Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15
PETITIONER:
PYARALI K. TEJANI
Vs.
RESPONDENT:
MAHADEO RAMCHANDRA DANGE AND OTHERS
DATE OF JUDGMENT31/10/1973
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
RAY, A.N. (CJ)
PALEKAR, D.G.
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
CITATION:
1974 AIR 228 1974 SCR (2) 154
1974 SCC (1) 167
CITATOR INFO :
RF 1977 SC 56 (7)
RF 1977 SC1926 (14)
F 1989 SC1011 (5,8)
R 1992 SC1611 (10,12)
ACT:
Prevention of Food Adulteration Act 1954-Rules 44(g) and
47-Sale of supari with saccharin and cyclamate-
Constitutionality of the Rules and rule making power-Supari
if food-Guidelines in sentencing--Applicability of Pro-
bationers Offenders Act, 1947.
HEADNOTE:
The appellant/petitioner, a dealer in scented supari, was
charged with the offence of having sold and retained for
selling scented supari with saccharin and cyclamate,
prohibited artificial sweeteners, in contravention of S.
7(i)(ii) and rule 47 of the Prevention of Food Adulteration
Act, 1954 and thereby having committed an offence punishable
under section 16(1)(a)(i) of the Act. The Magistrate
convicted the accused and imposed a fine of only Rs. 100/-.
On revision the High Court enhanced the punishment to the
statutory minimum of six months imprisonment and one
thousand rupees fine. The rules which were, extant at the
time of the alleged offence in January 1971 were rules 44(g)
and 47 as redrafted by the Prevention of Food Adulteration
(Third Amendment) Rules 1968 which prohibited the two
sweeteners as additives to supari. In October 1972, a
circular was issued by the Municipal Corporation of Greater
Bombay that the Central Committee for Food Standards had
accepted the recommendation of is Sub-Committee that
saccharin may be permitted to be used in scented. supari.
In appeal of this Court the appellant admitted the sale as
also the presence of saccharin and cyclamate in the supari
sample. But he urged that section 23(i)(b) of the Act which
empowered the framing of rules was bad, because, the statute
laid down no policy, principles or guidelines regarding
articles of food for which standards are to be prescribed,
that supari is not( an article of food and, as such, the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15
admixture of any sweetener cannot attract the per-at
provisions; that the dealer believed in good-faith that
there was no cyclamate in the substance sold induced by the
warranty and did not know that saccharin was contraband,
that neither saccharin nor cyclamate is biochemical risk,
and so a blanket ban on their use is an unconstitutional
restriction on he freedom of trade guaranteed in article 19;
that there is discrimination against supari vis-a-vis
carbonated waters wherein the use of saccharin is permitted
under rule 47; and that in any event the Probation of
Offenders Act should have been applied.
Dismissing the appeal and the writ petition.
HELD : (i) The contravention of s. 7 read with rr. 44(g) and
47 being plainly proved the offence falls not under sub-s.
(i) but sub-sec. (v) None of the many alternatives in s.
2(i) applies because there is neither averment nor proof
that the sweeteners in question are injurious to health and
the other subclause cannot be attracted. [159G]
(ii) The naked power submission is demolished by the
guidelines implicit in the statute, by the committee built
into the system. by the specifications contained in the rule
making provisions and by the safeguard of laying the rules
before the House. [161H]
(iii) Supari is food within the meaning of S. 2(v) of
the Act. The Act defines ’food’ very widely as covering any
article used as food and every component which enters into
it and even flavoring matter and condiments. [162E]
(iv) In food offenses strict liability is the rule. Nothing
more than actus reus is needed where regulation of private
activity in vulnerable areas like public health is intended.
Social defence reasonably overpowers individual freedom to
irrure, in special situations of strict-liabilily. Section
7 casts an absolute obligation regardless of scienter, bad
faith and mens rea. [163B]
155
McLead v. Buchanan, [1940] 2 A.E.R. 179 at 186 (H.L.) Andhra
Pradesh Grain & Seed Merchants Association v. Union of
India [1971] I S.C.R. 166 American Jurisprudence 2d. Vol.
35, p. 864, referred to.
(iv) It is 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 a high-powered technical body, has
prohibited the use of saccharin and cyclamates. The fact
that for a long timepwen3 shrdlu cmfwyp etaoin shrdlu cmfwyp
hmm against the reasonableness of their later ban. Where
expertise of a complex nature is 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 on the fundamental right of the citizen and
judicial review must halt at the frontiers. [164H]
(v) There is no substance in the plea that there is a
discrimination against supari Vis-a-vis carbonated waters.
There is a basis for the distinction. Courts will not make
easy assumption of unreasonableness of subordinate
legislation. [165E]
Kartar Singh’s case, [1964] 6 S.C.R. 679; 690, and Andhra
Grain Merchants. case, [1971] 1 S.C.R. 166, referred to.
