judgement:
: Criminal Appeal No. 40 of 1979.
From the Judgment and Order dated the 5th June, 1978 of the Calcutta High Court in Criminal Revision No. 133 of 1978.
D. Mukherjee, Pradeep Ghosh and P.K. Mukherjee for the appellant.
N.C. Talukdar and Amlan Ghosh for respondent Nos. 1 and 2.
G.S. Chatterjee for respondent No. 3 (State of Bengal).
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave from a judgment of the Calcutta High Court dated June 5, 1978 raises a question of some complexity.
The question is as to the applicability of section 16A of the ("Act" for short) as inserted by the Prevention of Food Adulteration (Amendment) Act, 1976 (for short "the Central Amendment Act") with respect to prosecutions launched under s.16(1) (a) read with s.7 of the Act in the State of West Bengal between the period from April 29, 1974 to April 1, 1976.
Such offences according to the law then in force i.e. the Act as amended by the Prevention of Adulteration of Food, 908 Drugs and Cosmetics (West Bengal Amendment) Act, 1973 (for short "the West Bengal Amendment Act") were punishable with imprisonment for life and therefore triable by the Court of Sessions.
It is common ground that the offence with which the respondents are charged is alleged to have been committed under s.16(1)(a) at a time when the Act stood amended in its application to the State of West Bengal by the provisions of the West Bengal Amendment Act.
If the law continued to stand as it stood on the date of the offence which was so committed, there would have been no difficulty because the maximum penalty would be imprisonment for life and fine and as such the offences would be exclusively triable by the Court of Sessions.
But a change was brought about when Parliament enacted the Central Amendment Act which came into force on April 1, 1976 by which the scheme of s.16 of the Act providing for various punishments was materially altered; so also the procedure for the trial of such offences.
The effect of the Central Amendment Act was that the West Bengal Amendment Act stood impliedly repealed with effect from April 1, 1976 and the question is whether the previous operation of the repealed West Bengal Amendment Act in respect of any liability incurred thereunder is preserved by s.8 of the Bengal General Clauses Act, 1899 which is pari materia with s.6 of the both as to procedure for trial of such offences and the nature of punishment liable to be imposed.
First as to facts.
On August 16, 1975 the appellant, a Food Inspector of the Corporation of Calcutta, visited the Chungwa Restaurant run by the respondents at Chittaranjan Avenue, Calcutta and purchased a quantity of Hyacinth 's ground white pepper (compound) with fried rice powder and sent the same to a Public Analyst for analysis.
On such analysis, the sample was found to be adulterated as it contained no rice powder but wheat powder.
On September 24, 1975 the appellant lodged a complaint against the respondents for having committed an offence punishable under s.16(1)(a) read with s.7 of the Act in the Court of Senior Municipal Magistrate, Calcutta.
The gravamen of the charge was that the respondents had stored and/or exposed for sale and/or used Hyacinth 's ground white pepper (compound) with fried rice powder for the purpose of manufacturing and preparing different articles of food which was adulterated and misbranded.
On the date of the commission of the alleged offence i.e. on August 16, 1975 the law in force in the State of West Bengal was 909 the Act as amended by the West Bengal Amendment Act which provided that such an offence would be punishable with imprisonment for life.
The learned Magistrate following the decision of Anil Kumar Sen, J. in B. Manna and Ors.
vs The State of West Bengal(1) sustained a preliminary objection raised on behalf of the Corporation and held that the case was triable by the Court of Sessions.
Disagreeing with the view of Anil Kumar Sen, J. in B. Manna 's case, (supra), a Division Bench of the High Court held that after the Central Amendment Act came into force on April 1, 1976, all proceedings pending for trial of such offences punishable under s.16(1)(a) of the Act as amended by the West Bengal Amendment Act which had not been concluded, would cease to be governed by the West Bengal Amendment Act and would come within the purview of the Act as amended by the Central Amendment Act and therefore such offences committed prior to such amendment are triable in accordance with the procedure prescribed by s.16A of the Act as amended by the Central Amendment Act.
It accordingly set aside the order of the learned Magistrate and directed him to proceed with the trial.
Upon these facts, three questions fall for consideration in the appeal viz. (1) whether the Central Amendment Act impliedly repealed the West Bengal Amendment Act with effect from April 1, 1976; and if so, the effect of such repeal.
(2) Whether the High Court was justified in holding that the West Bengal Amendment Act shall be deemed to have been obliterated from the Statute Book for all intents and purposes inasmuch as the Central Amendment Act manifests an intention to the contrary so as to exclude the operation of s.8 of the Bengal General Clauses Act, 1899.
And (3) Are the pending proceedings to be governed by the change of procedure brought about by s.16A of the Act as introduced by the Central Amendment Act; and further whether the continued operation of the repealed West Bengal Amendment Act is preserved with regard to the punishment to be imposed.
For a proper appreciation of the points in controversy, it is necessary to deal with the statutory changes brought about.
First we may refer to the provisions of the Act as it stood on March 1, 1972, the relevant provisions whereof were as follows: 910 "16(1) If any person (a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food (i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health; (ii) ** ** ** He shall, in addition to the penalty to which he may be liable under the provisions of s.6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees.
Provided that (i) if the offence is under sub cl.
(i) of cl.
(a) and is with respect to an article of food which is adulterated under sub cl.
(i) of cl.
(i) of s.2 or misbranded under sub cl.
(k) of cl.
(ix) of that section; or ** ** ** ** 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." "20(1) ** ** ** (2) No court inferior to that of a Presidency Magistrate or a Magistrate of the First Class shall try any offence under this Act." ** ** ** ** 21.
Notwithstanding anything contained in s.32 of the Code of Criminal Procedure, 1898, it shall be lawful for any Presidency Magistrate or any Magistrate of the first class to pass any sentence authorized by this Act, in excess of his powers under section 32 of the said Code.
" 911 On these provisions, the maximum punishment which could be imposed for committing any offence under s.16(1)(a) was imprisonment for six years and fine.
Such an offence not being under the Indian Penal Code, 1860 was triable not exclusively by the Court of Sessions under the provisions of s.29(2) of the Code of Criminal Procedure, 1973 read with Schedule II thereunder.
To overcome the limit imposed by s.32 of the Code on sentences which a Presidency Magistrate or a Magistrate of First Class could impose, s.21 of the Act was inserted.
The result was that such offences become triable by a Presidency Magistrate or a Magistrate of the First Class.
That was the law in force in the whole of India as on March 1, 1972.
On April 29, 1974, the Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973 enacted by the State Legislature of West Bengal having been assented to by the President, became the law applicable to the State of West Bengal as from that date.
It would appear that the State of West Bengal had taken a step forward with a view to make anti social offences such as adulteration of articles of food meant for human consumption, or manufacture or sale of spurious drugs etc.
which constituted a menace to the society and deserved a deterrent punishment, to be punishable with imprisonment for life.
S.6 of that Act inserted the following amendment.
"In the ** ** ** ** ** (ii) in section 16 (a) in sub s.(l), for the words "a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees", the words "life and shall also be liable to fine" shall be substituted;" The following words were substituted in the proviso to sub s.(1): "(b) in the proviso to sub s.(1), for the words "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 fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than 912 one thousand rupees", the following words shall be substituted, namely: "(ii) if the Court thinks that for any adequate and special reasons to be mentioned in the judgment a lesser sentence would serve the ends of justice, the Court may impose a sentence which is less than a sentence of imprisonment for life;" It will be seen that the West Bengal Amendment Act brought about a radical change so far as the Act was concerned in its application to the State of West Bengal.
The maximum punishment for an offence under s.16(1)(a) when committed in the State was punishment of imprisonment for life so that under the provisions of the Code of Criminal Procedure, 1973, such an offence became exclusively triable by a Court of Sessions and ceased to be triable either by a Presidency Magistrate or a Magistrate of the First Class.
For this reason, the provisions of s.20 were also materially altered : "20(1) All offences punishable under this Act shall be cognizable and non bailable.
(2) Any police officer not below the rank of a Sub Inspector of Police may arrest without warrant any person against whom a reasonable complaint has been made or credible information has been received of his having been concerned in any of the offences punishable under this Act.
