Murlidhar Meghraj Loya Vs. State of
Maharashtra  INSC 156 (19 July 1976)
CITATION: 1976 AIR 1929 1977 SCR (1) 1
F 1977 SC 435 (5,9)
Prevention of Food Adulteration Art, 1954--5.
16, proviso--Scope of.
Accused pleaded guilty--If lesser sentence
could be awarded.
An analysis of a sample of khurasani oil from
the appellants' mill collected by the Food Inspector showed 30% groundnut oil
content amounting to contravention of r. 44(a) of the Rules which prohibits
sale of a mixture of two or more edible oils as an edible oil. The appellants
were charged with an offence under s. 2(i) of the Act read with ss. 7 and
16(1)(a) and r. 44(a). The appellants having pleaded guilty, each of them was
sentenced to pay a small fine. On revision, the High Court converted the
offence into one under s. 2(i) (a) read with s. 16(1) and enhanced the sentence
to a minimum of six month, imprisonment and fine of rupees one thousand on the ground
that the offence committed by them fell within s. 16(1)(a) and did not fall
within the proviso to that section.
On appeal to this Court it was contended that
even assuming s. 2(i)(a) is all comprehensive it must be read as the genus and
thereafter sub-clauses (b) to (e) fall under two broad categories namely
adulteration with injurious substances and adulteration with innocent additions
or the substance sold merely violates a standard or degree of purity prescribed
and in this case the offence would fall under the non-injurious type covered by
Dismissing the appeal, HELD: 1. (a)
Sub-clause (a) of s. 2(1) has a wide sweep.
There causes be any doubt that if the article
asked for is 100% khurasani oil and the article sold is 70% khurasani oil and
30% groundnut oil, the supply 'is not of the nature, substance and quality
which it purports or is represented to be. [4 E] (b) It is not possible to
invoke the proviso to s. 16(1) and the High Court is legally right in its
conversion of the provision for conviction and enhancement of the sentence.
Though s. 2(i)(a) is read speciously and if
the facts alleged are accommodated by the definition of adulteration under that
sub-clause, s. 16.(1) is attracted. The first proviso to s. 16(1) will be attracted
if and only if s. 2(i)(1) applies. [4 F-G] In the present case the facts
disclose that the offence is both under s. 2(i)(a) and under s. 7(v) for breach
of r. 44(e). Section 2(i)(1) is repelled on the facts and this is not a case.
where either s. 2(i)(1) or r. A17.12 applies.
2.(a) The proviso cannot apply in extenuation
and the High Court was right in convicting the appellants. Judicial compassion
can play upon the situation only if the offence is under s. 16(1)(a)(i) and the
adulteration is one under s. 2(i)(1). The proviso applies if the offence is
(a)(ii), that is to say, the offence is not
one of adulteration but is made up of a contravention of the other provisions
of the Act or of any rule made there under. Since in this case the offence
falls under s. 2(i)(a) proviso (ii) has no application. [5 E-F] (b) The
judicial jurisdiction to soften the sentence arises if the offence of
adulteration falls only under s. 2(i)(1). This case does not fall under this
sub-clause. [5 G] [The Court drew attention to (a) the propriety of accepting
by the prosecution and the Courts the accused's plea of guilty of a lesser
offence in dangerous economic crimes and food offences and (b) in view of the
fact that a substantial number of cases of the kind were withdrawn by the
Government because 2 variably groundnut oil is observed in Khurasani oil, the
Government may consider whether in the circumstances of this case it is not a
matter for exercise its commutation powers].
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 314315 of 1976.
Appeals by special leave from the Judgment
and order dated 4-1975 of the Bombay High Court in Criminal Revision Appln. No.
M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S.
Narasimhan, 7 3 . K. Mathur and A.K. Sharma, for the Appellants.
M.N. Phadke and M.N. Shroff, for the
The Judgment of the Court was delivered by
KRISHNA IYER, J.--Judicial fluctuations in sentencing and societal seriousness
in punishing have combined to persuade Parliament to prescribe inflexible,
judge-proof, sentencing minima in the Food Adulteration law. This deprivatory
punitive strategy sometimes inflicts harsher-thandeserved compulsory
imprisonment on lighter offenders, the situation being beyond judicial
discretion even if prosecution and accused consent to an ameliorative course.
The two appeals, by special leave, partially illustrate this proposition.
