cow’s milk to Orai for sale. The Food
Inspector served a notice OD the petitioners and took sample
of the milk weighing 660 grams against cash payment of 0.60
P. He divided it in three equal parts and kept each part in
a different bottle. He added 16 drops of formalin in each
bottle and then sealed the same. One of the sealed bottles
was
343
given to the petitioner. Another bottle was sent to the
Public Analyst, Lucknow, for analysis. The Public Analyst
submitted his report dated 14th December, 1966 giving his
opinion that the sample was deficient in non-fatty solid
contents by about 15 per cent. The charge-sheet was filed on
5th February, 1967 by the Food Inspector after obtaining the
sanction of the District Medical officer of Health, Jalaun
at Orai. The appellant pleaded not guilty and denied that he
had sold the milk. According to him he was taking the milk
to one Pandey of village Kharra when the Food Inspector took
some of it without making any payment to him. The trial
court accepted the case of the prosecution and on 10th
November, 1967 convicted the appellant under section 8 read
with section 16 of the Prevention of Food Adulteration Act
and sentenced him to six months rigorous imprisonment. The
appellant preferred a Criminal Appeal to the Court of
Sessions. By its judgment dated 12th October, 1968 the
Sessions Judge allowed the appeal and set aside the
conviction and sentence imposed upon the appellant. The
State of U.P. preferred an appeal to the High Court of
Allahabad. A Division Bench of the High Court allowed the
appeal and restored the conviction and sentence imposed upon
the appellant by the trial court.
Miss Meera Bali, the learned advocate appearing for the
appellant raised three contentions. She submitted that the
Prevention of Food Adulteration Act came into force in 1954
and before the amending Act 49 of 1964 came into force the
power to appoint the Public Analyst and Food Inspector
rested with the State Government only. After the amending
Act, Act 49 of 1964, sections 8 and 9 were substituted by
new sections 8 and 9 which provided that the Central
Government or the State Government may by notification in
the official Gazette appoint a Public Analyst and a Food
Inspector. The amending Act came into force in 1964. The
State Government by notification dated 15th April, 1968,
appointed Food Inspectors with effect from 1st March, 1965
and by notification dated 23rd March, 1968 appointed Dr. R.
S. Srivastava as the Public Analyst with effect from 1st
March, 1965. The submission of the learned counsel is that
when the offence took place on 1st November, 1966 neither
the Food Inspector nor the Public Analyst was empowered to
function as Food Inspector or Public Analyst as the
notification was made very much later on 15th April, 1968
and 23rd March, 1968 respectively. It was submitted that the
notification cannot give retrospective effect to the
appointment from 1st March, 1965.
The Plea was accepted by the learned Sessions Judge but
the High court held following the decision of the Allahabad
High Court in Nagar
344
Mahapalika v. Ram Dhani(1) that the notification relating to
the appointment of the Food Inspector and the Public Analyst
issued under the unamended Act was valid even after the
amendment. Sections 8 and 9 of the Food Adulteration Act,
1950 before the amending Act 49 of 1964 stood thus:
“8. Public Analysts. The State Government may, by
notification in the official Gazette, appoint such
persons as it thinks fit, and, possessing such
qualifications. as may be prescribed to be Public
Analyst and define local areas over which they shall
exercise jurisdiction.
“9. (1) Subject to the provisions of Section 14,
the State Government, may by notification in the
official Gazette, appoint persons in such number as it
thinks fit, having the prescribed qualifications to be
Food Inspectors for the purpose of this Act, and they
shall exercise their power within such local areas as
that Government may assign to them;”
The relevant amendment to sections 8 and 9 is contained in
section 5 of the amending Act which reads as follows:-
“5. Substitution of new Sections for Sections 8
and 9.
For sections 8 and 9 of the Principal Act, the
following sections shall be substituted, namely:-
8. Public Analysts: The Central Government or the
State Government may, by notifications in the official
Gazette appoint such persons as it thinks fit, having
the prescribed
qualifications to be Public Analyst for such local areas as
may be assigned to them by the Central Government, as the
same may be:
* * * *
9. Food Inspectors .(1) The Central Government or
the State Government may, by notification in the
official Gazette, appoint such-persons as it thinks
fit, having the & prescribed qualifications to be Food
Inspectors for such local areas as may be assigned to
them by the Central Government , or the State
Government as the case may be:
* * * *
On the facts it is not disputed that on the date of the
offence neither a Public Analyst nor a Food Inspector was
appointed after the amending Act 49 of 1964. The learned
counsel would like us to read
(1) A.I.R. 1971 All. 53.