(vi) The kindly application of the probation principle is
negatived by the imperatives of social defence and the
improbabilities of moral proselytisation. No chances can be
taken by society with a mar, whose antisocial operations,
disguised as a respectable trade, imperil numerous
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15
innocents. Secondly economic offenses committed by white
collar-criminals are unlikely to be dissuaded by the gentle
probationary process. [166H]
Isher Das v. State of Punjab, F19721 3 S.C.C. 65. referred
to.
(vii) The Court has jurisdiction to bring down the
sentence to less than the, minimum prescribed in s’ 16(1)
provided there are adequate and special reasons in that
behalf. The normal minimum is six months in jail and a
thousand rupees fine. There is no reason to depart from the
proposition that generally food offenses must be deterrently
dealt with. The High Court, under the erroneous impression
that the offence fell under s. 7(1) read with s. 16(1)(a)(1)
did not address itself to the quantum of sentence. Even so
that punishment fits the crime and the criminal. The
magistrate completely failed to appreciate the gravity of
food offers when he imposed the negligible sentence of one
hundred rupees fine. [167H]
[The necessity for the evolution of a rational and
consistent policy of Sentencing emphasised.]
JUDGMENT:
CRIMINAL APPELLATE/ORIGINAL JURISDICTION
Criminal Appeal No. 20 of 1973.
Appeal by Special leave from the judgment and order dated
the19th December, 1972 of the Bombay High Court in Criminal
Revision Application No. 979 of 1971. Writ Petition No., 29
of 1973.
Under Art. 32 of the Constitution of India for the
enforcement of’ fundamental rights.
V. B. Ganatra, I. N. Shroff, and R. P. Kapoor, for the
appellant in appeal and petitioner in Writ Petition.
Y. S. Chitale M. S. Ganesh and S. B. Wad, for respondent
No. 1. (in appeal and writ petition).
156
M. N. Phadke, H. R. Khanna and S. P. Nayar, for respondent
No.2 (In appeal and Writ Petition)
G. Das and S. P. Nayar, for respondent No. 3 (in Writ
Petition No. 29/73).
The Judgment of the Court was delivered by
KRISHNA IYER, J. A successful prosecution for a food offence
ended in a conviction of the accused, followed by a flea-
bite fine of Rs. 100/-. Two criminal revisions ensued at
the, instance of the State and the Food Inspector separately
since they were dissatisfied with the magisterial leniency.
(Why two revision proceedings should have been instituted,
involving duplication of cases and avoidable expenditure
from the public exchequer is for the authorities to examine
and inhibit in. future). The High Court heard the accused
against the conviction itself but upheld the guilt and
enhanced the punishment to the statutory minimum of six
months imprisonment and one thousand rupees fine. ’The
aggrieved dealer has reached here, through the twin routes,
of art. 32 a writ petition bristling with challenges of
settled concepts and hanging every argument on the familiar
peg of breach of fundamental rights and of art. 136 a remedy
to correct gross errors of law leading to the manifest
injustice of loss of liberty for a long term of one who, the
prosecution charged, jeopardised the lives of many
consumers. The petitioner before us is the active partner
of a firm, Gits Food Products (India), Poona, which, among
other things, deals in scented supari. A sample of this
stuff was purchased from the accused by the Food Inspector,
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15
Poona (P.W. 1) at a price of Rs. 24/- for 600 grants on
January 25, 1971. A little diary of events will help unfold
the rival contentions. The supari sample was duly analysed
by the Public Analyst and his report dated February 12, 1971
revealed the offending presence of two artificial
sweeteners. namely, saccharin and cyclamate. The Municipal
Medical Officer of Health, Poona, granted the requisite
statutory consent to prosecute and the very next day,
February 26, 1971. a complaint was laid before the First
Class Magistrate having Jurisdiction. On the strength of
the prosecution evidence a charge was framed on July 13,
1971, thus :
"That you, on or about the 15th day of January
1971 (it should read 25th January 1971) at
9.30 a.m., sold and retained for selling the
Nandi Brand sentenced supari with saccharin
and cyclamate, prohibited artificial
sweetener, adulterated supari in contravention
of Section 7(i)(ii), Rule 47, of the
Prevention of Food Adulteration Act, 1954, and
that thereby committed an offence punishable
under Section 16(1) (a)(i) of the Prevention
of Food Adulteration Act, 1954.
The accused’s plea of innocence and supporting evidence
notwithstanding, a conviction was recorded under S. 7(1)
read with S. 16(1) (a) (i) of the Prevention of Food
Adulteration Act, 1954 (the Act, for short), and on
September 30, 1971, the accused was sentenced venially, for
certain special reasons mentioned by the Magistrate, to a
small fine. Revision applications were carried, as earlier
stated, and the High Court while confirming the conviction,
substituted a severer
157
sentence, having no power to inflict less, in its view of
the law. The, appellant in this Court has, by way of second
string to his exculpatory bow, challenged the vires of rules
44(g) and 47 of the Prevention of Food Adulteration Rules
(hereinafter ’called "the Rules"), and even of s. 23(2) of
the Act as being violative of arts. 14 and 19(1) (f) and
(g). The reliefs claimed in both the writ petition and the
criminal appeal converge towards the same end of getting an
acquittal for the accused.
