# AJITPRASAD RAMKISBAN SINGH v. TIIE STATE OF MAHARASIITRA

- **Citation:** [1973] 1 S.C.R. 483
- **Court:** Supreme Court of India
- **Decided:** 1972-05-02
- **Case number:** Criminal Appeal No. 243 of 1969
- **Bench:** P. Jaganmohan Reddy, K. K. Mathew, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ajitprasad-ramkisban-singh-v-tiie-state-of-maharasiitra-5682
- **Pages:** 5

## Headnote

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Prevention of Food Adultera:ion Act, 1954 (37 of 1954), s. 13(2) Jong
delay between t~king sample and launching prosecution for adu/terotion
of milk-If accused doe:: not make application under s. 13(2) he cannot
claim that samRle must, have deteriorated and he has lost valuable right
to have analysed by Director.
The appellant had a ~wect meat shop in Bombay whooe running he
had entrusted to his mphew. The food in'.pector acting under the Preventio.1 of Food Adulteration Act 1954 took a sample of buffalo milk
from 'he shop. One of the three portions of the sample was given to
the vendor, anot,her was sent to the Public Analyst
an<l the third was
kept by the inspector.
The Analyst reported that the fat content of the
milk was lower than prescribed.
The appellant was
prosecuted under
s. 16(1)(a) (i) of the Act; the case asainst his nephew was dropped since
he was untraceable.
The Magistrate acquitbod the appellant. He held
that there was long delay between taking the sample and the commencement of the prosecution and since the preservative added to the sample
was less than prescribed, the sample must have become decomoosed.
As
a result •. according to the Magistrate, the appellant lost his valuable ri11ht
of having his portion of th•J sample analysed by the Director. The High
Court reversed the judgment of acquittal holding that since the appellant
did not make an:• application under s. 13(2) he could not be said to
have lost any valuable right.
In appeal to this Court,
HELD : The High Court's view was in consonance with the decision
of this Court in tl>J case of Babu/al Hargovindas that unles' an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by
the Director. [486 A-Cl
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The Magistrate was wrong in thinking that no useful PlltllOW would
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be served by sending the sample for analy-is by
the Director. It was
not for the Magistrate to decide without any date that the sample wO\Jld
be decompo<ed a"d · was incapable of being analysed. There was no
evidence before him to justify this conclusion. [486 Dl
The conviction of the aopellant must accordingly be upheld. [Sj:ntence reduced on the special facts of the case].
Municipal Corporation of Delhi v. Ghlsa Ram, [19671 2 S.C.R.
116, distinguished.
B·ohulal Hargovindas.v. The Stat& of Gujarat, 1 97i (I) S.C.C. 767
applied.

