Full Judgment Text
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PETITIONER:
BAL KISHAN THAPER
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF DELHI
DATE OF JUDGMENT09/03/1979
BENCH:
ACT:
Prevention of Food Adulteration Act, 1954 (37 of 1954)-
S. 2(ix) (a) and (g) Scope of-outer label described the
contents as "as sweet as sacharin"-Whether a case of
misbranding.
HEADNOTE:
The appellant was a manufacturer of a preparation
called Para Excellent and Para Asli The outer label of the
package describe the contents as "as sweet as saccharin".
Under the directions for use it was mentioned on the label
that the preparation was para saccharin.
The appellant was prosecuted under s.2(ix)(a) and (g)
of the Prevention of Food Adulteration Act for misbranding
the goods and for selling it as saccharin.
While the trial court convicted and sentenced the
appellant to imprisonment and a fine on the ground that
though a case of misbranding under s. 2(ix) (a) and (g) had
not been made out, it was a case of misbranding contemplated
by s. 2(ix) (k), the High Court, in revision, enhanced the
sentence and fine under ss. 7 and 16 read with s. 2(ix)(a)
and (g) of the Act.
On behalf of the prosecution it was contended in the
appellant’s appeal to this Court that the use of the word
saccharin gave the impression that the preparation was
saccharin or something akin to it and it was, therefore, a
case of misbranding punishable under the Act.
Allowing the appeal.
^
HELD :1. There is nothing on the facts of the case to
show that the appellant in any way tried to give an
impression to the purchasers that either saccharin or some
preparation of the type of saccharin was being sold so as to
amount to misbranding as contemplated by s. 2(iv)(a) and (g)
of the Act. Nor was there an attempt to sell the preparation
as saccharin or some kind of saccharin. When the label
described that the preparation was as sweet as saccharin it
merely laid emphasis on the sweetness of the preparation
when compared to the sweetness of the saccharin. Similarly
when the label described the preparation was not as bitter
as saccharin it was intended to convey that it was neither
something like saccharin nor saccharin itself in any form or
of any type. [553 C-D]
2. Nor again was there any evidence of intention on the
part of the appellant to sell a preparation which resembles
saccharin in any respect. The words "as sweet as saccarin"
were merely meant to convey one of the qualities of the
preparation itself and not the quality of saccharin. That by
itself would not attract the provisions of s. 2(ix)(a) of
the Act. [554 B]
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3. The use of the word para saccharin appears to be a
mistake. In the Hindi portion of the directions contained in
the label the words "para Saccharin" were not used. Secondly
the word "para saccharin" would not indicate that
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the preparation sold was saccharin in any form or of any
kind. It was just a way of describing the contents because
the preparation was "as sweet as saccharin.’ The
manufacturer wanted to convey that the preparation wasa also
much sweeter than sugar and could be used for preparing soda
water. [554 C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
105 of 1975.
Appeal by Special Leave from the Judgment and Order
dated 6-8-1974 of the Delhi High Court in Criminal Revision
No. 58 of 1973.
Frank Anthony, K. C. Dua and O. P. Soni for the
Appellants.
Soli. J. Sorabjee, Additional Soli. General, B. P.
Maheshwari and Suresh Sethi for the Respondents.
The Judgment of the Court was delivered by
FAZAL ALI, J.-This appeal by special leave is directed
against the Judgment of the Delhi High Court convicting the
appellant under section 7/16 of the Prevention of Food
Adulteration Act, read with Section 2(ix) clause (a) & (g)
of the Act and sentenced to rigorous imprisonment of six
months and a fine of Rs. 1,000/-. This order was passed by
the High Court in a revision filed by the Municipal
Corporation of Delhi against the Order of the Trial Court
which convicted the appellant under section 7/15 of the
Prevention of Food Adulteration Act read with Section 2(ix)
(k) of the Act and sentenced him to imprisonment till the
rising of the Court and a fine of Rs. 500/-, a revision
against this order to the Sessions Judge was unsuccessful
and hence a further revision was taken by the Delhi
Administration before the High Court.
The facts of the case are detailed in the Judgment of
the High Court and the Magistrate and we need not repeat the
same all over again. The food Inspectors, namely, one Mr.
James and Mr. Sinha took samples of a preparation called
Para Excellant and Para Asli from the shop of the appellant
who according to the Food Inspectors sold these preparations
as saccharin, a fact which is not admitted by the appellant.
