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Dilo Sao v. The State Of Bihar .

Patna High Court

Apr 2, 1970

Judgment

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Factual and Procedural Background

The petitioner was convicted under Section 16 of the Prevention of Food Adulteration Act and sentenced by the trial court to rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, with a default sentence of rigorous imprisonment for two months. The prosecution case was that on 12 December 1965 a Food Inspector (Abdus Subhan, P.W.2) took a sample of turmeric from the petitioner's shop on payment; part of the sample was sent to the Public Analyst who reported the turmeric to be adulterated with excess lead (report marked Ext. 3). The defence was that the turmeric sold to P.W.2 was intended for dyeing clothes and not for human consumption and therefore did not fall within the Act's definition of "food." Both the trial court and the lower appellate court rejected that defence and convicted the petitioner. The trial court called for a probation officer's report (since this was a first offence); the report was favourable to the petitioner but the trial court refused probation. On appellate review before Shambhu Prasad Singh, J., the conviction was maintained but the sentence was reduced to a fine of Rs. 100/-, with default imprisonment of one month.

Legal Issues Presented

Whether the turmeric sold by the petitioner was a "food" within the meaning of the Prevention of Food Adulteration Act when the petitioner claimed it was meant only for dyeing clothes (i.e., whether the defence that the turmeric was not for human consumption could prevail).
Whether non-compliance with Rules 7(1) and 18 of the Prevention of Food Adulteration Rules, 1955 — specifically, absence of evidence that a specimen impression of the seal was separately sent to the Public Analyst and that the Public Analyst compared that specimen impression with the seal on the sample — vitiates the conviction or whether the court may rely on the presumption that official acts were regularly performed.
Whether the sentence imposed by the trial court was excessive, in particular whether the provisos to Section 16(1) of the Act allowed imposition of a lesser sentence where the offence falls under the specified sub‑clauses.
Whether the Probation of Offenders Act could apply to an offence described by the trial court as "anti-social," and relatedly, whether the petitioner should have been released on probation (though the petitioner did not press for probation on appeal).

Arguments of the Parties

Appellant's (Petitioner's) Arguments — as advanced by Mr. Shilesh Chandra Misra

The petitioner's statement under Section 342 CrPC that the turmeric was meant only for dyeing clothes should not have been rejected by the court below in the absence of material proving the turmeric was intended for human consumption.
The conviction is legally infirm because Rules 7(1) and 18 of the Prevention of Food Adulteration Rules, 1955 were not complied with: there was no evidence that a specimen impression of the seal was separately sent to the Public Analyst nor that the Public Analyst compared the seal on the container/cover with such a specimen impression. Reliance was placed on earlier decisions of this Court which, in similar circumstances, acquitted the accused rather than relying on a presumption of regular performance of official acts.
On sentencing, while the appellant raised leniency, the more pressing submissions on appeal were against sustaining conviction on the procedural/non-compliance point and against the severity of sentence.

Respondent's (State's) Arguments — as advanced by Mr. Vinod Chandra

In the absence of any positive evidence of irregularity, the court should presume that the Food Inspector sent the specimen impression of the seal separately to the Public Analyst and that the Public Analyst compared the seal on the cover/container with the specimen impression — official acts must be presumed to have been regularly performed.
The Public Analyst's report (Ext. 3) stating the seal was intact supports the inference that required steps under the Rules were followed.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Gopal Sao v. State of Bihar, 1968 BLJR 308	Relied upon (by defence) for the proposition that conviction cannot rest on a presumption of regularity where no evidence shows a specimen impression of the seal was sent or compared.	The Court held this decision must be deemed to have been impliedly overruled in light of later Supreme Court authority and therefore is not binding.
Badri Shah v. State of Bihar, 1969 Pat LJR 217 : (1970 Cri LJ 649)	Single‑Judge decision relied upon for the view that absence of evidence of specimen impression/ comparison requires acquittal rather than presuming regular official action.	The Court held this decision to be per incuriam and not binding on other Judges of this Court, rejecting its rule in the present case.
Daitari Mahto v. The State, 1969 Pat LJR 529 : (1971 Cri LJ 129)	Bench decision relied upon for acquittal where specimen impression was not shown to have been compared.	The Court treated this decision as per incuriam and not binding and did not follow it on the facts before it.
K.K. Pookunju v. K.K. Ramkrishna Pillai, Criminal Appeal No. 29 of 1968; reported 1969 Ker LT 50 (Supreme Court)	Supreme Court authority approving the presumption that the Public Analyst acted in accordance with the Rules and compared the specimen impression with the seal even where the record does not explicitly record that comparison.	The High Court relied on this Supreme Court decision to conclude there was no error in presuming compliance with Rules 7 and 18; this decision controlled and justified upholding the conviction despite the absence of express evidence of the specimen impression's separate dispatch or comparison.
State of Madhya Pradesh v. Chhotekhan Nannekhan, AIR 1970 Madh Pra 29 (Full Bench)	Full Bench decision referring to and quoting the relevant passage from K.K. Pookunju, endorsing the presumption of regular performance in the context of the Rules.	The Court cited this Full Bench decision as confirming the correctness of presuming that the Public Analyst compared the specimen impression with the seal; relied upon it in rejecting the defence contention of non-compliance.

