Jamnadas Gandhi Vs. State of Gujarat & Anr  INSC 15 (17 January 1989)
M.N. (J) Venkatachalliah, M.N. (J) Misra Rangnath
1989 AIR 1011 1989 SCR (1) 138 1989 SCC (1) 420 JT 1989 (1) 83 1989 SCALE (1)92
of Food Adulteration Act, 1954: Section 16(1)(a) (i)/ Prevention of Food
Adulteration Rules, 1955:
23, 28, 29(f) (prior to amendment dated November 15, 1984) and 29(m), Appendix
B item 16---Conviction for having sold 'kesari coloured sweet supari sali'
adulterated with yellow basic coal-tar dye--Validity of--Supari whether
'Fruit-product' or 'flavouring agent'.
Interpretation: Social defence legislation--Statutory language--Distinction
between literal and legal meaning--Court not entitled to determine legal
meaning of statute on principle of nonliquet--Penal provi- sion prescribing
strict liability--Wider meaning impermissi- ble.
Trial--Benefit of doubt--Where mere actus reus
itself an offence--Offence committed bonafide on a particu- lar understanding
of statute--Does not entitle the accused to benefit of doubt.
and Phrases: 'Supari'--'Fruit Product'--Meaning of.
23 of the Prevention of Food Adulteration Rules, 1955 prohibits the addition of
any colouring matter to an article of food, except as specifically permitted by
the rules. Rule 28 interdicts use of coal-tar food colours or a mixture
thereof, except those specifically enumerated there- in, in food. Item 2 of the
said list includes 'sun-set yellow FCF'. Rule 29 prohibits the use of even the
coal-tar food colours permitted under Rule 28, in or upon any food, other than
those enumerated in Rule 29. 'Fruit-products' was one such item of food so
enumerated under cl.(f) of Rule 29 as it stood at the relevant time. Section 16
of the Preven- tion of Food Adulteration Act, 1954 provides for punishment of
appellant, a tradesman, was found guilty by the Trial Court of the offence of
selling 'Kesari-coloured sweet supari sali' adulterated with yellow basic
coal-tar dye and sentenced to one year's simple imprisonment and a fine of
Rs.2,000, both being statutorily compulsory 139 minimum sentences under s.
16(1)(a)(i) of the Act. He was, however, acquitted of the charge by the first
appellate court but on appeal by the State the High Court reversed the judgment
of acquittal and restored the conviction and sen- tence.
this appeal by special leave, it was contended for the appellant that the
legislation being penal, the expres- sion 'Fruit-products' in Rule 29(1')
should receive a rea- sonably liberal construction, and if so construed, 'supari'
being basically and essentially an yield of the arecapalm would reasonably
admit of being considered such a fruit- product in which the use of coal-tar colours
was not prohib- ited. In the alternative, it was contended that 'supari' in the
form in which it was offered for sale in this case was a 'flavouring agent'
within the meaning of Rule 29(m), in which case also the use of permitted
coal-tar food colours was not prohibited. It was further contended that the appel-
lant having acted bona-fide on a particular understanding of Rule 29(1) which
could not be said to be wholly implausible, he should be entitled to the
benefit of doubt. Lastly, a grievance was made that the appellant, who was a
small-time tradesman and had purchased the supari from a big manufac- turer to
sell in retail, had alone been exposed to prosecu- tion while the distributor
had gone scot free.
1.1 The scheme of Rule 23, 28 and 29 of the Pre- vention of Food Adulteration
Rules, 1955 makes it apparent that coal-tar food colours permitted by Rule 28
can be used if the food articles in question are 'Fruit-products' as understood
in Rule 29(1). [144C, F]
in the form in which it was offered for sale in the instant case though
vegetative in origin and derived from and prepared out of the usufruct of areca
palm, does not admit of being classified as a 'Fruit-product' under Rule 29(1).
Merely because a particular article of food was of plant origin did not render
that article neces- sarily a 'Fruitproduct'. Even products derived from, or
associated in their origin with fruits need not ipso facto be 'Fruit-products'
for purposes and within the meaning of Rule 29(1). Item 16 of Appendix B to the
Rules, which dealt with 'Fruit-products', referred to juice, syrup, squash,
beverage, drinks, sauce, ketchup, relish, marmalade, chatni etc. That indicated
what were envisaged as 'Fruit-products' in Rule 29(1). 'Supari' also does not
admit of being classi- fied as a 'flavouring agent' under Rule 29(m). [145F-H;
distinction between literal and legal meaning of statutory language lies at the
heart of the problem of interpretation of statutes. The Court is not entitled
to decline to determine the legal meaning of a statute on the principle of non-liquet.
