Full Judgment Text
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PETITIONER:
SRI KRISHAN GOPAL SHARMA ANR.
Vs.
RESPONDENT:
GOVERNMENT OF N.C.T. OF DELHI
DATE OF JUDGMENT: 07/05/1996
BENCH:
RAY, G.N. (J)
BENCH:
RAY, G.N. (J)
HANSARIA B.L. (J)
CITATION:
1996 SCC (4) 513 JT 1996 (5) 102
1996 SCALE (4)378
ACT:
HEADNOTE:
JUDGMENT:
WITH
CRIMINAL APPEAL NO.632 OF 1996
(Arising out of S.O.P.(CRL) NO 2650 OF 1995)
J U D G M E N T
G.N. RAY J.
Leave granted. Heard learned counsel for the parties.
Order dated 15.2.1995 passed by the Delhi High Court in
Criminal Misc. (Main) Petition No. 2802 of 1994 and Criminal
Misc. (Main) Petition No. 3202 of 1994 dismissing the
application of the appellants under Section 482 of the Code
of Criminal Procedure for quashing the Criminal case No. 149
of 1988 and 42 and 1990 pending in the Court of the
Metropolitan Magistrate, New Delhi under Sections 7 and 16
of the Prevention of Food Adulteration Act, 1934 initiated
on the basis of the complaint made by the Local Health
Authority of the Delhi Administration is under challenge.
Criminal Case No. 149 of 1988 relates to the sample of
Chutki Pan Masala purchased from accused No.1 Murari Lal
Gupta, partner of the accused No.3 M/s Lal Chand Gupta, and
manufactured and supplied by accused No.4 M/s K.K.Karyalaya,
of which accused No.5 Krishna Gopal Sharma is the nominee.
Case No. 42 of 1990 relates to sample of Chukki Mouth
Freshner purchased by Food Inspector D.P. Singh on 21.8.1989
from accused No.1 Krishna Gopal Sharma, the nominee of the
manufacturer M/s K.K. Karyalaya. According to the
prosecution case both the samples of Chutki Pan Masala and
Chutki Mouth Freshner were analyzed by the Public Analyst,
Delhi and the Analyst found both the samples as adulterated
because it contained saccharin to the extent of 2000 p.p.m.
In the first sample and 2450 p.p.m. in the second sample. It
may be stated here that at the relevant time when the said
samples were purchased, under the existing Rule 44(g) and
Role 47 of the Prevention of Food Adulteration Rules, the
saccharin contents as found by the Public Analyst in the
samples were in violation of the Rules.
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The learned Metropolitan Magistrate in dismissing the
applications made under Section 248 of the Code of Criminal
Procedure held, inter alia, that although from 9th November,
1993, Rule 47 of the Prevention of Food Adulteration Rules
1955 had undergone a change and saccharin to the extent of
8000 ppm in pan masala has been permitted under the amended
Rule 47, even then accused were not entitled to get any
benefit of subsequent amendment of Rule 47. As at the
relevant time, the accused had sold the Pan Masala and Mouth
Freshner in violation of the mandate under the Act and the
Rules framed thereunder, the prosecution initiated on
account of such violation was legal and justified.
The learned Judge relied on the Full Bench decision of
the Delhi High Court in Municipal Corporation of Delhi Vs.
Charanjit Lal (1980 (1) PFC page 55) wherein similar
contentions were negatived by the Full Bench.
Against the said decision, the appellants moved the
Delhi High Court under Section 482 of the Code of Criminal
Procedure inter alia praying for quashing the said criminal
ases. By the impugned judgment, the High Court held that at
the relevant time, when the samples were taken and analyzed,
the saccharin content as found by the analyst in the samples
was not permissible. Hence, the offence under the Food
Adulteration Act had been committed and consideration of
subsequent change of the permissible limit of saccharin in
Pan Masala and Mouth Freshner was not Germane. The High
Court, therefore, dismissed the Misc. Cases arising out of
Section 482 of the Criminal Procedure Code with an
observation that it would open to the accused petitioners to
urge the implication of subsequent change in the Rules by
permitting user of saccharin upto the extent of 8000 ppm in
Pan Masala at the hearing of the criminal cases.
Mr.Sanghi, the learned senior counsel appearing for the
appellants, has strongly contended that the extent of
saccharin since found by the analyst cannot be held as
injurious to health because on the basis of further research
and analysis about the effect of saccharin on human body, it
has been ascertained that presence of saccharin upto a
reasonable limit was not at all injurious to health.
