Bal Kishan Thaper Vs. Municipal
Corporation of Delhi [1979] INSC 65 (9 March 1979)
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]
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 552 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]
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 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 purchased the preparation was not conversant 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.
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