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State Of U.P v. Gauri Shankar .
Structured Summary of the Opinion (P.N. Bakshi, J.)
Factual and Procedural Background
The appellant (State) prosecuted Gauri Shanker (and co-accused Radhey Shiam) under sections 7(1) / 16(1)(a)(i) of the Prevention of Food Adulteration Act. The Sub‑Divisional Magistrate at Kalpi convicted them on April 21, 1965, sentencing each to Rs. 1,000 fine and nine months' rigorous imprisonment. The Sessions Judge allowed an appeal by remanding the case for retrial (order dated October 18, 1967). On retrial, Radhey Shiam was acquitted by the 1st Class Magistrate (Jalaun) on May 21, 1968. Gauri Shanker was convicted again by the trial magistrate under sections 7(1) / 16(1)(i) and sentenced to Rs. 1,000 fine and nine months' rigorous imprisonment. The Sessions Judge (Orai) on October 12, 1968 allowed Gauri Shanker's appeal and set aside the conviction and sentence. The State filed the present appeal against that acquittal.
Relevant underlying facts: on 30 July 1964 Food Inspector Basant Singh purchased 1½ pao of mustard oil (Kali Lahi ka tail) from Gauri Shanker's shop for Re. 1, issued receipts (Exs. Ka‑1, Ka‑2), divided the sample into three sealed phials (one given to accused, one sent to Public Analyst). The Public Analyst reported departures from statutory mustard oil standards (butyro‑refractometer, saponification, iodine values) and presence of 9.72% linseed oil. Sanction for prosecution was obtained 22 January 1965; complaint filed 1 February 1965.
Legal Issues Presented
- Whether the Sessions Judge erred in allowing Gauri Shanker's appeal and acquitting him (i.e., whether the acquittal was legally sustainable).
- Whether the delay between sampling (30 July 1964) and initiation of prosecution (complaint filed 1 February 1965) caused prejudice to the accused and deprived him of his Section 13(2) right to send his sample to the Central Food Laboratory.
- Whether the defence originally raised (cross‑contamination from prior linseed oil extraction) — which the accused abandoned on retrial — could justify the acquittal and whether the Sessions Judge improperly relied on it.
- Whether the analytical departures and presence of 9.72% linseed oil constitute a 'minor and technical' offence covered by proviso (i) of Section 16, permitting lesser punishment than the statutory minima.
- What sentence is appropriate if the court finds the proviso applicable, and whether the proviso permits imposition of fine alone, imprisonment alone, or both at lesser levels than the statutory minima.
Arguments of the Parties
Prosecution's Case (State)
- The Food Inspector purchased and took a properly labelled, sealed sample in the presence of witnesses; one phial was sent to the Public Analyst whose report showed non‑conformity with mustard oil standards and 9.72% linseed oil.
- The prosecution maintained that these analytical results supported conviction under sections 7(1) and 16(1)(a)(i) of the Prevention of Food Adulteration Act.
- The State argued against the Sessions Judge's view that delay caused prejudice, asserting that the cited milk‑adulteration cases relied upon by the Sessions Judge were inapplicable to mustard oil.
Defence's Case (as presented at various stages)
- On first trial, defence claimed cross‑contamination: linseed oil had been extracted earlier in the same expeller and, without cleaning, mustard oil was extracted later, causing admixture (explaining presence of linseed oil).
- On retrial (after the earlier conviction was set aside), the accused abandoned the cross‑contamination defence and instead argued that the oil from which the sample was taken belonged to a customer (i.e., it was not the accused's oil), implying lack of responsibility for adulteration.
