KAILASH KUMAR SHUKLA Vs. STATE

JUDGEMENT

(1.) The applicant has been convicted under Sections 7/16 of the Prevention of Food Adulte ration Act and sentenced to 1 year's R. I. and a fine of Rs. 1000/ -. His conviction and sentence has been maintained in appeal by the Sessions Judge, Non-Metropolitan Area, Kanpur vide his order dated 27th March, 1981. Hence this revision. Briefly stated the case for the prosecution is that on 27th March, 1976, at about 10. 30 A. M. , the Chief Food Inspector Mr. S. K. Jauhari visited the Ice Candy Factory, which was run in the name of Lakshmi and Company. It was owned by Surendra Kumar Shukla. He found the ice-candy stored there for sale. He purchased 900 Grams (thirty candy) from the applicant. The sample was divided into three equal parts and filled in three clean dry glass phials, and sealed thereafter. One such phial containing the sample was sent to the Public Analyst for his report. The Public Analyst reported that the article in appearance was colourless liquid and that the test for sugar as well as for saccharin was positive. On receiving this report the sanction for prosecution was obtained. Thereafter Surendra Kumar Shukla, the alleged owner of the Factory and the applicant Kailash Kumar Shukla from whom the sample had been purchased were prosecuted. The accused denied their guilt. The case set up in defence was that it was not the applicant, but some one-else who had been selling the ice candy in front of the enclosure of the factory and that he had slipped away on some pretext, but the Chief Food Inspector and staff have falsely roped in the accused for the sale of the said ice candy. It was also pleaded that the signatures of the applicant were taken on the relevant documents under duress. Ram Babu, a witness was produced in support of the defence case. The trial Court on a consideration of the evidence on the record and the respective cases for the parties came to the conclusion that the prosecution has failed to prove that Surendra Kumar Shukla was the owner of the ice-factory. As such he was acquitted. But the trial Court having held that the sample of stored ice-candy was in the possession of Kailash Kumar Shukla, when the sample was purchas ed by the Food Inspector, has held the offence established against the son and convicted him as aforesaid. The order of the trial Court has been maintained by the Sessions Judge. I have heard learned counsels for the parties and Have also perused the record of the case and the impugned orders. The applicant's counsel has contended that no offence has been made out, since the mixing of saccha rin in ice-candy was not prohibited. In this connection he has placed reliance upon the law as it existed prior to its amendment in the year 1968. Reference is made to serial No. A-07. 04 of Appendix B which runs as follows: "ice candy means the frozen ice containing sugar with or with out the addition of permitted colouring or flavouring substan ces. " Learned counsel having relied on this provision submitted that the addition of saccharin has not been prohibited under aforesaid provision. He has further referred to Rule 47 of the amended Food Adulteration Act, which ran as follows: "47. Addition of saccharin to be mentioned on the Label - Saccharin may be added to any food if the container of such food is labelled with an adhesive declaratory label which shall be in the form given below. This. . . . . . . . . contains as admixture (name of food) of saccharin. " The argument is that there being no total prohibition under the old Act for the mixture of saccharin and the only condition attached thereto being the affixation of a container to the said labels above, the applicant did not commit any offence. In this connection, it would be worthy of note that Rule 47 was amended on 8th July, 1968 by Noti fication No. G. S. R. 153j of date. The amended rule is as follows: "47. Addition of artificial sweete ner to be mentioned on the label.- Saccharin or any other artificial sweetener shall not be added to any article of food except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix B and where any artificial sweetener is added to any food, the container of such food shall be labelled with an adhesive declaratory label which shall be in the form given below. This. . . . . . . . . . (name of food) con tains the admixture of. . . . . . (name of artificial sweetener.)" A perusal of the aforesaid Rule clearly indicate that the addition of saccharin to any article of food was prohibited except where the addition of such an artificial sweetener was allowed in Appendix B framed under the Act and also provided the label as aforesaid was affixed thereto. It is thus clear that the prohibition to the mixing of saccharin to an article of food is subject to conditions as pres cribed in Appendix B. In other words if Appendix B did not permit the addition of saccharin to an article of food, in that case, qua such an item, the prohibition was absolute. In view of this amendment to Rule 47, which came into force from 8th July, 1968, it does not now lie in the mouth of the applicant to contend