Before proceeding to a formulation of the points raised at
the Bar and a discussion and decision thereon, two minor
episodes deserve to’ be mentioned because.counsel for the
accused has built on them an argument for amelioration. As
if to satisfy himself and to impress, by conduct, his
innocence on the Court, the accused sent a sample of
saccharin from the same tin from which the supari sold to
the Food Inspector was sweetened. Ex. 22, dated March 1,
1971, shows that even before the filing of the criminal
complaint the accused had requested for an analysis of a
sample of saccharin sent by him on. February 23, 1971, the
result of the examination being that cyclamate was present
in it. The further fact placed before the Court by, the
accused was that he had purchased saccharin in tins sold by
the Standard Chemical and Pharmaceutical Co., Bombay, that
these "Cycle" brand tins were stated to be of extra pure
quality and the receptacles themselves contained a printed
warranty like Ex. 31. The story of the accused is that it
was such ultra pure quality of saccharin for which the
manufacturer had given a warranty that found its way into
the sweet supari he sold and that cyclamate was expressly
declared to be absent therein by the manufacturer of the
sweetener.’ His good faith was thus above board, according
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15
to the advocate for the appellant.
A close-up of the law relevant to this case will help focus
attention on the criminal area into which the appellant is
alleged to have entered. The central concept of the
statute, is prevention of adulteration of food in the sombre
background of escalating manoeuvres by profiteers who seek
to draw dividends from the damage to the health of the
people caused by trade in adulteration. The social
sternness and wide sweep of the statute can be realised from
the thought that an insidious host that internally erodes
the vitality of a nutritionally deficient nation is, in one
sense, a greater menace than a visible army of aggression at
our frontiers and so the police power of the State must
reach out to protect the unsuspecting community with
overpowering laws against those whose activities are a
serious hazard to public health. And so a minimum jail term
is fixed in the Act itself.
Now to the Act and its scheme. "Food" is defined very
widely ins. 2 (v) and ’adulteration, also has been assigned
a considerable ranger of meaning in s. 2(i). Power to make
rules to effectuate the statute is conferred on the Central
Government in s’ 23 so that nutritional details, bio-
chemical nuances, variable factors of scientific, advance,
new commercial cunning and astute legal antidotes may all be
flexibly provided for from time to time without moving the
legislature for frequent statutory amendments. The area
covered being technical the requisite expertise is drawn
from a specialist’ committee constituted
158
under s. 3 whom Government must consult before framing rules
under s. 23 (2). Rules made shall be laid before both
Houses of Parliament so that control on such subordinate
legislation may be effectively exercised Section 16 invests
the law with sharp teeth taking a severe view of the nature
of the offence and prescribes a minimum of 6 months R.I. and
Rs. 1,000/- fine for all offenses, even first offenses.
This is a discretion-proof prescription of legislative
sentence but when the offence falls under the proviso to s.
16(1) the Court may, for special reasons to be recorded,
reduce the punishment. Having regard to the several
limitations on magisterial powers of sentencing under the
Cr. PC., S. 21 removes those trammels when punishing food
offenders. Section 7, of course, is the provision defining
and classifying the offenses and it is relevant to recognise
one distinction. Sale of "adulterated’ food attracts S.
7(i) while violations of the rules are caught in the coils
of s.7(v). This differentiation is linked to S. 16. For, an
offence under sec. 7 (v) read with S. 16(1) (a) (ii) brings
into play the marginal mitigatory discretion vested in the
magistrate under the proviso thereto. In short, sale of
’adulterated’ food is visited, willy nilly, with nothing
less than 6 months R.I. and Rs. 1000/- fine, as imposed in
this case by the High Court. Sale merely in derogation of
the Rules leaves the Court room for awarding a lesser
penalty as the Magistrate has done. Since the defence is of
absence of mens rea and indemmity derived from a warranty,
section 19 needs mention.
It runs thus and is self-explanatory :
’19( 2) A vendor shall not be deemed to have
committed an offence pertaining to the sale of
any adulterated or misbranded article of food
if he proves-
(a) that he purchased the article of food-
(i) in a case where a licence is prescribed
for the sale thereof, from a duly licensed
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15
manufacturer, distributor or dealer;
(ii) in any other case, from any
manufacturer, distributor or dealer;
with a written warranty in the prescribed
form; and
(b) that the article of food while in his
possession was properly stored and that he
sold it in the same state as he purchased it".
Two rules, as they originally stood and as now modified,
figured during arguments and they had better be extracted
here without comment.
"4. Sale of certain admixture$ prohibited-
Notwithstanding the provisions of Rule 43, no
person shall either himself or by any servant
or agent sell-
(g) any article of food which contains any
artificial sweetener, except Saccharin, or in
the preparation of which any such artificial
sweetener has been used".
159
47-Addition of Saccharin to be mentioned on
the label.-
Saccharin may be added to any food if the
container of such food is labeled with an
adhesive declaratory label, which shall be in
the form given below :
"This.. . (name of food) contains an admixture
of Saccharin.
