Page 1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).1570 OF 2010 MITHILESH                                   APPELLANT                                 VERSUS STATE OF NCT,DELHI                         RESPONDENT

O R D E R A.K. SIKRI,J.

The appellant was running a small kirana shop at 96-A,  MIG Flats, Opposite G.T.B. Hospital, G.T.B. Enclave, Shahdara,  Delhi.  On 11.3.1993, some officials from the Food Adulteration  Department visited his shop which was being run under the name  and style “M/s Mithlesh General Store”.  They lifted a sample of  red chilly powder (Lal Mirch) from an open container of 2 kg.  capacity from the shop of the appellant.  The sample was weighed  on scale in a brown sheet and divided into three parts.  The  entire  sample  collected  was  of  450  gms.   It  was  sent  for  examination by Public Analyst.  The report dated 7.4.1993 was  submitted by the Public Analyst which, inter alia, affirmed that  sample adulterated because it contained salt as an adulterant.  Relevant portion of the report is as under:

          1

Page 2

“Moisture-8.22%  Total  ash  –  7.44%  A  insoluble  in  dil.Ncl. - 0.34% Non Voletile other extract – 20.97%  Crude fibre – 19.25% Test for coaltar dye – negative  Test for starch – negative Insect & Fungus – nil  Microscopy-Chillies  structures  seen.   Test  for  sodium chloride – positive Sodium chloride (common  salt) – 2.54%”.

Confronted with the sample, the appellant exercised his right  under Section 13(2) of the Prevention of Food Adulteration Act,  1954  (hereinafter  referred  to  as  'PFA  Act').   Accordingly,  another sample was sent for examination which was examined by the  Director of the Central Forensic Laboratory (CFL).  In its report  dated 30.6.1993 even this sample was found to be adulterated on  two counts, namely:  “(a) Total ash content exceeds the maximum specified limit of  8.0% by weight. (b) It is not free from the presence of sodium chloride.”

Total  ash  was  found  to  be  9.72%  by  weight  and  Sodium  Chloride  content  was  2.5%  by  weight.   On  the  basis  of  the  aforesaid reports, a complaint was filed with the Metropolitan  Magistrate,  New  Delhi  and  trial  was  conducted  against  the  appellant.   Learned  Metropolitan  Magistrate  found  that  the  appellant had violated the provisions of Section 2 (ia)(a)(m) and  

          2

Page 3

therefore, he was found guilty for the offence punishable under  Section 7 read with Section 16(1) of the PFA Act.  Vide order  dated 6.4.2002, the appellant was sentenced to undergo rigorous  imprisonment for one year and also was also imposed a fine of  Rs.3000/-;  in  default  of  payment  of  fine,  to  undergo  simple  imprisonment for three months.    

 Aggrieved, the appellant preferred the appeal against  such  judgment  which  was  dismissed  by  the  Additional  Sessions  Judge,  New  Delhi  vide  order  dated  30.7.2002.   The  appellant  thereafter filed Revision Petition in the High Court of Delhi.  This Criminal Revision Petition has also been dismissed by the  High  Court  vide  judgment  and  order  dated  4.11.2009  thereby  maintaining the conviction. However, in so far as the quantum of  sentence is concerned, the High Court has reduced the same from  RI of one year to a period of three months RI, which is the  minimum sentence.  The reasons for reducing the sentence has been  given by the High Court in paragraph 25 of its judgment.

Learned counsel for the appellant submitted that in one  sample analysis by the Public Analyst, only salt was found as  adulterant which was common in such cases as the appellant was a  petty shopkeeper who had kept the things in open and there was  

          3

Page 4

every chance of spilling of this salt into the container which  contained red chilly powder.  He further submitted that even the  total ash was found to be marginally higher, that is, 9.72% by  weight as against maximum specified limit of 8% by weight.  He  also argued that in view of this, it was a fit case where the  sentence should be reduced to the period already undergone.  More  so, even the incident happened way back in the year 1993.   

Though, an attempt was made to argue that the sample was not  adulterated, it is difficult to accept the said submission.   

