K.N. Saikia, J.
1. This appeal is from Judgment and Order of the Chief Judicial Magistrate, Sibsagar acquitting the accused-respondent of charge under Section 16 of the Prevention of Food Adulteration Act.
2. The District Food Inspector, Sibsagar, Jorhat collected sample of Coriander (Dhania) Powder from the accused's Mill, namely, Chirania Flour Mill, on 16-3-72 and caused it to be analysed by the Public Analyst, who reported it to be adulterated; and after proper sanction, the accused-respondent was prosecuted; and charged under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (hereinafter 'the Act'). After framing of charge the accused's sample was sent to the Central Food Laboratory which also reported it to be adulterated. At trial the complainant was cross-examined and two more prosecution witnesses examined. The accused examined himself in defence. The trial Court found uncontroverted that the sample of Coriander (Dhania) powder was properly collected, and rightly superseded the report of the Public Analyst and acted upon the report of the Director of Central Food Laboratory, who reported excess total ash of 1.3 per cent, and presence of a few turmeric starch on microscopical examination, without mentioning the percentage. The Court, however, held that the excess of 1.3 per cent of total ash might have been caused by defective packing; that it was the burden of the complainant to prove that it was not so; and that the complainant had no evidence to show; and that consequently the benefit of the failure of the complainant to prove his case beyond all reasonable doubt would go to the accused. As regards presence of turmeric starch, the Court held that it was a trifling matter turmeric also being edible and the mixture so insignificant that it had to be detected in microscopical examination, Holding both the defects to be trifling, the accused was given the benefit under Section 95, I.P.C. and acquitted. Hence this appeal.
3. Two questions are required to be determined, namely, (i) whether the Court was justified in rejecting the report that the sample was adulterated for the reasons of 1.3 per cent excess total ash and presence of turmeric starch? and (ii) whether it erred in applying the provisions of Section 95. I.P.C. to the offence under the Act?
4. P. W. 1, the Food Inspector, is found from his deposition to have committed no error of procedure in collecting, packing and sending the samples. He is in this regard, corroborated by P, Ws. 2 and 3. The report of the Central Food Laboratory clearly mentions that the seals were intact. The statement of P. W. 1 that he took the sample in a Cellophen bag and the packet could not be air-tight and insects having entered into the packet could be of no consequence in face of the report that the seals were found by the Central Food Laboratory intact. The learned trial Court overlooked this vital piece of evidence and misdirected itself into putting the burden on the complainant and giving the benefit of the complainant's failure to prove, to the accused. D. W. I only explained how the grinding was done. Besides, the excess of total ash could not be the natural consequence of leakage of any air into the container.
5. There is no dispute about the excess of 1.3 per cent of total ash and presence of turmeric starch found on microscopic examination. Admittedly no percentage of starch was mentioned. The fact that the Director of Central Food Laboratory reported the sample to have been adulterated is also not in dispute. The trial Court wrongly concluded that turmeric starch was so insignificant that it could be detected only in microscopic examination unmindful of the fact that microscopic examination is one of the recognised modes of examination in such cases and does not mean that the presence could not be otherwise detected. The Court also misdirected itself in observing:
While I am bound to take into account the facts found by the Director of Central Food Laboratory I am not bound to accept his opinion to the effect that the sample of Dhania powder was adulterated.
6. Section 2(i) of the Act provides:
'adulterated' -- an article of food shall be deemed to be adulterated:
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality, which it purports or is represented to be;
(1) if the quality or purity of the article falls below the prescribed standard or its constituents are in excess of the prescribed limits or variability.
6A. The standard prescribed in Appendix B is:
A.05.08.01 -- Coriander (Dhania) powder means the powder obtained by grinding clean dried coriander fruits of coriandrum sativum L. It shall be in the form of a rough or fine powder. It shall conform to the following standards:
Moisture....Not more than 12.0 per cent by weight.
Total ash....Not more than 7.0 per cent by weight.
Ash insoluble in dilute HC-1....Not more than 1.5 per cent by weight.
7. In the instant case the Central Food Laboratory reported-
Moisture ... 8.0 per cent
Total Ash ... 8.3 per cent
Ash insoluble in
dil. HCl ... 0.9 per cent
Added Coaltar dyes... Absent
Microscopical examination:-- A few turmeric starch is present along with dhania structures.
OPINION.... The sample of Dhania Powder is adulterated.
8. In face of the above facts it was legitimately not open to the trial Court to differ from the Opinion of the Director, Central Food Laboratory, which formed the basis or foundation of the Prosecution. Whether a lesser punishment than the minimum would meet the ends of Justice was entirely a different matter.
