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AMICUS AI
Citation Codes
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Case Number
Attorney(S)
  • — Shri D.C Mathur, Advocate.
  • For the Applicant:— Mr. Bishamber Dayal, Advocate.
Judges
  • Mr. Justice Jagjit Singh
  • Mr. Justice M. S. Joshi
Acts
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Cites
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • — Shri D.C Mathur, Advocate.
  • For the Applicant:— Mr. Bishamber Dayal, Advocate.
Judges
  • Mr. Justice Jagjit Singh
  • Mr. Justice M. S. Joshi
Acts
See more information ...
Smart Summary

Factual and Procedural Background

This appeal was filed by the Municipal Corporation of Delhi to set aside an acquittal dated October 27, 1967, by Shri C.D. Sharma, Magistrate 1st Class, in proceedings under Section 16 read with Section 7 of the Prevention of Food Adulteration Act.

On March 14, 1967 a Food Inspector, Pritam Singh, purchased a sample of butter from Bharat Sweets Bhandar (a sweets shop at No. 14, G.T. Road, Subzi Mandi, Delhi). A portion of that sample was analysed by the Public Analyst and reported adulterated: 4.3% excess moisture and 1.5% deficiency in milk fat. Prosecution was instituted against Ail Dass (the vendor) and Bharat Sweets Bhandar (the proprietor/company). At trial the Magistrate acquitted the accused, reasoning that butter at the shop was not sold "as such" but was to be used in preparation of samosas.

At trial witnesses included Food Inspector Pritam Singh and Harbans Singh Talwar (called from an adjoining shop). Another alleged witness, Kul Bhushan, declared hostile and did not fully support the prosecution, but had earlier written that 450 grams of milk butter was purchased and paid for (Rs. 2.70). Ail Dass admitted the taking of the sample, that he signed the receipt and report, and that he had written on the documents that the butter was meant for preparing samosas. Ail Dass also testified he had made butter himself from cream that day and that the butter was intended for use in samosa preparation, not for sale as butter.

Legal Issues Presented

  1. Whether the acquittal dated October 27, 1967 should be set aside in respect of Ail Dass on the basis that the sample of butter was proved adulterated.
  2. Whether a vendor is liable for selling an adulterated article where the article (butter) was kept for use in preparation of another food (samosas) rather than being sold "as such".
  3. Which standard of quality applies to the sample taken on March 14, 1967 — the table (creamery) butter standard or the deshi (cooking) butter standard — particularly when the container bore no indication as to type.
  4. Whether the substitution of the relevant items in Appendix B (by G.S.R. 1533 dated July 8, 1968) should be given retrospective effect so as to alter the standard applicable to the sample taken in March 1967.
  5. Whether the proprietor-company, Bharat Sweets Bhandar, could be held liable in the absence of evidence that the business was a partnership and that the sale was on behalf of the firm.

Arguments of the Parties

Respondent (Ail Dass) — Arguments as recorded

  • Assertion that the butter in question was "deshi (cooking) butter" for which the prescribed standard required not less than 76% milk fat, and thus the sample should not be judged by the table (creamery) butter standard of 80% milk fat.
  • Claim that the butter was not for sale as butter but was to be used in preparation of samosas (a defence witness account and written statements on exhibits PA and PC).
  • Submission that the substituted rules in Appendix B (items A.11.02.19 / A.11.02.20, effective July 8, 1968) should be given retrospective effect so that the deshi-butter standard would govern the sample taken in March 1967.

