# OM PRAKASH v. DELHI ADMINISTRATION & ANR

- **Citation:** [1976] 2 S.C.R. 981
- **Court:** Supreme Court of India
- **Decided:** 1975-12-10
- **Case number:** Criminal Appeal No. 138 of 1971
- **Bench:** P. N. Bhagwati, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/om-prakash-v-delhi-administration-anr-6597
- **Pages:** 7

## Headnote

Preve111ion of Food Adulteration Act (37 of 1954), section 7-Taking of
'\
samples from differellt receptacles of food for analysis at one time-Whether one
or several safes and one or sevual offences.
Samples of cow's milk were taken by the concerned officers from 6 out ~f
several cans carried by the appellant in a truck and were sent for analysis.
Finding the samples adulterated, the appellant was prosecuted for an offence
punishable under s. 16 read with s. 7 of the Prevention of Food Adulteration
Act, 1954.
Both the trial Court and the first Appellate Court treated the sales of six:
samples as forming part of the same, transaction constituting one single offence.
The High Court, in revision, held that the sale of each sample constituted a
distinct and separate otf10nce, that the appdlant was, therefore, liable for 6
different offences, and remanded the case for re-trial of the appellant for 6
offences.
Dismissing the appeal to this Court,
HELD : (a) The acts prohibited by s. 7 include manufacturing for sale,
storing, selling or distributing any adulterated article of food. Hence, not only
is the act of storing for sale an offence, but also the act of selling out of the
adulterated article of food so stored. The definition of "sale" in s. 2(xiii) in•
chides sale for analysis. Therefore, where samples are taken for analysis from
different receptacles, whether at one and the same time or at different times,
each taking constitutes a distinct and independent sale, because, each sample
would be taken for determining, by analysis, whether the article of food in a
particular receptacle is adulterated or not. The taking of each sample would
be necessary and justified, because, it may be that the article of food in one
receptacle is adulterated while in the other it is not, or, the nature and degree
of adulteration may vary from receptacle to receptacle. It is only where
samples are taken from the same receptacle at one and the same time or within
reasonable proximity of time that it may not be possible to say that the taking
of each of those samples constitutes a distinct and separate sale. [984 F H
985 B-GJ
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Fecitt v. Walsh [1891] 2 Q.B. 304, applied .
. (b) In Shankar }Al Aga~walla v. Corporation of Calcutta, A.I.R. 1962 Cal.
6H, the 3 prosecutions agamst the ace.used were not for three different trans·
actions of sale constituted by taking samples from three tins of ghee, but were
for three acts of st9ri11g adulterated ghee, and so the decbion is not relevant.
But observations co'!tra therein that the taking of samples from different receptacles at the. same time from the same p\ace for analysis, constitutes only one
otrence, are mcorrect. [986 G, 987 A-DJ

## Text

'
981
OM PRAKASH
v.
DELHI ADMINISTRATION & ANR.
December 10, 1975
[P. N. BHAGWATI AND R. S. SARKARIA, JJ.]
Preve111ion of Food Adulteration Act (37 of 1954), section 7-Taking of
'\
samples from differellt receptacles of food for analysis at one time-Whether one
or several safes and one or sevual offences.
Samples of cow's milk were taken by the concerned officers from 6 out ~f
several cans carried by the appellant in a truck and were sent for analysis.
Finding the samples adulterated, the appellant was prosecuted for an offence
punishable under s. 16 read with s. 7 of the Prevention of Food Adulteration
Act, 1954.
Both the trial Court and the first Appellate Court treated the sales of six:
samples as forming part of the same, transaction constituting one single offence.
The High Court, in revision, held that the sale of each sample constituted a
distinct and separate otf10nce, that the appdlant was, therefore, liable for 6
different offences, and remanded the case for re-trial of the appellant for 6
offences.