- The defence suggested that the delay in initiating prosecution prejudiced the accused and deprived him of the ability to have the sample sent to the Central Food Laboratory under Section 13(2).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai | General principle about the function of a proviso: a proviso ordinarily excepts or qualifies the substantive clause; interpretation is required and a proviso need not always be restricted to the ambit of the main enactment. | The court cited the passage to support its interpretation that the proviso to Section 16 can operate to qualify the substantive mandatory minima and therefore may permit reduced punishment; this supports the view that the proviso can be construed to allow alternative lesser sentences (imprisonment or fine or both). |
| Jagdish Prasad v. State of West Bengal | Authority applying the proviso to Section 16(1) of the Prevention of Food Adulteration Act and describing that the proviso permits awarding a lesser sentence than six months or a fine less than Rs. 1,000 when adequate and special reasons are recorded. | The court relied on the case to confirm that the proviso to S.16 empowers the trial court with discretion to impose lesser sentences (imprisonment, fine or both) for offences falling under the proviso, provided adequate reasons are recorded. |
Court's Reasoning and Analysis
The court proceeded by assessing (1) the evidence about sample collection and analysis, (2) the permissibility of discounting delay as prejudicial, (3) the significance of the defence changes, and (4) the proper construction and application of the proviso to Section 16 for sentencing.
Evidence on sampling and analysis: The Food Inspector (PW 1) and Sri Krishna (PW 3) gave consistent evidence that the Inspector purchased 1½ pao of mustard oil, obtained the accused's signatures on receipts/notice (Exs. Ka‑1, Ka‑2), divided the oil into three labelled and sealed phials in the accused's presence, gave one phial to the accused and sent one to the Public Analyst. PW 2 (Mukhtar Ahmad Ansari) was declared hostile and denied being present for sample‑taking; but the court found the testimony of PW 1 and PW 3 credible and sufficient to establish that the sample was properly taken and that the Public Analyst's report formed an admissible basis for prosecution.
Delay and prejudice: The Sessions Judge had placed great weight on the delay between sampling (30 July 1964) and initiation of prosecution (complaint 1 February 1965), concluding that an unexplained delay of about four months deprived the accused of his Section 13(2) right to send his sample to the Central Food Laboratory and caused prejudice. The appellate court rejected that approach for two principal reasons explicitly stated in the opinion:
- Under rules made under the Prevention of Food Adulteration Act, specific preservatives are prescribed for articles liable to deterioration (e.g., formalin for milk). Mustard oil is not included in those rules or schedules requiring preservatives at sampling time.
- Mustard oil does not deteriorate with time; in fact, it commonly improves with age and is used as a preservative for pickles. Therefore, delay did not cause deterioration or prejudice to the accused’s right to have the sample tested at the Central Food Laboratory; the accused could have sought testing at any time after initiation of proceedings.
Defence‑change and Sessions Judge's reliance: The court emphasised that the accused had abandoned the original defence (cross‑contamination in the expeller) on retrial and adopted a new defence (that the oil belonged to a customer). Both prosecution witnesses denied being told the oil belonged to a customer and the accused produced no supporting evidence (for example, the alleged owner). The appellate court found the new defence to be an after‑thought and concluded that the Sessions Judge erred by allowing his mind to be influenced by the earlier defence which the accused had given up.
Assessment of analytical departures: The Public Analyst's reported values were compared to statutory mustard oil standards. The court noted departures were small: butyro‑refractometer 60.7 (max 60.5), saponification 176.7 (max 176), iodine 116.4 (max 108), and linseed oil 9.72%. The court characterised these differences as "very minor" and the linseed admixture as a small proportion, concluding that the offence was minor and technical and thus covered by proviso (i) of Section 16.
Interpretation and application of Section 16 proviso: The court analysed Section 16, noting the substantive provision prescribes minima (imprisonment not less than six months and fine not less than Rs. 1,000). The proviso permits a court, for adequate and special reasons to be recorded, to impose imprisonment of less than six months, or a fine of less than Rs. 1,000, or both. The court rejected the State's submission that even when the proviso applies a court must still impose both imprisonment and fine; it held that the proviso's use of "or" plainly entitles the court to impose only one of these lesser punishments or both, depending on circumstances. The court relied on the cited precedents to support this construction.
Sentencing: Having found the offence minor and technical, and having determined that providential relief under the proviso was appropriate, the court exercised discretion under the proviso and selected a markedly reduced penalty: a fine of Rs. 50, payable within two months, with one month's rigorous imprisonment in default.
