Delhi High Court
B.L. Kohli And Anr. vs Delhi Administration on 4 August, 1986
Equivalent citations: 30(1986)DLT336, 1986(11)DRJ152, 1986RLR498
JUDGMENT Jagdish Chandra, J.
(1) This petition under Section 482 of the Code of Criminal Procedure, 1973 has been filed by the petitioners for quashing the proceedings pending against them under Sections 7 & 16 of the Prevention of Food Adulteration Act, 1954 (hereafter to be referred to as the 'Act') in the Court of Shri G.P. Mittal, Metropolitan Magistrate, New Delhi, in the case Delhi Administration v. Prem Oil Industries etc. Petitioner No. I B L, Kohli is the nominee of petitioner No. 2 Prem Oil Industries (Pvt.) Ltd. in terms of Section 17 of the Act (2) The facts of the case are that on 26th August, 1980 a sample of Catechu (Katha) was lifted from Prem Oil Industries (Pvt.) Ltd. and on analysis it was found to be adulterated as the loss on drying basis was found to be 15.62%, by weight instead of 12% prescribed vide item A : 21 of Appendix 'B' of the Prevention of Food Adulteration Rules, 1955 (hereinafter to be referred to as the Rules). The complaint against the petitioners was lodged by the respondent Delhi Administration on 9th January, 1981 and the same is pending even now.
(3) The prescribed standard of Indian Standard Institution (in short ISI) prescribed in December, 1978 that the loss on drying basis per cent by weight should not be more than 16 and the said institution made it clear in Item 0.4 in Indian Standard Specification for Katha that a rational specification for Katha, fair both to the manufacturer as well as consumer, should. 153 1986(11) take into account its main constituent namely Catechu. But the specifications recommended remained overlooked and were not provided in the Rules and this has given rise to anomalous position. Consequently, the Central Committee for Food Standards requested I.S.I, to undertake the task of evolving rational standards for Katha and an Indian Standard Specification formulated as a result of collaborative testing over a number of years paved the foundation for testing Katha and made the task of preparation of specification a reality and hoped that this specification would be adopted for the purpose of the Rules. Ultimately it is vide notification No. Gsr 11(E) dated 4th January, 1985 that the standard of Katha has been amended and now the limit of 12% has been raised to 16% and the amendment has come into being in Item A. 21 Clause (b) of the Rules which now reads as follows : "A.21. Catechu (Edible) shall be the dried aqueous extract prepared from the heart-wood of Acacia catechu. It shall be free from infestation, sand, earth or other dirt and shall conform to the following standards : (a) ............... (b) When dried to constant weight at 100ø C, it shall not lose more than 16 per cent of its weight." Xx Xx Xx Xx Xx Xx Xx (4) Now the short question which falls for determination is whether a subsequent amendment in the standard prescribed in the Rules for an article of food would ensure for the benefit of the accused, even though on the date on which the sample was lifted the article was adulterated as per the standard then in force.