345
sections 8 and 9 of the Act as repealing the old sections
and empowering the Central Government or the State
Government to appoint the Public Analyst or the Food
Inspector after the coming into force of the amending Act
implying that any prior appointment of a Public Analyst or
Food Inspector stood repealed. We are usable to accept this
contention. lt is not necessary for us to go into the
question whether the notifications of the Government in 1968
Appointing the Public Analyst and the Food Inspector with
retrospective effect from March, 1968 are valid or not for
we can rest our decision on the ground that being an
amending Act the appointment of the Public Analyst and the
Food Inspector made by the State Government before the
amendment continued to be valid. In Nagar Mahapalika Lucknow
v. Ram Dhani, (supra) it was held that when the Food
Inspector and the Public analyst were appointed under
notifications Dated 27th July, 1959 issued under the
provisions of Prevention of Food Adulteration Act, 1954, the
effect of the amending Act, Act of 49 of 1964, was only to
the extent that the Central Government was given concurrent
powers with the State Government in the matter of
appointment of Public Analyst through notification and that
Act 49 of 1964 did not repeal any part of the Food
Adulteration Act which then existed and amendments in the
specific provisions of the said Act which were affected by
Act 49 of 1964 will not have the effect of repeal of any.
part of the said Act. We agree with the view taken by the
Bench of the Allahabad High Court. The amended sections 8
and 9 do not in any way repeal Sections 8 and 9 as they
originally stood. As to the effect of the amendment the
language of the amending sections will have to be examined
to field out whether the original sections were intended to
be repealed. The amending provisions should be held as part
of the original statute. Whenever the amended section has to
be applied subsequent to the date of the amendment the
unamended provisions of the Act have to be read along with
the amended provisions as though they arc part of it.
Reading the amended section we find that there is no
provision, express or implied, repealing the existing
provisions or the rules made thereunder. The section will
have to be construed as being in addition to what had
already existed. The effect will be that the power of the
State Government which already existed under the unamended
section and the appointments made thereunder will be
preserved and the action taken under the amended sections
will be in addition to the powers of the State Government
and the appointments which had already been made.
The second point that was raised by the learned counsel
was that the sample was sent to the Public Analyst on 5th
November, 1966
4-978SCI/78
346
but was analysed only on 14th December, 1966. As the
analysis was after 44 days it was submitted that the milk
would not have been in a fit condition for analysis. This
contention was not accepted by the learned Sessions Judge
who found that there was no evidence about the sample of
milk being pasteurised or its despatch under refrigeration.
But the report of the Public Analyst clearly showed that no
change had taken place in the constituents of milk which
would have interfered with the analysis. Though this point
was not pressed before the High Court the learned counsel
relying on a decision of the Nagpur High Court in Dattappa
Mahadappa v. Secretary, Municipal Committee, Baldana, (1)
submitted that where milk is analysed by the Analysts a week
after the samples were taken no presumption of adulteration
can be drawn in the absence of proof of the manner in which
the samples were sent and the condition in which the milk
was when the samples were received by him. The learned Judge
after referring to the various passages in the text book
“Milk: Production and Control” by Harvey and Hill observed
that taking into account that the milk was analysed by the
Analyst almost a week after the samples were taken, the
absence of proof of the manner in which the samples were
sent and the condition in which the milk was when the
samples. were received by him detracts from the value of
anlyst’s certificate. In the present case there is evidence
of the Food Inspector that he added formalin as a
preservative and the report of the Public Analyst that no
change had taken place in the constituents of milk which
wold have interfered with the analysis. This statement of
the analyst was not challenged in any of the courts below.
Apart from the statement of the Analyst not having been
questioned, in this case it is admitted that formalin was
added to the milk by the Food Inspector. The Food Inspector
added 16 drops of formalin in each of the bottles and had
them sealed properly. Rule 20 of the Prevention of Food
Adulteration Rules requires that in the case of milk, Cream,
Dahi, Khoa and Gur a preservative known as ‘formalin, that
is to say, a liquid containing about 40 per cent of
formaldehyde in aqueous solution in the proportion of 0.1 ml
(two drops) for 25 ml or 25 grams shall be added The High
Court of Allahabad in Babboo v. State(2) held that in the
case. of cow’s milk to which necessary quantity of formalin
has been added according to Rules and which has been kept in
normal circumstances, it retains its character and is
capable of being usefully analysed for a period of about ten
months. It is unnecessary for us to specify the period for
which the sample will remain unaffected but so far as this
case is concerned there is the clear evidence of Public
Analyst that no
(1) A.I.R. 1951 Nag. 191.
(2) A.I.R. 1970 All. 122.
347
change had taken place in the constituents of milk which
would interfere with the analysis. As this statement has not
been challenged we see no reason for accepting the
contention of the learned counsel that the analysis of the
milk after 44 days cannot be accepted. This contention has
also to be rejected.
Lastly, the learned counsel submitted that the
prosecution has not established that the appellant was
taking the milk for the purpose of calc. This plea was
rejected by the High Court, accepting the evidence of P.W. 2
that he know the appellant personally and that the appellant
carried on the business of selling milk in Orai and
possessed a licence in selling milk in the preceding years
and also in the current year. According to the witness the
appellant brought milk from the rural areas and sold it in
Orai in the current year and the milk was sold by him to
hotel keepers. True evidence of this witness was accepted by
the High Court and we see no reason the reject the testimony
of P.W. 2. T he plea of the appellant that he was taking the
milk for supplying it to one Triyugi Narain Pandey was
rightly rejected by the High Court.
In the result we are unable to accept any of the
submissions made by the learned counsel for the appellant.
We confirm the conviction under Section 8(1) read with
section 16 of the Prevention of Food Adulteration Act. The
sentence being the minimum prescribed under the Act it
cannot be interfered with. In the result the appeal is
dismissed.
S.R. Appeal dismissed.
348