" The Act also introduced s.19A with regard to burden of proof and it read : "19A. When any article intended for food is seized from any person in the reasonable belief that the same is adulterated or misbranded the burden of proving that such article intended for food is not adulterated or misbranded shall be on the person from whose possession such article intended for food was seized.
" It was not long before Parliament stepped in to meet the growing menace of the anti social offence of adulteration of articles 913 of food meant for human consumption which was a threat to the national well being and it was felt that such offences must be ruthlessly dealt with.
It was also felt that there should be a summary trial of these offences.
The Prevention of Food Adulteration (Amendment) Act, 1976 was accordingly brought into force with effect from April 1, 1976.
It not only created new offences but also enhanced the punishments provided.
But at the same time it also provided for graded punishment for various types of offences.
Incidentally, it mollified the rigour of the law by providing for a reduced punishment for an offence punishable under s.16(1)(a).
We are however not concerned with other types of offences except the one punishable under s.16(1)(a) and for this the maximum punishment provided was for a term of three years instead of six years.
In s.16 of the Act for sub s.(1), the following sub section insofar as relevant was introduced : "(1) Subject to the provisions of sub s.(1A), if any person (a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food (i) which is adulterated within the meaning of sub cl.(m) of cl.(ia) of s.2 or misbranded within the meaning of cl.
(ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority; * * * * * he shall, in addition to the penalty to which he may be liable under the provisions of s.6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees.
" A new proviso was inserted conferring power on the Court for any adequate and special reasons to be mentioned in the judgment to impose a reduced punishment for a term which shall not be less than three months but may extend to two years, with fine which shall not be less than five hundred rupees.
914 As regards the procedure for trial of such offences, the Act introduced s.16A which is important for our purposes, and it reads : "16A.
Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under sub section (1) of section 16 shall be tried in a summary way by a Judicial Magistrate of the first class specially empowered in this behalf by the State Government or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trial : Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year : Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
" There were some corresponding changes brought about in s.20 of the Act.
Sub s.(2) of s.20 provides : "(2) No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act.
" There is no doubt or difficulty as to the law applicable.
article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict.
article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter.
915 Clause (1) lays down that if a State law relating to a Concurrent subject is 'repugnant ' to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void.
To the general rule laid down in clause (1), clause (2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a Concurrent subject.
In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more.
In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a Concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only.
The predominance of the State law may however be taken away if Parliament legislates under the Proviso to clause (2).
The Proviso to Art.254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President 's assent.
Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter '.
Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made.
A State law would be repugnant to the Union law when there is direct conflict between the two laws.
Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed.
In all such cases, the law made by Parliament shall prevail over the State law under Art.254(1).
That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament "with respect to the same matter", the West Bengal Amendment Act stood impliedly repealed.
The case of Zaverbai Amaidas vs The State of Bombay(1) illustrates the application of the Proviso to Art.254(2).
The Essential Supplies (Temporary Powers) Act, 1946 was enacted by the Central 916 Legislature, s.7 of which provided for penalties for contravention of orders made under s.3 of the Act.
The provision with regard to the penalties was that if any person contravenes any order made under s.3, he shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
The then Province of Bombay felt that the maximum punishment of three years, imprisonment provided by s.7 of the Act was not adequate for offences under the Act and with the object of enhancing the punishment provided therein, enacted Act 36 of 1947.
By s.2 of that Act it was provided that notwithstanding anything contained in the Essential Supplies (Temporary Powers) Act, 1946, whoever contravenes an order made under s.3 of the Act shall be punishable for a term which may extend to seven years but shall not, except for reasons to be recorded in writing, be less than six months and shall also be liable to fine.
The Bombay Act thus increased the sentence to imprisonment for seven years and also made it obligatory to impose a sentence of fine, and further provided for a minimum sentence of six months and the Court was bound to impose a minimum sentence except for reasons to be recorded in writing.
The Act having been reserved for the assent of the Governor General and received his assent under s.107(2) of the Government of India Act, 1935, came into operation in the Province of Bombay notwithstanding the repugnancy.
Subsequently, the Essential Supplies (Temporary Powers) Act, 1946 under went substantial alterations and was finally recast by the Essential Supplies (Temporary Powers) Amendment Act, 1950.
The Amendment made in 1950 substituted a new section in place of s.7 of the Act.
The scheme of the new section was that for purposes of punishment, offences under the Act were grouped under three categories and the punishment to be imposed in the several categories were separately specified.
S.7 was thus a comprehensive Code covering the entire field of punishment for offences under the Act graded according to the commodity and character of the offence.
It was held by this Court that the Bombay Act was impliedly repealed by s.7 of the Essential Supplies (Temporary Powers) Amendment Act, 1950.
It is strenuously argued on behalf of the appellant that s.16A of the Act is not retrospective in operation, and that it does not deal with procedure alone but touches a substantive right.
The submission is that in view of cls.(c), (d) and (e) of sub s.(1) of s.8 of the Bengal General Clauses Act, 1899 which provide that if any law is repealed then unless a different intention appears, the repeal shall not affect any liability incurred under any enactment so repealed or affect any 917 legal proceeding or remedy in respect of such liability, penalty or punishment as aforesaid.
It is said that there was a liability incurred by the commission of an offence punishable under s.16(1)(a) of the Act as amended by the West Bengal Amendment Act and s.8 of the Bengal General Clauses Act ' 1899 preserved the continued operation of the repealed West Bengal Amendment Act for imposition of that punishment.
The contention is that where rights and procedure are dealt with together by the repealing Act, then, intention of the legislature is that the old rights are still to be determined by the old procedure.
In support of the contention, reliance is placed on the decision of the Sargant, J. in re Hale 's Patent(1).
We are afraid, the contention cannot prevail.
Just as a person accused of the commission of an offence has no right to trial by a particular court or to a particular procedure, the prosecutor equally has no right to insist upon that the accused be subjected to an enhanced punishment under the repealed Act.
The dictum of Sargant.
J. in re Hale 's Patent is therefore not applicable.
Whenever there is a repeal of an enactment, the consequences laid down in s.6 of the General Clauses Act though it has been specifically mentioned in the repealing Act or not, will follow, unless, as the section itself says, a different intention appears.
In State of Punjab vs Mohar Singh(1), this Court has elaborately dealt with the effect of repeal.
In the case of a simple, repeal there is scarcely any room for expression of a contrary opinion.
But when the repeal is followed by fresh legislation on the same subject, the Court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.
"The line of inquiry would be, not whether the new Act expressly keeps alive old rights and liabilities", in the words of Mukherjee,J., "but whether it manifests an intention to destroy them." The Court held that it cannot subscribe to the broad proposition that s.6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by fresh legislation.
S 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section.
Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new Act and the mere absence of a saving clause is not by itself material.
The Court therefore held that the provisions of s.6 of the General Clauses Act will apply to a case 918 of repeal even if there is simultaneous enactment unless a contrary intention can be gathered from the new enactment.
Of course, the consequences laid down in s.6 of the General Clauses Act will apply only when a statute or regulation having the force of a statute is actually repealed.
It has no application when a statute which is of a temporary nature automatically expires by efflux of time.
The principles laid down by the Court in Mohar Singh 's case (supra), have consistently been followed in subsequent cases.
The old doctrine of extinguishing or effacing the repealed law for all purposes and intents except for the acts past and closed has now given way to the principles enunciated by the Court in Mohar Singh 's case, (supra).
The question that falls for consideration in the appeal is whether a "contrary intention" appears from the provisions of the Central Amendment Act so as to exclude the applicability of s.8 of the Bengal General Clauses Act.
Anil Kumar Sen,J. in B. Manna 's case, (supra), mentions several reasons why the Central Amendment Act was not really intended to be retrospective in operation so that it would not cover cases of offences committed prior to the enactment itself.
In the first place, he observes that the Central Amendment Act had not expressly repealed the West Bengal Amendment Act nor dealt with the Act or any of its provisions in any manner.
It was enacted with reference and having regard to the provisions of the Act as it stood before the Central Amendment Act came into force.