Prosecution / Appellant (as reflected in the opinion)

  • Relied on the Public Analyst's report that the sample had 4.3% excess moisture and 1.5% deficiency in milk fat and that the sample was therefore adulterated under the applicable standard.
  • Relied on the evidence of the Food Inspector and Harbans Singh Talwar to establish that the sample was properly purchased and taken after observing legal formalities.
  • Asserted (and the Court relied on precedent) that a vendor is guilty of selling an adulterated article even if the article was kept for use in the preparation of another article which would then be sold to customers (i.e., the "used in preparation" argument does not absolve vendor liability where the prepared article is sold to customers).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Madan Lal v. State (1972 F.A.C. 481) The principle that a vendor is guilty under the Prevention of Food Adulteration Act even if the article (e.g., toned milk or butter) was not sold as such but was used in preparation of another article (e.g., tea, coffee, samosas) which was sold to customers. The Court applied this principle to hold that butter kept for use in preparing samosas did not absolve the vendor of liability; if the butter was adulterated, vendor Ail Dass could be held guilty of selling an adulterated article of food.
Ram Lubhaya v. Municipal Corporation of Delhi and another (1974 F.A.C. 102) That a change in standard introduced after the date of an offence (a subsequent variation in rules) may be a circumstance relevant to sentencing but does not necessarily justify retrospective application to negate criminal liability. The Court treated this authority as contrary to the contention that the substituted items in Appendix B should be given retrospective effect. It held that the substitution did not make the later (deshi-butter) standard applicable to the March 1967 sample, though the subsequent change was a relevant factor in mitigation of sentence.

Court's Reasoning and Analysis

The Court undertook a fact-based and rule-based analysis in the following steps:

  1. Credibility and sufficiency of evidence: The Court found the testimony of Food Inspector Pritam Singh and Harbans Singh Talwar reliable and sufficient to establish that butter was purchased from Ail Dass and that the sample was taken after following legal formalities. Although Kul Bhushan was alleged to be a witness, he gave hostile evidence and his testimony was not relied upon; nonetheless, the purchase and taking of the sample were established.
  2. Admissions by Ail Dass: Ail Dass admitted the taking of the sample, that he signed the receipt (Exhibit PA) and report (Exhibit PC), and that he noted the butter was for preparing samosas. He also testified he had prepared butter that day from cream and intended it for samosa preparation.
  3. Legal principle regarding use in preparation: The Court applied the principle from Madan Lal that vendor liability exists even where the article was not sold as such but used to prepare another article that is sold; thus the mere fact that butter was intended for samosa preparation did not preclude criminal liability if the butter was adulterated.
  4. Applicable statutory standard: The sample was taken on March 14, 1967. The Court examined item A.11.05 of Appendix B to the Prevention of Food Adulteration Rules as it stood at that time. That provision specified different standards for table (creamery) butter and deshi (cooking) butter and included a rule that where butter is sold or offered for sale without any indication as to whether it is table or deshi butter, the table butter standard shall apply.
  5. Absence of required indication: The container from which the sample was taken bore no indication that it contained deshi (cooking) butter. The Court held that the "indication" must be something not readily changeable and that an oral statement or a writing by the vendor at the time of sampling did not satisfy the requirement. Therefore the table-butter standards (not deshi-butter standards) governed assessment of adulteration for the March 1967 sample.
  6. Application of analyst's report to the applicable standard: Judged by the table-butter standard operative on the date of the sample, the Public Analyst's findings (4.3% excess moisture and 1.5% deficiency in milk fat) showed the sample to be adulterated.
  7. Retrospective application argument rejected: The Court considered the argument that the substituted items in Appendix B (G.S.R. 1533 dated July 8, 1968) eliminated the rule applying table-butter standards where there was no indication and that the substituted standard should be applied retrospectively. Relying on Ram Lubhaya, the Court rejected retrospective application of the substituted items to negate guilt, observing that the subsequent change might be relevant to sentencing but does not support retrospective application to the merits.
  8. Liability of the proprietor/company: The Court noted absence of evidence to establish Bharat Sweets Bhandar as a partnership or that the sale was on behalf of the firm; Ail Dass's stand was that he was sole proprietor. Consequently, the Court found liability only as to Ail Dass and not the firm.
  9. Sentencing consideration: Although concluding that Ail Dass was guilty, the Court took a lenient view because the offence was old and because of the subsequent regulatory change; it imposed a modest fine rather than a harsher penalty.