Dismissing the appeal to this Court,
HELD : (a) The acts prohibited by s. 7 include manufacturing for sale,
storing, selling or distributing any adulterated article of food. Hence, not only
is the act of storing for sale an offence, but also the act of selling out of the
adulterated article of food so stored. The definition of "sale" in s. 2(xiii) in•
chides sale for analysis. Therefore, where samples are taken for analysis from
different receptacles, whether at one and the same time or at different times,
each taking constitutes a distinct and independent sale, because, each sample
would be taken for determining, by analysis, whether the article of food in a
particular receptacle is adulterated or not. The taking of each sample would
be necessary and justified, because, it may be that the article of food in one
receptacle is adulterated while in the other it is not, or, the nature and degree
of adulteration may vary from receptacle to receptacle. It is only where
samples are taken from the same receptacle at one and the same time or within
reasonable proximity of time that it may not be possible to say that the taking
of each of those samples constitutes a distinct and separate sale. [984 F H
985 B-GJ
'
'
Fecitt v. Walsh [1891] 2 Q.B. 304, applied .
. (b) In Shankar }Al Aga~walla v. Corporation of Calcutta, A.I.R. 1962 Cal.
6H, the 3 prosecutions agamst the ace.used were not for three different trans·
actions of sale constituted by taking samples from three tins of ghee, but were
for three acts of st9ri11g adulterated ghee, and so the decbion is not relevant.
But observations co'!tra therein that the taking of samples from different receptacles at the. same time from the same p\ace for analysis, constitutes only one
otrence, are mcorrect. [986 G, 987 A-DJ
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 138
of 1971.
Appeal by Special Leave from the Judgment and Order dated the
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22nd March 1971 of the Delhi High Court in Criminal Revision
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No. 232 of 1969.
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K. C. Kf!/ra, R. C. Verma and S. L. Aneja for the Appellant,
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SUPREME COURT REPORTS
[1976] 2 s.c.R.
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F. S. Nariman, B. P. Maheshwari, N. K. Jain and Suresh Sethi for
Respondent No. 2.
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The Judgment of the Court was delivered by
BHAGWATI, J.-This appeal, by special leave, raises a short
and
interesting question of law relating to the interpretation of the provisions of the Prevention of Food Adulteration Act, 1954.
The facts
giving rise to the appeal are few and may be briefly stated as follows.
On 12th July, 1967, a raiding party headed by Dr. A. D. Kumar,
the Assistant Health Officer of the Municipal Corporation of Delhi and
comprising inter alia Shanti Nath, Navnit Lal, H. R. Sood and H. K.
Bhanot, Food Inspectors, intercepted a truck bearing No. DLL 1925
near Chandni Chowk. Delhi at about 7 a.m. in the morning.
The
truck contained twenty-five to thirty cans of cow's milk which was being carried for sale by the appellant.
The raiding party took the truck
inside the .compound of the Municipal office and there,
~amples • of
cow's milk were taken from eight cans chosen at random by different
Food Inspectors, one sample being drawn
from each can.
Each
sample was divided into three parts and after carrying out the usual
formalities, one part of each sample was sent to the Public Analyst for
analysis.
The result of the analysis was that each sample was found
to be adulterated under s. 2, sub-s. (i), cl. (I) of the Act, in that the
percentage of non-fat solids was lower than that prescribed by Item A
11.01.01 read with Item A 11.01.11 in Appendix B to the Prevention
of Food Adulteration Rules,
1955.
The· prescribed minimum
percentage of non-fat solids in cow's milk in Delhi was 8.5 while the percentage found in each of the samples was below that figure.
In fact,
it varied from sample to sample and ranged between 5.47 and 8.06.
On finding, as
a result of the report of the Public Analyst,
that each sample was adulterated under s. 2, sub-s. (i), cl. (!), the
Municipal Corporation filed four dif!:n:ent complaints against thi appellant. one in respect of four samples, the other in respect of two samp\cs
and the third and the fourth in respect of each of the remaining two
samples.
The cases ~rising out of the first two complaints were consolidated and a single charge was framed in respect of six samples on
the ground that the appellant sold to the Food Inspectors samples of
adulterated cow's milk out of six cans which he was carrying for sale
and thereby committed an offence punishable under s. 16 read with
s. 7 of the Act.
Similar charges were framed in the remaining two
cases, the charge in one case being for sale of sample of adulterated
cow's milk out of the seventh can and the charge in the other being for
sale of sample of adulterated cow's milk out of the eighth can.
So far as the first case is concerned. the learned Magistrate accepted the prosecution case. including the report of the Public Analyst and
held that the appellant was gu.ilty of selli!lg to the F~od Inspect?rs
samples of adulterated cow's milk out of six cans earned by him.
