DINESH KUMAR versus STATE OF M.P.

Citation: [2004] SUPP. 5 S.C.R. 715 · Decided: 27-10-2004 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Judgment (excerpt)

;.. 
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 of for selling c 
adulterated Besan-containing 'kesari dal-Held, State Government has to 
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 
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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 
B 
M.P. on the date of alleged collection of samples. The same could not have 
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. 
E 
Siddhartha Dave, Manu Shrivastav, S~ddhartha Sharma and Ms. Vibha 
Datta Makhija for the Respondent. 
The Judgment of the Court was delivered by 
ARIJIT PASAYAT, J. Appellant faced trial for alleged commission of 
F offence punishable under Section 7(1) read with Section 16(1 )(a)(i) of the 
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 
a sample of Besan. He prepared Form No.6 and thereafter 750 gms. of Besan 
H was taken before the witnesses and Rs.4.50 being the price was given to the 
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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 Anal

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