In the instant case, a wider con- struction of 'Fruit-Products' in cl.(f) which
is in the nature of exception to Rule 29, results automatically in a
corresponding narrower construction of the substantive provision in Rule 29.
This is not a case of relieving provi- sion excepting from the definition of an
offence where the rule of construction against doubtful penalisation operates.
offence is really a violation of a prohibition imposed on a penalty as a social
defence mechanism in a socio-eco- nomic legislation. The construction
appropriate to such a legislation would be one which would suppress the
mischief aimed at and advance the remedy. It would, therefore, be a strain on
the statutory language and the statutory scheme to include 'supari' in the form
in which it was sold, within 'Fruit-products' as understood in cl.(f) of Rule
29. [150A- D] Planters Nut and Chocolate Co. Ltd. v. The King,  1 WLR
385; Ramavatar Budhai Prasad v. The Assistant Sales Tax Officer, XII STC 286;
Municipal Corpn. v. Kacheroo Mal,  2 SCR 1(4); Goodfellow v. Johnson,
 1 All E.R. 941 and Criminal Law: Smith & Hogan, 5th Edn. p.92, re- ferred
The question of what a word means in its context within the Act is a question
of legal interpretation and, therefore, one of law. The choice of the proper
rule of construction to be applied to ascertain the meaning is again a matter
of law. To countenance the contention of the appel- lant that he had acted bona
fide on a particular understand- ing of Rule 29(f) would be to contradict one
of the funda- mental postulates of a legal order that rules of law enforce
objective meaning to be ascertained by the courts, and to substitute the
opinion of the person charged with the breach of the law for the law itself.
Otherwise, the consequence would be that whenever a defendant in a criminal
case thought that the law was thus and so, he is to be treated as though the
law was thus and so, that is, the law actually is thus and so. [150D-G] United
States v. Wurzbach,  280 US 396 (@)
Law: Smith & Hogan, 5th Edn. p. 70, referred to.
The statute prescribes a strict liability without need to establish mens rea.
The actus reus is itself an offence. There might
be cases where some mental element might be a part of the actus reus itself. This is not one of those cases where
anything more than the mere doing 141 of the prescribed act requires to be proved.
The appellant is, therefore, not entitled to the benefit of doubt. [151F] Pyarali
K. Tejani v. M.R. Dange,  2 SCR 154; Goodfellow v. Johnson,  1 All
E.R. 941; Smedleys Limited v. Breed,  All ER 21 and Criminal Law: Smith
& Hogan, 5th Edu. p. 92, referred to.
big offenders who manufactured the 'supari' and who distributed them to the
retailer in the instant case have gone scot free. The offence was committed ten
years ago and the appellate court had acquitted the appellant. Fur- thermore,
the expression 'Fruit-products' in Rule 29(f) in the context of what the
delegated legislative authority really meant and wanted to convey was not a
model of preci- sion and has since been deleted enumerating in its place
precisely the specific products in which the food-colours permitted by Rule 28
could be used, leaving no room for the possibility of any argument of the kind
advanced in this case. [153D-E, F] This is, therefore, a fit case in which the
appropriate Government should exercise its executive powers of remission of the
substantive sentence of imprisonment, though not of fine, under s. 432 Cr. P.C.
or under other law appropriate to the case. The imposition of the substantive
sentence of imprisonment on the appellant to be postponed till his prayer for
remission, which he shall make, is considered and disposed of. [153G-H; 154A-B]
Ganeshmal Jashraj v. Govt. of Gujarat and Anr.,  1 SCR 1114 and Inderjeet
v. U.P. State,  1 SCR 255, referred to.
APPELLATE JURISDICTION: Criminal Appeal No. 26 of 1989.
the Judgment and Order dated 17.4.1984 of the Gujarat High Court in Crl. Appeal
No. 1097 of 1980.
and V.N. Ganpule for the Appellant.
Chandra, M.N. Shroff and M.N. Goswami for the Respondents.
Judgment of the Court was delivered by 142 VENKATACHALIAH, J. By this petition
for grant of Special Leave under Article 136 of the Constitution, coming up
after notice to the State of Gujarat, the applicant seeks leave to appeal to
this Court from the judgment of the High Court of Gujarat in Criminal Appeal
No. 1097 of 1980 restoring the conviction and sentence passed by the Chief
Judicial Magis- trate, Valsad, against the petitioner in Criminal Case of 48 of
1979 for an offence under the Prevention of Food Adulter- ation Act 1954.
('Act' for short) Special Leave is granted and the appeal is taken up for final
hearing, heard and disposed of by this judgment.