9. In : 1971CriLJ1556 , Andhra Pradesh Grain and Seed Merchants Association v. Union of India, it. was observed:
The standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for Standards. It has not been even urged that the standards have been fixed arbitrarily. Apart from a general argument that small retail dealers may not be in a position to ascertain whether goods purchased by them or in their possession are according to the standards, no specific argument was advanced that the standards are not normal, or that the variations in quality during the Course of storage are unreasonably restricted.
The vendor when charged with an offence is not thereby compelled to be a witness against himself. Nor can it be said that by making the report of the Director of Central Food Laboratory conclusive evidence of the facts stated therein, any such infringement is intended. The provision has been made with a view to secure formal evidence of facts without requiring the Director to remain present and in the interest of effective administration of the Act, the Certificate signed by the Director of the Central Food Laboratory is made final and conclusive evidence of the facts stated therein. The Director is a highly placed official, an expert in determining the nature, substance and quality of food, and is wholly disinterested in the result of any case coming before the Courts, It is difficult to appreciate how collusiveness attributed to the Certificate of the Director compels the vendor charged with an offence under the Act to be a witness against himself.
10. In Jagdish Prasad v. State of West Bengal : 1972CriLJ1309 , it was similarly observed:
It appears to us therefore that standards having been fixed as aforesaid any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder.
Offences under the Act being anti-social crimes affecting the health and well-being of our people, the Legislature having regard to the trend of Court to impose in most cases only fines or where a sentence of imprisonment was passed a light sentence was awarded even in cases where a severe sentence was called for, a more drastic step was taken by it in prescribing a minimum sentence and a minimum fine to be imposed even for a first offence.
11. The Supreme Court therein also observed that in its view offences for adulteration, of food must be severely dealt with, no doubt depending on the facts of each case.
12. Considering the facts in light of the above principles the trial Court has to be held to have misdirected itself in not accepting the opinion of the Central Food Laboratory. The first question is accordingly decided in the negative.
13. The application of Section 95 I, P.C. in terms to Prevention of Food Adulteration Cases is not permissible. Section 95 I.P.C. is included in Chapter-IV, which deals with general exceptions and provides as follows:
95. Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm'.
This Section naturally applies only to offences under the Indian Penal Code. Sections 2 and 3 of the Code provide for punishment of offences committed within and beyond India, respectively Section 4 extends the Code to extra-territorial offences. Thus the Code deals with offences punishable under it and accordingly Section 95 will be appropriate to such offences; and it will not apply to offences under special or local Acts unless so made applicable by those Acts. The Food Adulteration Act is a special Act and, as such, Section 95 of the Code in terms shall not apply.
14. In AIR 1953 Nag 141 : 1953 Cri LJ 801, State Government, Madhya Pradesh v. Amritlal, a Division Bench of Nagpur High Court held that Section 95 has no application in an offence under the Central Provinces and Berar Cotton Cloth Trade Regulation Order, 1948, unless the act in question amounts to an offence under the Indian Penal Code. In : (1965)ILLJ181Ori , B. Kurmanaikulu v. District Mechanical Engineer, South Eastern Railway. where a Railway servant demanded and accepted a 'bakshis' of only 8 annas for service rendered, the Court refused to apply Section 95 of the Code holding that it cannot be invoked since the Railway Establishment Code itself prohibits the acceptance of any 'gift, gratuity or reward' and it was immaterial whether it was given voluntarily or not by a passenger for services rendered by a Railway servant even though such service may not be part of the official duties of the railway servant. Any contravention of the disciplinary Rules prescribing the Code of conduct of railway servants, it was observed, must necessarily amount to misconduct, and the question whether it was ordinary misconduct or serious misconduct would depend on whether the gift or reward was actually demanded by the Railway servant so as to involve an element of extortion which necessarily implied dishonest intention.
15. In : 1967CriLJ828 , Biswabahan Das v. Gopen Chandra Hazarika, a case under the Assam Forest Regulation, the Supreme Court rejected the argument that if the wrong done was of a very trivial nature the rendering of compensation was in the eye of law sufficient to redress it and to put an end to the matter without any reflection on the character of the person charged with having done the wrong; and observed that if a person was charged with an offence, then unless there was some provision for composition of it, the law must take its course and the charge enquired into resulting either in conviction or acquittal. If composition of an otfence was permissible under the law, the effect of such composition would depend on what the law provided for. If the effect of composition was to amount to an acquittal then it might be said that no stigma should attach to the character of the person, but unless that was expressly provided for, the mere rendering of compensation would not amount to the vindication of the character of the person charged with the offence. Thus where the effect of composition amounted to acquittal under Section 345(6) Cr. P.C. and Section 62 of the Assam Forest Regulation enabled one to compound offence, the Court refused to apply Section 95 of the Penal Code,
16. In Mangaldas Raghavji v. State of Maharashtra : 1966CriLJ106 , the Supreme Court upheld the conviction observing:
We have seen the report for ourselves; and quite apart from the fact that it was not challenged by any of the appellants as inadequate when it was put into evidence, we are satisfied that it contains the necessary data in support of the conclusion that the sample of turmeric powder examined by him showed adulteration. The report sets out the result of the analysis and the tests performed in the Public Health Laboratory. Two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder. The microscopic examination showed the presence of Pollen stalks. This could well be regarded as adequate to satisfy the mind of a Judge or Magistrate dealing with the facts.
