MOOLU RAM Vs. STATE AND ANOTHER

JUDGEMENT

(1.) Moolu Ram, petitioner, was convicted for the offence punishable under sections 7 and 16 of the Prevention of Food Adulteration Act, 1954, (shortly 'the Act') for having sold adulterated ghee and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000.00and in default of payment of fine to undergo imprisonment for six months, by judgment dated April 23, 1976 of the Metropolitan Magistrate, Delhi. The conviction and sentence were maintained in appeal which was dismissed by the Additional Sessions Judge by judgment dated March 17, 1977.

(2.) The only contention which has been advanced at the time of arguments and which, according to the learned counsel, has bearing on the quantum of punishment is that the learned Additional Sessions Judge was in error in taking the view that the proviso to Sec. 16(1) of the Act, as it stood at the relevant time, was not attracted and, therefore, there was no question of awarding sub-minimum sentence.

(3.) Before entering into the discussion regarding what has been contended, it would be expedient to mention the facts in brief. On Jan. 10, 1968, Food Inspector N.M. Oberoi visited the shop located at 1371, Vaidwara, Maliwara, Delhi run by the petitioner, disclosed his identity as Food Inspector and lifted sample of ghee for analysis on payment. The sample, which measured 450 grams, was divided into three parts and each part was put in neat and clean bottle. Thereafter, the bottles were sealed and one such bottle was handed over to the petitioner and another was sent to the Public Analyst. On receipt of the report that sample was adulterated as it exceeded by 4.8 in Butyro-refractometer reading at 40<SUP>o</SUP>C. and 13.81 deficiency in Reichert value and that Baudouin test was positive, complaint was filed. The learned Metropolitan Magistrate took the view that Baudouin test was performed to detect the presence of vanaspati oil and the reading showed that the sample was adulterated due to addition of vanaspati oil as well and, therefore, proviso to Sec. 16(1) of the Act was not attracted and he had no discretion to award subminimum punishment. The Additional Sessions Judge also took the same view after observing that the sample in question did not conform to the standard and as such was adulterated within the meaning of Sec. 2(i)(l) of the Act and furthermore it was not of the same nature, substance or quality as demanded from the appellant and, therefore, the adulteration fell under Sec. 2(i)(a) of the Act as well and sought support from the observations of their Lordships of the Supreme Court in Prem Ballab and another Vs. The State (Delhi Admn.), 1976 (II) F.A.C. 53 . In that case the sample of mustard oil did not conform to the standard prescribed and in addition was found to contain artificial dye. In the circumstances, it was held that the adulteration fell under Sec. 2(i)(l) as well as Sec. 2(i)(j).