Court's Reasoning and Analysis

The court proceeded through a sequence of analytical steps, applying legal principles to the facts as follows:

On the nature of the turmeric and the defence that it was for dyeing: the court found no substance in the defence. The judge relied on "common knowledge" that turmeric is mostly used for human consumption (colouring pulses and vegetable curry) and is rarely used for dyeing clothes; the petitioner did not inform the Food Inspector at the time the sample was taken that the turmeric was not for human consumption. That omission was treated as a circumstance undermining the petitioner's asserted purpose for the turmeric and justified treating the turmeric as a "food" within the Act.
On alleged non‑compliance with Rules 7(1) and 18 of the Prevention of Food Adulteration Rules, 1955: the record did not contain explicit evidence that a specimen impression of the seal was separately sent to the Public Analyst nor that the Public Analyst compared the seal with such a specimen impression. The State invited the court to apply the legal presumption that official acts are regularly performed. The petitioner relied on earlier High Court decisions which had acquitted where no evidence of the specimen impression or comparison existed.
The court analysed precedent: it identified a Supreme Court decision in K.K. Pookunju (1969 Ker LT 50) approving the presumption that the Public Analyst had acted in accordance with the Rules, and it noted that a Full Bench of the Madhya Pradesh High Court had relied on that Supreme Court decision and quoted its reasoning. Given the Supreme Court authority and the Full Bench reliance, the court concluded the earlier single‑judge High Court decisions cited by the petitioner were per incuriam and could not be followed. Applying the presumption of regularity, the court treated the Public Analyst's report (which stated the seal was intact) as sufficient to infer compliance with Rules 7 and 18.
On sentencing and probation: the trial court had refused probation and imposed imprisonment, apparently concluding no lesser sentence was permissible. The High Court disagreed that antisocial character of an offence automatically bars probation; whether probation applies depends on the circumstances of each case. Although the petitioner did not press for probation, the court found that the trial court failed to take into account the provisos to Section 16(1) of the Act which permit imposition of a lesser sentence in cases under the specified sub‑clauses. Considering mitigating materials (first offence, small shopkeeper with small capital, possibility that petitioner was unaware of adulteration, favourable probation report), the court held imprisonment was not warranted and that a nominal fine would meet the ends of justice.

Holding and Implications

HOLDING: The conviction of the petitioner for an offence under Section 16 of the Prevention of Food Adulteration Act is MAINTAINED, but the sentence is modified: the imprisonment sentence is set aside and replaced by a monetary penalty of Rs. 100/-, with default rigorous imprisonment for one month. Subject to this modification on sentence, the application is dismissed.

Implications and immediate consequences:

The petitioner remains convicted of the offence charged; the direct practical effect is the substitution of a nominal fine (Rs. 100/-) in place of the original sentence of six months' rigorous imprisonment and a fine of Rs. 1,000/-. Default terms were adjusted accordingly (one month RI on default of the imposed fine).
The Court applied the presumption that official acts are regularly performed and relied on Supreme Court authority (K.K. Pookunju) and a Full Bench decision (State of Madhya Pradesh v. Chhotekhan Nannekhan) to reject the contention that absence of express evidence of sending or comparing a specimen impression necessarily mandates acquittal. As a result, certain prior single‑judge High Court decisions taking the contrary view were held to be per incuriam or impliedly overruled and declared not binding.
The opinion emphasises that sentencing under the Act must respect the provisos to Section 16(1): courts may impose lesser sentences where those provisos apply and must consider the individual circumstances of the accused (first offence, means, knowledge of adulteration, probation officer's report) before imposing imprisonment.