Even if the Central Amendment Act had not expressly repealed the West Bengal Amendment Act, it would still be repealed by necessary implication under article 254(1) as it conflicts with a later law with respect to the same matter enacted by Parliament.
Secondly, the learned Judge refers to the language of the statute itself.
He observes that unlike many other statutory provisions creating similar offences and providing punishment therefor, in the Act the material provisions are not in terms like "any person guilty of an offence of manufacturing, storing, selling or distributing any article of food which is adulterated shall be punishable with. ".
On the other hand, he points out that the terms of section 16(1)(a) of the Act are "if any person. . manufactures for sale, or stores, or sells, or distributes any article of food which is adulterated, he shall. .".
The learned Judge is of the view that on the words used and on their terms the only consistent implication is that such manufacture, storage, sale or distribution must be after the enactment has come into force and not prior thereto.
In our view, nothing 919 really turns on the language of section 16(1)(a) because the Central Amendment Act has not created a new offence thereby but dealt with the same offence as before.
Lastly, the learned Judge refers to the new offences created by the Central Amendment Act, one of them being that under section 16(1)(b) of the Act with regard to manufacturing for sale, or storing, or selling, or distributing any adulterant which was not in the Act at any time before.
Accordingly, he holds that it is not possible to give retrospective effect to the other parts of the Act and observes that it could never have been the intention of the Legislature nor was it possible to give retrospective effect to the Act.
According to him article 20(1) of the Constitution stands in the way of giving retrospective effect to section 16(1)(b) of the Act and thus renders the act which was otherwise innocent at the time when it was done to be an offence by later enactment.
We are not concerned with new offences created by the Central Amendment Act or with offences for which an enhanced punishment is provided for and therefore there is no question of article 20(1) of the Constitution being attracted.
We are here concerned with the same offence, namely, an offence punishable under section 16(1)(a) of the Act for which a reduced punishment is provided for.
It is only retroactive criminal legislation that is prohibited under article 20(1).
The prohibition contained in article 20(1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable.
But insofar as the Central Amendment Act reduces the punishment for an offence punishable under section 16(1)(a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment.
The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law.
The principle is based both on sound reason and common 920 sense.
This finds support in the following passage from Craies on Statute Law, 7th edn.
at pp.
387 88 : "A retrospective statute is different from an ex post facto statute.
"Every ex post facto law . . " said Chase J. in the American case of Calder vs Bull(1) "must necessarily be retrospective, but every retrospective law is not an ex post facto law.
Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive ; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement : as statutes of oblivion or of pardon.
They are certainly retrospective, and literally both concerning and after the facts committed.
But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, but only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction . .
There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.
" To illustrate, if Parliament were to re enact section 302 of the Indian Penal Code, 1860 and provide that the punishment for an offence of murder shall be sentence for imprisonment for life, instead of the present sentence of death or imprisonment for life, then it cannot be that the Courts would still award a sentence of death even in pending cases.
In Rattan Lal vs The State of Punjab(2), the question that fell for consideration was whether an appellate court can extend the benefit of which had come into force after the accused had been convicted of a criminal offence.
The court by majority of 2 : 1 answered the question in the affirmative.
Subba Rao, J. who delivered a majority opinion, concluded that in considering the question, the rule of beneficial construction required that even ex post facto law of the type involved in that case should be applied to reduce the punishment.
921 It is settled both on authority and principle that when a later statute again describes an offence created by an earlier statute and imposes a different punishment, or varies the procedure, the earlier statute is repealed by implication.
In Michell vs Brown(1) Lord Cambell put the matter thus : "It is well settled rule of construction that, if a later statute again describes an offence created by a former statute and affixes a different punishment, varying the procedure, the earlier statute is repealed by the later statute See also Smith vs Benabo.(2) In Regina vs Youle,(3) Martin, B. said in the oft quoted passage : "If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has declared that the new Act shall be substituted for the earlier Act.
" The rule is however subject to the limitation contained in article 20(1) against ex post facto law providing for a greater punishment and has also no application where the offence described in the later Act is not the same as in the earlier Act i.e. when the essential ingredients of the two offences are different.
In the premises, the Central Amendment Act having dealt with the same offence as the one punishable under section 16(1)(a) and provided for a reduced punishment, the accused must have the benefit of the reduced punishment.
We wish to make it clear that anything that we have said shall not be construed as giving to the Central Amendment Act a retrospective operation insofar as it creates new offences or provides for an enhanced punishment.
In the result, the appeal must fail and is dismissed.
P.B.R. Appeal dismissed.

summary/full:
For committing an offence under section 16(1)(a) of the , as it stood on March 1, 1972, the maximum punishment prescribed was imprisonment for six years and fine.
Section 21 of the Act provided that such offences were triable by a Presidency Magistrate or Magistrate First Class.
By the Prevention of Adulteration of Food, Drugs and Cosmetics (West Bengal Amendment) Act, 1973, enacted by the State Legislature of West Bengal, the maximum punishment for an offence under this section had been enhanced to imprisonment for life, as a result of which an offence committed under the section in the State of West Bengal became exclusively triable by a court of sessions.
The Amendment Act received the assent of the President and came into force from April 29, 1974.
In 1976 Parliament amended the Food Adulteration Act and the amendment came into force with effect from April 1, 1976.
For offences punishable under section 16(1)(a) the Amendment Act provided for a reduced punishment for a term of three years instead of six years as before.
By the same Amendment Act section 16A was inserted in the Act providing that all offences under section 16(1) shall be tried in a summary way by a Judicial Magistrate, First Class, or by a Metropolitan Magistrate.
On September 24, 1975 the appellant lodged a complaint against the respondent for having committed an offence punishable under section 16(1)(a) read with section 7 of the Act.
On the date of the commission of the alleged offence the law in force in the State of West Bengal was the 1954 Act as amended by the West Bengal Amendment Act.
Purporting to follow the decision of a single Judge of the Calcutta High Court in B. Manna and Ors.
vs State of West Bengal, in which it was held that the Central Amendment Act was not intended to be retrospective in operation because it had not expressly repealed the West Bengal amendment nor dealt with the Act or any of its provisions in any manner, the Magistrate held that the case was triable by the Court of Sessions.
906 Disagreeing with the view of the single Judge, a Division Bench of the High Court held that after the Central Amendment Act came into force on April 1, 1976 all proceedings pending for trial of offences punishable under section 16(1)(a) as amended by the West Bengal Act which had not been concluded, would cease to be governed by the West Bengal Amendment Act and would come within the purview of the Central Act as amended by the Central Amendment Act and that therefore such offences committed prior to the amendment were triable in accordance with the procedure under section 16A as amended by the Central Amendment Act.
On the question whether the previous operation of the repealed West Bengal Amendment Act in respect of any liability incurred thereunder is preserved by section 8 of the Bengal General Clauses Act, 1899 which is in pari materia with section 6 of the both as to procedure for trial of such offences and the nature of punishment liable to be imposed.
Dismissing the appeal, ^ HELD: By virtue of the proviso to article 254 (2) of the Constitution, Parliament may repeal or amend a repugnant State law either directly or by itself by enacting a law repugnant to the State law with respect to the same matter.
Even though the subsequent law made by Parliament does not expressly repeal a State law, the State law will become void under Article 254 (1) if it conflicts with a later law made by Parliament creating repugnancy.
Such repugnancy may arise where both laws operate in the same field and the two cannot possibly stand together: As for example, where both prescribe punishment for the same offence, both the punishments differs in degree or kind or in the procedure prescribed.
In all such cases the law made by Parliament shall prevail over the State law under article 254(1).
In the instant case when Parliament stepped in and enacted the Central Amendment Act, which is a later law made by Parliament with respect to the same matter the West Bengal Amendment Act stood impliedly repealed with effect from April 1, 1976.
[915 D G] Zaverbhai Amaidas vs The State of Bombay [1955] 1 S.C.R. 799, applied.
The applicability of section 6 of the is not ruled out when there is a repeal of an enactment followed by fresh legislation.