Precisely for such change in the outlook, Rule 47 of the
Prevention of Food Adulteration Rules has been changed with
effect from 9th November, 1993, by indicating that in a Pan
Masala, the saccharin content even upto 8000 ppm is
permissible. Mr. Sanghi has submitted that at the relevant
time when 2000 ppm of saccharin was added to the Chutki Pan
Masala and the Mouth Freshner, the accused in fact had not
committed any illegal act by adding saccharin in quantities
noted because such quantity of saccharin was not injurious
to health. It was only because our knowledge about the
effect of saccharin on human system was imperfect, an
unreasonable embargo on the user of saccharin in Pan Masala
and Mouth Freshner was imposed in Rule 47. As it is quite
evident that imposition of restriction on user of saccharin
in Pan Masala and Mouth Freshner was unjustified because of
lack of knowledge about the effect of saccharin on human
system, and as it can not be contended that presence of
saccharin to the extent of 2000 ppm and 2450 ppm in Pan
Masala and Mouth Freshner was either injurious to health or
such user of saccharin had adversely affected the quality
of the articles by degenerating the same, it must be held
that the accused appellants had in fact did not commit any
improper act by selling an adulterated food. Because of
imperfect knowledge, the wrong restriction was imposed under
the Prevention of Food Adulteration Rules at the relevant
time and such unjust imposition of restriction of user of
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saccharin must be held to be arbitrary, unjust and without
any reasonable basis. Mr. Sanghi has submitted that it is
nobody’s case that the Chutki Pan Masala or Mouth Freshner
since sent for analysis contained any substance which had
degenerated the quality of the articles or made them
injurious to health. Hence, it cannot be reasonably
contended that in fact the said articles were adulterated
food even at the time of collection of the samples. Mr.
Sanghi has submitted that in the aforesaid facts, it will
not be fair and proper to prosecute the accused and to
punish them for using saccharin in Pan Masala and Mouth
Freshner to an extent much below the permissible limit which
has been accepted by the concerned authority by rectifying
the misconceived notion about the effect of saccharin by
amending Rule 47 of the Rules. The alleged violation being
based on misconception should not be countenanced by Court
and the accused should not be exposed to trial for a
criminal offence when in fact no offence had been committed
by the accused. In The facts of the case, the prosecution
will amount to gross abuse of process of law. Hence, prayer
for quashing should have been allowed by the High Court.
Mrs. Amareshwari, the learned senior counsel appearing
for the respondent, has however submitted that imposition of
restriction of adding saccharin as contained in Rule 47 of
Prevention of food Adulteration Rules at the relevant time
was not arbitrary and capricious. Such imposition was fairly
made consistent with the existing knowledge about harmful
effect of saccharin on the human system. Mrs. Amareshwari
has submitted that it is nobody’s case that at the relevant
time on the basis of the available information flowing for
research and analysis there was no occasion for putting
embargo on the free user of saccharin on the articles sold
and restriction in the user of saccharin in Rule 47 of the
Rules was wholly arbitrary, capricious and ipsi dikit of the
Rule making authority. Rule 47 of the Rules having been
fairly made in proper exercise of the power consistent with
the then available information on the effect of saccharin on
human system, it must be held that such Rule, even though
amended at a later stage on the basis of further knowledge
on the effect of saccharin on human system, was quite legal
and valid. So long Rule 47 being validly made was in force,
compliance of the mandate under the Rules was unavoidable
and prosecution initiated on violation of Rule 47 as
operative at the relevant time cannot be held to be illegal
and without any sanction of law. She has, therefore,
submitted that the complaint made against the accused and
consequential initiation of criminal case under the
Prevention of food Adulteration Act cannot be held as
illegal and invalid for which an order of quashing such
criminal cases was warranted.
After giving our careful consideration to the facts and
circumstances of the case it appears to us that at the
relevant time when the samples of the Pan Masala and the
Mouth Freshner were taken, the saccharin content as found by
the Public Analyst in the said articles of food was in
violation of Rule 47 of the Prevention of Food Adulteration
Rules. The Pan Masala and the Mouth Freshner are undoubtedly
within the meaning of food under Section 2(v) of the
Prevention of Food Adulteration Act. food under said act has
been defined very widely. The validity of Rule 47 prior to
its amendment in 1993 restricting the user of saccharin in
pan masala cannot be challenged on the ground of arbitrary
and capricious exercise of power by the Rule making
authority has not been demonstrated that despite widely
accepted view by the experts about the effect on saccharin
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on human system on the basis of information flowing from
research and analysis, the restriction of user of saccharin
in Can Masala or touth Freshner as imposed in Rule 47 of the
Rules at the relevant time was wholly arbitrary, unjust and
capricious. Human knowledge is not static The conception
about the harmful effect of saccharin on human system has
undergone changes because of information derived from
further research and analysis. The knowledge about the
effect of saccharin on human system as accepted today may
undergo a cringe in future on the basis of further knowledge
flowing from subsequent research and analysis and it may not
be unlikely that previous view about saccharin may be found
to be correct later on. If the Rule making authority on the
basis of human knowledge widely accepted by the expert
framed rule by imposing restriction of user of saccharin in
Pan Masala or Mouth Freshener at a particular point of time,
such exercise of power must be held to have been validly
made, founded on good reasons; and challenge of the Rule on
the score of arbitrary and capricious exercise of power
must fail. In this connection, reference may be made to the
decision of a Constitution Bench of thus Court in Pyarali K.