(5) The learned counsel for the petitioners has relied upon & decision of this court by J D Jain, J. in Criminal Revision No 127/77-Municipal Corporation of Delhi v. Mil. Hindustan Breakfast Food Manufacturing Factory and others, decided on May21, 1985, wherein when a sample of corn flakes was taken by the Food Inspector on 3rd September, 1973 the same was found to be adulterated due to 2.47% excess in moisture (prescribed limit of moisture content being 5%) but subsequently, however, during the pendency of the trial the standard for the corn flakes was modified in the Rules by virtue of notification No. Gsr 63(E) dated 5th February, 1976 whereby the permissible limit of moisture was enhanced form 5% to 7.5%, it was held that the sample of corn flakes would be deemed to conform to the amended prescribed standard and the modified standard was held to be retrospective in effect and the order of discharge passed by the Metropolitan Magistrate was confirmed. In coming to that conclusion J.D. Jain, J had relied upon a Division Bench authority of our High Court i.e. Sunder Lal v. Municipal Corporation ofDelhi, 1974 F.A.C. 21 wherein sample of compounded Hing lifted by the Food Inspector on 19th December, 1962 was found to be adulterated due to presence of extraneous matter viz. sand to the extent of 1.05 per cent and the standard laid down for compounding, however, totally prohibited presence of ash insoluble in Hci (sand) but subsequently the standard for compound Hing was modified vide notification No. Gsr 382 dated 9th March 1966 as a result of which the tolerance limit of ash insoluble in dilute hydrochloric acid was prescribed to be 1.5% and under those circumstances it was held by H.R. Khanna C.J and VD. Misra.J. (as their lordship then were) that the new standard having taken away the rigour of law and being in favor of the accused should be given a retrospective operation. Reliance in this connection was placed by their Lordships on a Division Bench judgment of the Allahabad High Court in ShyamLal v. Stale, wherein it was observed ai follows:- "IT seems to us clear (hat the true rule of construction of a penal statute is that where the legislature evinces its intention to modify the law, in favor of the accused, so as to reduce the rigour of the law in the light of past experience and changed social conditions, so long as prosecution of the accused has not concluded by a judgment of conviction, the proceedings against him are regarded is inchoate and the law applicable to him would be the law as amended by the legislature. The Court trying an accused person has to take into consideration the law as it exists on the date of the judgment."
(6) Reference was also made by their Lordships to certain observations appearing in Rattan Lal v. The State of Punjab, wherein it was held that an ex post facto law which only modifies the rigour of a criminal law would operate retrospectively. Yet another authority of our High Court Municipal Corporation of Delhi v. Mai Ram @ Bhaya Ram, 1974 Fac 15 had also followed the decision in Sunder Lal v. Municipal Corporation of Delhi (supra) and it held that the modification of a penal provision which diluted the rigour of the offence being beneficient in nature had to be construed restrospectively. Mr. B.T. Singh Ld. counsel representing the State did not cite any authority to the contrary and these authorities referred to above unmistakably help the petitioners.
(7) The learned counsel for the petitioners also placed reliance on another authority of our High Court reported as State v. Charanjit Singh. 1982 (II) F.AC 174. In that case sample of tea showed presence of extraneous iron particulars but the size thereof was, however, less than I mm. The tea industry had brought to the notice of the Central Government that during the processing of the tea certain quantity of iron filings was left in the tea powder due to friction of machinery parts during the manufacturing process and that despite all efforts the entire quantity of iron filings could not be removed. The Central Government consequently directed all the State Governments/Union Territories to launch prosecutions only where the samples of tea were found to contain iron filings of more than 2 mm in size subject to the condition that total content of those filings was not more than 250 parts per million. The learned Magistrate discharged the accused observing that as the iron fillings in the sample were within the tolerance limit being less I mm. size the Delhi Administration had no jurisdiction to file that complaint. However, the High Court held that the administrative instructions of the Central Government were not statutory and no judicial cognizance thereof could be taken untill such item the standard suggested in the administrative instructions is incorporated in the Rule and for that reason it was of the opinion that the order of discharge passed by the learned Magistrate was liable to be set aside. But, however, in exercise of the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure, 1973 it quashed the prosecution launched to secure the ends of justice, for the reason that it was well-high impossible, as suggested by the instructions of the Central Government is aforesaid, for the manufacturers of tea to remove the iron filings which were bound to be present because of the manufacturing process and further that the consumption of tea could not be banned. This authority would thus show that it was based on account of the impossibility involved regarding the presence of iron filings in the manufacturing process of tea. but not on account of any administrative instruction issued by the Central Government which had not resulted in the amendment of the Rules prescribing in the standard. Even though this authority does not govern the facts of the case in hand it nevertheless goes to show that under the circumstances thereof the ends of justice could be secured under Section 402 of the Code of Criminal Procedure, 1973 by quashing the complaint and the prosecution launched (8) In view of what has been stated above, the complaint and the prosecution against the petitioner are quashed.