But the Parliament having reenacted the law relating to the same offence under section 16(1)(a) of the Act and provided for altered procedure and also provided a reduced sentence, the accused must be tried according to the new procedure provided by section 16A of the Act and must also have the benefit of the reduced punishment.
[919 G H] Dictum of Sargant J. in Re. Hale 's Patent , held in applicable.
In so far as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence, no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by amendment be applicable; but insofar as it reduces the punishment for an offence punishable under section 16(1)(a) of the Act, there is no reason why the accused should not 907 have the benefit of such reduced punishment.
The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law.
[919 F H] Craies on Statute Law, 7th edn.
at pp.
387 388 referred to.
It is a well settled rule of construction that when a later statute again describes an offence created by an earlier statute and imposes a different punishment or varies the procedure, the earlier statute is repealed by implication.
Michell vs Brown ; , 912, Smit vs Benabo and Regina vs Youle ; , 315 316 referred to.
The rule is however subject to the limitation contained in article 20(1) against ex post facto law providing for a greater punishment and has no application where the offence described in the later Act is not the same as in the earlier Act i.e, when the essential ingredients of the two offences are different.
In the premises, the Central Amendment Act having dealt with the same offence as the one punishable under section 16(1)(a) of the Act and provided for a reduced punishment, the accused must have the benefit of the reduced punishment.
[921 E F]


judgement:
ivil Appeal Nos.
3741 42 of 1982.
From the Judgment and Order dated the 22nd October, 1982 of the Delhi High Court in C.W. Nos. 3577 and 3575 of 1982.
V.M. Tarkunde, K.K. Venugopal, F.S. Nariman, Rajiv Datta and A.N. Bhanot for the Appellants.
M.K. Banerjee, Additional Solicitor General and Miss A, Subhashini for the Respondent.
3 M.C. Bhandare and section Bhandare for the Respondent.
The Order of the Court was delivered by CHINNAPPA REDDY, J. It transpires from the facts which we shall presently set out that the National Agricultural Cooperative Marketing Federation of India, NAFED for short, is a law unto itself and its officers are not unduly concerned either about carrying out the Export Trade Instructions issued by the Government of India or about filing truthful affidavits in the Supreme Court of India.
On June 23, 1982, the Chief Controller of Imports and Exports, Ministry of Commerce, Government of India, issued Export Instruction No. 59 of 1982 on the subject of Export Policy of Niger Seeds during 1982 83.
Paragraphs 2 and 3 of the Instruction are important and may be fully set out.
They are as follows: "On a review of the position it has been decided to allow export of Niger Seeds within an overall ceiling of 10,000 (Ten thousand) tonnes through the canalising agency, viz.
The National Agricultural Cooperative Marketing Federation of India Ltd. (NAFED) subject to minimum export price of Rs.8,500/ (Rupees eight thousand five hundred) per metric tonne.
While the NAFED can continue to undertake exports themselves, private parties will also be allowed to export Niger Seeds as Associates of NAFED against firm commitments backed by irrevocable Letter of Credit subject to availability of ceiling.
Export by private parties will be allowed on first come, first served basis.
For this purpose, the exporters should register their contracts with the NAFED.
The NAFED will stop registration of contracts as soon as the ceiling is exhausted.
The NAFED will be responsible to monitor the ceiling and ensure that export of Niger Seeds not exceeding the overall quantity of 10,000 M.T. during 1982 83.
In other words, the export will be allowed only against the balance quantity left unutilised out of the ceiling of 10,000 tonnes released vide Export Instruction No. 15/82 dated 7.4.1982.
" 3 Pursuant to the Trade Instruction, a Trade Notice was published by the Joint Chief Controller of Imports and Exports on the same lines.
We may mention here that out of the 10,000 tonnes, export of which was to be allowed, the NAFED reserved to itself the right to export 5,000 tonnes and decided to allow its associates to export the remaining 5,000 tonnes.
On the faith of the Trade Notice, the petitioner in Special Leave Petition No. 10230 of 1982 entered into a contract with M/s Curtis (Confirmers) Limited of London on 7.7.82 for the sale and export of 1,000 metric tonnes of Indian Niger Seeds at the price of Rs. 8,560 per metric tonne, f.o.b.
at any Indian Port.
Shipment of 200 metric tonne was to be by October, 1982, 300 metric tonnes by February, 1983 and 500 metric tonnes by March, 1983 at buyer 's option with one month 's clear notice.
The payment was to be by 'firm, irrevocable credit, to be opened through first class bank for 10% value now and for balance 90% to be opened 15 days prior to shipment '.
The petitioner forwarded the contract to NAFED on 22.7.82 with a request that the contract may be registered and promising to send the letter of credit in two or three days.
An Irrevocable Documentary Letter of Credit was duly opened by the Banque Nationale de Paris on behalf of the foreign buyer in favour of the petitioner for the amount of Rs.8,56,000 being 10% of the total value of the goods.
The letter of credit also stipulated that within 15 days before each shipment, 'the credit value was to be increased to cover the amount of each shipment and that would be advised as an amendment to the credit '.
Letter of Credit was forwarded to the NAFED by the petitioner on 26.7.82 with a request that the quantity of one thousand metric tonnes might be reserved for him for export.
The NAFED sent a reply on 6.8.82.
"We will revert in the matter shortly".
On 3.9.82 the petitioner reminded the NAFED both by letter and telegram about his request for allotment of quota.
The petitioner also sent a telegram to the Government of India that matters were unduly delayed though he had completed all the formalities.
It appears that meanwhile, the NAFED wrote to the Ministry of Commerce, Government of India, on 17.9.82 informing the Government of India that it was for the NAFED and its Board of Directors to formulate guidelines regarding release and modalities of export.
A copy of the guidelines formulated by the NAFED on 16.9.82 was enclosed.
Two statements containing the names of the applicants for quotas 5 and other particulars were also enclosed.
The first statement showed the names of 22 applicants whose requests for allotment of quotas were said to be backed by Letters of Credit.
The appellants in the appeals before us are included in this list though this was denied in the counter affidavit filed on behalf of the NAFED.
More about it later.
The second statement contained a list of 34 names of applicants whose contracts were not backed by any Letters of Credit.
On receipt of this letter the Government of India by their letter dated 30.9.82 objected to the guidelines said to have been approved by the NAFED as they were contrary to the guidelines issued by the Government of India.
It was pointed out that according to the instructions of the Government of India the allotment had to be made on first come first served basis whereas according to the guidelines prepared by the NAFED the quotas were to be allotted by a committee consisting of the Chairman and officials of the NAFED, the Government and the trade, after considering all the applications received within a certain specified period.
In fact the guidelines issued by the Government of India required that registration of applications should be stopped as soon as the ceiling limit was reached on a first come first served basis.
Further, the guidelines prepared by the NAFED provided that Letters of Credit would have to be submitted within three weeks after allotment and this was again contrary to the guidelines issued by the Government of India which required that the Letters of Credit should be made available for registration of the requests for allotment of quotas.
The letter of the Government again and again emphasised that quotas should be allotted on first come first served basis to exporters against firm commitments, backed by irrevocable Letters of Credit, subject to availability of ceiling.
The Government asked the NAFED to refer to the fact that the letter of the NAFED itself showed that there were 22 parties who had registered their contracts for export, whose requests for allotment were backed by Letters of Credit and that the total of their requests came to 4,859 tonnes.
On the other hand, it was pointed out, the requests of the other 34 parties for quotas were not backed by Letters of Credit.
The Government of India finally instructed the NAFED to ensure that exports of Niger Seeds were undertaken in conformity with the instructions issued by the Government of India in E.I.No. 59/82 dated 23.6.82.
The NAFED was reminded that while the NAFED 6 was only a canalising agency for export of Niger Seeds, the export would have to be undertaken by them only within the policy as laid.
down by the Government.
The NAFED was further told that a Trade Notice had already been issued by the Joint Controller of Imports and Exports and that it was not for the NAFED to issue another Trade Notice as proposed by it.
The instructions of the Government of India reiterated by their letter dated 30.9.82 fell on deaf ears.
The NAFED ignored the instructions of the Government of India and persisted in the error of its ways.