Holding and Implications

Holding:

The appeal is accepted as against Ail Dass only and the order of acquittal dated October 27, 1967 is set aside to that extent. Ail Dass is held guilty of selling an adulterated article of food and is sentenced to a fine of Rs. 100; in default of payment he shall undergo one month's simple imprisonment. He is allowed 15 days to pay the fine.

Implications:

  • The direct practical effect is that Ail Dass's acquittal was vacated and he was convicted and sentenced as above. No conviction or liability was imposed on Bharat Sweets Bhandar due to absence of evidence that the business was a partnership or that the sale was on behalf of the firm.
  • The Court reaffirmed the principle (from Madan Lal) that vendor liability for an adulterated article can arise even where the article is intended for use in preparation of another food that is sold to customers — the preparatory use does not automatically absolve the vendor.
  • The Court held that the statutory standard in force at the time of the offence governs the question of adulteration; a subsequent substitution of standards (by G.S.R. 1533 dated July 8, 1968) was not applied retrospectively to negate criminal liability, though the change was a relevant mitigating factor in sentencing.
  • The opinion does not announce a new rule of law beyond application of existing authorities; it applies established principles to the facts and treats the later regulatory change as a factor in mitigation rather than as retrospectively altering criminal liability.
Show full summary ...

    Municipal Corpn. Of Delhi v. Ail Dass

    Jagjit Singh, J.:— Shri C.D Sharma, Magistrate Ist Class, acquitted Ail Dass and Bharat Sweets Bhandar in a case under Section 16 read with Section 7 of the Prevention of Food Adulteration Act. For getting the order of acquittal dated October 27, 1967 set aside this appeal was filed on behalf of the Municipal Corporation of Delhi.