These rules held the field from November 24, 1956 until
August 24, 1968 when they were further amended. The
prevention of Food Adulteration (Third Amendment) Rules,
1968, redrafted rules 44(g) and 47, and it is these new
rules which were extant at the time of the alleged offence
(January 25, 1971). It is proper at this stage to reproduce
these two rules.
"44. Sale of certain admixtures prohibited.-
Notwithstanding the provisions of Rule 43 no
person shall either by himself or by any
servant or agent sell.
(g) any article of food which contains any’
artificial sweetener except where such
artificial sweetener is permitted in
accordance with the standards laid down in
Appendix B".
"47. Addition of artificial sweetener to be
mentioned on the label.Sacharin or any other
artificial sweetener shall not be added to any
article of food, except where the addition of
such artificial sweetener is permitted in
accordance with the standards laid down in
Appendix "B" and where any artificial
sweetner
is added to any food the container of such
food shall be labeled with an adhesive-
declaratory label which shall be in the form
given below:
"This.. (name of food) contains an
admixture .... (name of the artificial
sweatier).
The use of a saccharin is permitted under Rule 47 in case of
carbonated water in item 5(3-A 1.01.01 but no such benefit
is enjoyed by supari. Cyclamates have never been permitted
sweeteners.
The crucial inculpatory facts are virtually admitted. The
sale is established and so also the presence of saccharin
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15
and cyclamate in the supari sample. Under the Rules extant
on a January 25, 1971 the appellant admuits the two
sweetners are prohibited as additives to supari. The
contravention of s. 7 read with rr. 44(g and 47 being
plainly proved the offence falls not under s@. (i) but sub-
s. (v). None of the Many alternatives-in s. 2(i) applies
bee use there is neither averment nor proof-and counsel for
the State fairly conceded this-that the sweeteners in
question ate injurious to health and the other subclauses
cannot be attracted. Perhaps they are. Even if they are
not it is perfectly possible that the State may-ban their
use. But it these additives are,toxic it is a failure of.
duty of the Food Inspector not to have averred in the
complaint and Adduced evidence in support, a matter which
the concerned authorities will consider. Indifferent
160
action of the prosecution also occasions failure of justice
to the community especially when faceless victims are
involved like under food regulation laws. Any way, the fact
is-and the court cannot help it the absence of evidence (a)
that the supari contains any poisonous or other ingredients
which renders it injurious to health or (b) that it contains
any other substance causing injury as indicated in s. 2(i)
(b) puts the offence out of s. 7 (i) and brings it within s.
7(v).
The further fortunes of saccharin and cyclamate in official
eyes as a bearing on the plea of the accused. It transpires
that the Central Committee for Food Standards, constituted
under s. 23(1) of the Act is stated to have accepted the
recommendation of its sub-committee to the effect that
saccharin may be permitted to be used in scented supari to
the extent of’100 parts per million, and steps are under way
for suitable amendments to the rules. It is also on record
that the Commissioner, Food & Drugs Administration,
Maharashtra State, communicated this information to the
Municipal Corporation of Greater Bombay pursuant to which a
circular dated October 24, 1972 was issued by the
Corporation which states;
"Circular
Subject : Licensing of scented supari. The
Commissioner Food and Drug Administration, has
informed this office that the Central
Committee for Food Standards has accepted the
recommendation of its subcommittee that
saccharin may be permitted to be used in
scented supari to the extent or 100 p.p.m. and
that C.C.P.S. is moving the Government of
India, Ministry of Health, for suitable
amendment to the Rules. In view of this, it
is not advisable to institute prosecutions as
merely for presence of saccharin in scented
supari and where such cases have already been
launched the papers should be submitted to
this office, for orders for withdrawal. The
Commissioner, Food and Drugs Administration,
has further informed this office that in view
of the proposed amendments, firms adding
saccharin to the aforesaid limit in supari can
be licensed under M.P.F.A. Rules."
So far cyclamate is concerned, although the Prevention of
Food Adulteration Rules do not permit its use it is seen in
the Drugs and Cosmetics Rules a ban on the use of cyclamates
was introduced only on June 21, 1972 and that is relied- on
to argue that till that time it was not regarded as
injurious "a sort of aliki for its presence in the accused’s
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15
supari sample. The relevant rule is rule 84(b) of the Drugs
and Cosmetics Rules, 1945.
With this background of the Act and the Rules we may
evaluate the pleas urged by counsel for the accused which
we. proceed to formulate. Of course, the spectrum of
submissions has ranged from challenging the status of supari
as food and the toxicological hazards of saccharin and
cyclamate and culminated in the unconstitutionality of the
rules which ban the use of these food additives, and even
the rule-making power, S. 23, for violation of arts. 14 and
19(1) (f) and (g) of the Constitution. Covering this
ground, the appellant hopefully posed the following
questions which are may itomise thus
(1) Is supari food?
161
(2) Is not good faith of the vendor legally exculpatory
even in a food offence?
(3) Can saccharin or cyclamate be regarded as health
hazards at all? If not, is it not an unreasonable and,
therefore, unconstitutional restriction on freedom of trade
to prevent and punish sales of articles innocuously
sweetened by these innocent additives ?