At a meeting held on 16.10.82 the NAFED purported to select applicants for export quotas neither on a first come first served basis as originally announced in the Trade Notice nor only from among applicants whose contracts were backed by Letters of Credit.
They proposed to give time to the selected applicants to produce Letters of Credit.
The petitioners moved the Delhi High Court under Article 226 of the Constitution for redress but their Writ Petitions were dismissed in limine.
They have come to this Court under Article 136 of the Constitution.
As we were told that the applicants who had been selected for allotment of quotas had been able to secure a higher price from their buyers and, therefore, allotment of quotas to the petitioners would result in considerable loss of foreign exchange, we were anxious to know the present attitude of the Government of India in the matter.
The Government of India has now appeared before us through the learned Additional Solicitor General and a counter affidavit has been filed on their behalf by a Deputy Secretary in the Ministry of Commerce.
The NAFED has no clear or definite answer to the petitioners ' claim.
First, it was said that the letter of Credit furnished by the petitioner did not conform to the requirement of the Trade Notice, but the argument was not pursued as it was seen from the file produced by the Government of India that the Letters of Credit furnished by such of the selected applicants for quotas as did furnish Letters of Credit were all similar to those produced by the petitioners.
In fact, some of the chosen ones furnished no Letters of Credit and it was proposed to give them time for the production of Letters of Credit.
This, of course, was not in accordance with the terms stipulated by the Trade Notice.
It is also clear from the letters which the NAFED addressed to the Govern 7 ment of India that it was never for a moment doubted by anyone that the Letters of Credit produced by the petitioners conformed to the requirements of the Trade Notice.
The present stand is a clear after thought and a pretence.
In the counter affidavit filed on behalf of the NAFED it was stated that 22 applicants for allotment claimed that they had firm contracts backed by Letters of Credit for full value.
The total quantity covered by these applications was 4,859 tonnes.
It was asserted that the petitioners did not fall in this category.
It was stated that the petitioners came in the category of those who had secured a price of Rs. 8,600 per tonne but whose contracts were not backed by Letters of contract.
The Learned Counsel who appeared for the NAFED also submitted before us, on instructions, that the petitioners were not among the 22 applicants whose contracts were considered by the NAFED as backed by Letters of Credit.
But a perusal of the file produced by the Government of India exposed the statement made in the affidavit filed on behalf of the NAFED as false.
The NAFED had itself prepared a statement showing "Enquiries received from private parties backed by Letters of Credit for export of Niger Seeds".
This statement was sent to the Government of India along with its letter dated 17.9.82 and it contains a list of twenty two names.
Both the appellants in the appeals figure in it.
It is clear to us that the statement in the counter affidavit is false.
It is also clear to us that the Learned Counsel was misled and wrongly instructed to argue before us that the appellants were not included in the list of twenty two.
It appeared to us that a copy of the letter dated 17.9.82 of the NAFED to the Government of India was not made available even to the Learned Counsel.
We repeatedly asked for it and we could ultimately get it from the file produced by the Government of India, One of the submissions made to us was that the selected applicants had secured a higher price per tonne and that would help to earn more foreign exchange.
In the first place their contracts are not backed by Letters of Credit as stipulated by the Trade Notice and they were not eligible for registration.
In the second place the ceiling had already been reached and for that reason also they could not be registered.
The counter affidavit filed by the Government of India fully substantiates the claim of the appellants that the NAFED had 8 disregarded the trade instructions issued by the Government of India as well as the Trade Notice issued pursuant to the trade instructions.
In paragraph 27 of the counter affidavit, it is expressly stated "I submit that the answering respondents have no objection if relief is granted to the petitioners provided they fulfil the requirements of the export instructions issued by respondents 1,2 and 4".
In the circumstances we have no option but to allow these appeals.
Necessary directions have already been issued by us on 29.11.82.
The appellants are entitled to get their costs in each of these appeals from the 6th respondent, the National Agricultural Co operative Marketing Federation Ltd. We fix the costs at Rs. 5.000/ in each appeal.

dataset_name: IN-Abs

summary/full:
In June 1982 the Chief Controller of Imports and Exports issued export instructions on the subject of Export Policy of Niger Seeds during 1982 83.
Paragraphs 2 and 3 of the instructions stated that the Government had decided to allow export of Niger Seeds within an overall ceiling of 10,000 metric tonnes through the National Agricultural Cooperative Marketing Federation of India (NAFED) subject to a minimum export price of Rs. 8,500 per metric tonne.
In addition to NAFED, private exporters who registered their contracts with NAFED were also allowed to export the seeds on the basis of first come first served, against firm commitments backed by irrevocable letters of credit, subject to availability of ceiling.
It was also stated that the NAFED would be responsible to monitor the ceiling and ensure that export of the seeds did not exceed the overall quantity of 10,000 metric tonnes during the year.
A Trade Notice on these lines was issued by the Joint Chief Controller of Imports and Exports.
On the faith of the trade notice the petitioner entered into contract with a foreign buyer who opened a firm irrevocable letter of credit in favour of the petitioner.
The petitioner thereupon requested the NAFED to register the contract and that one thousand tonnes of seed might be reserved for him for export.
About six weeks later the petitioner reminded the NAFED by letter and telegram about his request for allotment of the quota.
In the meanwhile the NAFED wrote to the Government of India, Ministry of Commerce that it was for NAFED and its Board of Directors to formulate guidelines regarding the release and modalities of export of the seeds and it forwarded two statements one showing names of 22 applicants whose requests for allotment of quotas were said to be backed by letters of credit and the other containing list of 34 names of applicants whose contracts were not backed by letters of credit.
The petitioner 's name was included in the first list.
Reiterating the earlier instructions the Government wrote to the NAFED that the allotment of quotas should be in conformity with the instructions and the Trade Notice and that it was not for the NAFED to issue another Trade Notice.
2 In disregard of the instructions the NAFED selected certain applicants and gave time to them to produce letters of credit.
The petitioners were not in this list.
The Delhi High Court dismissed in limine the petitioners ' petition under article 226 of the Constitution.
The petitioners thereupon filed their petition under article 136 of the Constitution.
Allowing the petition, ^ HELD: While the petitioners satisfy all the requirements of the Trade Notice some of the applicants chosen by the NAFED for allotment of quota did not furnish the letters of credit and the NAFED 's action in giving them time for their production was not in accordance with the terms stipulated by the Trade Notice.
[6H] The file produced by the Government of India exposed the statement made in the NAFED 's affidavit that the petitioners were not in the list of 22 as false.
Its counsel was misled and wrongly instructed to argue that the petitioners were not included in that list.
But the petitioners in fact figured in the statement entitled "enquiries received from private parties backed by letters of credit for export of Niger seeds" prepared by the NAFED and sent to the Government of India.
[7 E] Even if the claim of NAFED that the selected applicants had secured a higher price and that would help to earn more foreign exchange is correct, they were not eligible for registration firstly because their contracts were not backed by letter of credit in terms of the Trade Notice and secondly because the ceiling had already been reached.
[7 G] The counter affidavit filed by the Government of India fully substantiates the claim of the petitioners that the NAFED had disregarded the trade instructions issued by the Government of India as well as the Trade Notice which was issued pursuant to the trade instructions.


judgement:
N: Criminal Appeal No. 605 of 1981.
Appeal by special leave from the Judgment and Order dated the 8th April, 1980 of the Ahmedabad High Court in Criminal Appeal No. 218 of 1978 with Crl.
Appeal No. 603 of 1978.
M.C. Bhandare, T. Sridharan, Mrs. section Bhandare and Miss C.K. Sauhantia for the Appellant.
Miss Maya Rao for Respondent No. 1.
J.L. Jain and R.N. Poddar for Respondent No. 2.
The Judgment of the Court was delivered by MISRA, J.
In this appeal by special leave the narrow question that this Court proposes to examine is whether the High Court was right in holding that churning of the curd of which a sample was taken, if done with hand, was done in a proper manner so as to make the sample homogeneous and representative.
The few relevant facts are that Shri G.A. Parikh Food Inspector attached to Baroda Municipal Corporation visited the shop of the respondent No.1 accused Madanlal Ramlal Sharma on September 4, 1976 around 7.20 a.m.