that the old law should be made applicable to him, since admittedly the offence in question was committed much subsequent to the enforcement of this amended Rule. Further Rule 44 (g) of the Pre vention of Food Adulteration Rule 1955 places restrictions on the sale of certain admixtures. It runs as follows; "notwithstanding the provision of Rule 43, no person shall either by himself or by any servant, or agent sell: (g) any article of food which contains any artificial sweetener except where such artificial sweetener is permitted in accor dance with the standard laid down in Appendix B. " This Rule has also came into force on 8th July, 1968, vide Notification Nos. O. S. R. 1533 of date. This view which I have taken in regard to the interpretation of Rule 44 (g) of the P. F. rules, also finds support from the decision of the Kerala High Court in the Slate of Kerala v. Lakshmanan, 1973 Cr. LJ. p. 1730, wherein it has been laid down as follows: "in Appendix B in the P. F. A. Rules, 1955, certain articles of food are mentioned. Rule 44 (g) prohibits sale of articles of food which contain any artificial sweet ener except where such artificial sweetener is permitted in accor dance with the standards laid down in Appendix. " Rule 47 has also been added by the same Notification with effect from the same date, as mentioned above, Reading both the Rules together the inference is inevitable that saccharin cannot now be added in any article of food except as permitted under the Appendix B. For example it may be mentioned that in the case of non-alcoholic beverage viz. Serial No. A-01 of Appendix 8, the use of saccharin not exceeding 10 P. P. M. is permitted. This illustration I have merely cited to show that Appendix 8 contains items in which the admixture of saccharin is permitted, but for the rest where' this addition has not been specifically mentioned. Rule 44 provides an absolute bar, to the admixture of this artificial sweetener to other items of food. The Court below while dismissing the revision of the applicant had taken into consideration Serial No. A07. 04 of Appendix 8 which reads as follows: "ice candy or ice Lollies or edible Ice, by whatever name it is sold, means the frozen ice pro duct which may contain the permitted flavours and colours, sugar, syrup, fruit-juices, nuts, cocoa, citric acid, stabilizers or emulsifiers not exceeding 0. 5 per cent. It shall not contain any artificial sweetener. " Counsel for the applicant has submitted that this provision is not applicable in the instant case. He has argued that the new provision substituted the earlier provision by G. S. R. dated 20th September, 1977 which came into effect from 20th March, 1977. He urges that the present offence was committed on 27th March, 1976 and therefore the Sessions Judge was justified in taking this definition into account in deter mining the culpability of the appli cant. This submission appears to have some force because in criminal matters, the law as it exists on the date of the commission of the defence has to be taken into consideration. Any subsequent amendments in substan tive law cannot have a retrospective effect. Even though I am in agree ment with this submission made by the applicant's counsel, yet it will not be of much help to him since I have already held above after analysing the relevant provisions concerning the matter, that the law as it existed on the date of the commission of the offence prohibited the admixture of saccharin to ice candy. For these reasons I am of the opinion that the applicant has been rightly convicted. Applicant's counsel also raised some question of fact on which I am not inclined to interfere. As a revisional Court findings of fact recorded by the two subordinate Courts concurrently must be accepted. I do not find any illegality at per versity being committed by the sub ordinate Courts in recording their factual findings. On the question of sentence, learned counsel for the applicant has urged that this is his first offence. He has also argued that the applicant is a young man. How young he is, and what is his exact age is not borne out from the record. Even in his statement under Section 313 his age has not been mentioned. But I do not find that an observation has been made by the trial Court that on the ground of age and other cumulative circumstances, the sentence imposed upon him was 1 year's R. I. and a fine of Rs. 1000/ -. From this obser vation it can be accepted that the applicant is a young man and this is his first offence. As such I am of the opinion that it would serve the cause of justice, if the minimum punishment provided under law is awarded to him. While, therefore, upholding the conviction of the applicant for the offence under Section 7/16 of the P. F. A. Act, I hereby reduce the sentence of imprisonment awarded to him from 1 years' R. I. to 6 months' rigorous imprisonment. The fine of Rs. 1000/- is maintained. With this modification in sentence this revision application is dismissed. The applicant is on bail. He shall be taken into custody forthwith to serve out his unexpired portion of his sentence. .