## Text

A
AJITPRASAD RAMKISBAN SINGH
v.
TIIE STATE OF MAHARASIITRA
May 2, 1972
483
B
(P. JAGANMOHAN REDDY, K. K. MATHEW AND G. K. MITTER, JJ.)
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Prevention of Food Adultera:ion Act, 1954 (37 of 1954), s. 13(2) Jong
delay between t~king sample and launching prosecution for adu/terotion
of milk-If accused doe:: not make application under s. 13(2) he cannot
claim that samRle must, have deteriorated and he has lost valuable right
to have analysed by Director.
The appellant had a ~wect meat shop in Bombay whooe running he
had entrusted to his mphew. The food in'.pector acting under the Preventio.1 of Food Adulteration Act 1954 took a sample of buffalo milk
from 'he shop. One of the three portions of the sample was given to
the vendor, anot,her was sent to the Public Analyst
an<l the third was
kept by the inspector.
The Analyst reported that the fat content of the
milk was lower than prescribed.
The appellant was
prosecuted under
s. 16(1)(a) (i) of the Act; the case asainst his nephew was dropped since
he was untraceable.
The Magistrate acquitbod the appellant. He held
that there was long delay between taking the sample and the commencement of the prosecution and since the preservative added to the sample
was less than prescribed, the sample must have become decomoosed.
As
a result •. according to the Magistrate, the appellant lost his valuable ri11ht
of having his portion of th•J sample analysed by the Director. The High
Court reversed the judgment of acquittal holding that since the appellant
did not make an:• application under s. 13(2) he could not be said to
have lost any valuable right.
In appeal to this Court,
HELD : The High Court's view was in consonance with the decision
of this Court in tl>J case of Babu/al Hargovindas that unles' an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by
the Director. [486 A-Cl
F
The Magistrate was wrong in thinking that no useful PlltllOW would
G
H
be served by sending the sample for analy-is by
the Director. It was
not for the Magistrate to decide without any date that the sample wO\Jld
be decompo<ed a"d · was incapable of being analysed. There was no
evidence before him to justify this conclusion. [486 Dl
The conviction of the aopellant must accordingly be upheld. [Sj:ntence reduced on the special facts of the case].
Municipal Corporation of Delhi v. Ghlsa Ram, [19671 2 S.C.R.
116, distinguished.
B·ohulal Hargovindas.v. The Stat& of Gujarat, 1 97i (I) S.C.C. 767
applied.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
243 of 1969.
Appeal by special leave from the judgment and order dated
November 18. 1969 of the Bombay High Court in Criminal Appeal
No. 1459 of 1968.
484
SUPREME COURT REPORTS
[1973] 1 S.C.R.
M. P. Kenya and K. Rajendra Chowdhary, for the appellant.
B. N. Lokur and S. P. Nayar, for the res:xmdent.
The Judgment of the Court was delivered by
Mathew, J. This appeal, by special leave, is from the judgment
of the High Court of Bombay, convicting the appellant under
Section 16(1)(a)(i) read with section 7 (i) of the Prevention of Food
Adulteration Act (Act 37 of 1954), hereinafter called the 'Act',
and sentencing him to undergo R.I. for 6 months and pay a fine
of Rs. 1,000/- and, in default of payment of fine, to undergo R.I.
fur a further period of two months.
The appellant was the owner of a sweet meat shop on KurlaAndheri Road, Bombay.
On July 1, 1965; the Food Inspector
of the Bombay Municipal Corporation visited his shop at 9.55
A.M. and took a samvle of unboiled buffalo milk after conforming
to the formalities enjoined by the Act. The Food Inspector divided
the sample into three parts, retained two parts with him and delivered the other part to accused No. 2, who alone was in the shop
· at the time. The Food Inspector sent one part for analysis by the
Public Analyst. _Exhibit 'B' is the report of the Analyst.
That
showed the fat content of the milk as only 2.7 per cent instead of
6 per cent as required by the rules framed under the A~t. On
the basis of the report the accused were prosecuted.
Ac~used No. 1, the appellant, admitted that he was the owner
of the shop and that accused No. 2 'who actually sold the milk to
the Food Inspector was his nephew.
As the whereabouts of accused No. 2 could not be traced, the case as against him was
dropped.
The Magistrate acquitted the appellant. His reasoning was as
follows.: the sample was taken on July 1, 1965; the complaint was
filed on August 13, 1965, summons was served on the appellant
on November 13, 1965; the date for appearance of the accused
was on November 26, 1965; the right to apply to the Court to
have the part of the sample delivered to the Vendor sent for analysis
by the Director, Central Food Laboratory, Calcutta, hereinafter
referred to as the "Director'', accrued to the appellant only when
the summons was served on him; since by that time the sample
would have become decomposed, he Io~t the valuable right to have
the part of the samole delivered to the vendor analysed by the
Director arid so, the appellant should be acquitted.
The High Court, on aooeal bv the Food Inspector reversed the
order of acquittal.
The High Court held that the appellant was
bound to make an annlication under section 13(2) of the Act
after paying the prescribed fee and as no such application was
filed by the appellant, it could not be said that the appellant had
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AJIT PRASAD v. STATE (Mathew, /.)
485
been deprived of any valuable right : And as the fat content of
milk was deficient. by 5 5 per cent, the food was adulterated and
so, the appellant was guilty of the offence.
In this appeal, counsel for the appellant contended that the
appellant was deprived of his right to have the sample analysed by
the Director on account of the delay in the service of summons.
He said that the appellant was acquitted by the Magistrate because
the Magistrate found that on account of the delay it would be a
futile exercise to have sent the sample for analysis to the Director
and as the !aches of the complainant was the reason for the delay
in the service of summons and the proximate cause of the appellant
losing his right to get the part of the sample delivered to the vendor
analysed by the Director, the appellant was entitled to be acquitted.
He relied on the decision of this Court in Municipal Corporation
of Delhi v. Ghisa Ram(') to support his contention.