Definition  of  “adulterated”  as  contained  in   Section  2(ia)clauses (k) and (m) thereof are relevant. Section 2 (ia)(k)  reads as under:

“(k)  if  the  article  contains  any  prohibited  preservative of permitted preservative in excess of  the prescribed limits;”

Section 2(ia)(m) reads as under : “(m) if the quality or purity of the article falls  below the prescribed standard or its constituents  are present in quantities not within the prescribed  limits of variability but which does not render it  injurious to health:”

Clause (m) postulates a situation where the articles  

          4

Page 5

fall below the prescribed standard even if it is not injurious  to health.  It is clear from this provision that if salt is  added to chillies even if it would not be rendered injurious to  health,  nevertheless  the  quality/purity  of  the  article  would  fall  below  the  prescribed  standards/its  constituents  as  prescribed in A.05.05.01 limit.  It would be adulterated.  Having regard to the aforesaid provisions, it is clear that  an article of food may be adulterated once it does not meet the  specifications  and  exceed  the  limit  prescribed  under  the  PFA  Act.  As pointed out above, the presence of salt, that is ,  Sodium Chloride by 2.5% weight as well as presence of total ash  exceeding the prescribed limit is sufficient to hold that the  sample drawn was adulterated, even if one was to proceed on the  basis that mere addition of common salt to the chilly powder did  not render it injurious to health.  The High Court in support of  its aforesaid conclusion has referred to various judgments and  we are in full agreement with the view taken by the High Court  on this count.

Faced with the aforesaid position, the main emphasis of  the learned counsel for the appellant was for showing some more  leniency by reducing the sentence to the one already undergone.  

It  is  not  in  dispute  that  the  sentence  of  R.I.  3             5

Page 6

months, awarded by the High Court, is the minimum prescribed in  law.  No doubt, as per the provisions which were prevailing at  the relevant time, it was still permissible for the court to  reduce it to below minimum, by giving special reasons.  We find  that the High Court has already shown leniency by reducing the  sentence from RI one year to RI three months.  While doing so,  the High Court has given the following reasons:

“24.  However,  on  the  quantum  of  sentence,  this Court has taken due regard of the fact  that  the  petitioner  herein  was  a  petty  shop  keeper,.  Matter relates to the year 1993 i.e.  dating  back  to  sixteen  years;  petitioner  has  suffered incarceration of about 12 days out of  the period of sentence of one year which had  been  awarded  to  him.  There  is  no  overemphasizing  the  fact  that  speedy  trial  which is the essence of justice has been lost.  The Supreme Court in  Braham Das vs. State of  Himachal Pradesh AIR 1988 SC 1789 had held that  8 years having been lost, where part of the  sentence had been undergone, the petitioner had  been sentenced to the period already undergone  by him.  In  Veer Singh Chauhan vs. State of  Delhi  1994 (2) CCC 253, the revision had come  up  for  hearing  after  seven  years;  the  court  

          6

Page 7

reduced  the  sentence  to  the  one  already  undergone i.e. of a period of 3 months.

25. In the instant case, the offence relates to  the year 1993.  The nature of offence i.e. the  sample having been found to be adulterated in  terms of Section 2 (ia)(m); the period of 12  days of incarceration already undergone by the  petitioner who would as on date be about 47  years  of  age,  he  having  rooted  himself  in  society, the ends of justice would be met if  the sentence is reduced from RI one year to a  period of RI three months.  No modification is  made in the fine which has been imposed.”

We are of the view that no further benevolence can be shown  to  the  appellant,  more  so,  when  it  is  a  case  of  food  adulteration.   There  is  no  special  circumstances  which  may  warrant reducing the sentence below the minimum.  The appeal is  accordingly dismissed. The appellant is directed to surrender  within four weeks to serve the remaining sentence, failing which  the Chief Judicial Magistrate, New Delhi shall take the appellant  into custody and send him to jail to serve out the remaining  sentence.

................J. [DR. B.S. CHAUHAN]

          7

Page 8

................J. [A.K. SIKRI]

NEW DELHI DATE; MAY 28, 2014

          8

Page 9