    (2) The case relates to a sample of butter which was taken on March 14, 1967 by a Food Inspector from Bharat Sweets Bhandar, a sweets shop at No. 14, G.T Road, Subzi Mandi, Delhi. On a part of the sample being analysed it was reported by the Public Analyst to be adulterated due to 4.3 per cent excess in moisture and 1.5 per cent deficiency in fat. On the basis of that report prosecution was instituted against Ail Dass as the vendor and Bharat Sweets Bhandar as the proprietor-company. The accused were, however, acquitted as the trial Magistrate was of the view that at Bharat Sweets Bhandar butter as such was not sold and the butter kept in the shop was to be used in preparation of samosas.
    (3) Regarding the purchase of butter by Food Inspector Pritam Singh, there is his own evidence and the evidence of one Harbans Singh Talwar, who was called by the Food Inspector from an adjoining shop to be present at the time of the taking of the sample. Another person, Kul Bhushan, was also alleged to have witnessed the taking of the sample but during the trial of the case he did not completely support the prosecution and was declared hostile. He deposed that when he went to Bharat Sweets Bhandar for buying Dal Saiv the sample butter had already been purchased by the Food Inspector. On being confronted with his writing on the report regarding the taking of the sample he admitted to have written it. According to that writing 450 grams of milk butter was purchased in his presence and its price amounting to Rs. 2.70 was paid.
    (4) It, however, seems to us that there can be no doubt that butter was purchased by Food Inspector Pritam Singh from Ail Dass. Even if the evidence of Kul Bhushan is disregarded still from the evidence of Pritam Singh and Harbans Singh Talwar it is evident that the purchase of butter was made after observing all the legal formalities. Their evidence is reliable. On being examined at the close of the prosecution evidence Ail Dass did not deny that the sample of butter was taken by the Food Inspector from his shop and that notice was given to him that the sample would be got analysed from the Public Analyst. He also did not deny that the receipt regarding payment of Rs. 2.70 (Exhibit PA) and the report regarding the taking of the sample (Exhibit PC) were signed by him and that on the receipt he had himself written that Rs. 2.70 had been received by him. He, however, mentioned that both on Exhibits PA and PC he had also written that the butter was meant for being used in preparation of samosas.
    (5) Thus there is no dispute about the taking of the sample by Food Inspector Pritam Singh. Ail Dass had, however, at the very time of taking the sample taken the plea that the butter was meant for preparing samosas. Ail Dass also appeared as a defence witness and deposed that he had purchased 4 kilograms of cream on the very day the sample was taken and had prepared butter from that cream. He further stated that the butter so prepared was not for sale but was to be used in preparing samosas. He admitted that the samosas to be prepared would have been sold at his shop.
    (6) In his statement Food Inspector Pritam Singh had mentioned that when he went to the shop of Ail Dass he found the latter to be selling butter. That part of the evidence of the Food Inspector was not believed by the trial Magistrate as the Food Inspector could not give particulars of the quantity of butter said to have been sold to a girl, the amount received by way of price from that customer and also because no note regarding that matter was given in any of the papers prepared by him at the time of taking the sample.
    (7) Even if it may be considered that the evidence regarding Ail Dass selling butter as such to a girl is not very satisfactory, still one fact stands fully established. There was butter in the shop of Ail Dass and that butter was meant to be used in preparation of samosas. As was laid down by a Full Bench of this Court in Madan Lal v. State (1972 F.A.C 481) it would not make any difference even if the vendor was not a dealer in the article of which sample was taken, if the article was to be used in preparation of any other article which would have been then sold to customers. In that connection, the following observations were made: —
    “It must be held that if the respondents in the two appeals were dealers in toned milk as such, they would be guilty of an offence under the Act notwithstanding the fact that they did not agree to sell the toned milk to the Food Inspector or to accept its price from him. The position will be the same even if the respondents were not dealers in toned milk as such but were using the toned milk in the preparation of tea or coffee which they were selling to the customers.”
    (8) If the butter of which sample was taken can be regarded to be adulterated then the vendor will have to be held guilty of selling an adulterated article of food to the Food Inspector, even though the butter was kept not for sale in that form but was to be used in preparing samosas to be sold to customers.
    (9) What was contended before us by Shri D.C Mathur, learned counsel for Ail Dass respondent, was that the butter of which sample was taken was deshi (cooking) butter and according to the prescribed standard it was only required to contain not less than 76 per cent of milk fat by weight and that the standard prescribed for table (creamery) butter requiring not less than 80 per cent of milk fat by weight was not to be applied in determining whether or not the article sold was adulterated.
    (10) It will be noticed that the sample of butter was taken on March 14, 1967. In those days the standards prescribed for table (creamery) butter and deshi (cooking) butter by item A. 11.05 of Appendix B to the Prevention of Food Adulteration Rules were as follows: —
    “ (a) Table (creamery) butter means the product prepared exclusively from milk, cream or curd of cow or buffalo or a combination thereof with or without the addition of salt and coloured with annatto and shall contain not less than 80 per cent of milk fat and not more than 16 per cent of moisture. No preservative is permissible in table butter. Diacetyl may be added for flavour but shall not exceed 4 parts per million.