But instead of treating the sale of each sample as a distinct and sep,arate offence. the learn.eel Magistrate regarded the sales of the six samples as forming part of the same transaction and constituting only one
offence, since all the six samples were taken at the same time from the
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OM PRAKASH v. DELHI ADMINISTRATION (Bhagwati, !.)
98 3
cans which the appellant was carrying in the · truck. .Th.e learned
A
Magistrate, in this view, convicted the appellant ot a. sm~te offe.nce
under s. 16 read with s. 7 of the Act and sentenced him to suffer ngorous imprisonment for a period of six months and to pay a fine of
Rs. 1000/- or in default to suffer imprisonment for a further period of
three months.
The other two cases also, in view of the report of the
Public Analyst and other prosecution evidence, resulted in the conviction of the appellant under s. 16 read with s. 7 of the Act and in each
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of those two yises, the appellant was sentenced by the learned Magistrate to suffer rigorous imprisonment for a like period and .to P.ay a
fine in a like amount as in the first case.
The sentences of 1mpnsonment in the three cases were, however, directed to run concurrently
with one another.
The appellant preferred three appeals to the Additional Sessions
Judge, Delhi, one in respect of conviction and sentence in each case.
So far as the first case is concerned, the learned Additional Session~
Judge maintained the conviction, but taking the view that the only
deficiency in the quality of samples of cow's milk sold by the appellant being in respect of non-fat solids and there also, the deficiency
being very small, ranging only from 0.45 to 2.85, the sentence awarded
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to the appellant was rather excessive, the learned Additional Sessions · D
Judge reduced the sentence to rigorous imprisonment for three months,
leaving the sentence of fine untouched.
The conviction in the second
case was also maintained in appeal but the learned Additional Sessions Judge held that the offence in that case would constitute a part
of the offence in the first case and hence he did not. think that a separate sentence would be called for or justified and in this view he confirmed the conviction of the appellant. but set aside the sentence imposed on him. So also in the third case, the learned Additional Sessions Judge made the same order in appeal maintaining lhe convic-
. tion of the appellant but setting aside the sentence passed on him.
It does not ·appear from the record whether the appellant preferred any revision application against the order passed by the learned
Additional Sessions Judge in the second and third cases in so far as
it c.o?firmed ~he .convict!on of the app~llant or the .state preferred any
rev1s10n apphcat10n agamst that order 111 so far as 1t set aside the sentence imposed o_n_ the app~llant. But. so far as the order passed by
the learned Additional Sessions Judge 111 the first case was concerned
the appellant .preferred a revision application against it in the High
Court of Delh1.
The first case, as already pointed out above,· related
to sales of samples of adulterated cow's
milk out of the six
cans
carried by the appellant.
Both the learned Magistrate and the learned
Additioi:ial .Sessions Judge had treated the sales of these six samples
as formmg part _of the same transaction and c~mstituting one· single
offence.
The High Court, however, took the view that the sale of each
sample constituted a distinct and separate offence and the appellant
was, therefore, liable to be tried not for one single offence but for six
different offences in respect of sales of six samples.
The High Court
observed that ~he sale of each .sample was a separate sale and each
such sale constituted a separate breach of the provisions of s. 7 of the
Act leading to a separate offence punishable under s. 16 of the Act.
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SUPREME COURT REPORTS
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The High Court accordingly set aside the order of conviction and sentence passed against the appellant and remanded the case to the learned
Magistrate for retrial of the appellant for each of the six different
offences constituted by the sales of six samples.
This led to the filing
of the present appeal with special leave obtained from this Court.
The appellant contended that the gravamen of the charge against
him was that he had stored for sale adulterated cow's milk in six cans
carried by him in the truck.
The act of storing was one single act
and it was immaterial whether the storing was in one can or in several
cans.
Merely because samples were taken by the Food Inspectors
from different cans, it did not mean that so many different oftences
were committed by the appellant, for the different samples only confirmed that cow's milk stored by the appellant in these cans was adulterated.
The offence was one and single and that was storing adulterated cow's milk for sale, whether in one can or more.
It was alleged
on behalf of the appellant that even if the offence charged against the
appellant were not storing adulterated cow's milk for sale, but selling
samples of adulterated cow's milk out of six cans to the Food Inspectors for analysis, taking of sample from each can did not constitute a
distinct and separate offence of selling adulterated cow's milk.