Show all summary ...

Shambhu Prasad Singh, J.:— The petitioner has been convicted for an offence under Section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as ‘the Act’) and sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 1,000/-, in default, to undergo rigorous imprisonment for two months.

2. According to the prosecution case, on 12th of December, 1965, Abdus Subhan (P.W 2), a Food Inspector, visited the shop of the petitioner and took sample of turmeric on payment of price. Part of it was sent to the Public Analyst, who found it to be adulterated containing excess lead — (vide report, Ext. 3). The defence was that the turmeric which the petitioner sold to P.W 2 was for dyeing clothes and not meant for human consumption. Therefore, it was not a food within the meaning of the Act. The trial court as well as the lower appellate court has held that there was no substance in the defence of the petitioner and the turmeric which was sold to P.W 2 was a food and thus the petitioner was guilty of the offence.

3. Mr. Shilesh Chandra Misra, appearing for the petitioner has argued in the first place that in absence of any material on the record that the turmeric which the petitioner sold to P.W 2 was for human consumption, the court below should not have rejected the statement of the petitioner under Section 342 of the Code of Criminal Procedure that it was meant only for dyeing of clothes. In my opinion, there is no substance in the aforesaid contention of learned Counsel. It is common knowledge that turmeric is mostly used for human consumption, that is for colouring pulses and vegetable curry. It is rarely used for dyeing clothes on auspicious occasion, otherwise yellow colour (powder) is used for dyeing clothes. The petitioner did not tell P.W 2 at the time of taking of the sample that the turmeric was not meant for human consumption but only for dyeing clothes. That circumstance itself is sufficient to show that there is no substance in the defence of the petitioner.

4. Mr. Misra has next contended that the conviction of the petitioner is bad in law inasmuch as provisions of Rules 7(1) and 18 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as ‘the Rules’) were not complied with in this case. Rule 7 lays down that on receipt of a package containing a sample for analysis from a Food Inspector or any other person, the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon. Rule 18 provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the public analyst separately by registered post or delivered to him or to any person authorised by him. There is no evidence on the record to show that a specimen impression of the seal used to seal the packet of turmeric which was sent to the Public Analyst was also separately sent to him by registered post or delivered to him or any person authorised by him otherwise nor is there any evidence that the Public Analyst compared the seals on the container and outer cover with specimen impression received separately. The report of the Public Analyst (Ext. 3) merely shows that he found the seal intact. Mr. Vinod Chandra, appearing for the State, however, has contended that it should be presumed that the Food Inspector (P.W 2) sent the specimen impression of the seal separately to the Public Analyst and the Public Analyst did compare the seal on the cover of the sample of turmeric sent to him with that specimen impression because official acts are to be presumed to have been regularly performed. According to Mr. Misra, this contention of learned Counsel for the State cannot be accepted in view of some of the decisions of this Court. The decisions on which Mr. Misra has relied are two Single Judges' decisions (i) Gopal Sao v. State of Bihar, 1968 BLJR 308 and (ii) Badri Shah v. State of Bihar, 1969 Pat LJR 217 : (1970 Cri LJ 649) and a Bench decision in Daitari Mahto v. The State, 1969 Pat LJR 529 : (1971 Cri LJ 129). In these cases, in absence of any evidence that a specimen impression of the seal was sent separately to the Public Analyst or that the Public Analyst compared the seal on the container or the cover with the specimen impression of the seal sent to him separately, their Lordships acquitted the accused and refused to act on a presumption that the official acts must have been regularly performed. The decision in Badri Sah's case, was delivered on the 5th of February, 1969 and that in Daitari Mahto's case on the 27th of August, 1969. Unfortunately the attention of their Lordships was not drawn to a decision of the Supreme Court in K.K Pookunju v. K.K Ramkrishna Pillai. D/- 2-12-1968 in Criminal Appeal No. 29 of 1968. This decision so far is reported only in 1969 Ker LT 50, which could not be made available for my perusal. But in a Full Bench decision of the Madhya Pradesh High Court in State of Madhya Pradesh v. Chhotekhan Nannekhan, reported in AIR 1970 Madh Pra 29 (FB), this decision has been referred to and the relevant passage from it has been quoted in extenso. The passage runs as follows:—