    (b) Deshi (cooking) butter means the product prepared exclusively from milk, cream or curd of cow or buffalo or a combination thereof, without the addition of any salt or any colour or any preservative and intended exclusively for use in cooking or for preparation of ghee. It shall contain not more than 20 per cent of moisture and not less than 76 per cent of milk fat. Where butter is sold or offered for sale without any indication as to whether it is table butter or deshi butter, the standards of quality prescribed for table butter shall apply.”
    That item of the Appendix was substituted by items A. 11.02.19 and A. 11.02.20 by G.S.R 1533 dated July 8, 1968, which are in the following terms: —
    “A. 11.02.19 — Table (Creamery) Butter means the product obtained from cow or buffalo milk or a combination thereof or from cream or curd obtained from cow or buffalo milk or a combination thereof with or without the addition of common salt and annatto or carotene as colouring matter. It shall be free from other animal fats, wax and mineral oils, vegetable oils and fats. No preservative except common salt and no colouring matter except annatto or carotene shall be added. It shall contain not less than 80.0 per cent by weight of milk fats, not more than 1.5 per cent by weight of curd and not more than 3.0 per cent by weight of common salt. Diacetyl may be added as a flavouring agent but, if so used, the total diacetyl content shall not exceed 4.0 parts per million. Calcium hydroxide, sodium bicarbonate, sodium carbonate, sodium polyposphates, (as linear phosphate with a degree of polymerisation up to 6 units) may be added for regulation the hydrogen, ion concentration in the finished products not exceeding 0.2 per cent by weight of butter as a whole.
    A. 11.02.20 — Deshi (Cooking) Butter means the product obtained from cow or buffalo milk or a combination thereof or obtained from cow or buffalo milk or a combination thereof without the addition of any preservative including common salt any added colouring matter or any added flavouring agent. It shall be free from other animal fats and mineral oils, vegetable oils and fats. It shall contain not less than 76.0 per cent of milk fat by weight.”
    (11) The container from which the sample of butter was taken, as stated by the Food Inspector, did not have any indication on it that it contained deshi (cooking) butter. The indication contemplated by the rules, in our opinion, should be such which is not capable of being changed from customer to customer. The fact that the vendor at the time of the taking of the sample had orally said or given in writing that the butter was to be used for cooking purposes will not satisfy the requirements of “indication” in terms of item A. 11.05 (b), as it stood before being substituted by new items in July, 1968. As on the day the sample was taken the old item A. 11.05 applied so in the absence of indication on the container the standard of quality prescribed for table butter had to apply. Judged from the standard for table butter the sample, was rightly reported to be adulterated due to 4.3 per cent excess in moisture and 1.5 per cent deficiency in milk fat.
    (12) Another submission made was that as the substituted item A. 11.02.20 of Appendix B to the Prevention of Food Adulteration Rules no longer provides that where butter is sold or offered for sale without any indication as to whether it is table butter or deshi butter the standards of quality prescribed for table butter shall apply, so the substituted item should be deemed to have been given retrospective effect. It was further urged that if the sample was judged from the standard laid down for deshi (cooking) butter, as given in the substituted item A. 11.02.20 of Appendix B, it could not be held to be adulterated. Reliance was as well placed on a judgment of the Supreme Court in Ram Lubhaya v. Municipal Corporation of Delhi and another (1974 F.A.C 102) in which it was observed that the variation change in standard introduced for Haldi powder by item A.05.20.01 in the Appendix to the rules though came into force after the date of the offence yet it was a circumstance not without relevance on the question of sentence. This authority does not, therefore, support the contention that the substituted items of Appendix B should be given retrospective effect. Rather that authority goes against the contention about item A.11.02.20 of Appendix B having retrospective effect. Of course the change made is a relevant factor for purposes of sentence.
    (13) The sample taken was it seems to us, rightly reported to be adulterated. In determining whether or not it was adulterated the standards of quality laid down by item A.11.05 of Appendix B to the Prevention of Food Adulteration Rules, as it existed before the substitutions made by G.S.R 1533 dated July 8, 1968 had to be applied. In the absence of indication the standards prescribed for table butter were applicable and there being deficiency in milk fat and excess in moisture, as mentioned in the Public Analyst's report. Ail Dass respondent was guilty of selling adulterated article of food. As, however, the offence is a very old one and due to the change introduced in July, 1968, we are inclined to take a lenient view of the matter.
    (14) We may, however, mention that no evidence was produced on behalf of the prosecution to establish that Bharat Sweets Bhandar was a partnership firm and the sale made by Ail Dass was on behalf of the firm. The stand taken by Ail Pass was that he was the sole proprietor. The liability for sale of adulterated butter was, therefore, only of Ail Dass.
    (15) For the reasons given above the appeal is accepted as against Ail Dass only and the order of acquittal dated October 27, 1967 is to that extent set aside and Ail Dass respondent is sentenced to a fine of Rs. 100 only. In default of payment of fine, he shall undergo one month's simple imprisonment. We also allow him 15 days' time to pay the fine imposed on him.
    Appeal accepted.
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    Comments

    Municipal Corpn. Of Delhi v. Ail Dass
    (Feb 27, 1975)