Full Judgment Text
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PETITIONER:
K. KRISHNA IYER
Vs.
RESPONDENT:
STATE OF KERALA AND ANR.
DATE OF JUDGMENT30/03/1993
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
SINGH N.P. (J)
CITATION:
1993 SCR (2) 707 1993 SCC (3) 226
JT 1993 Supl. 58 1993 SCALE (2)358
ACT:
Prevention of Food Adulteration Act, 1954:
Sections 7(1), 16(1-A) and 161(a) (i)--Ice stick containing
sacharin--Prohibition of artificial sweetener--Sample not in
conformity with standards prescribed--Hence
adulterated--Presence of dulcin--Found by Public Analyst and
Central Food Laboratory excluding it--Conviction altered.
HEADNOTE:
The appellant was selling ice-sticks. The Food inspector
took samples and sent one sample to the Public Analyst, who
opined that it contained artificial sweeteners viz.
saccharin and dulcin and was therefore adulterated. A
complaint was filed before the Judicial Magistrate.
Appellant pleaded not guilty and exercised his right to have
the sample analysed by the Central Food Laboratory.
According to the report of the Central Food Laboratory the
sample contained artificial sweetener identified as
saccharin. The Magistrate convicted the appellant for an
offence under sec. 16(1) (a) read with see. 7(1) of the Act,
sentenced him to suffer one year rigorous imprisonment and
to pay a fine of Rs. 2,000 and in default to undergo
imprisonment for three months. The appeal preferred by the
appellant was dismissed by the Sessions Judge. The Criminal
Revision petition riled before the High Court was also
dismissed. Hence the present appeal.
On behalf of the appellant it was contended that since the
report of the Public Analyst which had found the presence of
dulcin in the sample stood superseded by the report of the
Central Food Laboratory which had not found the presence of
dulcin, the consumption of which was injurious to health
under the Rules, the conviction of the appellant for an
offence under Section 16(1-A) of the Prevention of Food
Adulteration Act, 1954 was not justified; and that the
presence of artificial sweetener like saccharin, which has
not been declared as injurious to health could not attract
the provisions of S.16(1A) of the Act.
Partly allowing the appeal, this Court
708
HELD:1. It would be seen from Section 16(1-A) of the
Prevention of Food Adulteration Act, 1954 that in order to
maintain a conviction under the said provision, the article
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of food which is adulterated should fall either in one of
the sub-clauses(e) to (1) of clause (ia) of Section 2 or
should contain an adulterant which is injurious to health.
The adulterated article of food sold in this case admittedly
does not fall in any of the sub-clauses (e) to (1) of
Section 2(ia). According to the report of Central Food
Laboratory, it also does not contain any adulterant declared
as ’injurious to health’. [712 E, F]
2.However, keeping in view the fact that the Article of
food, ’ice-stick’ sold by the appellant did not conform to
the standard as prescribed in Item A.07.04 of Appendix B and
contained an artificial sweetener saccharin it is obvious
that the article of food sold by the appellant was
adulterated within the meaning of Section 2(ia)(m) of the
Act and the same would, therefore, be punishable under
Section 16(1) (a) (i) of the Act. [713 C]
3.It cannot be said that since the appellant had been
charged for an offence under Section 16(1-A) of the Act, he
could not be convicted for an offence under Section 16(1)
(a) (i) of the Act. The penalty for an offence under
Section 16(1) (a) (i) admittedly is less than the penalty
prescribed for the offence under Section 16(1-A), which is a
graver offence and therefore, there is no impediment in the
way of the court, on the findings of the fact recorded by
it, to convert the conviction of the appellant from the one
under Section 16(1-A) to one under Section 16(1) (a) (i) of
the Act, notwithstanding the fact that the appellant had
been charge-sheeted for an offence under Section 16(1-A) of
the Act. [713 E, F]
4.Judicial notice is taken of the fact that the type of
adulterated article sold by the appellant is the one
generally consumed by children and it is not only illegal
but even immoral to serve them with articles containing
artificial sweeteners use whereof has been prohibited by the
statute. Just because the appeal has remained pending here
since 1985 the society cannot be made to suffer for this
delay by letting the criminal go unpunished as a crime of
this nature, being a crime against the society at large,
cannot be ignored. Sympathy in such cases is totally
misplaced. [714 B-D]
5.The conviction of the appellant is altered from the one
under Section 16(1-A) read with Section 7(1) of the Act to
the one under Section 16(1) (a) (i) read with Section 7(1)
of the Act and the sentence is reduced from one year
709
R.I. and a fine of Rs. 2,000 to the minimum prescribed for
the said offence ie. six months R.I. and a fine of Rs. 1,000
in default of which the appellant shall suffer imprisonment
for one month more. [714 E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 781 of
1985.