He purchased curd from a container having 2 1/2 Kg of curd for the purpose of analysis.
There was a board hanging on the outer side of the container that 11 the curd is prepared from cow 's milk.
The Food Inspector purchased 600 grams of curd and after churning the curd, he divided it in three equal parts and prepared three separate samples, each kept in a separate bottle.
After various formalities including obtaining the sanction for prosecuting the respondent accused.
a complaint was filed in the Court of the learned Judicial Magistrate, First Class (Municipality) at Baroda.
In the course of trial at the request of the accused the third sample was sent to the Central Food Laboratory for analysis and report.
It may also be mentioned that the Food Inspector himself had sent one sample to the public analyst attached to the laboratory set up by the Municipal Corporation, for analysis of article of food.
The report of the public analyst shows that the sample of curd contained 3% milk fat and 11.7% milk solid non fat.
On the other hand, the report of the Central Food Laboratory, Calcutta (exhibit 15) shows that milk fat was 2.95% and milk solid non fat 10.8%.
It was opined that the sample of curd was adulterated.
The learned Magistrate held that the curd in question was prepared out of cow 's milk, that it did not conform to the prescribed standard and reached the conclusion that the prosecution case was established beyond a shadow of reasonable doubt.
Consequently, the learned Magistrate convicted the first respondent accused for an offence under section 7 (1) read with section 16 (1)(a)(1) of the and sentenced him to suffer rigorous imprisonment for four months and to pay fine of Rs. 500 in default to suffer further rigorous imprisonment for two months.
The first respondent accused preferred Criminal Appeal No.46 of 1977 in the Court of Sessions at Baroda.
The learned Additional Sessions Judge who heard the appeal, inter alia, held that proper churning of the sample having not been done, the sample cannot be said to be homogeneous and representative of the curd in question so as to arrive at a proper conclusion on analysis of the sample and on the short ground acquitted the accused.
Two appeals were preferred against the judgment of the learned Sessions Judge.
Criminal Appeal No. 218 of 1978 was preferred by the State of Gujarat and Criminal Appeal No. 603 of 1978 was preferred by the complainant Food Inspector.
A division Bench of the Gujarat High Court disposed of both the appeals by a common judgment.
The High Court affirmed the 12 acquittal observing that 'the conclusion is inescapable that the prosecution has failed to prove that the churning was done in a proper manner so as to make the entire curd one and all the samples would be identical in themselves. ' Hence this appeal by special leave by the complainant Food Inspector.
The sample of curd was taken on September 4, 1976.
Six years have passed and two courts have concurred in acquitting the accused, namely, the Sessions Judge and the High Court.
We are, therefore, reluctant to interfere with the order of acquittal.
But the learned counsel Mr. M. C. Bhandare for the appellant, Food Inspector and the learned counsel Mr. Nain appearing for the State of Gujarat second respondent supporting the appellant, urged that irregularity in churning the curd before sampling the same in bottles, as found by the High Court, if allowed to remain unquestioned, it would have an adverse effect on a large number of pending cases.
We are, therefore, only inclined to examine the legal submission and we may make it absolutely clear that we are disinclined to interfere after six years in what is found to be marginal adulteration by the learned Magistrate so as to send the respondent to jail, though we must make it abundantly clear that we do not look upon with equanimity on offences under the because these offences have the deleterious effect playing havoc with the health and well being of a large segment of the Society.
But the acquittal by two courts and delay of six years and coupled with the finding that there was marginal adulteration would certainly be a disincentive to interfere with the Order.
It is indisputable that curd is an article of food.
Rule 22 of the Prevention of Food Adulteration Rules, 1955 (Rules for short) provides that in the case of curd, a quantity of 200 grams has to be sent to the public analyst/Director of Central Food Laboratory for analysis.
The Standard for cow 's milk for Gujarat as prescribed under the Rules is that it must contain 3.5% milk fat and 8.5% milk solids non fat.
Further provision is that the curd obtained from any kind of milk shall have the same content as the milk fat and milk solids non fat as the milk from which it is prepared.
Section 13 (3) of the Act, provides that the certificate issued by the Director of Central Food Laboratory under section 2 B shall supersede the report given by the public analyst under 13 sub section (1).
The report of Central Food Laboratory shows that the sample contained 2.9% of milk fat.
Therefore, the conclusion that the sample of curd was adulterated is unquestionable.
The learned Sessions Judge found that after purchasing the curd in order to make the sample homogeneous and representative, churning was not done as required and therefore the sample was not both homogeneous and representative and therefore the accused could not be said to have sold or stored for sale adulterated curd.
While affirming this conclusion the High Court has observed that the evidence of exhibit 49 Devsibhai Ramjibhai, a defence witness and the statement of the accused recorded under section 248 (2) Cr.
P.C. would show that the churning was not done by an instrument but the complainant had done it with his hand and thereafter curd was divided into three parts and three sample bottles were filled.
The High Court then observed that on this point Devsibhai Ramjibhai had not been cross examined.
The High Court while proceeding to appreciable the evidence of Devsibhai Ramjibhai accepted it in preference to the other evidence of the complainant who had stated that the churning was done with a spoon.
Then comes the observation of the High Court which clinches the matter.
It reads as under: "But fortunately for the prosecution when the spoon aspect becomes doubtful, and when the defence version clearly found by us on record is that the allegation is that the churning was done by means of hand alone, it was quite necessary for the prosecution to challenge this version of the defence which has been given by the defence witness on oath.
In the absence of that, unfortunately, we have come to the conclusion that the prosecution has failed to prove that the churning was done in a proper manner so as to make the entire curd one and all the samples would be identical in themselves.
" The High Court held that on this short ground alone the acquittal must be affirmed.
With respect, we find it very difficult to subscribe to the view taken by the High Court.
Rule 14 provides that sample of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall 14 be closed sufficiently, tight to prevent leakage, evaporation, or in the case of dry substance, entrance of moisture and shall be carefully sealed.
Rule 15 provides for labelling and addressing the bottles.
Rule 16 provides for packing and sealing the samples.
Rule 20 enables the Food Inspector to add prescribed preservative to the sample.
Rule 22 prescribes quantity necessary for analysis.
It may be recalled that section 11 prescribes procedure to be followed by Food Inspector, Our attention was not drawn to any provision in the Act or the Rules making it obligatory that churning should be done with some machine so as to make a sample homogeneous and representative sample.
We are conscious of the fact that in milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis.
For this purpose churning is one of the methods of making the sample homogeneous and representative.
But having said this, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument, and that churning done by hand would not provide a homogeneous and representative sample.
Commonsense dictates that articles of food like milk and curd when churned with hand would properly mix up from top to bottom.
More so when the quantity is either 600 grams which was the quantity purchased or 2 1/2 kgs.
which was the quantity in the container.
There was evidence that the churning was done by spoon.
But even if the High Court found that evidence unreliable and evidence of defence witness Devsibhai Ramjibhai so much, reliable that it was prepared to act upon it disagreeing with the other evidence, the evidence of Devsibhai Ramjibhal was that churning was done with hand, and he did not say that the churning was not effective.
We therefore find it difficult to subscribe to the view of the High Court that the churning is required to be done by some instrument or that the churning done by hand would not meet with the requirements of making a sample homogeneous and representative.
There has to be a finding that the churning done with hand was not adequate.
There is no such finding.
We are, therefore, of the 15 opinion that the High Court was not justified in confirming the acquittal on this ground.
Having made the position in law clear, as we understand it, we decline to set aside the acquittal.
Subject to above observation the appeal is dismissed.
H.L.C. Appeal dismissed.

summary/full:
The respondent was convicted and sentenced for an offence under the on a complaint that a sample of curd purchased from his shop had been found not to conform to the standard prescribed.
He preferred an appeal and the Sessions Judge acquitted his on the short ground that the sample was not homogeneous and representative of the curd purchased as the curd had not been churned properly before it was sent for analysis.
The High Court affirmed this conclusion and dismissed the appeals filed against the order of acquittal.