Appellant was charged before the Chief Judicial Magistrate, Valsad, by the Food
Inspector, Navasari Munici- pality, with the offence of selling "Kesari coloured
sweet supan sali" alleged to have been adulterated with "Yellow basic
coal-tar dye". The learned Magistrate found the appel- lant guilty of the
offence and imposed a sentence of an year's simple imprisonment and a fine of
Rs.2,000, both of which were the statutorily compulsory minimum sentences under
Section 16(1)(A)(i) of the Act.
Sessions Judge, Valsad, by his judgment, dated 14.3.1980, in Criminal Appeal 32
of 1979 preferred by the appellant, however, set-aside the conviction and
sentence and acquitted the appellant of the charge.
further appeal by the State against the said acquit- tal, the High Court of
Gujarat allowed the State's appeal and, in reversal of the judgment of acquittal
of the learned Sessions Judge, restored the conviction and sentence passed by
the learned Chief Judicial Magistrate.
Appellant is a tradesman carrying on business within the limits of Navsari Municipality. On 7.12.1978, respondent No. 2, the' food inspector of Navsari Municipality, pur- chased from the appellant 600 gins. of "kesari coloured
sweet supari sali" and after complying with the procedural formalities
packed and sealed the "supari" into three sepa- rate packages of 200
gins. each and one of them was sent to the Public-Analyst who by his report
dated 20.12.1978 (Ext. 12) affirmed that the sample contained a "yellow
basic coal-tar dye" and that it did not conform to the standard laid down
under the Rules. On 19.1.1979, the Food Inspector with the prior sanction of
the District Health Officer, Valsad, (Ext.14), filed a complaint in the Court
of the 143 Chief Judicial Magistrate, Valsad. The prosecution culminat- ed, as
aforesaid, in the conviction and sentence imposed by the learned Chief Judicial
Magistrate, and later restored by the High Court. Appellant now seeks to assail
the legality of the conviction.
have heard Sri V.B. Ganatra, learned counsel for the appellant and Sri Girish Chandara
and Sri M.V. Goswami, learned counsel for Respondents. 1 and 2, respectively.
a number of grounds are taken in the memorandum of the Petition for special
leave, however, at the hearing Sri Ganatra confined his submission only to one
aspect of the matter which, if accepted as correct, would go to the root of the
case for the prosecution. Apparently, this contention in the form in which it
is presented here was not placed before the High Court as we find no reference
to it in the judgment.
Learned Counsel contended that "Supari" or "Betel-nut" is
basically and essentially an yield of the Areca-Palm and must, therefore, be
held to fall under "Fruit-products" within the meaning of Rule 29(f)
of the Prevention of Food Adulteration Rules, 1955, ('Rules' for short) and,
accordingly, the use of permitted coal-tar food-colours in it is not prohibited
by law. It was further urged that the Public-Analyst had not held that the
"Yellow basic coal-tar dye", found in the sample, was not one of
those food colours prohibited under Rule 28 and that, there- fore, its use in
"supari" which was a "Fruit-product" cannot be said to be
prohibited. Alternatively, Sri Ganatra con- tended that the "supari"
in this case was a "flavouring agent" within the meaning of Rule
29(m) in which case also the use of permitted coal-tar food-colours, was not prohib-
contentions urged at the hearing, the points that fall for consideration are,
first, whether the "supari" concerned in this case was a
"Fruit-product" or, alterna- tively, a "Flavouring-Agent"
within the meaning of Rule 29(f) or (m) respectively and, accordingly, the use
in it of permitted coal-tar dyes or food-colours was not prohibited and,
secondly, whether, even if, after an elaborate enquiry, it was held that "supari"
was not a "Food-product" appellant having acted bonafide on a
possible and not an unreasonable view of the nature and classification of the
goods, was, at all events, entitled to the benefit of the doubt.
was not disputed that supari was an article of food. It was so held in Pyarali
K. Tejani v. M.R. Dange,  2 SCR 154. It was also not disputed that if
"supari" did not admit itself of being classified 144 under
"Fruit--products" or under "Flavouring-Agents" under Rule
29(f) or 29(m) respectively, the use in "supari" of even a coal-tar
food-colours permitted under rule 28 would amount to adulteration.
argument that "Supari". or "Betel-nut" is a "Flavou- ringAgent"
has clearly no substance. The first contention, therefore, narrows itself down
to whether "supari" in the form in which it was offered for sale
though vegetative in origin and is derived from the usufruct of areca-palm, can
be said to be a "Fruit-Product" in the sense in which that expression
is used and is required to be understood in Rule 29(f).