Tejani Vs. Mahadeo Ramchandra Dange and Ors. (1974 (2) SCR
page 154) In the said case, a Dealer in scented ’supari’ was
charged for the offence of having sold and retained for
selling scented ’supari’ with saccharin and cyclamate, in
contravention of Section 7(i) (ii) and Rule 47 of Prevention
of Food Adulteration Rules. In the said case, because of
such contravention, the dealer was prosecuted for an offence
punished under Section 16(1) (a) (i) of the Prevention of
Food Adulteration Act. The dealer was convicted by the
learned Magistrate by imposing a fine Rs.100/-. On revision,
the High Court enhanced the punishment to the statutory
minimum of six months imprisonment and a fine of Rs. 1000/-.
At the hearing of the appeal before this Court, there was no
dispute that the article in question which was sold
contained saccharin and cyclamate. It was however urged that
Section 23(i)(b) empowered the framing of Rules regarding
the articles of food for which standards were to be
prescribed. It was contended that supari was not a food. It
was further contended that neither saccharin nor cyclamate
was a bio-chemical risk and the blanket ban on the use of
those substances was unconstitutional amounting to
unreasonable restriction on the freedom of trade guaranteed
under Article 19 of the Constitution It was also urged that
although saccharin was permitted to be used in carbonated
water, restriction of user of saccharin in supari amounted
to hostile discrimination.
The Constitution Bench, however, held that supari was
food under Section 2 (v) of the Act. Food was defined under
the Act in a very wide amplitude covering any article used
as food and every component which enters into it including
even flavoring matter and condiments. It was also indicated
in the said decision that in offences relating food
articles, strict liability was the rule. Nothing more than
actus reus was needed where regulation of private activity
in vulnerable areas like public health was intended. Social
defence reasonably overpowered individual freedom. Section 7
of the Prevention of food Adulteration Act had cast an
absolute obligation regardless of scienter, bad faith and
mens rea. There would be no more argument about it. The law
had denied the right of a dealer to rob the health of a
consumer of supari . The Constitution Bench in this regard
noticed and relied on an earlier decision of this Court in
Andhra Pradesh Grain and Seed Merchants Association Vs.
Union of India (1971 (1) SCR 166).
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The Constitution Bench also indicated that lt was not
the judicial function to enter the thicket of research
controversy or scientific dispute where Parliament has
entrusted the Central Government with the power and
therefore, the duty of protecting public health against
potential hazards and the Central Government after
consultation with the high powered technical body, Had
prescribed the use of saccharin and cyclamate in some
articles of food. Where expertise of a complex nature was
expected of the State in framing rules, the exercise of that
power not demonstrated as arbitrary must be presumed to be
valid as a reasonable restriction of the fundamental right
of the citizen and Judicial review must halt at the
frontiers. The contention that there had been a hostile
discrimination against supari vis-a-vis carbonated waters
was also rejected by the Constitution Bench. It was
indicated that there was a basis for the distinction and the
Courts would not make easy assumption - of unreasonableness
of subordinate legislation. The challenge to the vires of
Section 23 (ii)(b) of empowering framing of rules
uncontrolled and unguided power was also rejected by the
constitution Bench by indicating the guidelines implicit in
the statute, built into the system, by the contained in the
rule and safeguard of laying the rules before the Houses of
Parliament.
It will be appropriate to mention here that the prayer
for release on probation on good on good conduct was
rejected by the Constitution Bench by indicating that the
kindly application of probation principle was to be
negatived by the imperatives of social defence and
improbabilities of moral proselytisation The Constitution
Bench had also not approved imposition of only fine offence
under Food Adulteration Act by indicating that the court has
jurisdiction to bring down sentence to less than minimum
prescribed in Section 16(1) of the Act provided there were
adequate and special reason in that behalf normally food
offences should be deferrently dealt with. When primary
necessaries of life were sold spurious admixtures for making
profit, the common man being at the mercy of vicious dealer
had only protection under the Prevention of Food
Adulteration Act and the court. If offenders could get away
with trivial fine, the law would would be brought into
contempt.