The High Court, in preference to the evidence of the complainant that the churning of the sample had been done with a spoon, placed reliance on the evidence led by the defence that the churning had not been done by any instrument but it had been done by the complainant with his hand.
The High Court stated that since the prosecution had not challenged the defence version that the churning of the sample had been done by means of hand alone, it had failed to prove that the churning had been done in a proper manner.
Declining to interfere with the acquittal of the respondent by the two lower courts after a lapse of six years and dismissing the appeal, ^ HELD: In milk and milk preparations including curd, it is distinctly possible that the fat settles on the top and in order to find out whether the milk or its preparation such as curd has prescribed content, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis.
For this purpose churning is one of the methods of making the sample homogeneous and representative.
But, there is nothing in the Act or the Rules which prescribes that churning must be done by some instrument and that churning done by hand would not provide a homogeneous and representatives sample.
Commonsense dictates that articles of food like milk and curd when churned with hand would 10 properly mix up from top to bottom.
More so when the quantity is either 600 grams which was the quantity purchased or 2 1/2 kg.
which was the quantity in the container.
[14 C E] In the instant case, there was evidence that the churning was done by spoon.
But even if the High Court found that evidence unreliable and the evidence of defence witness so much reliable that it was prepared to act upon it disagreeing with the other evidence the evidence of defence witness was that churning was done with hand, and he did not say that the churning was not effective.
It is therefore difficult to subscribe to the view of the High Court that the churning done by hand would not meet with the requirements of making a sample homogeneous and representative.
There has to be a finding that the churning done with hand was not adequate.
There is no such finding.
The High Court was, therefore, not justified in confirming the acquittal on this ground.
[14 F H; 15 A]


judgement:
N: Criminal Appeal No. 175 of 1974.
Appeal by special leave from the judgment and order dated the 18th October, 1973 of the Allahabad High Court in Crl.
Appeal Nos.
1307 and 1966 of 1973.
AND Criminal Appeal Nos.
367 369 of 1974.
Appeals by special leave from the judgment and order dated the 18th October, 1973 of the Allahabad High Court in Criminal Appeal No. 1307 of 1973 connected with Crl.
Appeal Nos.
1287 and 1566 of 1973.
47 Rajendra Singh, R.K. Garg B.P. Singh and Ranjit Kumar for the Appellant.
O.P. Rana and M.V. Goswami for the Complainant.
Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
These four Criminal Appeals are by special leave.
Criminal Appeal No. 175 of 1974 is by the four appellants Maqsoodan, Madan Mohan, Prayagnath and Nando who have been convicted under Sections 302/34 and 307/34 Penal Code.
The material facts may be briefly stated as follows: On 8 6.1972 at about 5.45 or 600 a.m, when Sulley (P.W. 1) along with his brother, Jadon (deceased), his son, Rajendra (C.W. 1) and his nephew Vijay Kumar (P.W. 3) were going from their house in Neem Gali, Mathura, to their Dharamshala in Mohalla Bengali Ghat, via Vishram Ghat and reached the area called Shyam Ghat, they were waylaid by the twelve persons accused in the case and were assaulted.
According to the prosecution, the accused persons were variously armed with Ballams, phrases and lathis.
Another group of twelve or thirteen persons who were associates of the accused was standing at Vishram Ghat and some one was constantly inciting the accused persons with the expression, "kill, kill" whereupon the accused persons attacked and assaulted Jadon, Vijay Kumar, Rajendra and Sulley.
Jadon and P.W. 3 were severely injured.
The condition of Jadon was very precarious.
After the assault, the miscreants left.
P.W. 1 arranged for a lorry belonging to one Vishnu Chaubey and carried the injured persons to the District Hospital.
The driver of the lorry was one Than Singh.
Jadon and P.W. 3 were removed to the operation theatre.
Thereafter, P.W. 1 proceeded to the Police Station, Kotwali at Mathura and submitted a written First Information Report (FIR) about the incident.
The FIR was written by his nephew, Prakash Chandra Chaturvedi (P.W. 8).
The FIR was lodged at 6.30 a.m. at the Police Station and has been proved in this case as exhibit "Ka 16".
After lodging the FIR, P.W. 1 came back to the hospital where the injuries of all the four injured persons were examined by Dr. B.S. Babbar.
As the condition of the injured persons was serious, intimation was sent to Shri U.C. Tripathi (D.W. 7), Sub Divisional 48 Magistrate, Sahabad, for recording their statements.
The Magistrate came and recorded the statements of P.W. 3 and C.W. 1 at 9.15 a.m. and 9.20 a.m. respectively.
Jadon was operated upon and his condition was such that he could not make any statement.
In fact, he succumbed to the injuries the next day, namely, 9.6.1972 at 3.25 p.m.
The post mortem examination was conducted on the dead body of Jadon by Dr. B.S. Babbar on 10.6.1972 at 10.00 a.m. 3.
The police after investigation submitted charge sheet against the twelve accused persons, all of whom pleaded not guilty.
The First Additional Sessions Judge, Mathura, who tried the case, convicted eleven out of the twelve accused persons and acquitted accused No. 12, Kanhaiya.
Appellant Maqsoodan was convicted under Section 302 I.P.C. and sentenced to death.
The other ten accused persons were convicted under Sections 302/149 and 307/149 I.P.C. and sentenced to imprisonment for life, each under Section 302/149 Penal Code.
Accused Parmatma was convicted under Section 147 I.P.C. and the rest were convicted under Section 148 I.P.C. They were sentenced to various terms of imprisonment.
The sentences of imprisonment were directed to run concurrently.
There was also a reference for the confirmation of the death sentence imposed on Maqsoodan.
The convicts filed several appeals before the High Court of Allahabad.
The High Court altered the convictions of Maqsoodan, Madan Mohan, Prayagnath and Nando, from under Sections 302/149 and 307/149 to ones under Sections 302/34 and 307/34 Penal Code.
The sentence of death imposed on Maqsoodan was reduced to imprisonment for life.
All of them were acquitted of the offences under Section 147 or Section 148 I.P.C. The convictions and sentences as against the other six accused persons were set aside and they were acquitted.
The acquittal of Kanahaiya was affirmed.
Criminal Appeals No. 367, 368 and 369 of 1974 have been filed by the State against the acquittal of the eleven accused persons of the offences under Sections 147 and 148, Penal Code; S.L.P. No. 766 of 1974 is by the State against the acquittal of Kanahaiya.
All these appeals will be disposed of by this common judgment.
Shri Rajendra Singh, learned counsel appearing for the appellants in Criminal Appeal No. 175 of 1974, first submits that 49 the conviction of the four appellants is unsustainable in law; he submits that the evidence of the four witnesses, namely, P.W. 1, Sulley, C.W. 1, Rajendra, P.W. 3, Vijay Kumar and P.W. 2, Jagdish, cannot form the basis of the conviction as only one witness, namely, P.W. 2, Jagdish, out of five witnesses named in the FIR has been examined; the eye witnesses examined are interested and their evidence cannot be safely relied on.
The High Court has found that the testimony of the eye witnesses, namely, P.Ws 1, 2, 3 and C.W. 1 "suffer from numerous infirmities".
It, therefore, sought support to their testimony from the two earlier statements erroneously called dying declarations, Exhibits Ka 22 and Ka 23 made by P.W. 3 Vijai Kumar and P.W. 2 Jagdish respectively.
The infirmities referred to by the High Court consisted in, according to the High Court, improvements made by the witnesses and variations in their earlier and latter statements.
In our opinion, on that ground alone, the testimony of P.Ws. 1, 2, 3 and C.W. 1 cannot be held to be infirm.
It is the duty of the court to remove the grain from the chaff.
These four witnesses are the injured witnesses having received the injuries during the course of the incident.
Their presence at the time and place of the occurrence cannot be doubted; in fact it has not been challenged by the defence.
As both the parties were inimical for a long time, it will be prudent to convict only those persons whose presence and participation in the occurrence have been proved by the prosecution beyond reasonable doubt.
We agree with the finding of the High Court that the presence and participation of appellants Maqsoodan, Madan Mohan, Prayagnath and Nando, who are appellants in Criminal Appeal No. 175 of 1974 has been proved beyond reasonable doubt, despite the improvements and variations in their evidence.