Khurasani oil is an edible oil extracted by crushing oil seeds in mills.
Groundnut oil, also edible, is expressed likewise. A firm by name almukand
Hiralal Loya & Co., in a minor town in Maharashtra, ms an oil mill where
Khurasani oil and groundnut oil are manufactured by the firm. Sometimes they
crush oil seeds for others on ire who pay milling charges.
The appellants in Criminal Appeal No. 314 are
the managing partner and the manager of the mill and the appellant in Criminal
appeal No. 315 is the operator of the expeller in the mill who actual sold the
offending commodity. On February 16, 1972 the Food inspector of Bhagur
Municipality walked into the sales section of the Mill, asked for 375 grams of
khurasani oil from accused no. 8, appellant in Criminal Appeal No. 315. The
quantity required was applied and, thereafter, the Food Inspector went through
the statutory exercises preparatory to an analysis by the Public Analyst. After
receiving the report of the Analyst to the effect that the sample of hurasani
oil sent for analysis contained 30% of groundnut oil which amounted to a contravention
of rule 44(e) of the Prevention of Food Adulteration Rules (for short, the
rules), a complaint was lodged for selling adulterated food within the meaning
of s. 2(i) of the Prevention of Food Adulteration Act (hereinafter called the
Act) read with ss. 7(1) and 16 (1)(a) and r.44(e). Evidence was led to make out
a prima facie case.
The accused were questioned under s. 342
Cr.P.C., and the appellants confidently pleaded guilty to the charge whereupon
the trial Magistrate, perhaps agreeably to expectations, sentenced them each to
a piffling fine of 3 Rs. 250. Although the whole process in court is strongly
suggestive of a tripartite consensual arrangement and reminds one of pie,
bargaining procedures in the United States of America, the State Government
appears to have taken a 7 3 trate's adroit avoidance of the penal provisions
which obligate him to inflict a minimum prison sentence, viz., s. 2(i)(a) and
s. 16(1) with a view to apply the proviso to s.
16(1). This is, at best, a conjecture about
the Magistrate and might as well be imputed to the prosecutor and the food
inspector. However, the State filed a revision to the High Court against the
illegal and ultra-lenient impost. The revisional Judge converted the offence
into one under s.
2(i)(a) read with s. 16(1 and enhanced the
sentence to the minimum of six months an Rs. 1,000 by way of fine on the ground
that the offence committee by the accused squarely fell within s. 16(1)(a) and
did not face within the proviso of that provision which vests a guarded
discretion in the Court to soften the sentence to special cases. The appellants,
shocked by this drastic reversal of fortune at the High Court's hand: have
sought restoration of the Magistrate's conviction and sentence If this
aggravated conviction is correct, the enhanced punishment is inescapable.
The circumstances leading up to and
constituting the offence hay 'been briefly set out already and the divergence
between the trial court and the High Court turns on the legal inferance to be
drawn from the factual matrix. Has there been adulteration of food, in the sens
imputed to that expression by s. 2(i)(a)? Assuming it fails under s. 2(i) (1)
of the definition, does that factor exclude it from s. 2(i) (a) Even if s.
2(i)(a) does apply, is the benigrant proviso to s. 16(1 attracted on the score
that the crime in this case constitutes a violation of r. 44(e) prescribing
minimum standards? These questions agricultural to the submission made by Shri
Bhandare for the appellants. his argument being that the scheme of s.2 is to
erect separate corn apartments for the many types of adulteration so that if a
food article is adulterated within the meaning of s.2(i)(1) more appropriately
it falls outside the ambit of s.2(i)(a). Otherwise, he argues, there is no
point in itemising the various sub-divisions even though he con cedes that
marginally there may be overlapping among the subclauses He further contends
that even assuming that s.2(i)(a) is all-corn prehensive, it must be read as
the genus and thereafter sub-clause (b) to (1) fall under two.
broad categories, viz., adulteration where
injurious substances have been admixed and adulteration where innocent
additions have been made or the substances sold merely violate a standard or
degree of purity prescribed. If there were force in this submission, the culpa,
according to counsel, could reasonably 'fall under the non-injurious type of
adulteration covered by s.2(i)(1) The statute, says Shri Bhandare, sensibly
dichotomises the senreno. and invests a discretion in the court in the second
category to reduce the sentence below the minimum stipulated, if special
reasons exist for such clemency. Of course, counsel concedes that if the
adulteration is of the injurious brand, judicial sympathy is statutorily
supplanted 73 4 this, he reasons, fits into and explains the scheme of s.16
which is a penal provision with dual limbs.