Similarly in : AIR1966Cal51 , Gopalpur Tea Co. Ltd. v. Corporation of Calcutta, when there was excess of crude fibre in the tea only by 1.58 per cent in excess of prescribed limit of 15 per cent, the conviction was upheld though the fine was reduced from Rs. 2,000/- to Rs. 1,000/-. The second question has, therefore, to be decided in the affirmative.
17. While Section 95 of the Code may not be applicable in terms its spirit may perhaps be applied in rendering sentence. But while doing so the Court must proceed with utmost caution considering the nature and circumstances of the case.
18. Section 95 is founded on the maxim of de minimis non curat lex (the law does not take account of trifles). The reason is that intercourse in civilised society will come to an end if for certain such trifle offence a person is exposed to criminal prosecution. The Section is intended to provide for those cases which though, from the imperfections of language, they fall within the letter of the penal law, are yet not within its spirit, and are all over the world considered by the public, and for the most part dealt with by the tribunals, as innocent. According to this maxim the Courts of Justice generally do not take trifling and immaterial matters into account except under peculiar circumstances, Courts will not for instance take notice of fraction of a day except in cases where there are conflicting rights, for the determination of which it is necessary that they should do so. There are some injuries of so little consideration in the law that no action will lie for them.
19. The offences under the Act being anti-social and under the Special Act, are not such offences as contemplated under Section 95 of the Code, It is accordingly not legitimate to declare what amounts to adulteration under the provisions of the Act as not adulteration; latitude of the Court being restricted only to the question of sentence.
20. In Urned Mal v. State of Maharashtra, 1979 Cri LJ 1321 : AIR 1979 SC 1700, having regard to the very marginal nature of adulteration found by the public analyst it was held that there was sufficient room for reduction of the sentence of the appellant but the conviction was upheld, the sentence alone being reduced to the period already undergone maintaining the fine imposed by the trial Court. In Jagdish Prasad's Case 1972 Cri LJ 1309 (supra) explaining the reason for exception, the Supreme Court said that it was not that the offences specified are not considered serious, but the gravity of the offence having regard to its nature can be less if there are any special or adequate reasons.
21. Applying the above considerations, though it has to be held that the trial Court could not legitimately hold that there was no adulteration, it could perhaps have held that lesser punishment was deserved considering the nature and gravity of the offence and for special or adequate reasons.
22. Section 16 of the Act at the relevant time prescribed the minimum sentence of six months and fine of not less than one thousand rupees, provided that-
(i) if the offence is under Sub-clause (i) of Clause (a) and is with respect to an article of food which is adulterated under Sub-clause (1) of Clause (1) of Section 2 or misbranded under Sub-clause (k) of Clause (ix) of that Section; or
(ii) if the offence is under Sub-clause (ii) of Clause (a), the Court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
23. In the instant case adulteration was as defined in Section 2(i)(1) of the Act and as such the proviso was clearly applicable. Mr. Phukan fairly agrees to it. The excess of total ash by 1.3% could not clearly be said to have been the result of deliberate mixing of foreign matters. The accused in his examination as D. W. l stated that the grinding machine used by him could be cleaned only by taking the whole day and he used to grind turmeric and coriander in succession by the same machine and as a result it was possible that turmeric starch sticking to the granding stone could enter into the coriander powder. No mens rea as to mixing of turmeric starch can be computed in such a case. Besides, the sample was collected as far back as on 16-3-1972 and more than eight years have since elapsed and it may not be necessary for the ends of justice to send the accused-respondent to jail. Considering all the above factors the ends of justice and crime control may be met if the acquittal is set aside and the accused-respondent is held guilty and convicted under Section 16 of the Act and sentenced to pay a fine of Rs. 500/- (five hundred) only.
24. In the result the impugned judgment of acquittal is set aside and the ac-cussed-respondent is found guilty and convicted under Section 16 read with Section 7 of the Act and sentenced to pay a fine of Rs. 500/- (five hundred) only, in default, to rigorous imprisonment for three months. Appeal allowed.
D. Pathak, Acting C.J.
25. I agree.