(4) Does not the history of the Rules (and the D & G Rules
claiming down control on the use of saccharin and cyclamate
recently) demonstrate-particularly in the context of the
technical and administrative rethinking on admixture of
saccharin reflected in the circulars the arbitrariness and
unreasonableness of the new rules 44(g) and 47, liable
therefore to be struck down under art. 13 read with arts. 14
and 19?
(5) In the light of carbonated waters being permitted to
use saccharin, is it not arbitrary to single out supari for
discriminatory embargo on the use of this artificial
sweetner and does not rule 47 fail for violation of art. 14?
(6) Does the offence, assuming the facts of the prosecution
to be proved, fell under s. 16(i)(a)(i) the impact of such
finding being material so the issue of sentence?
(7) Should the sentence, in the facts and circumstances of
the case be so draconian?
(8) In any view, the respectable trader, that the accused
is, the Probation of Offenders Act and its beneficent
provision must be applied to bale him out of the
incarceration inflicted by the High Court.
A few other untenable points like that the sale to a Food
Inspector is not a real sale and that the scented supari was
in an experimental, not marketable stage, were feebly spelt
out but hardly deserve notice. They reveal more the range
of legal resourcefulness than confidence in the journey to
guiltlessness.
Before proceeding to discuss the points so. framed we may
dispose of the extraordinary plea that s. 23(1)(b) of the
Act, empowering them Central Government, in consultation
with the Expert Committee, to make rules defining the
standards and quality for and fixing the limits of
variability permissible in respect of any article of food,
is bad since the statute lays down no policy, principles nor
guidelines regarding the articles of food for which
standards are to be prescribed, etc. etc. The. vice of
uncanalised executive power and tie evil of excessive
delegation of legislative power are the two fatal factors
pressed before us. Had counsel granted us some familiarity
with this branch of constitutional law everybody’s time
would pro tanto have been, saved. Comprehensive powers of
rule-making have been vested in the Central Government, and
since the subject is technical there, is a direction in the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15
statute to Government that the Central Committee for Food
Standards shall be constituted consisting of specialists in
the various fields concerned and to consult that Committee
before framing rules. The ,naked power’ submission is
demolished by the guidelines implicit in
L 447SCI/74
162
the statute, by the Committee built into the system, by the
specifications contained in the rule-making provisions and
by the safeguard of laying the rules, before the Houses.
We now proceed to consider the bold bid made by the
appellant to convince the Court that supari is not an
article of food and, as such, the admixture of any sweetener
cannot attract the penal provisions at all. He who runs and
reads the definition in S. 2(v) of the Act will answer back
that supari is food. The lexicographic learning, pharma-
copic erudition, the ancient medical literature and extracts
of encyclopedias pressed before us with great industry are
worthy of a more substantial submission. Indeed, learned
counsel treated us to an extensive study to make out that
supari was not a food but a drug. He explained the botany
of bettlenut, drew our attention to Dr. Nandkarni’s Indian
Materia Medica, invited us to the great Susruta’s reference
to this aromatic stimulant in a valiant endeavor to persuade
us to hold that supari was more medicinal than edible. We
are here concerned with a law regulating adulteration of
food which effects the common people in their millions and
their health. We are dealing with a commodity which is
consumed by the ordinary man in houses, hotels, marriage
parties and even routinely. In the field of legal
interpretation, dictionary scholarship and precedent-based
connotations cannot become a universal guide or semantic
tyrant, oblivious of the social context, subject of
legislation and object of the law. The meaning of common
words relating to common articles consumed by the common
people, available commonly and contained in a statute
intended to protect the community generally, must be
gathered from the commonsense understanding of the word.
The Act-defines ’food’ very widely as covering any article
used as food and every component which enters into it, and
even flavoring matter and condiments. It is commonplace
knowledge that the word "food" is a very general term and
applies to all that is eaten by man for nourishment and
takes in subsidiaries. Is supari eaten with relish by man
for taste and nourishment ? It is. And so it is food.
Without carrying further on this unusual argument we hold
that supari is food within the meaning of s. 2(v) of the
Act.
it was next urged before us that the dealer believed in good
faith that there was no cyclamate in the substance sold
induced by the warranty and honestly did not know that
saccharin was contraband, the rules in this behalf having
been changed frequently and recently. it is trite law that
in food offenses strict liability is the rule not merely
under the Indian Act but all the world over. The principle
has been explained in American Jurisprudence (2d, Vol. 35,
p. 864) thus :
"Intent as element of offence:
The distribution of impure or adulterated food
for consumption is an act perilous to human
life and health, hence, a dangerous act, and
cannot be made innocent and harmless by the
want of knowledge or by the good faith of the
seller; it is the act itself, not the intent,
that determines the guilt, and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15
163
the actual harm to the public is the same in
one case as in the other. Thus, the seller of
food is under the duty of ascertaining at his
peril whether the article of food conforms to
the standard fixed by statute or ordinance,
unless such statutes or ordinances, expressly
or by implication, make intent an element of
the offence."