We will examine the validity of this
interpretative dissection. Indeed, if this somewhat strained argument fails,.
everything fails because, otherwise, the appellants have glibly convicted
themselves, but of their own mouth, by an unusually obliging 'yes' to every
material question under s.342 Cr. P. Code. Thus, on the merits, the sole
question is about the proper offence made out on the facts admitted.
This, in turn, depends on the acceptability
of the interpretative dexterity displayed by counsel for the appellants.
It is trite that the social mission of Food
Laws should inform the interpretative process so that the legal blow may fail
.on every adulterator. Any narrow and pedantic, literal and lexical
construction likely to leave loopholes for this dangerous criminal tribe to
sneak out of the meshes of the law should be discouraged. For the new criminal
jurisprudence must depart from the old canons, which make indulgent
presumptions and favoured constructions benefiting accused persons and
defeating criminal statutes Calculated to protect the public health and the
nation's wealth. This humanist approach and cute construction persuades us to
reject Shri Bhandare's analysis of s.2(1). Sub-clause (a) of s.2(i) has a wide
sweep and loyalty to the intendment of the statute forbids truncating its
ambit. There cannot be any doubt that if the article asked for is 100%
khurasani oil and the article sold is 70% khurasani oil and 30% groundnut oil,
the supply 'is not of the nature, substance or quality which it purports or is
represented to be' The suggestion that there is no format evidence of
representation or prejudice as stated in the section does not merit
consideration being a quibble over a trifle.
If we read s.2(i)(a) spaciously and if the
facts alleged are accommodated by the definition of 'adulteration' under that
sub-clause,. s. 16 ( 1 ) is attracted. The first proviso to s. 16 ( 1 ) will be
attracted if and only if s.2(i)(1) applies. In the present case the facts
disclose that the offence is both under s.2(i)(a) and under s. 7(v) for breach
of r.44(e). Section 2(i)(1) is repelled on the facts and it is obvious that
this is not a case where either s.2(i)(1) or r.A 17.12 urged by Shri Bhandare
applies. In this view it is not possible to invoke the amelioratory proviso to
s.16(1) and the High Court is legally right in its conversion of the provision
for conviction and enhancement of the sentence.
We unhesitatingly hold that if s.2(i)(a)
adequately fits in, adulteration under that provision must be found. 73 Once
this position is made plain, the penalty that the appellants must suffer is
fool-proof. Section 16 lays down the penalties and classifies them. We are
particularly concerned with s,16(1) of the Act which itself clubs together many
categories out of which we have to pick out only two for the purposes of this
case, viz., (i) sale of any article of food which is adulterated; and (ii) sale
of any article of 5 food other than one which is adulterated---'in
contravention of any of the provisions of this Act or of any rule made there under'.
Ordinarily, both these clauses. of offences are punishable with the minimum
prescribed 'of not less ,than six months' imprisonment, together with fine
which shall not be less than Rs. 1,000/-'. However, there is a kindly proviso
which confers on the court a power to be exercised for any adequate and special
reasons to be mentioned in the judgment whereby a sentence of imprisonment for
a lesser term than six months or of fine smaller than Rs. 1,000/or of both may
be imposed, but this more moderate punitive net is conditioned by the proviso
itself. We may read the proviso:
"Provided that-(i) if the offence is
under sub-clause (i) of clause (a) and is with respect to an article of food
which is adulterated under sub-clause (1) of clause (i) of sec. 2 or misbranded
under sub clause (k) of clause (ix) of that section; or (ii) if the offence is
under sub-clause (ii) of clause (a).
the court may for any adequate and special
reasons to be mentioned in the judgment, impose a sentence of imprisonment for
a terms of less than six months or of fine of less than one thousand rupees or
of both imprisonment for a term of less than six months and fine of less than
one thousand rupees." Judicial compassion can play upon the situation only
if the offence is under sub-cl. (i) of cl. (a) of s.16(1) and the adulteration
is one which fails under sub-cl. (1) of el.