Shri Rajender Singh has submitted that it is not safe to rely on the testimony of P.Ws. 1, 2, 3 and C.W. 1 as the prosecution has not examined all the witnesses named in the FIR except Jagdish, nor has the prosecution examined any of the neighbours.
It is not the number of witnesses examined nor the quantity of evidence adduced by the prosecution that counts.
It is the quality that counts.
Learned counsel has not pointed out to us that any witness better or more creditable has been omitted by the prosecution.
As stated above, the eye witnesses examined in this case were the best and natural witnesses.
Learned counsel also has criticized that during the course of evidence, prosecution alleged that Maqsoodan 50 gave two blows but that fact was not mentioned in the FIR.
He has also criticised that the injured witnesses do not say who injured whom.
This, on the contrary, shows that the witnesses examined were not tutored and they gave no parrot like stereotyped evidence.
It may be remembered that P.W. 1 who lodged the FIR received as many as seven incised wounds, one of them being on the left chest; he took Jadon, who had received sd serious injuries and who later on succumbed lo them, and C.W. 1, who received five incised injuries and P.W. 3, who has also seriously injured, to the hospital.
He lodged the FIR thereafter.
The condition of his mind and disposition can easily be imagined.
There were bound to be some errors in the FIR.
It may also be remembered that the FIR was lodged within half an hour of the occurrence.
There was little time lost.
The occurrence took place at about 6.00 a.m. on 8.6.1972 It is nobody 's case that the witnesses were unable to recognise the real culprits.
The accused persons were well known to the witnesses from before.
They did not have any reason to omit the real culprits and implicate falsely the accused persons.
The evidence of P.Ws. 1, 2, 3 and C.W.1 could have been accepted even without corroboration.
Even so, the High Court rightly pressed into service the earlier statements of P.W. 3 and C.W.1 (exhibit Ka 22 and Ka 23) respectively.
Ka 22 and Ka 23 have been wrongly called dying declarations.
The statement written or verbal, of relevant facts made by a person who is dead, is called a dying declaration; it is relevant under Section 32 of the Evidence Act, when the statement is made by the person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which that person 's death comes into question.
When a person who has made a Statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act.
In the instant case, the makers of the statements exhibit Ka 22 and Ka 23, are not only alive but they deposed in the case.
Their statements, therefore,, are not admissible under Section 32; but their statements however are admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in the Court.
In the instant case, exhibit Ka 22 and Ka 23 respectively corroborate the testimony in Court of P.W. 3 and C.W. 1 respectively.
The High Court has found that the witness later on improved the story and roped in some other persons.
As a rule of 51 caution, the High Court has found that the participation of the four appellants in the offence has been proved beyond reasonable doubt and the presence and participation of the other eight accused persons named by them have not been proved beyond doubt.
We do not find valid reason to interfere with this finding of fact of the High Court, in these appeals under Article 136 of the Constitution.
As the number of accused persons present and participating in the occurrence have not been proved to be five or more, the High Court has rightly held that the common object necessary for constituting an unlawful assembly has not been proved, and therefore in the facts and circumstances of the case, the High Court correctly held that common intention has not been proved and as such the four appellants were rightly acquitted of the offence under section 302 read with section 149 I.P.C., and also rightly acquitted all the other accused persons of the offences under Sections 147 and 148 I.P.C. 10.
Shri Rajinder Singh next submits that if any offence at all has been committed by the appellants of Criminal Appeal No. 175 of 1974, the offences may be under Section 326 I.P.C. depending on the medical evidence and circumstances of the case and that Section 34 I.P.C. cannot apply as no common intention has been proved.
We cannot accept this submission.
Dr. B.S. Babbar, P.W .
3, who held the post mortem examination on the dead body of Jadon found a number of wounds out of which the following were serious: 1.
Incised wound 2" x 1/4" x scalp deep on head.
Incised wound 3" x 1/4" x scalp deep on the head 3.
Stiched wound with draining tube 3" towards upper portion of the stomach on right side.
Stiched wound 1.1/2" on the upper portion of the left side of the stomach.
In his opinion, death was due to cyncope following shock and Haemorrhage as a result of the injuries.
According to him, injuries No. 1 & 2 separately was sufficient to cause death in the ordinary course of nature.
It, therefore, cannot be argued that the offence committed was not murder.
52 Common intention is a question of fact.
It is subjective.
But it can be inferred from facts and circumstances.
In this case, the appellants were related.
All of them were armed with deadly weapons.
They were together.
There was an order by some one, "kill, kill", when all of them simultaneously attacked the deceased and P.Ws. 1, 2, 3, and C.W. 1.
After the occurrence, they left together; they were later arrested from the same place.
The High Court therefore rightly held that the appellants caused the injuries with the common intention, and was justified in convicting the appellants under Section 302/34 of the Penal Code.
We, therefore, affirm the conviction and sentences inflicted by the High Court on Maqsoodan, Madan Mohan, Prayagnath and Nando, appellants in Criminal Appeal No. 175 of 1974 and dismiss the appeal.
As held above that the High Court rightly held that the prosecution failed to prove the common object and therefore it rightly acquitted all the accused persons of the offences under Sections 147 and 148.
In the result, the State appeals are also dismissed.
P. B. R. Appeal dismissed.

summary/full:
The prosecution case against the 12 accused persons was that, armed with deadly weapons, they waylaid and assaulted the deceased and three others accompanying him, and that someone among another group of 12 of their associates standing at some distance constantly incited the accused with the words "kill, kill".
The deceased received serious injuries and died on the following morning.
While the appellant was convicted under section 302 Indian Penal Code and sentenced to death, ten other accused were convicted and sentenced variously.
One of them was acquitted.
On appeal the High Court reduced the sentence of death passed on the appellant to imprisonment for life.
Convictions of four of the 11 accused were altered from under section 302/149 and section 307/149 to one under sections 302/34 and 307/34 I.P.C.
All of them were however acquitted of the offences under section 147 or section 148 I.P.C. The convictions and sentences against the other six accused were set aside and they were acquitted.
It was contended on behalf of the appellants that their conviction was unsustainable in law because the evidence of the eye witnesses, who were interested parties, could not be safely relied upon.
Dismissing the appeal, ^ HELD: The High Court erred in stating that the testimony of the four eye witnesses suffered from numerous infirmities, that they made improvements in their testimony and that there were variations in their earlier and later statements.
On that count alone their testimony could not be held to be infirm.
It is the duty of the Court to remove the grain from the chaff.
[49 C D] 46 The parties were inimical for a long time.
The four witnesses were the injured persons and therefore, their presence at the time and place of occurrence could not be doubted.
The presence of all the four accused in the scene of occurrence and their participation in the crime had been proved beyond reasonable doubt despite the improvements and variations in the evidence of witnesses.
[49 E F] In a case of this kind it is not the number of witnesses examined or the quantity of evidence adduced by the prosecution that counts.
It is the quality that counts.
Eye witnesses, examined in the case were the best and natural witnesses.
The accused persons were known to the witnesses and they did not have any reason to omit the real culprits and implicate falsely accused persons.
[49 G H; 50 C] A statement, written or verbal, of relevant facts made by a person who is dead, is called a dying declaration and is admissible in evidence under section 32 of the Evidence Act.
But when a person who has made a statement, even if it be in expectation of death but is not dead, it is not a dying declaration.
It is not admissible under section 32 of the Evidence Act.
[50 E F] In the instant case the two witnesses whose statements were erroneously called dying declarations by the High Court were alive and deposed in the case.
Such statements are admissible under section 157 of the Evidence Act as former statements made by them to corroborate their testimony in the Court.
[50 F G] Common intention is a question of fact and is subjective.
It can be inferred from facts and circumstances.
In the instant case the appellants who were related to one another were armed with deadly weapons when they waylaid and attacked the deceased and his companions, someone incited them to "kill", and after the assault they left the scene of occurrence together and they were arrested from the same place.
There was the therefore common intention and the High Court was justified in convicting them under section 302/34, IPC.
[52 A C]