There
was only one sale by the taking of sample from six cans, since all the
samples were of the same article of food, namely, cow's milk and
were taken at the same place and at the same time.
Otherwise, contended the appellant, the result would be that if the Food Inspector
goes on taking samples from the same stock of cow's milk or other
article of food, the sale of each sample would constitute an independent
offence and there would be as many offences as the number of samples
taken, though the stock of the commodity is the same.
That would
be a most startling and unjust consequence.
Therefore, said the appellant, though samples were taken by the Food Inspectors from six different cans, there was only one offern:c of selling adulterated cow's milk
committed by the appellant and the High Court was in error in holding that the appellant was liable to be tried for six different offences.
These were the two contentions urged on behalf of the appellant in
support of the appeal.
Neither of these two contentions is, in our
opinion, well founded and both must be rejected.
l
It is clear on a plain reading of s. 7 of the Act that the acts prohibited by that section include manufacturing for sale, storing, selling or
distributing any adulterated article of food.
The law is now well
I settled that the act of storing an adulterated article of food would be
G j an offence only if storing is for sale. If adulterated article of food
is stored by any person for consumption or for any purpose other than
sale. it would not come within the inhibition of the section.
Now,
when, out of adulterated article of food stored for sale, a quantity is
sold, the sale constitutes an offence distinct and independent from the
offence of storing for sale.
Not only is the act of storing for sale an
offence but also the act of selling out of the .adulterated article of food
H
so stored. Here in the present case, the charge against the appellant
was not of storing adulterated cow's milk for sale. It was a charge
of selling to the Food Inspector samples of adulterated cow's milk out
of six cans carried by the appellant. It is, therefore, unnecessary to
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OM PRAKASH v. DELHI ADMINISTRATION (Bhagwati, J.)
985
consider whether storing of adulterated cow's milk in each oi the six
cans constituted a distinct and separate offence and we do not express
any opinion on it.
The only issue which requires to be considered by
us is whether the sale of sample of adulterated cow's milk from each
can constituted a distinct and separate offence or there was only one
offence committed by the appellant by selling samples of adulterated
cow's milk from six cans.
Now, the definition of 'sale' in section 2(xiii) includes within it
sale of any article of food for analysis and it would seem that even if
several samples are ta.ken by the Food Inspector for analysis from the
same stock of adulterated article of food, taking of each sample would
constitute a distinct and independent sale and each such sale would be
an offending act attracting the penal provisions of the Act.
The position would indeed be beyond doubt where samples are taken from different receptacles. whether at one and the same time or at different
times, because each sample would be taken for determining whether
the article of food in a particular receptacle is adulterated or not. It
may be that the article of food in one receptacle is adulterated, while
'in the other it is not, and even the nature and degree of adulteration
may vary from one receptacle to another.
Each sample taken would,
therefore, be really and truly for - the purpose of analysis.
So also
there would be no scope for argument where samples are taken from
the same receptacle at different times, because sample, taken at an
earlier point of time, if found adulterated on analysis, would merely
show that the article of food in the receptacle at that partic1!}ar point
of time was adulterated and it would not dispense with the analysis of
, the article of food in the receptacle at a later point of time, for at such
later point of time, the article of food in the receptacle may not be
adulterated or it may consist of different proportions or the adulteration in it may be much more deleterious or injurious to human health.
The taking of each sample would be necessary and justified for the
purpose of analysis, and hence each taking of sample would constitute
a distinct and independent sale. It is only where samples are taken
from the same receptacle at one and the same time or within reasonable proximity of time that it may not be possible to say that the taking
of each of these samples constitutes a distinct and separate sale. When
a sample is once taken from the receptacle for analysis, there cannot
be any question of ta.king another sample for analysis at the same time.
The taking of the second sample would be wholly unnecessary sofar
as the purpose of analysis is concerned and it would lay itself open to
an attack that it is not really and truly for the purpose of analysis. It
is only where a sample is taken for analysis that its taking constitutes
a sale.
The taking of the second sample would not, therefore, amount
to a sale involving an offence.
But in the other two cases, where
samples are taken from different receptacles, though stocked at one
place-at one time or at different times-or samples are taken from
the same receptacle at different times, the taking of each sample would
constitute a sale and hence a distinct and separate offence.