(i) of s.2. Secondly, the proviso also
applies if the offence is under sub-cl. (ii) of el. (a), that is to say, the
offence is not one of adulteration but is made up of a contravention of any of
the other provisions of the Act or 7 3 already found that the accused is guilty
of an offence of adulteration of food under s.2(i)(a). Therefore, proviso (ii)
is out. Proviso (i) will be attracted, according to Shri Bhandare, if s.2(i)(1)
applies to the species of adulteration committed. In our view, the only
sensible understanding of proviso (i) is that judicial jurisdiction to soften
the sentence arises if the offence of adulteration fails only under sub-cl. (1)
of cl. (i) of s.2 and we have held that it does not. We cannot but deplore the
clumsy draftsmanship displayed in a statute which affects the common man in his
daily bread. It is unfortunate that easy comprehensibility and simplicity for
the laity. are discarded sometimes through over sophisticated scholarship in
the art of drawing up legislative bills. It cannot be overstressed that a new
orientation for drafting methodology adopting directness of language and
avoiding involved reference and obscurity is overdue. Be that as it may, in the
present case s.2(i) (a) applies and s.16(1)(a) has been breached. Therefore the
proviso cannot be applied in extenuation and the conviction of the High Court
has to be upheld.
6 The possibility of long argument in a case
where the accused has pleaded guilty arises because the provision lends itself
to adroit exercises. The court has to look at the interpretative problem in the
social setting of the statute, visualising the rough and tumble of the market
place, the finesse with which clever victuallers fob off adulterated edibles
and gullible buyers goofily fall victim.
Viewed this way, chasing recondite semantics
or niceties of classification or chopping of logic has no scope for play.
The appeals must fail, without more. But we
have to take note of a few circumstances of significance brought to our notice
by counsel for the appellant .with which the State's counsel could not express
serious disagreement, although he made no concessions., We now proceed to refer
to these factors which do not deflect us from confirming the conviction. The
curtain has been drawn thereon.
To begin with, we are free to confess to a
hunch that the appellants had hastened with their pleas of guilty hopefully,
induced by an informal, tripartite understanding of light sentence in lieu of
nolo contendere stance. Many economic offenders resort to practices the
American call 'plea bargaining', 'plea negotiation', 'trading out' and
'compromise in criminal cases' and the trial magistrate drowned by a docket
burden nods assent to the sub rosa ante-room settlement. The business-man
culprit, confronted by a sure prospect of the agony and ignominy of tenancy of
a 7 3 being a plea of guilt, coupled with a promise of 'no jail'.
These advance arrangements please everyone
except the distant victim, the silent society. The prosecutor is relieved of
the long process of proof, legal technicalities and long arguments, punctuated
by revisional excursions to. higher courts, the court sighs relief that its
ordeal, surrounded by a crowd of papers and persons, is avoided by one case
less and the accused is happy that even if legalistic battles might have held
out some astrological hope of abstract acquittal in the expensive hierarchy of
the justice-system he is free early in the day to pursue his old professions.
It is idle to speculate on the virtue of
negotiated settlements of criminal cases, as obtains in the United States but
in our jurisdiction, especially in the area of dangerous economic crimes and
food offences, this practice intrudes on society's interests by opposing
society's decision expressed through pre-determined legislative fixation of
minimum sentences and by subtly subverting the mandate of the law.
The jurists across the Atlantic partly
condemn the bad odour of purchased pleas of guilt and partly justify it
philosophically as a sentence concession to a defendant who has, by his plea
'aided in ensuring the prompt and certain application of correctional measures
to him', "In civil cases we find compromises actually encouraged as a more
satisfactory method of settling disputes between individuals than an actual
trial. However, if the dispute ... finds itself in the field of criminal law,
"Law Enforcement" repudiates the idea of compromise as immoral, or at
best a necessary evil. The "State" can never compromise. It must 7
enforce the law." Therefore open methods of compromise are
impossible." (Arnold, Law Enforcement--An Attempt at Social Dissection, 42
Yale L.J. 1, 19 (1932).
We have no sanction, except surreptitious
practice in some courts, for 'trading out' of punitive severity although this
aspect of the criminal system deserves Indian jurists' consideration. The sole
relevance of this digression in this judgment is to highlight the fact that the
appellants perhaps acted on an expectation which came to pass at the trial
level but was reversed at the appellate level and this touch of 'immorality' in
the harsh morality of the punishment is a factor counsel wants us to take note
of. But we can do nothing about it when the minimum is set by the 7 3 justice
to the citizen and relieve over-worked courts by more judicial agencies and
streamlined procedures instead of leaving the uninformed public blindly to
censure delayed disposals.