Nothing more than the actus reus is needed where ,
regulation of private activity in vulnerable areas like
public health is intended. In the words of Lord Wright in
McLeod v. Buchanan(1) "intention to commit a breach of
statute need not be, shown. The breach in fact is enough."
Social defence reasonably overpowers individual freedom to
injure, in special situations of strict liability. Section
7 casts an absolute obligation regardless of scienter, bad
faith and mens rea. if you have sold any article of food
contrary to any of the sub-sections of s. 7, you are guilty.
There is no more argument about it. The law denies the
right of a dealer to rob the, health of a supari consumer.
We may merely refer to a similar plea over-ruled in the case
reported in [1971] 1 S.C.R. 166.Andhra Pradesh Grain & Seed
Merchants Association v. Union of India.(2)
It was strenuously submitted that neither saccharin nor
cyclamate is a biochemical risk and so a blanket ban on
their use is an unconstitutional restriction on the freedom
of trade, apart from being ultra vires the rule-making power
in s. 23(1). Saccharin was surely a permissible sweetener
till the rules were modified in August 1968. It is also a
fact that cyclamate which was not permissible as an additive
under the Rules was prohibited from going into medicinal
preparations only in 1971 by a rule under the Drugs and
Cosmetics Act. It is well known that saccharin is used by
many people medicinally for diabetics or obesity. The
short-term and long-term effects of saccharin- on rats and
human beings were reviewed in the F.A.A./W.H.O. meeting held
in Geneva in 1967 and the following comments were made:
"The extensive biochemical studies with
saccharin and sodium saccharin show the
inertness of these substances. Following an
oral dose, saccharin appears unchanged in the
urine of man within half-hour and is
completely exerted within 48 hours. The long
recorded use by man without any apparent
deleterious effects in normal individuals and
diabetic patients indicates the safety of the
normal intakes of saccharin. Although long-
term animal studies are limited to rats, two
reports show no effects at dosage levels as
high as 1 per cent, and only slight growth
retardation at 5 per cent These studies are
adequate to rule out carcinogenicity. The
carcinogenicity studies are limited to skin
application and bladder implantation in mice
and lack significance in the oral use of
saccharin for man. Reports on studies in
mice, rats and rabbits are adequate to show
the lack of any effect on fertility and
progeny."
(1) [1940] 2 A.E.R. 179 at 186 H.I..I
(2) [1971] 1 S.C.R. 166
164
However, in view of the marginal potential danger of
saccharin if consumed in considerable quantities the United
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15
States removed saccharin from the GRAS (Generally Rer-
ognised As Safe) list of food additives and restricted its
use in a prescribed way. This measure, calculated to
’freeze’ saccharin at low levels pending final outcome of
current research on safety, has had its impact on Indian
scientists. Current experiments in America probably.
indicate that at high levels of consumption some test
animals develop bladder tumors which may be cancerous.
The expert sub-committee of the Central Committee for Food
Standards considered the use of saccharin in 1971 in the
light of investigations on toxicity designed. to evaluate
the hazards from the standpoint of carcinogenesis. While
saccharin is not positively shown to be carcinogenatic the
Central Drug Research Institute, Lucknow, observed that it
had a growth-retarding effect with a poor rice diet, and
therefore should be carefully restricted, 70% of our
population being under-nourished or malnourished. The
Central Committee, after weighing the pros and cons of the
use of saccharin in foods, recommended the continuance of
the, ban on saccharin in general but agreed for special
exemptions considering each food on its merits. It appears
that in regard to carbonated waters, if a man takes four
bottles, the total daily intake per adult of saccharin would
be approximately 50 mgs. per day whereas the recommended
maximum limit is 350 mgs. per day. That is why carbonated
waters are permitted the admixture of limited quantities of
saccharin. The Committee appears to be taking the view that
saccharin at a low level may be permitted in supari with a
proper declaration of its presence. On account of this
recommendation of the Central Committee, the circular
referred to earlier in this judgment was probably sent out
pursuant to the communication by, the Commissioner, Food and
Drugs Administration, Maharashtra State.
Even on cyclamates, the toxic degree is not too clear.
There is considerable controversy both in the United States
and the United Kingdom about a total ban on cyclamates but
there is a growing volume of opinion that its use has caused
bladder tumor when massive doses are fed on rats. In India
also scientific opinion is sharply divided on the harmful
consequences of cyclamates. However, in the United States
and the United Kingdom, in Japan and other countries there
is a ban on this substance and the Indian official view
seems to be that without more information on the mechanism
of bladder cancer induction in rats by the cyclamate-
saccharin mixture we have to follow the example of the
United States. No risks can be taken where millions of
people and their lives are involved and cancer being a sure
killer does not admit of biochemical gamble or medical
speculation particularly when the Indian people, by and
large, are less health-conscious and informed than Americans
and Britons.
Such being the facts, it is 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
Government, after consultation with a high-powered technical
165
body, has prohibited the use of saccharin and cyclamates.