“The only point of any substance which has been pressed before us by the learned counsel for the appellants is that the Rules framed under the Act had not been complied with inasmuch as has not been proved that the specimen impression of the seal used had been sent to the Public Analyst. Rule 18 of the Prevention of Food Adulteration Rules, 1955, provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by post. The High Court was not at all impressed with the contention based on Rule 18. It relied on the report of the Public Analyst Exh. P-9 which was in Form III as prescribed by the Rules in which it was stated, inter alia, that the Public Analyst had received from the Food Inspector a sample of compounded misky asafoetida marked No. C. 2/65 for analysis, properly sealed and packed and that he had found the seal intact and unbroken. The contention which was pressed and which has been reiterated before us is that it is nowhere stated in Exh. P/9 that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under Rule 7, the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal of the container.

We do not find any error in the decision of the High Court on the above point.”

5. In view of this decision of the Supreme Court, the judgments of this Court in Badri Sah's case, 1969 BLJR 217 : (1970 Cri LJ 649) and Daitari Mahto's case, 1969 Pat LJR 529 : (1971 Cri LJ 129) must be held to be the decisions per incuriam not binding on other Judges of this Court and the judgment in Gopal Sao's case, 1968 BLJR 308 must be deemed to have been impliedly overruled.

6. In Pookunju's case, 1969 Ker LT 50 the Kerala High Court had acted on a presumption that the Public Analyst acted in accordance with the rule and he must have compared the specimen impression received by him with the seal of the container, even though there was no evidence to that effect on the record and the Supreme Court held that there was no error in the decision of the Kerala High Court on this point.

7. In the instant case, the report (Ext. 3) shows that the Public Analyst looked to the seal on the cover which contained the sample of the turmeric and it can safely be presumed that while looking to the seal on the cover, the Public Analyst must have compared it as required by Rule 7 with the specimen impression of the seal sent to him separately. In the circumstances, there is no substance in the aforesaid contention of Mr. Misra either.

8. As it was first offence committed by the petitioner, a report from the Probation Officer was called for by the trial court. His report was in favour of the petitioner. The trial court refused to release the petitioner on probation because in his opinion, the offence committed was anti-social one. I do not agree with the view of the trial court that in cases of offences which are antisocial in nature in no event the Probation of Offenders Act can be applied to. The question whether an accused who is found guilty of an anti-social offence should be released on probation or not will depend on the circumstance of each case. However, it is not necessary to pursue this point further inasmuch as Mr. Misra has not pressed for release of the petitioner on probation. He has, however, submitted that in the circumstance of the case, the sentence passed against the petitioner is too severe. It appears that while passing the sentence of imprisonment against the petitioner, the trial court was of the opinion that it could not have passed lesser sentence. It was in error in thinking like that inasmuch as it did not take into account the provisos to Section 16(1) of the Act. This was a case under Section 16(1)(a)(i) and the first proviso lays down that if the offence is under sub-clause (i) of Cl. (a) and is with respect to an article of food which is adulterated under sub clause (1) of cl. (i) of Section 2 or misbranded under sub-clause (k) of cl. (ix) of that section, the court may for any adequate and special reasons to be mentioned in the judgment, 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. It has not been disputed before me that it was a case of adulteration under sub-clause (1) of cl. (i) of Section 2 of the Act. In that view of the matter, the magistrate could have passed even a lesser sentence. The materials on the record show that the petitioner owns a small retail shop with a capital of Rs. 1,000/- only. For the purpose of running his shop, it appears that he brings the goods from other bigger shops and sells them. It may be that the petitioner himself was not aware of the fact that there was excess lead on the turmeric which he had purchased from another bigger shop. It was, therefore, a fit case where no sentence of imprisonment should have been passed against the petitioner and he should have been let off only with a nominal fine. It will be in the interest of general public as well as the State if the Food Inspectors do not rigorously apply the provisions of the Act as against the small shop-keepers but try to find out the real culprits, who are responsible for adulteration. In my opinion, therefore, a sentence of fine of Rs. 100/- only will meet the ends of justice in this case.

9. In the result, the conviction of the petitioner is maintained; but his sentence is reduced to a fine of Rs. 100/-; in default of payment of fine, he shall have to undergo rigorous imprisonment for a month. Subject to the aforesaid modification on the question of sentence, the application is dismissed.

10. Order accordingly.