The Allahabad High Court while setting aside the order passed by Additional District and Sessions Judge, Aligarh and 1st Additional Chief Judicial Magistrate, Aligarh, noted that the burden of proof definitely lied on the prosecution side to prove that the salt in question was being sold for human consumption and not for animal or industrial use or any other purpose.
A Single Bench of Justice Jyotsna Sharma passed this order while hearing Criminal Revision filed by Umesh.
The criminal revision has been filed with a prayer to allow the revision for setting aside and stay the operation of the order dated 08.01.2002 and 01.05.2001passed by Additional District and Sessions Judge, Aligarh and 1st Additional Chief Judicial Magistrate, Aligarh respectively, respondent nos 2 and 3.
Relevant facts giving rise to the criminal revision are as below:-
(i) The revisionist faced the trial under Section 7/16 of the Prevention of Food Adulteration Act, 1955 in the Court of Ist ACJM, Aligarh Case No 863 of 1999 and was convicted under Sections 7/16 of the Food Adulteration Act and to undergo a rigorous imprisonment of 6 months and fine of Rs 1,000/- in default whereof he was ordered to undergo further rigorous imprisonment of 3 months.
(ii) The facts of the case as appears from the lower court record in brief are that the accused was challaned on 10.04.1994 for selling non-iodized salt. The challan came to be filed by the Food Inspector after initially taking 500 gm of sample of edible salt, testing the same and after adopting the prescribed procedure filing a complaint, finding the same to be non-iodized. He was declared guilty and sentenced as above. The convict filed an appeal no 44 of 2001 against the above judgment and order.
(iii) The appellate court heard both sides and found all the documents filed by the prosecution in order and also the evidence produced as dependable. He affirmed the order of the trial court and dismissed the appeal. Now, this revision has been filed against both the orders, inter alia on the grounds that the sale of non-iodized common salt, though was prohibited under Section 44-H of the Prevention of Food Adulteration Rule, 1955, however, this provision was omitted by Central Government by GSR716(E) dated 13.09.2000; even prior to the omission of Rule 44- H, the common salt could be sold or exposed or stored for sale for certain purposes like iodization, iron fortification, animal use, preservation, manufacturing medicine and industrial use under proper labeling with declaration as specified under clause 11 of the sub-rule (ZZZ) of Rule 42.
It is contended that the Food Inspector nowhere stated in his statement that he asked the revisionist that he wanted to purchase the salt for human consumption.
It is also contended that salt, of which, the sample was taken was not being sold in a labelled pack, therefore, the entire proceedings is illegal as no evidence has been produced that the sample of common salt tested for iodine was being exposed for sale for human consumption only, therefore, he cannot be convicted on the basis of presumptions.
It is contended by the AGA that requirement of labeling was not mandatory for salt meant for human consumption. It could be sold loose also. Hence, the argument of the revisionist is misconceived.
The Court observed that,
This fact is not disputed that at the time of occurrence, the law relating to the food adulteration prescribed that any common salt exposed for sale for human consumption must be iodized in the manner as prescribed. The law required that non-iodized salt cannot be sold for human consumption, however, any uniodized salt for animal use or for the purpose of iodization, iron fortification, manufacture of medicine and for industrial use was permitted by law to be sold.
The paper on record shows that the sample of the salt taken was unlabeled. The oral evidence produced from the side of the prosecution did not reveal that the sample was taken from those salt or the packets of the salt which were exposed for sale for human consumption only. The witness is silent on the point.
It may be noted that the burden of proof definitely lied on the prosecution side to prove that the salt in question was being sold for human consumption and not for animal or industrial use or any other purpose.
In the statement recorded under Section 313 CrPC, no question was asked on this point. The accused was never asked whether he was selling the salt for human consumption or for any other purpose.
It may also be noticed that the Apex Court in Academy of Nutrition Improvement and Others Vs Union of India in Writ Petition (C) No 80 of 2006 decided on 04.07.2011 declared that Rule 44-I of the Prevention of Food Adulteration Rule, 1955 is beyond the rule making power of the Central Government and ultra vires the Act.
With the object of uniformly applying the ban throughout the country, the Central Government inserted Rule 44-H in the Prevention of Food Adulteration Act, 1955 banning the sale of non-iodized common salt for direct human consumption thus prescribing uniform application throughout the country. The Apex Court held the Rule 44-I as invalid on 04.07.2011. It may be noted that it is not said by the Apex Court that the dictum shall have only prospective application and not retrospective, the Court noted.
“In my view, if “the law or precedent” is beneficial to the accused then unless it is prohibited, the benefit should be given to the accused retrospectively. Hence, in my view, this revision deserves to be allowed on two grounds. Firstly, the Rule 44-I which was the basis of conviction was declared ultra-vires the rule making powers of the government. Secondly, the evidence was deficient on the point that the sample in fact belonged to that category of common salt which was exposed for direct human consumption’, the Court further observed while allowing the petition.
“The order dated 08.01.2002 passed by Additional District and Sessions Judge, Aligarh as well as the order dated 01.05.2001 passed by 1st Additional Chief Judicial Magistrate, Aligarh, are hereby set aside”, the Court ordered.