In the back drop of aforsaid exposition of law for
offences under the Prevention of Food Adulteration Act it is
necessary to consider the facts and circumstances of the
case. In these appeals, there is no dispute that
saccharin was not added to Pan Masala and Mouth Freshner. It
is contended that even if addition of saccharin to the
extent as stated to have been found by the Analyst is
accepted to have been correctly determined, such addition,
as a matter of fact, was neither injurious to health nor it
degenerated the articles sold so that they could be branded
as adulterated fact. The ban on the use of saccharin in Pan
Masala and touth Freshner was imposed on a misconception and
erroneous view of its injurious effect on human system. But
later on, it has been accepted by the Rule making authority
that use of saccharin to the extent of 8000 ppm in pan
masala will not be harmful for human consumption and Rule 47
of the Rules has been amended. As use of saccharin to the
extent of 2000 and 2450 ppm was not injurious to health at
any point of time, it must be held that even before
amendment of Rule 47 such use of saccharin to the above
extent did not constitute an offence for adulterating food
with substances injurious to health.
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In our view, at the relevant time, saccharin content in
Pan Masala and Mouth Freshner to the extent of 2000 and 2450
ppm as found by the Analyst was not permissible under the
Prevention of Food Adulteration Rules. We have indicated
that such Rule was valid and operative at the relevant time.
Hence, there had been violation of the Food Adulteration Act
and the Rules framed thereunder in selling Pan Masala and
Mouth Freshner with saccharin content to the extent of 2000
and 2450 ppm. Hence, the complaints made by the Health
Department of Delhi Administration and initiation of
criminal cases against the accused cannot be held to be
without justification. It cannot also be contended that on
the face of the complaint, no offence was prima facie
committed. Hence, the impugned decision of the High Court in
dismissing the applications under section 482 Cr.P.C. can
not be held to be unjustified.
It, however, appears to us that even if the complaint
is accepted to be correct, the only offence committed by the
appellants amounts to technical violation of the mandate of
Rule 47 for adding saccharin to the extent of 2000 and 2450
ppm in the Chutki Pan Masala and Mouth freshner. Such
addition of saccharin cannot be held to be injurious to
health because, considering later findings on research and
analysis on the effect of saccharin on human system,
addition of saccharin to the extent 8000 ppm in Pan Masala
has been allowed by amending Rule 47. The articles sold are
not alleged to be injurious to health and such allegations,
even if made, cannot be accepted. There is no allegation
that any other injurious substance was added to the articles
sold making them potentially health hazards. It is also not
the case that Pan Masala and Mouth Freshner were of inferior
quality and sub-standard. In a case like this, the offence
committed is on account of technical violation of Rule 47.
It should be emphasized that strict adherence to Prevention
of food Adulteration Act and Rules framed thereunder should
be insisted and enforced for safeguarding the interest of
consumers of articles of food. In the Constitution Bench
decision in Tejani’s case (supra) it has been indicated that
in ordered to prevent unmerited leniency in the matter of
awarding sentence for an offence under the Prevention of
food Adulteration Act, the legislature by amendment has
incorporated the provision of minimum sentence. But it was
also been indicated that the court, for adequate and special
reasons, may bring down the minimum sentence. The
Constitution Bench has also observed that all violations of
provisions of the Act and Rules need not be treated alike
because "there are violations. In the special facts of these
cases, it appears to us that a defferent punishment of
imprisonment is not called for and imposition of fine of
will meet the ends of justice. The criminal cases were
initiated on the basis of samples taken in 1967. The accused
appellants have already faced the ordeal of criminal trials
for a number of years. In the aforesaid circumstances,
further agony of criminal trial need not be prolonged.
Conclusion of the criminal cases will also save time and
expenditure of the respondent.
In that view of the matter, we direct for quashing
the criminal cases in question on payment of costs at
Rs.7500/- in each of these appeals as in our view, on
conviction of the appellants in the criminal cases initiated
against them, such fine would have met the ends of justice.
The appeals are accordingly disposed of.
In view of decision in the criminal appeals the Special
Leave Petition (Criminal) No. 2650 of 1995 arising out of
the order of dismissal passed on the writ petition filed by
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the petitioner in the Delhi High Court for challenging the
vires of Rule 47 of the Prevention of Food Adulteration
Rules, stands dismissed.