From the Judgment and Order dated 8.8.1984 of the Kerala
High Court in Crl. R.P.No. 459 of 1981.
T.S.K. Iyer, Ms. Prasanthi Prasad and N. Sudhakaran for the
Appellant.
M.T. George for the Respondents.
The Judgment of the Court was delivered by
DR. ANAND, J. The appellant was convicted for an offence
under Section 7(1) read with Section 16 (1-A) (i) of the
Prevention of Food Adulteration Act, 1954 (hereinafter the
Act) by the Additional Judicial Magistrate, 1st Class,
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Trivandrum on 17.7.1981 and sentenced to suffer one year
R.I. and to pay a fine of Rs. 2000 and in default to undergo
imprisonment for three months. The conviction and sentence
were upheld by the Additional Sessions Judge, Trivandrum who
dismissed his appeal on 28.10.1981. Criminal Revision
Petition No. 459 of 1981 filed in the High Court of Kerala
also failed on 8th August, 1984. It is, thereafter, that he
has come up to this court by appeal on special leave being
granted.
On 12.2.1980, the Food Inspector of the Corporation of
Trivandrum after disclosing his identity purchased from the
appellant 600 gms. of ’ice-stick’ and paid Rs. 1.25. One of
the samples was sent to the Public Analyst at Trivandrum,
who vide report dated 6.3.1980 opined that the "said sample
contains artificial sweeteners saccharin and dulcin and is
therefore adulterated". The Public Analyst also stated in
his report that the use of dulcin in food articles is not
permitted on account of the fact that "its consumption is
injurious to health". According to the report of the Public
Analyst, dulcin to the extent of 100.0 parts per million and
saccharin to the extent of 90.0 parts per million was found
present in the sample sent for analysis. A complaint was
accordingly filed before the Additional Judicial 1st Class
Magistrate, Trivandrum. The appellant pleaded not guilty
and also exercised his right to have the sample analysed
from the Central
710
Food Laboratory. The sample was then set to the Central
Food Laboratory and after analysis of the sample, it opined
that "the sample does not conform to the standards laid down
for ice-candy under the provisions of PFA Act 1954 and the
Rules thereunder’. It was found by the Central Food
Laboratory that the sample contained "an artificial
sweetener" identified as saccharin to the extent of 190
parts per million. The sample had also tested positive for
presence of cane- sugar.
Before the trial court, it was urged that the ’ice-stick’
sold by the appellant to the Food Inspector PWl could not be
treated as ice-candy and since no standard for ’ice-stick’
had been prescribed in the Act, the conviction of the
appellant was not warranted. It was also argued that for
the offence committed by the appellant the sentence imposed
was not justified. The trial court, negatived both the
contentions and recorded a finding of fact to the effect
that the appellant had sold an article of food ice-stick- to
PWl for purposes of analysis and that the ingredients of the
ice-candy and the ice-:;tick were the same and the standards
prescribed for ice candy etc. were applicable to the article
sold by the appellant also. It was further held that since
the sample did not conform to the standards laid down for
ice candy under the provisions of the Act and the Rules
framed thereunder, as per the certificate of the Public
Analyst, the sample was adulterated and in view of presence
of dulcin, "the adulterant was injurious to health". The
trial court held that the offence of the appellant squarely
fell under Section 7 read with Section 16 (I-A) (i) of the
Act. The sentence imposed is the minimum prescribed for the
said offence. Similar arguments were raised in the appeal
before the Sessions Court also. It was once again found, on
facts, that the ice-stick sold by the appellant was an
article of food and that the ingredients of the ice candy
and the ice-stick were the same. It was also found that
since the sample contained the prohibited artificial
sweetener, saccharin it was adulterated and the conviction
and sentence were justified. Similar grounds were once
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again raised before the High Court which also found:
"In this case, therefore, from the evidence
available especially Ext. P9 report, it is
clear that the petitioner sold ice candy which
is described as ice stick for, it was frozen
ice containing sugar. In this view, it did
not conform to the standard prescribed under
the Rules .......................
