Deepak Gupta, J.— Leave granted. On 30-10-1995 a sample of milk was collected from the appellant by the Food Inspector. The same was sent to the Public Analyst who received the same on 2-11-1995. The sample was analysed and milk fat (“MF”, for short) was found to be 4.6% and milk solid non-fat (“MSNF”, for short) was 7.7%, against the prescribed standard of 8.5%. The appellant was prosecuted after obtaining consent of the Chief Medical Officer, and was convicted by the trial court, which conviction was upheld by the Sessions Court and the High Court Criminal Revision No. 2331 of 1999, order dated 26-4-2017 (All).
2. The learned counsel for the appellant raised number of issues. The first 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. We cannot accept this contention 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. In similar circumstances where the delay in testing the samples was of 44 days, this Court in Shambhu Dayal v. State of U.P. (1979) 1 SCC 202 , 1979 SCC (Cri) 246 held that since the sample had been preserved by using formalin, as in the present case, the accused cannot get any benefit.
3. The second contention raised was that the provisions of Section 13(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as “the Act”) were not complied with inasmuch as the appellant was not given an opportunity to send his second sample to the Central Food Laboratory (“CFL”, for short) 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 18-2-1996. The appellant did not choose to exercise his option to get his sample analysed by CFL. The learned counsel for 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 15-2-1996 was defective and the defects were removed only on 27-6-1996 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 not have been complete in the sense that the list of witnesses was not filed but this, in any way, did not impact the right given to the appellant to get the second sample analysed from CFL. If the appellant had exercised his option and the Magistrate had not sent the second sample to the CFL, or if the CFL had reported that the sample is not fit for analysis, then alone the appellant could have got some benefit. The appellant waived his right by not applying to the Magistrate for sending the second sample for analysis to the CFL, and he cannot have any grievance in this behalf.
4. Another ground raised by the appellant is that he is illiterate and cannot sign, but the Food Inspector has obtained signatures. All the courts have given a finding that the signatures are of the appellant and this cannot be gone into in these proceedings.
5. The learned counsel for the appellant quoted a large number of judgments of various High Courts viz. Dattappa Mahadappa v. Municipal Committee, Buldana 1950 SCC OnLine MP 108 , AIR 1951 Nag 191; Duli Chand v. State of U.P. 1987 SCC OnLine All 289 , 1987 All LJ 971; Karunan v. Food Inspector 1985 SCC OnLine Ker 22 , 1985 KLT 523; Ram Kumar v. State of Punjab (1982) 1 FAC 68 (P&H); Hans Raj v. State of Punjab 1980 SCC OnLine P&H 498 , (1980) 2 FAC 396 and Ujagar Singh v. State of Punjab 1979 SCC OnLine P&H 442 , (1980) 1 FAC 432, to submit that when there is a marginal variation from the standards prescribed, the courts should give benefit of doubt to the accused. It is contended that the quality of milk depends not only on the quality of food given to the cattle but also on the health of the cattle and marginal deficiencies can be caused due to natural causes beyond control of humans.
6. We are constrained to point out that out of the judgments cited by the learned counsel above, several have been overruled. Referring to Karunan 1985 SCC OnLine Ker 22 , 1985 KLT 523, a Division Bench of the Kerala High Court in Food Inspector v. Karingarappully Coop. M.S. Society Ltd. 1985 SCC OnLine Ker 307 , 1986 KLJ 29 has stated that the proposition laid down in Karunan case 1985 SCC OnLine Ker 22 , 1985 KLT 523 is not good in law. The appellant has also placed reliance on Ujagar Singh case 1979 SCC OnLine P&H 442 , (1980) 1 FAC 432 as well as Ram Kumar case (1982) 1 FAC 68 (P&H). Ram Kumar case (1982) 1 FAC 68 (P&H) relied upon Ujagar Singh case 1979 SCC OnLine P&H 442 , (1980) 1 FAC 432 to conclude that the accused in that case is not guilty of adulteration. However, a Division Bench of the Punjab and Haryana High Court, in State of Punjab v. Ramesh Kumar 1983 SCC OnLine P&H 652 , 1984 Cri LJ 381 relying on a Full Bench judgment of the High Court in State of Punjab v. Teja Singh 1976 SCC OnLine P&H 44 , 1976 Cri LJ 1648 has held that Ujagar Singh case 1979 SCC OnLine P&H 442 , (1980) 1 FAC 432 is no longer good in law. It is unfortunate that at the Supreme Court level counsel cite judgments which have been overruled.
7. We are of the considered view that once standards are laid down by the legislature then those standards have to be followed. In items like milk which is a primary food, under the Act, it is not necessary to also prove that the food item had become unfit for human consumption or injurious to health. In cases of food coming under the Act, it is not required to prove that article of food was injurious to health. In this case, the only question to be determined is whether the article complies with the standards laid down or not? If it 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. Even marginal deviation from the prescribed standard cannot be ignored.
8. We may point out that this Court in M.V. Joshi v. M.U. Shimpi AIR 1961 SC 1494 held as follows: (AIR p. 1496, para 7)
“7. … Therefore, if the quality or purity of butter falls below the standard prescribed by the said rule or its constituents are in excess of the prescribed limits of variability, it shall be deemed to be adulterated within the meaning of Section 2 of the Act. If the prescribed standard is not attained, the statute treats such butter, by fiction, as an adulterated food, though in fact it is not adulterated. To put it in other words, by reason of the fiction, it is not permissible for an accused to prove that, though the standard prescribed is not attained, the article of food is in fact not adulterated. The non-conformity with the standard prescribed makes such butter an adulterated food. Section 7 of the Act prohibits the manufacture, sale, storage or distribution of such food.”
