LexRAJ KUMAR versus THE STATE OF UTTAR PRADESH
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A B C D E F G H 949 RAJ KUMAR v. THE STATE OF UTTAR PRADESH (Criminal Appeal No. 1541 of 2019) OCTOBER 04, 2019 [DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.] Prevention of Food Adulteration Act, 1954: s.13(2) – Non- compliance of – Sample of milk – Milk Solid Non Fat (MSNF) – 7.7% of MSNF found in sample of milk against the prescribed standard of 8.5% – Option given by Magistrate to the appellant to send sample to CFL – Appellant waived his right by not applying to Magistrate for sending second sample for analysis to CFL – Appellant cannot raise grievance of non-compliance of s.13(2) of the Act. Prevention of Food Adulteration Act, 1954: Even marginal deviation from the prescribed standard cannot be ignored – In cases of food coming under the Act, it is not required to prove that article of food was injurious to health – If an article of food 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 – 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. 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 [2019] 13 S.C.R. 949 949 A B C D E F G H 950 SUPREME COURT REPORTS [2019] 13 S.C.R. 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 A B C D E F G H 951 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
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