Holding and Implications
Holding: The State's appeal is allowed; the Sessions Judge's order of acquittal is set aside, the accused Gauri Shanker is convicted under Sections 7(1) / 16(1)(a)(i) of the Prevention of Food Adulteration Act, and sentenced to pay a fine of Rs. 50 within two months, with one month's rigorous imprisonment in default of payment.
Implications:
- Direct effect: The acquittal is reversed and the accused is convicted and sentenced as specified above.
- Sentencing principle affirmed: The court confirmed that where the proviso to Section 16 applies (for adequate and special reasons to be recorded), a court may impose either a reduced imprisonment term, or a reduced fine, or both — the proviso's alternatives are disjunctive ("or") and permit flexibility rather than mandating both types of punishment.
- On delay/prejudice: The court held that delay in initiating prosecution does not automatically cause prejudice; whether delay prejudices an accused depends on the nature of the commodity and whether preservation measures are prescribed — in this case, mustard oil is not subject to required preservatives and does not deteriorate, so delay did not bar the prosecution or the accused's rights under Section 13(2).
- Broader precedent: The opinion applies established principles to the facts but does not indicate that it sets a novel general precedent beyond applying and clarifying the scope of the proviso to Section 16 and the relevance of delay in cases involving non‑perishable foodstuffs.
P.N Bakshi, J.:— Gauri Shanker son of Panoham Lal and Radhey Shiam son of Ghanshiam Das were prosecuted u/Ss. 7(1)/16(1)(a)(i) of the Prevention of Food Adulteration Act by the Sub-Divisional Magistrate, Kalpi by his judgment dt. April 21, 1965. They were sentenced to a fine of Rs. 1000/- and to rigorous imprisonment for nine months. They filed an appeal against their conviction which was allowed by the Sessions Judge by his order dated October 18, 1967, where by the case was remanded for retrial. Both the accused were thus retried for the aforesaid offence. Radhey Shiam was acquitted by the 1st class Magistrate Jalaun by his judgment dated May 21, 1968, of the offences for which he has been charged and convicted Gauri Shanker u/Ss. 7(1)/16(1)(i) of the Prevention of Food Adulteration Act and sentenced him to a fine of Rs. 1,000/- and 9 month's rigorous imprisonment. Gauri Shanker filed an appeal before the Sessions Judge Orai. By his judgment dated October 12, 1968 the Sessions judge has allowed the appeal and set aside the conviction and sentence recorded against Gauri Shanker. The State has now filed the present appeal against the acquittal of accused Gauri Shanker.
2. The case for the prosecution is that on July 30, 1964 Sri Basant Singh was Food Inspector of Municipal Board Orai. At about 3 P.M on that date he went to the Oil Mill of Radhey Shiam. He found Gauri Shanker at the shop. It may be mentioned at the out set that the appellant is both a manufacturer and a retail seller of oil. The Food Inspector purchased 1-½ pao of mustard oil (Kali Lahi ka tail) for Re. 1/-. Receipt in token of the payment of the price Ex. Ka-1 was taken by the Food Inspector from the accused Gauri Shanker. The Food Inspector informed Gauri Shanker that the oil was being purchased as a sample for analysis by the Public Analyst. This information was conveyed to Gauri Shanker through the writing Ex. Ka-2 which bears the signature of Gauri Shanker and two witnesses. The Food Inspector after making the purchase divided the oil into three equal parts and put it into three different bottles. The sample was taken in the presence of Mukhtar Ahmad Ansari and Sri Krishna. The samples were closed, labelled and sealed in the presence of the accused. One bottle of the sample was handed over to the accused and out of the remaining two bottles one was sent to the public analyst for his report. In the opinion of the Public Analyst the sample did not conform to the standards prescribed for mustard oil (Kali Lahi ka tail) in the following respects:
(a) Butyro-refractometer reading at 40 degree C exceeds the maximum limit of 60.5
(b) Saponification value exceeds the maximum limit of 176.0
(c) Iodine value exceeds the maximum limit of 108.0 The sample is also said to contain a small proportion of linseed oil viz. 9.72%.