The fact that for a long time these substances were allowed
is no argument against the reasonableness of their later
ban; for human knowledge advances and what was regarded as
innocuous once is later discovered to be deleterious. In no
view can the discretion of the government, exercised after
listening to the technical counseling of the Central
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15
Committee, be castigated as arbitrary and capricious or as
unreasonable. So long as the exercise of power is not
smeared by bad faith, influenced by extraneous
considerations, uninformed by relevant factors, and is
within the limits of reasonableness it becomes out of bounds
for judicial reevaluation. Where expertise of a complex
nature is. 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 on the
fundamental right of the, citizen and judicial review must
halt at the frontiers. The court cannot reweigh and
substitute its notion of expedient solution.
Constitutionality not chemistry, abuse, not error, is our
concern and the Executive has not transgressed limits at all
here. Within the wide judge-proof areas of policy and
judgment open to the government, if they make mistakes,
correction is not in court but elsewhere. That is the
comity of constitutional jurisdictions in our’
jurisprudence. We cannot evolve a judicial policy on
medical issues or food additives and should refuse
to invalidate rules 44(g) and 47 on the mystic may be and
happy hopefuls held up before us by the, appellant.
Nor is there any substance whatever in the plea that there
is a discrimination against supari vis-a-vis,carbonated
waters. There is a basis for the distinction. All judicial
thought, Indian and Anglo-American, on the judicial review
power where ruler, under challenge relate to a specialised
field and involve sensitive facets of public welfare, has
warned courts off easy assumption of unreasonableness of
subordinate legislation on the strength of half-baked
studies of judicial generalists aided by the ad-hoc learning
of counsel. The Court certainly is the constitutional
invigilator and must act to defend the citizen in the
assertion of his fundamental rights against executive
tyranny draped in discretionary power but here no case for
it exists.
It is surprising that the ruling in Kartar Singh’s case(1)
has not deterred the urging of this contention. Dealing
with a similar argument under the same Act this Court over-
ruled the High Court’s judgment striking down the impugned
rules, and stated :
"We do not consider that the Court was
justified in practically legislating and
laying down what the rules should be rather
than give effect to the law by adherence to
the rules as framed."
We respectfully agree with this guide-line. Violation of
arts. 14 and 19 by the Act and the Rules has been urged but
repelled so late as in the Andhra Grain Merchants case(2)
but some constitutional pleas. here parties are rich, die
had and ride on the hardships of the small man.
(1) [1964] 6 S.C.R. 679; 690.
(2) [1971] 1 S.C.R. 166.
166
Culpability being thus conclusive we have to fix the precise
provision under which the guilt arises. In the absence of
proof that the addition of saccharin and cyclamate are
injurious to health the food cannot be called ’adulterated’
in statutory vocabulary. Never-the-less there is undisputed
violation of rr. 44(g) and 47 and so the accused is guilty
under s. 16(1) read with s. 7(v).
The question of exculpation of the accused based on the
warranty set up need not detain us since both the courts
have rightly rejected this disingenuous, though ingenious,
defence. If we were to reverse this finding on fact
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15
judicial sanction for a merchant’s stratagem calculated to
defeat the law would have been given. The plea is in vain.
Finally comes the post-conviction stage where the current
criminal system is weakest. The Court’s approach has at
once to be socially informed and personalised.
Unfortunately, the meaningful collection and presentation of
penological facts bearing on the background of the
’individual, the dimension of damage, the social mileu and
what not-these are not provided for in the Code and we have
to make’ intelligent hunches on the basis of materials
adduced to prove guilt. In this unsatisfactory situation
which needs legislative remedying we go by certain broad
features. But before that, the submission of counsel for
the humanistic probation law to be liberally extended to
this anti social offence has to be considered.
The rehabilatory purpose of the Probation of Offenders Act,
1958, is pervasive enough technically to take within its
wings an offence even under the Act. The ruling in Ishar
Das v. State of Punjab(1) is authority for this position.
Certainly, ",its beneficial provisions should receive wide
interpretation and should not be read in a restricted
sense". But in the very same decision this Court indicated
one serious limitation :
"Adulteration of food is a menace to public
health. The Prevention of Food Adulteration
Act has been enacted with the aim of
eradicating that anti-social evil and for
ensuring purity in the articles of food. in
view of the above object of the Act and the
intention of the legislature as revealed by
the fact that a minimum sentence of
imprisonment for a period of six months and a
fine of rupees one thousand has been
prescribed, the courts should not lightly
resort to the provisions of the Probation of
Offenders Act in the case of persons above 21
years of a found guilty of offenses under the
Prevention of Food Adulteration Act. . ."
The kindly application of the probation principle is
negatived by the imperatives of social defence and the
improbabilities of moral proselytisation. No chances can be
taken by society with a man whose anti-social operations,
disguised as a respectable trade, imperil numerous
innocents. He is a security risk. Secondly, these economic
offenses committed by white collar criminals are unlikely to
be
(1) [1972] 3 S.C.C. 65.