One real reason for long litigation is
inaction or ineffective action of the legislature. All knowledgeable law-men
may concede that the procedures in municipal and higher courts are ossified to
the point, priced to the level, and slow to the degree where they cannot
flexibly assist disputants in early resolution of their everyday disputes.
This, we hope, will change and the source of the evil eliminated.
The next draft on the court's commiseration,
made by counsel, is based on the milling operation realities surrounding the
commission of the crime. It is asserted by the appellant's advocate--and not
seriously controverted by his opponent that the small town milling practice is
multipurpose, in the sense that whoever brings any edible oilseed for
extraction of oil gets it done so that ground-nut crushing may be followed by
Khurasani seed or some other oil seed may chance to take turns by rotation.
Even the miller's own oil seeds may be sometimes khurasani; at other times,
some other. This process may result in the residue of one getting mixed up with
the next. May be, innocently some groundnut oil, in the present case, got into
the khurasani oil by the same expeller handling both. Even so, the presence of
30% groundnut oil is, perhaps too high an admixture to be explained away this
easy way. While we appreciate the situation we must adhere to the provision.
Where the law lays down an absolute liability, alibis cancelling mens tea are
out of bounds.
The last plea, urged ex mesericordium,
ameliorative in appeal and unavailing against conviction, is that actually
groundnut oil costs more and so profit motive stands negatived, that the
mixture of these edible oils, though technically forbidden, is in fact
non-injurious and a terrifying term of six months' rigorous imprisonment is
unjust. The facts are probably right but ex necessitate legis the court has to
inflict the heavy minimum sentence. While in stray cases a jail term even in a
trivial food offence may. look harsh, Parliament, in its wider wisdom, and
having regard .to social defence in a sensitive area standardised the sentence
by insisting on a minimum, ignoring exceptional 2--1003SC1/76 8 cases where
leniency is needed. Individual hardships deserving of lighter sentence are
sometimes exploited by counsel's 7 3 offenders milder punishments. It is worthy
of note though that in the present case the mixing of the two oils is a
motiveless act. May be. And the circumstances above-mentioned add up to a plea
for paring down the sentence and Shri Bhandare, for the appellants, sought to
wheedle us into lending evedence to these circumstances and bring down The
offence to a lesser one. Logically and sociologically and, above all, legally,
such a course is impermissible. Nevertheless, there is one circumstance which
has impressed us not to the extent of undoing the sentence imposed by the High
Court but of drawing the attention of the top executive to what may justly be
done by way of remission of sentence.
The appellants have sworn an affidavit in
this Court stating that khurasam oil is the same as nigar-seed oil. This is
backed by a certificate from the Maharashtra Chamber of Commerce and is
evidently correct. What is more important is that the appellants, when
surprised by a modification of their sentence to a heavier one for what they
thought was undeserving, moved in the matter of cases generally of adulteration
of khurasani oil with groundnut oil. They drew the attention of the authorities
to punishment of innocents and it appears that the. State Government was
satisfied about this grievance and has since withdrawn a substantial number of
cases against dealers of khurasani oil whose sales were contaminated with
presence of groundnut oil. The affidavit on behalf of the appellant’s states:
"I further say that various cases filed
by the respondents against the dealers of khurasani oil are now being withdrawn
as invariably groundnut oil is observed in khurasani oil. I crave leave to
refer to and rely on the Journal of Maharashtra Chumher Patrika dated 21st
September, 1975, when produced." Probably, had the present case survived
till the government took action, it might have been withdrawn. Moreover, there
are circumstances suggesting of innocent admixture although it is beyond us to
pronounce definitely on this aspect and it is not for us to enquire into the
matter when s. 16( 1 ) is clear and the sentence is legal. Nevertheless, it may
be appropriate for government to consider whether in the circumstances of this
case--and in the light of the observations made by us in this judgment--it is
not a matter for exercise of commutation powers. Sentencing policy has a
punitive and a correctional role and we are sure that what is the need of the
appellants will be meted out to them if they deserve any activist
administrative empathy at all.
accordingly dismiss the appeals.