711
Undeterred by the finding of fact recorded by
all the three courts below to the effect that
the ’ice-stick’ sold by the appellant was
covered by the articles mentioned in Item
A.07.04 of Appendix B and was required to
conform to the standards laid therein, a
strenuous argument was once again raised
before us to the effect that the ’ice-stick’
sold by the appellant could not be treated to
be ’ice-candy’ and, therefore, the standards
prescribed in Item A.07.04 of Appendix B were
not applicable to it. We are afraid, we
cannot agree with this submission. All the
three courts hive carefully gone into the
matter and found that the article sold by the
appellant was an article of food covered by
the Item A.07.04 of Appendix B. Their finding
is supported by the entry itself. Item
A.07.04 of Appendix B, as it stood at the
relevant time, reads thus:
"A.07.04 ’Ice-candy or Ice Lollies or Edible
Ice’ by whatever name it is sold, means the
frozen ice produce which may contained the
permitted flavors and colors, sugar, syrup,
fruit, fruit-juice, nuts, cocoa, citric acid,
stabilizers or emulsifiers not exceeding 0.5
per cent. It shall not contain any artificia
l
sweetener."
Considering the nature of the article sold, we have no doubt
in our mind that the ’ice-stick’ was edible ice and sold as
frozen ice in the shape of a stick. It admittedly contained
sugar and coloring as is evident from the report of the
Central Food Laboratory. It was, therefore, required to
conform to the standards prescribed in Item A.07.04 of
Appendix B and since according to the report of the Public
Analyst as also the Central Food Laboratory the article
contained an artificial sweetener, saccharin, it did not
conform to the standard laid down in the entry which
specifically prohibits the use of any artificial sweetener.
Faced with this situation, learned counsel for the appellant
then submitted that since the report of the Public Analyst,
Trivandrum, which had found the presence of dulcin in the
sample stood superseded by the report of the Central Food
Laboratory, which had not found the presence of dulcin, an
article the consumption of which is "injurious to health",
under the Rules, the conviction of the appellant for an
offence under Section 16 (1-A) was not justified. Learned
counsel submitted that the mere presence of artificial
sweetener like saccharin in the sample, which has not been
declared as-"injurious to health", could not attract the
provisions of Section
712
16 (1-A) of the Act. We find force in this submission. The
report of the Central Food Laboratory definitely excluded
the presence of dulcin in the sample. It only found
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presence of the prohibited artificial sweetener, saccharin.
Section 16 (1-A) provides:
"(1A) If any person whether by himself or by
any other person on his behalf imports into
India or manufactures for sale, or stores,
sells or distributes
(i)any article of food which is adulterated
within the meaning of any of the sub-clauses
(e) to (1) (both inclusive) of clause (ia) of
section 2; or
(ii) any adulterant which is injurious to
health,
he shall, in addition to the penalty to which
he may be liable under the provisions of
section 6, be punishable with imprisonment for
a term which shall not be less than one year
but which may extend to six years and with
fine which shall not be less than two thousand
rupees."
It would be seen from the above provision that in order to
maintain a conviction under the said provision, the article
of food which is adulterated should fall either in one of
the sub-clauses (e) to (1) of clause (ia) of Section 2 or
should contain an adulterant which is injurious to health.
The adulterated article of food sold in this case admittedly
does not fall in any of the sub-clauses (e) to (1) of
Section 2 (ia). According to the report of Central Food
Laboratory, it also does not contain any adulterant declared
as "injurious to health". Thus, on the face of it is not
possible to hold that the appellant had committed an offence
punishable under Section 16(1-A) of the Act and the
conviction of the appellant for an offence under Section
16(1-A) of the Act cannot be sustained.