3. On the receipt of this report the Food Inspector obtained the sanction of the District Medical Officer of Health Jaiaun at Orai for the prosecution of the accused. Having obtained sanction he submitted a chargesheet Ex. Ka-4 against the accused. The accused was thereupon tried as mentioned above. The accused Gauri Shanker pleaded not guilty. It is important, to note that the defence originally taken up by Gauri Shanker was that he had extracted linseed oil in his oil crusher and subsequently he extracted mustard oil in the same crusher, as such there could be mixture of linseed oil with mustard oil. On this basis he denied having committed any offence. When however, the conviction of the accused was set aside in appeal by the Sessions Judge and the case was remanded for retrial, Gauri Shanker gave up his earlier defence plea. He took up the defence that the oil from which a sample had been taken from his shop belonged to a customer and as such he had not committed any offence. It is this subsequent defence plea with which we would be concerned in the present case.
4. The prosecution in support of its case examined Basant Singh Food Inspector PW 1 Mukhtar Ahmad Ansari PW 2 and Sri Krishna PW 3 another manufacturer and seller of oil. Sri Mukhtar Ahmad Ansari PW 2 was declared hostile by the prosecution, as he came out with the statement that the sample in question had not been taken by the Food Inspector in his presence. We are thus left only with the testimony of Basant Sing PW 1 and Sri Krishna PW 3. We shall now deel with the testimony of these two witnesses.
5. According to the statement of Sri Basant Singh Food Inspector he visited the oil mill of Radhey Shiam at about 3 P.M on 30th July 1964. He found Gauri Shanker sitting at the retail shop. He informed Gauri Shanker that he had come to take a sample of Kali Lahi oil for the purchases of examination. He purchased 1-½ pao of Kali Lahi oil and paid Re. 1/- as its price. He obtained the signature of the accused on Ex. Ka-1 and Ex. Ka-2 which are the receipts for payment and the notice regarding taken of sample. The sample thus taken by him was divided equally into three separate phials which were duly closed, labelled and sealed. One of the phials was given to the accused and out of the other two one was sent to the Public Analyst for analysis. The report of the Public Analyst disclosed adulteration of the sample as mentioned above. The Food Inspector deposed that the said sample was taken in the presence of Sri Krishna PW 3 who was called to the retail shop of the accused. Sri Krishna PW 3 is a manufacturer and retail seller of oil, who has his shop in the nearby locality. He has in his statement corroborated the case set up by the Food Inspector. He has deposed to the taking of the sample by the Food Inspector. He has stated that the said sample was taken in his presence and that was divided into three phials which were duly sealed and labelled. He has also corroborated the Food Inspector to the effect that one of the phials was given to the accused. He has stated in very clear words that the sample taken by the Food Inspector was that of Kali Lahi ka tail. The evidence of these two witnesses leaves no room for doubting that the Food Inspector did as a matter of fact take the sample of mustard oil (Kali Lahika tail) from the shop of the accused on payment of its price and that he divided the same in equal portions and sent one of the phials for analysis, the report of which forms the basis of the prosecution.
6. As I have mentioned above the defence case originally taken was that if linseed oil is extracted first and from the same expeller without being cleaned mustard oil is subsequently extracted, there is likelihood of mixture of both these oils. Some questions were put with regard to this defence to the witnesses mentioned above. The accused, however, having given up this defence on retrial, we do not think it would be proper for us to take this defence into consideration. The fresh defence which has been pleaded by the accused in the present case on retrial is that the oil from which a sample was taken by the Food Inspector belonged to a customer. The Food Inspector Sri Basant Singh PW 1 as well as Sri Krishna PW 3 were cross-examined on this aspect of the matter. Both of them had categorically denied the suggestion and stated that the accused did not inform the Food Inspector that the Lahi oil from which the sample in question was taken belonged to a customer. The accused has not produced any evidence to support this defence. Such a plea could have been easily established by the production of the owner of the oil if any. We are, therefore not at all inclined to accept the defence case, which, to our minds, is clearly an after thought.
