TMI Blog2004 (4) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... -, in default of payment of fine to further undergo rigorous imprisonment for 1 month. This was the minimum sentence which could be imposed under the Act for the charge proved against the appellant. The appellant thereafter preferred S.B. Criminal Revision No.200 of 1988 before the High Court of Rajasthan at Jodhpur but the same was dismissed by the High Court by its judgment and order dated 1st August, 1997. The appellant is before us by special leave. The facts of the case are not in dispute. On October 25, 1979 the Food Inspector took a sample of hard boiled sugar confectionary from the shop of the appellant. After complying with the requirements of the Act and the Rules the sample was sent to be Public Analyst and the report of the Public Analyst dated November 16, 1999 showed that the sample was not according to the prescribed standard as mineral oil was found present which was an unwholesome ingredient, and also that the sample had a very unpleasant smell and taste. The Food Inspector filed a complaint on January 29, 1980. After trial the learned Chief Judicial Magistrate by his judgment and order dated April 25, 1986 found the appellant guilty and sentenced him as earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on a decision of the Division Bench of the Delhi High Court reported in 1974 Prevention of Food Adulteration Cases page 21 : Sunder Lal vs. Municipal Corporation of Delhi. In that case it was urged before the High Court that during the pendency of the appeal before the High Court the standard of compounded Hing was changed by Notification dated March 9, 1966 and that the sample conformed to the new standard. Consequently, it was argued that the appellant was entitled to acquittal. While considering the submission, the learned Judges observed that the new standard having taken away the rigours of law and being in favour of the accused, it should be given a retrospective operation. For this proposition reliance was placed on a decision of the Division Bench of the Allahabad High Court in AIR 1968 All. 392 : Shyam Lal vs. State wherein after quoting from Crawford's Construction of Statute (1940 Edition) at page 599, the Court observed :- The above rule of construction is based on principle that until the proceedings have reached final judgment in the Court of last resort, that Court, when it comes to announce its decision, must conform to the law then existing . It further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a time when the Probation of Offenders Act had not been enacted. This Court observed:- The first question is whether the High Court, acting under S. 11 of the Act, can exercise the power conferred on a court under S.6 of the Act. It is said that the jurisdiction of the High Court under S. 11(3) of the Act is confined only to a case that has been brought to its file by appeal or revision and, therefore, it can only exercise such jurisdiction as the trial court had, and in the present case the trial court could not have made any order under S. 6 of the Act, as at the time it made the order the Act had not been extended to Gurgaon District. On this assumption, the argument proceeds, the Act should not be given retrospective operation, as, if so given, it would affect the criminal liability of a person for an act committed by him before the Act came into operation. In support of this contention a number of decisions bearing on the question of retroactivity of a statute in the context of vested rights have been cited. Every law that takes away or impairs a vested right is retrospective. Every ex post facto law is necessarily retrospective. Under Art. 20 of the Constitution, no pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by any Court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision. The sub-section ex facie does not circumscribe the jurisdiction of an appellate court to make an order under the Act only in a case where the trial court could have made that order. The phraseology used therein is wide enough to enable the appellate court or the High Court, when the case comes before it, to make such an order. It was purposely made comprehensive, as the Act was made to implement a social reform. As the Act does not change the quantum of the sentence, but only introduces a provision to reform the offender, there is no reason why the Legislature should have prohibited the exercise of such a power, even if the case was pending against the accused at one stage or other in the hierarchy of tribunals . The decision approves of the principle that ex post facto law which only mollifies the rigour of the criminal law, though retrospective in operation, will be valid. After enunciating this principle the Court interpreted Section 11 of the Probation of Offenders Act and came to the conclusion that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the modified standards to cases which arose before the amendment of the Rules, would be impracticable as is demonstrated by the facts of this case. As pointed out by the learned senior counsel appearing for the appellant, the report of the Public Analyst did not mention the percentage of mineral oil present in the sample. This was obviously for the reason that at the relevant time mere presence of mineral oil, being an unwholesome ingredient, amounted to adulteration and, therefore, it was not necessary for the Public Analyst to mention the percentage of mineral oil found in the sample. Moreover under the modified standard the mineral oil found in the sample must be of food grade, if used as a lubricant. There is no report on this aspect of the matter by the Public Analyst, obviously because he was not required to do so having regard to the standard then prescribed. On the record there is nothing to show that mineral oil found in the sample was of food grade and was used as a lubricant and did not exceed 0.2 % by weight as prescribed under the amended Rules. It is not as if the amended Rules permit the presence of mineral oil in any quantity and of any quality in hard boile ..... X X X X Extracts X X X X X X X X Extracts X X X X
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