This view, which we are taking, is clearly supported by the decision
of the Queen's Bench Division in Fecitt v. Walsh(!).
There, while the
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(!) (1891) 2 Q. B. 304.
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SUPREME COURT REPORTS
[1976] 2 S.C.R.
appellant was delivering at a workhouse milk contained in five
cans
pursuant to a contract of sale, the respondent, acting under s. 3 of the
Sale of Food and Drugs Act Amendment Act,
1879, procured a
sample from each of the five cans and on finding that there was a large
deficiency of cream in two of the samples, the respondent laid two
separate informations against the appellant in respect of those
two
samples under s. 9 of the Sale of Food and Drugs Act, 1875.
The
Justices convicted the appellant in a separate penalty upon each information and on appeal against these convictions, the
appellant contended that on the facts, there could not be more than one information
against him, since there was only one sale of milk by him and it was
being delivered in five cans merely because that was a convenient form
of delivery.
Day, J., negatived this argument of the appellant and
held that procuring of each sample was a separate offence as to each
can in respect of which an information could be laid against him amt ·
the convictions of the appellant on the basis of separate informations
laid against him were, therefore,
right.
The learned Judge observed:
··As far as he was concerned there were five transactions;
in respect of each of those transactions he must have proceeded under the statute and would then be deemed to have
purchased in each case from the seller. It seems to me that
the sergeant in procuring these samples must be deemed to
have been the purchaser in each particular case, and that as
he was the purch~ser of five samples, the purchase of each
one was a separate transaction, and that in respect of each
of them an information would lie.
As· a matter of fact, the
respondent only proceeded in respect of two of the samples,
obtaining a separate conviction upon separate informations in
respect of each of them, and our answer to the first question
must be that he was right, and that more than one information could be laid against the appellant."
The analogy of this decision is striking and it clearly shows that where
samples are taken from different receptacles for the purpose of analysis, the taking of each sample would be a separate transaction of sale
and each such transaction of sale would constitute a separate offence,
if the sample i's found to be adulterated.
The appellant leaned heavily on the decision of the Calcutta High
Court in Sanker Lal Agarwalla v. Corporation of Calcutta( l) where it
was held by D. N. Das Gupta, J., that where three Food Inspectors
visit the godown of an accused dealing in ghee the same day and at the
same time and each takes samples of ghee from three different lots of
tins and the three samples collected are found adulterated, the offence
committed under the Prevention of Food Adulteration Act by
the
accused is the same, namely, the offence of storing and selling adulterated ghee at the particular hour of the particular day and it cannot be
said that three distinct offences under s. 7 of the Act have been committed by the accused and consequently when "three separate prose-
(!) A.LR. 1962 Cal. 61 I.
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OM PRAKASH v. DELHI ADMINISTRATION (Bhagwati, !.)
987
cutions under s. 7 of the Act have been launched against the accused
and he is convicted in one of the prosecutions, the other two prosecutions are barred under s. 403, Criminal Procedure Code".
But we
do not think this decision can be invoked in aid of the contention of
the appellant. It is clear from the facts of this case that the three
prosecutions against the accused were not for three different transactions of sale constituted by the taking of samples from three lots of
tins of ghee, but were for three different acts of storing adulterated
ghee and it was for this reason that D. N. Das Gupta, J., observed
that the single act of storing adulterated ghee could not be split up
into three different acts according to brands and the launching of three
different prosecutions on the ground that three distinct offences have
been committed by the accused was not justified or warranted by law.
We are not concerned with the correctness or otherwise of this observation as it is not relevant for the purpose of the present case. It is
no doubt true that some of the observations made in the judgment
seem to support the contention of the appellant that where samples are
taken at the same time on the same day from different receptacles
kept at the same place-as the six cans in the present rnse wereand each of the samples is found adulterated, there is only one offence
committed by the accused and not as many offences as the number of
samples taken by the Food Inspectors.
But to the extent to which
-these observations refer to the offence constituted by the taking of
samples, we must express our dissent and hold that they do not represent the correct law on the subject.
We are, therefore, of the view that the High Court was right in
coming to the conclusion that the sale of each of the samples taken
from the six cans constituted a distinct and separate offence wd the
appellant was liable to be tried for each of the six offences.
We acc.ordingly dismiss the appeal.
V.P.S.,
Appeal dismissed ..
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