7. We have carefully perused the judgment of the Sessions Judge. He has given a number of grounds for recording an acquittal of the accused. One of these grounds on which great emphasis is placed by him is that the delay in the initiation of the prosecution against the accused has caused great prejudice to him. The sample in question was taken by the Food Inspector on July 30, 1964. It was received by the Public Analyst on August 3, 1964 and it was analysed on September 16, 1964, Sanction for prosecution was obtained on 22-1-1965, and the present complaint was filed on February 1, 1965. In the opinion of the court below there was an unexplained delay of about 4 months in the initiation of the prosecution of the appellants. As a result of this delay the court below was of opinion that the accused could not exercise his right u/S. 13(2) of the Prevention of Food Adulteration Act to send his sample for analysis to the Central Food Laboratory. The court below has relied upon certain cases which are all concerned with adulteration of milk in which the delay in the initiation of the proceedings resulted in the deterioration of the constituents of the sample. These cases to our minds are not applicable to the facts of the present case and the Sessions Judge has erred in law in relying upon them. Under the Food Adulteration Act rules have been framed for mixing preservatives in samples which are liable to deterioration. For instance formaline is mixed when a sample of milk is taken. This prevents the sample from deteriorating. For other articles also different preservatives have been prescribed under the Food Adulteration Act, which are mixed therewith for the purpose of preserving the constituents of the sample. It is significant that mustard oil does not find place any where in these rules, or Schedule, as a substance in which a preservative must be mixed at the time of taking the sample. The reason for this is obvious. Mustard oil does not deteriorate with lapse of time. On the contrary it is common experience that the quality of the mustard oil improves with the lapse of time. As a matter of fact, mustard oil itself is sometimes used as a preservative for pickles and the like. It is thus obvious that the court below has clearly committed an error in holding that the delay in the initiation of proceedings against the accused has caused prejudice to him with the result that he has been deprived of a right to send his sample for analysis to Central Food Laboratory u/S. 13(2) of the aforesaid Act. It was open to the accused to have got his sample phial examined at any time after the initiation of the proceedings.
8. Another consideration which had weighed with the Sessions Judge is that linseed oil may have been extracted from the expeller of the accused and subsequently without cleaning the machine, mustard oil may have been extracted. As such it resulted in mixture of linseed oil with mustard oil. The court below has totally lost sight of the fact that this defence has been given up by the accused on retrial. The new defence which he has taken up was that the oil in question belonged to another customer. We have already dealt with the defence case in detail and have rejected the same. In our opinion the Sessions Judge has committed clear illegality in allowing his mind to be influenced by the defence case which has been given up by the accused.
9. For the reasons given above, we are of opinion that the order of acquittal passed by the Sessions Judge is erroneous and illegal and must be set aside.
10. The question, however, which remains to be considered is as to what is the appropriate sentence which should be awarded to the accused. For this purpose we shall compare the standard prescribed for mustard oil under the rules with the analysis report of the Public Analyst.
11. According to the rules the standard prescribed is as follows:
(a) Butyro-refractometer reading at 40 degree C 58.0 to 60.5 (b) Saponification value 168 to 176 (c) Iodine value 96 to 108 (d) Unsaponifiable matter Not more than 1.2 per cent. (e) Free fatty acid as Oleic acid Not more than 3.0 per cent. (f) Bellier test (Turbidity temperature Acetic acid method) Not more than 26.5 degree C.
12. The test for argemone oil should be negative.
13. According to the report of the Public Analyst the result of the analysis is as follows:
1. Butyro-refractomer reading at 40 degree C: 60.7
2. Saponification value: 176.7
3. Iodine value: 116.4
4. Free fatty acids as Oleic Acid: 1.14%.
5. Unsaponifiable matter: within limit.
6. Test for Argemone oil: Negative.
7. Bellier's test: 25.8 degree C.
8. Linseed oil: 9.72%
14. Comparing both the above results we find that:
(a) With respect to Butyro-refractometer reading at 40 degree C the maximum limit is exceeded by 2.
(b) Saponification value exceeds the maximum limit by 0.70
(c) Iodine value exceeds the maximum limit by 6.4 and
(d) the sample contains 9.72 per cent of linseed oil.
