M.C.D. Vs. SHAHZAD AKHTAR AND OTHERS

JUDGEMENT

(1.) This Criminal Revision is concerned with the sentence awarded to the respondents under Sec. 7 read with Sec. 16 of the Prevention of Food Adulteration Act, 1954. The respondents are respectively the Manager and owner of Karim's Nemal Kada, which is said to be a restaurant situated in Nizamuddin, New Delhi. From there a sample of curd was taken and found to be adulterated in the sense of being below standard in respect of milk fat. Both the accused were found guilty by the Magistrate, but Shahzad Akhtar was sentenced to fine only. The other accused was sentenced to imprisonment to the extent of six months and fine also. On appeal to the Additional Sessions Judge, Shri P.K. Balm accepted the contention of Alimuddin, the owner, in respect of sentence only and set aside the sentence of imprisonment with the result that both the respondents were fined but not sentenced to any term of imprisonment.

(2.) The Delhi Municipal Corporation being the prosecutor has moved this Court for enhancement of sentence. The substantial contention raised on behalf of the prosecutor is that where there is a minimum sentence of six months and the curd made of buffalo milk is found to be sub-standard to quite an extent, it is not proper to impose a sentence of fine only. The short question in this case is not regarding the conviction of the respondents, but regarding the adequacy of the sentence.

(3.) I have examined the charge; the offence complained of is not of selling curd which is sub-standard, but keeping the same for preparation of other dishes which are sold in the restaurant. Although, the dishes are not indicated, it appears that the curd may have been used later in making Rehta, mutton or vegetable. There is no charge stating that the accused were selling the curd as curd. When an article of food is sold separately as it might be in some milk shop or curd shop in the normal state, the application of the law regarding the sentence would be somewhat different but, when a sample is taken by a Food Inspector from an individual who normally does not sell that article, but uses, it only as an ingredient for making something else, the question of sentence is somewhat different. It is usual in cases where the article is not sold but is only used in other food preparation to treat the offence as technical. Such a person is, in a sense, in the position of an ordinary house-holder who might buy the ingredient from some shop and use it in his own home. There are instances brought to my notice, such as the case of the tea vendor who used sub-standard milk for making tea and was fined only Rs. 5.00 as per the judgment of the Patna High Court in The Chairman, Jugsalai Notified Area Committee Vs. Mukhram Sharma, A.I.R. 1969 Patna 155. There have been some other similar cases also, some of which are mentioned in that very judgment.