The article of food sold by the appellant, however, has been
found by the Central Food Laboratory to contain an
artificial sweetener, the use whereof in such article of
food is prohibited. It, therefore, does not conform to the
standards prescribed in Item A.07.04 of Appendix B. Section
16(1)(a)(i) of the Act makes a person liable to punishment
if whether by himself or by any other person on his behalf,
he inter alia, manufactures for sale, or stores or sells any
article of food which is
713
adulterated within the meaning of sub-clause (m) of clause
(ia) of Section 2 of the Act. Section 2 (ia) (m) reads
thus:
"2(ia) "adulterated’ an article of food shall
be deemed to be adulterated
"(m) if the quality or purity of the article
falls below the prescribed standard or its
constituents are. present in quantities not
within the prescribed limits of variability
but which does not render it injurious to
health:"
Keeping in view the fact that the article of food, ’ice-
stick’ sold by the appellant did not conform to the standard
prescribed for it in Appendix B and contained an artificial
sweetener saccharin, it is obvious that the article of food
sold by the appellant was adulterated within the Meaning of
Section 2(ia)(m) of the Act and the same would, therefore,
be punishable under Section 16 (1)(a)(i) of the Act.
We are unable to accept the argument of the learned counsel
for the appellant that since the appellant had been charged
for an offence under Section 16 (I-A) of the Act, he could
not be convicted for an offence under Section 16(1)(ai) of
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the Act. There is no basis for such an argument. The
penalty for an offense under Section 16(1)(ai) is admittedly
less than the penalty prescribed for the offence under
Section 16(1-A), which is a graver offence and therefore,
there is no impediment in the way of the court, on the
findings of the fact recorded by it, to convert the
conviction of the appellant from the one under Section 16(1-
A) to the one under Section 16(1)(ai) of the Act,
notwithstanding the fact that the appellant had been charge
sheeted for an offence under Section 16(1-A) of the Act. In
view of our findings recorded above, we alter the conviction
of the appellant from the one under Section 7(1) read with
Section 16(1-A) of the Act to the one under Section 7(1)
read with Section 16(1)(a)(i) of the Act.
The argument of the learned counsel for the appellant that
since the appellant has been on bail in this court and the
occurrence took place more than a decade ago, a sympathetic
view be taken and his appeal be accepted and he be
acquitted, is to say the least, a rather ambitious
submission and we cannot agree. Indeed, there has been some
lapse of time since the offence was committed in 1981 but
that lapse of time alone cannot come to the aid of the
appellant because having found the appellant guilty of an
714
offence under Section 16(i)(a)(i) read with Section 7(1) of
the Act, this Court is obliged ’to convict the appellant and
not let the crime go unpunished. The appellant has been
prosecuting the case in appeal and revision and the High
Court dismissed his revision petition in 1985. The appeal
has remained pending in this Court ever since and as the
appellant had obtained an order of bail, he, obviously was
not interested in an early disposal of the appeal and took
no steps in that behalf. The pendency of the appeal in this
Court for about six years does not by itself render the
conviction bad or raise any other equity in his favour. We
can take even a judicial notice of the fact that the type of
adulterated article sold by the appellant is the one
generally consumed by children and it is not only illegal
but even immoral to serve them with articles containing
artificial sweeteners use whereof has been prohibited by the
statute. Just because the appeal has remained pending here
since 1985 the society cannot be made to suffer for this
delay by letting the criminal go unpunished as a crime of
this nature, being a crime against the society at large,
cannot be ignored. Sympathy in such cases is totally
misplaced.
As a result of the above discussion, the conviction of the
appellant is altered from the one under Section 16(1-A) read
with Section 7(1) of the Act to the one under Section
16(1)(a)(i) read with Section 7(1) of the Act and the
sentence is reduced from one year R.I. and a fine of Rs.
2000 to the minimum prescribed for the said offence i.e. to
six months R.I. and a fine of Rs. 1000. In default of
payment of fine the appellant shall further suffer
imprisonment for one month more.
The appeal succeeds and is partly allowed to the extent
indicated above.
The appellant is on bail. His bail bonds shall stand
cancelled. He shall be taken into custody to suffer the
remaining period of the sentence.
G.N.
Appeal partly allowed.
715
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