The Trial Court after considering the evidence and the
report of the Chemical Examiner found that the case of mis-
branding under section 2(ix) (a) & (g) was not made out by
the Prosecution, but it was certainly mis-branding as
contemplated by section 2(ix) (k) of the Act. He,
accordingly convicted the appellant as indicated above. Mr.
Frank Anthony, Learned Counsel for the appellant has
submitted that the High Court was wrong in law in
interfering with the Order of the Magistrate, firstly,
because the findings of fact by the
553
Magistrate was binding on the High Court in revision and
secondly, because the High Court took a legally erroneous
view of the law on the interpretation of Section 2(ix) (a) &
(g) of the Prevention of Food Adulteration Act.
We have heard learned counsel for the parties and have
perused the judgment of the High Court and we are of the
opinion that the contentions raised by the learned counsel
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for the appellant is well founded and must prevail. We have
perused the original label which described the preparation
sold to the food inspectors. There is nothing to show that
the appellant in any way tried to give an impression to the
purchaser that either saccharin or some preparation of the
type of saccharin was being sold so as to amount to
misbranding as contemplated by Section 2(ix) (a) & (g) of
the Act. All that the appellant purported to convey under
the label was that the preparation sold was as sweet as
saccharin but not as bitter as saccharin. This was intended
merely to lay emphasis on the sweetness of the preparation
when it was compared to the sweetness of saccharin. When the
label clearly described the fact that the preparation was
not as bitter as saccharin it clearly intended to convey
that it was neither something like saccharin nor saccharin
itself, in any form or of any type. Mr. Sorabjee appearing
for the respondent submitted that the use of the word
saccharin itself amounts to mis-branding and gives the
impression that the preparation sold was saccharin or
something akin to saccharin. We are unable to agree with
this contention. In the facts and circumstances of the
present case and the contents of the label and the
description of the preparation, we are satisfied that there
was no misbranding, nor was there any attempt on the part of
the appellant to sell his preparation as saccharin or some
sort of saccharin. Section 2.(ix) (a) runs as follows:
"Misbranded"-an article of food shall be deemed to
be misbranded-
(a) "If it is an imitation of, or is a substitute
for, or resembles in a manner likely to
deceive, another article of food under the
name of which it is sold, and is not plainly
and conspicuously labelled so as to indicate
its true character."
According to the Additional Solicitor General of India,
the sale, by the appellant, of the preparation clearly falls
within (iii) clause of sub-section (a), that is to say-the
preparation resembles saccharin so as to deceive a person
who wanted to purchase the article of food
554
known as saccharin. After having examined the label, its
description and the contents of the tin and packets, sold to
the food inspectors, we are unable to find any evidence of
any intention on the part of the appellant to sell a
preparation which resembles saccharin in any respect. The
words, as sweet as saccharin were merely meant to convey one
of the qualities of the preparation itself and not the
quality of saccharin at all. That, by itself, would not
attract the provision of Section 2(ix) (a) of the Act. It
was, then submitted that in one of the labels under the
directions it was mentioned that the preparation was para
saccharin which also shows that the appellant intended to
pass on the preparation as some sort of saccharin. In the
first place, the use of the word para saccharin appears to
be a mistake in the facts of the present case because this
word is completely absent from the Hindi portion of the
directions contained in the same label. Secondly, the word
para saccharin would not indicate that the preparation sold
was saccharin in any form or of any kind. It was just a way
of describing it because according to the manufacturers the
preparation was as sweet as saccharin. This was mentioned
because saccharin being 500 times sweeter than sugar, the
manufacturer wanted to convey that the preparation was also
much sweeter than sugar and could be used for preparing soda
water bottles. It is obvious that if any person who
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purchased the preparation was not conversent with the
English language, he would not be misled at all.
Having regard to these circumstances we are of the
opinion that the case of the appellant does not fall within
the clauses (a) & (g) of Section 2(ix) of the Act and the
High Court erred in law in convicting the appellant for
misbranding under these provisions. For the reasons given
above, the appeal is allowed. The order of the High Court is
set aside and the sentence of imprisonment of six months is
also set aside and the fine is reduced to Rs. 500/-. In
other words, the order of the Trial Court Magistrate is
hereby restored. The appeal is accordingly allowed.
N.V.K. Appeal allowed.
555