We do not
think that the case would in any way assist the appellant. In that
case, the part of the sample delivered to the vendor halt been sent
to the Director on the application of the vendor bnt, the Director
reported that the sample had become highly decomposed and could
not be analysed. It was not disputed in that case that the Food
Inspector had not taken the precaution of adding the necessary preservative to the sample.' So the Court held that the valuable
right given to the vendor under section i.3(2) of the Act could not
be availed of and that the conviction was bad. In the present case,
the appellant never applied to the Court to have the part of the
sample with him analysed by the Director.
Section 13(2) of the
Act states:
"After the institution of a prosecution under this Act
the accused vendor or the'complainant may, on payment
of the prescribed fee, make an application to the Court
for sending the part of the sample mentioned in subclause (i) or sub-clause (iii) of clause (c) of sub-section
(1) of section 11 to the Director of the Central Food
Laborato~y for 'a certificate; and on receipt of the application the Court shall first ascertain that the mark and
seal or fastening as ·provided in clause (b) of sub-section
(I) of section 11 are intact and may then despatch the
part of the sample under its own seal to the Director of
the Central Food Laboratory who shall thereupon send
a certificate to the Court in the prescribed form within
one month from the date of receipt of die sample, specifying the r~ult of analysis."
It is clear from the sub-section that the appellant ;hould have
made an application after paying the prescribed fee if he wanted
ihe part of the sample available with him to be sent to the Director
(I) (19671 2 S.C.R. 116.
486
SUl'REMI! COTJB.T REPORTS
[1973] l S.C.R.
for analysis. If he had made the application after paying the
prescribed fee, the Magistrate would have had no option but to
send the part of the sample for analysi.SI by the Director. If in pur·
suance of the application the part of the sample was sent to the
Director and he had reported that the part of the sample was inca?>able of analysis for the reason that it was decomposed, the
appellant <;ould perhaps, have contended that he was deprived of
his right to have the sample analysed by the Director on account
of the !aches of the complainant and that he should be acquitted.
But, since the appellant never applied under section 13(2) of the
Act, he cannot complain that he )las b~en deprived of any right.
In Babula/ Hargovindas v. The State of Gujarat('), Jagarunohan
Reddy, J., speaking for the Court, said that unless an application
to send the sample to the Director is made, the vendor cannot
complain that he was deprived of his right to have the sample
analysed by the Director.
The learned Magistrate was wrong in tl:inking that no useful
purpose wonld 9e served by sending the sample for analysis by
the Director.
It was not for the Magistrate to decide without any
data that the sample would be decomposed and was incapable of
being analysed.. The Food lnspec:or had sworn as P.W. l that
he had added 8 drops of formalin to each part of the sample.
thollgh under the rules he should have added 16 drops to each
part, there is no reason to think that the sample became decomposed
by the time the summons was served for that reason. There was
no evidence before the Magistrate that for the reason that the
presctibed quantity of formalin was not added to each part, the
part of the sample delivered to the vendor was incapable of being
analysed by the Director.
Nor did the Magistrate rely on that
circumstance for his conclusion that the sample would have become
decomposed.
The
appellant could have summoned the Public
Analyst and examined him if he was serious in his present contention that since the prescribed quantity of formalin was not added,
the part of the sample. would have become decomposed by the time
the summons was served, and no useful purpose would have been
served by sending the sample for analysis by the Director. There
was, therefore, no evidence that the part of the. s'.llilple available
with the appellant had so deteriorated at the time. the summons
was served as to be incapable of being analysed, In Sukhmal Gupta
and another v. The Corporation of Calcutta('), Sikri, J. as he then
was, speaking for the Court, said :
" ..... it was held by this Court in Municipal Cor·
poration of Delhiv. Ghisa Ram that section 13(2) of the
Act confers a valuable right to have the sample given to
him analysed by the Director of the Central Food Laboratory but "the reason why the conviction cannot be sus-
(1) [1)71] (I) S.C.C. 767.
(2) G.A. No 161 of 1966, dicirled on May 3, 1968.
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AJIT PRASAD v. STATE (Mathew, /.)
tained is that the accused is prejudiced in his defence and
is denied a valuable right of defending himself solely due
to the daliberate acts of fhe prosecution". In this case
no prejudice of ihe defence has been shown. It has not
been established on the. record t)iat the sample of tea
which was available wiih the appellant had deteriorated
by the time the summons was received. He never utilised
the right under section 13(2) of the Act of sending the
sample to the Director of. Central Food Laboratory''.
We are of the opinion that the High Court was right in coming
t.o the conclusion that the appellant was guilty of the offence. But
we do not think that the sentence of 6 months R.I. and fine of Rs.
1,000/- was called for in the circumstances of the case. Since the
offence fell under proviso (1) of section 16 of the Act, the Court
was not bound to impose a sentence of imprisonment for a term
of 6 months. The ap.!)Cllant had entrusted the running of the shop
to the second accused, his nephew. There is no ·evidence to show
that there was any mechanism in the shop by which the fat content
could be extracted from un-'boiled milk. There is also no evidence
that a:uy water had been added to the milk.
Taking into account all these circumstances, we reduce the
sentence to R.I. for 3 months and the fine to Rs. 500/ • and we
direct that in. default of payment of fine, the appellant will undergo
R.I. for a further period of one month.
The appeal is allowed
only to the etxent indicated bu~ is dismissed in all other aspects.
The appellant, if on bail, shall surrender to the bail.
G.C.
Appeal allowed in part.