9. There were some observations in the judgment of this Court in Malwa Coop. Milk Union Ltd. v. Biharilal 1973 FAC 375 (SC) decided on 14-8-1967, which were interpreted by some High Courts to mean that acquittal was justified in case there were marginal deficiencies in meeting the requirements. Dealing with the Malwa Coop. case 1973 FAC 375 (SC) this Court held as follows in Municipal Committee, Amritsar v. Hazara Singh (1975) 1 SCC 794 , 1975 SCC (Cri) 354: (Hazara Singh case (1975) 1 SCC 794 , 1975 SCC (Cri) 354)
“4. … Indeed, this Court's decision 1973 FAC 375 (SC) cited above discloses that Hidayatullah, J. (as he then was) was not laying down the law that minimal deficiencies in the milk components justified acquittal in food adulteration cases.”
10. Further, this Court quoted with approval, the judgment of the Full Bench of the Kerala High Court in State of Kerala v. Parameswaram Pillai Vasudevan Nair 1974 SCC OnLine Ker 87 , 1975 Cri LJ 97, which held as follows: (Parameswaram Pillai case 1974 SCC OnLine Ker 87 , 1975 Cri LJ 97, SCC OnLine Ker paras 14-18)
“14. The Act is a piece of consumer legislation. It regulates to some extent the consumer-supplier relations. Consumerists demand enforcement of discipline among the producers or manufacturers of food to ensure safety in the realm of food. The consumer's legitimate ignorance and his almost total dependence on the fairness and competence of those who supply his daily needs have made him a ready target for exploitation. The Act is intended to protect him against outright frauds.
15. The Act does not make a distinction between cases coming under it on the basis of the degree of adulteration. It does not provide for aggravation of offence based on the extent of contamination. The offence and punishment are the same whether the adulteration is great or small. Food pollution, even if it be only to the slightest extent, if continued in practice, would adversely affect the health of every man, woman and child in the country. Hence even marginal or border line variations of the prescribed standards under the Act are matters of serious concern for all and as public interests are involved in them, the maxim, de minimis non curat lex law does not concern itself about trifles, does not apply to them.
16. The standard fixed under the Act is one that is certain. If it is varied to any extent the certainty of a general standard would be replaced by the vagaries of a fluctuating standard. The disadvantages of the resulting unpredictability, uncertainty and impossibility of arriving at fair and consistent decisions, are great.
17. The Act does not provide for exemption of marginal or border line variations of the standard from the operation of the Act. In such circumstances to condone such variations on the ground that they are negligible is virtually to alter the standard itself fixed under the Act.
18. The standards of qualities of the articles have been fixed by the Government under the provisions of the Act after due deliberation and after consulting a committee of competent men. It is for them to give due allowance for probable errors before fixing a standard. They may have done it also. There is no reason to assume otherwise. Therefore the conclusion is that for an article of food when a standard has been fixed under the Act it has to be observed in every detail.”
11. In view of the above settled law, we hold that 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.
12. The last submission of the counsel was that this Court may follow what was done in Santosh Kumar v. Municipal Corpn. (2000) 9 SCC 151 , 2000 SCC (Cri) 1184, where under similar circumstances the sentence of six months' imprisonment was commuted and the State Government was directed to pass formal orders of commutation. It appears that the Bench in Santosh Kumar case (2000) 9 SCC 151 , 2000 SCC (Cri) 1184 followed the judgment in N. Sukumaran Nair v. Food Inspector (1997) 9 SCC 101 , 1997 SCC (Cri) 608, and we find that in both these cases there is no discussion of scope and ambit of Section 433 of the Criminal Procedure Code, 1973 (for short “CrPC”). We are, therefore, of the view that these judgments are per incuriam and do not lay down any legal proposition that provisions of Section 433 CrPC can be invoked in such cases.
13. Section 433 CrPC reads as follows:
“433. Power to commute sentence.—The appropriate Government may, without the consent of the person sentenced, commute—
(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.”
14. A bare perusal of Section 433 CrPC shows that the powers under Section 433 can only be exercised by the appropriate Government. These powers cannot be exercised by any court including this Court. At best, the court can recommend to the State Government that such power may be exercised but the power of the appropriate Government cannot be usurped by the courts and the Government cannot be directed to pass “formal compliance order”. We are, therefore, not inclined to pass a similar order because that is beyond the jurisdiction of this Court.
15. It was also urged that we may exercise powers under Article 142 of the Constitution of India because the occurrence took place more than twenty years back. We are clearly of the view that the power under Article 142 cannot be exercised against the specific provision of law. Section 16(1)(a) of the 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 excuse to award a sentence lower than the minimum.
16. Furthermore, the power under Article 142, in our considered view, 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 Article 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, in our opinion, is not the purpose of Article 142. We have no doubt in our mind that powers under Article 142 cannot be exercised in such a manner that they make a mockery of the law itself.
17. In view of the above discussion we find no merit in the case and the same is dismissed. Application(s), if any, shall also stand dismissed. The bail bonds of the appellant-accused are cancelled and he is directed to surrender within four weeks and undergo the remaining part of the sentence. A copy of this judgment be forwarded to the trial court so that if the appellant does not surrender, appropriate action be taken against him.