15. To our minds even according to the report of the Public Analyst the difference in the standard prescribed and the result of the analysis is very minor. The mixture of linseed oil is also a small amount of 9.72 per cent. The offence, therefore made out against the accused is minor and technical, and is covered by proviso (i) of S. 16 of the Prevention of Food Adulteration Act. In our opinion, therefore, there are adequate reasons for extending the benefit of the proviso to the applicant.
16. The question, therefore, is as to what is the appropriate sentence which should be imposed upon the accused. A perusal of S. 16 of the aforesaid Act discloses that the minimum punishment to be imposed for an offence under this Act “is imprisonment for a term which shall not be lass than six months but which may extend to six years and with fine which shall not be less than Rs. 1000/.” The proviso to S. 16 authorises the court for any adequate and special reasons to be mentioned in the judgment.
“……to impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.”
17. It is evident that while the substantive section makes it incumbent upon the Court to award a sentence of imprisonment and of fine for an offence under this Act, the proviso mentioned above affords three alternative namely:
(a) to impose a sentence of imprisonment for a term of less than six months or
(b) to impose a fine of less than one thousand rupees or
(c) both imprisonment for a terms of less then six months and fine of less than one thousand rupees.
18. The circumstances of the case may justify imposition of sentence of imprisonment, of fine or of both below the limit prescribed by S. 16 itself. This depends entirely upon the discretion of the Court which has to record adequate and special reasons. It is submitted by the counsel for the State that even if a case is covered by a proviso of the S. 16 mentioned above, it is incumbent upon the Court to impose a sentence of imprisonment as well as of fine. We do not find any justification for this submission. Under the principal S. 16 the conjunction used is and ‘and’ i.e imprisonment and fine has to be imposed but in the proviso the conjunction used is ‘or’ i.e, imprisonment or fine or both may be imposed. We have therefore no doubt in our minds that the proviso entitles a court to impose a sentence of imprisonment alone or of fine alone or if the circumstances of the case so justify of imprisonment plus fine.
19. Counsel for the appellant has placed before us a decision of the Supreme Court reported in Ishverlal Thakorelal Almaula v. Motibhai Nagjibhai Nagjibhai1., and has brought the following passage to our notice:
“The proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause. It may ordinarily be presumed in construing a proviso that it was intended that the enacting part of the section would have included the subject matter of the proviso. But the question is one of interpretation of the proviso and there is no rule that the proviso must always be restricted to the ambit of the main enactment.” We have also been referred to another case reported in Jagdish Prasad v. State of West Bengal2.. This was case under the Prevention of Food Adulteration Act to which the proviso was made applicable by their Lordships. While dealing with the exception their Lordships observed as follows:—
“An exception was however made in cases falling u/sub-cl. (i) of cl. (a) of S. 16(1) and in respect of an article of food which was considered to be adulterated u/S. 2 cl. (i)(1) or misbranded u/S. 2 cl. (ix) or for an offence u/sub-cl. (ii) of cl. (a) of S. 16(1) in which case the Court is given the discretion for any adequate and special reasons to be mentioned to award a lesser sentence than six months or impose a fine lesser than one thousand rupees or of both lesser than the minimum prescribed.”
20. It is clear from the above observations of the Supreme Court that the court is empowered under the proviso of S. 16 to impose a sentence of imprisonment or of fine or of both.
21. It is not necessary that a sentence of imprisonment as well as of fine should be imposed upon the accused when the Court extends the benefit of the proviso to the accused.
22. In view of the opinion expressed by us above and having regard to all the facts and circumstances of the case we are of the view that a sentence of Rs. 50/. fine would be sufficient to meet the ends of justice.
23. This appeal by the State is, therefore allowed. The accused is convicted for an offence u/Ss. 7(1)/16(1)(a)(1) of the Prevention of Food Adulteration Act and is sentenced to pay a fine of Rs. 50/- within two months of this order. In default of payment of fine, the respondent shall undergo one months R.I
24. Appeal allowed.
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