167
dissuaded by the gentle Probationary process. Neither
casual provocation nor motive against particular persons but
planned profit making from numbers of consumers furnishes
the incentive-not easily humanised by the therapeutic
probationary measure. It is not without significance that
the recent report (47th report) of the Law Commission of
India has. recommended the exclusion of the Act to social
and economic offenses by suitable amendments. it observed
"We appreciate that the suggested amendment
would be in apparent conflict with current
trends in sentencing. But ultimately, the
justification of all sentencing is the
protection of society. There are occasions
when an offender is so antisocial that his
immediate and sometimesprolonged
confinement is the best assurance of
society’s protection. The consideration of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15
rehabilitation has to giveway, because of
the paramount need for the protection of
society. We are, therefore recommending
suitable amendment in all the Acts, to exclude
probation in the above cases." (p. 85)
In the current Indian conditions the probation movement has
not yet attained sufficient strength to correct these
intractables. May be, under ’more developed conditions a
different approach may have to be made. For the present we
cannot accede to the invitation to let off the accused on
probation.
The finale in every criminal trial is sentence. Let us take
stock of the social and personal facts, the features of the
crime and the culprit. The Prevention of Food Adulteration
Act, 1954, is meant to save society, and Parliament has by
repeated amendments emphasized the statutory determination
to stamp out food offenses by servere senences. Indeed,
dissatisfied with the indulgent exercise of judicial
discretion, the legislature has deprived the court of its
power to be lenient. In the light of escalating food
adulteration this is understandable. Even so, there are
violations and violations. Scented supari is neither a
staple deit nor popular ’With the poor, being an expensive
item. Nor is saccharm poisonous but prohibited more as a
precaution. That may be the reason for the prosecution not
leading evidence of its injurious properties. The circular
bearing on saccharin in supari, though irrelevant to nullify
the rule, suggests that it is not so grave a danger and may
perhaps be permitted again. Cyclamate stands on a somewhat
different footing, although in a practical sense, the menace
to health from it is not too serious except where unusually
massive doses are consumed. The accused’s non-knowledge has
been rejected by us but he alleges that he has retired from
the firm. He has undergone a week in jail and is. not shown
to be a repeater.
The Court has jurisdiction to bring down the sentence to
less than the minimum prescribed in s. 16(1) provided there
are adequate and special reasons in that behalf. The normal
minimum is six months in jail and a thousand rupees fine.
We find no good reason to depart from the proposition that
generally food offenses must be deterrently dealt with. The
High Court under the erroneous
168
impression that the offence fell under S. 7 (i) read with s.
16 (1) (a) (i) actually it comes under s.7 (v) read with S.
16 (1) (a) (ii) did not address itself to the quantum of
sentence. Even so the punishment fits the crime and the
criminal.
We are not unmindful of the possibilities of village
victualers and tiny grocers being victimised by dubious
enforcement officials which may exacerbate when punishments
become harsher, and the marginal hardships caused by stern
sentences on unsophisticated small dealers. Every cause has
its martyr and Parliament and Government-not the Court-must
be disturbed over the search for solutions of these
problems. Savage severity may not always prove effective
and may be cruel on petty and marginal offenses.
The learned Magistrate, we are constrained to observe, has
completely failedto appreciate the gravity of food
offenses, when he imposed a naively negligible sentence of
one hundred rupees fine. In a country where consumerism as
a movement has not developed, the common man is at the mercy
of the vicious dealer. And when the primary necessaries of
life are sold with spurious admixtures for making profit,
his only protection is the Prevention of Food Adulteration
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 15
Act and the Court. If offenders can get away with it by
payment of trivial fines, as in the present case, it. brings
the law into contempt and is enforcement a mockery. In this
context, it is apposite to draw attention to measures taken
in many advanced countries for the evolution of a rational
and consistent policy of sentencing. Conferences between
judges, magistrates and penal administrators, are being
organised with increasing frequency in England and in the
United States. The 47th Report of the. Law Commission has
stressed the need for the programme because of the
sentencing vagaries witnessed in our country.
Indeed, the education of. the sentencing judge, particularly
in the context of economic offenses, is a yawning gap in our
criminal system and the, near-escape of the accused before
the trial court in this case, prevented only by the Criminal
Revision to the High Court, permits us to observe that the
magistracy in the country has yet to realise that "there are
occasions ’when an offender is so anti-social that his
immediate and sometimes prolonged confinement is the best
assurance of society’s physical protection."(1) Or, we may
add, even in less severe situations heavy enough fine to
drive him out of the trade if he tried the trick again.
There is. injustice to the community the invisible but
immense victim of the crime-in the court’s misplaced
sympathy for the culprit. In the result, the writ petition
proves a damp squib and the criminal appeal a futile venture
in exculpation and extenuation. We dismiss both.
K.B.N. Petition dismissed.
(1) Camobell Judge William J., "Developing Systematic
Sentancing Procedures", Federal Probation (September 1954,
page 3, quoted by the Advisory Council of Judges of the
N.P.P.A. Guidelines for sentencing (1957), pages 1 to 9,
reproduced in Donnelly etc. Criminal Law (1962), page 374.
169