Sri Ganatra's contention, the scheme of the relevant rules, in particular rules
23, 28 and 29, requires notice. Rule 23 prohibits the addition of any colouring
matter to any article of food except as specifi- cally permitted by the rules.
Rule 28 provides that no coal-tar food-colour or a mixture thereof, except the
food colours specifically enumerated in rule 28, shall be used in food. Item 2
of the list of food-colours permitted under Rule 28 includes 'Sun-set Yellow
FCF'. We shall proceed on the premise that the basic yellow coal-tar dye found
in the "supari" by the Public-Analyst is amongst those enumerated
food-colours excepted from the prohibition under Rule 28 and is, therefore,
permitted to be used. Then, Rule 29 prohibits the use of even the coal-tar
food-colours permitted under rule 28 in or upon any food other than those
enumerated in rule 29. "Fruit-Products" is one such item of food so enu-
merated under clause (f) of rule, 29. The result is that permitted coal-taar
food-colours, i.e. foodcolours permitted by Rule 28, can be used if the
food-articles in question are "Fruit-Products" as understood in Rule
29(f). But this exception from prohibition, in favour of
"Fruit-Products" is further subject to such exceptions or
restrictions as are otherwise made in Appendix 'B'. Sri Ganatra's contention is
that there having been no provision otherwise made in Appen- dix 'B' in respect
of supari and supari being includible in "Fruit-Products", the use in
it of permitted coal-tar food- colours is prohibited. Shri Ganatra submits that
the legis- lation being penal the expression "Fruit-Products" in rule
29(f) should receive a reasonably liberal construction and that, so construed,
"supari" would reasonably admit of being considered such a
have had our attention drawn by Sri Ganatra to certain passages in 'Common
Trees of India' by Dr. Santatau (at page 111); in "Wealth of India
Raw-Materials" Vol. I A (pages 390, 402-03) and certain passages in the 'Dravya
Guna Vignyan' (Part II & III: at page 145 672) in support of Sri Ganatra's
contention that "Supari" or "Betelnut" being the usufruct
of "Areca" tree must be held to be a "FruitProduct". Sri Ganatra
says that having regard to the accepted cannons of construction appropriate to
penal-statutes, "supari" or "Betel-nut" which was derived
from the usufruct of Areca-palm admits of being classified amongst
"Fruit-Products" in Rule 29(f). At all events, says learned counsel,
such a construction being a plausible one, the appellant who had conducted his
affairs on such a plau- sible meaning of the statute should be entitled to the
benefit of the doubt.
Britannica (Vol. 3, p. 55 1) with reference to "Betel-nut" it is
name betel is applied to two different plants which in the east are very
closely associated in the purposes to which they are applied. The betel nut is
the fruit of the areca or betel palm (Areca catechu) ..... " "For
chewing, the fruits are annually gathered between the months of August and
November, before they are quite ripe, and deprived of their husks. They are
prepared by boiling in water, cutting up into slices and drying in the sun, by
which treatment the slices assume a dark brown or black colours ...... "
" ..... Betel nuts are used as a source of inferior catechu (g.v.); its
chief alkaloid is arecoline, to which anthelmintic properties are attributed.
The drug finds some use in veterinary medicine as an anthelmintic." There
is no dispute that "supari" is derived from and pre- pared out of the
usufruct of the Areca-palm. But the ques- tion as to what is the context of the
idea of "Fruit- Products" in Rule 29(f).
argument, no doubt, is somewhat attractively presented; but we are afraid, it
is more attractive than sound. The fact that a particular article of food, as
indeed most of the articles of food of vegetative origin are, was of plant
origin did not render that article necessarily a "Fruit-Product".
Even products derived from, or associated in their origin with fruits need not
ipso facto be "Fruit- Products" for purposes and within the meaning
of rule 29(f).
were envisaged as "Fruit-Products" in rule 29(f), will be indicated
by the array of items dealt with in Appendix 'B' under item 16-"Fruit- 146
Products"--though the list was in the nature of an exception of R.29.
Under the relevant head in Appendix 'B' items referred are: "Fruit
Juice"; "Tomato Juice"; "Fruit Syrup";
Squash"; "Fruit Beverage" or "Fruit Drinks";
"Tomato Sauce"; "Tomato Ketchup"; "Tomato Relish";"Marmalade";
Fruit Chatni" and "Sauce" etc.
object and the purpose of the Act are to eliminate the danger to human life
from the sale of unwholesome arti- cles of food. The legislation is on the
Topic 'Adulteration of Food Stuffs and other Goods' [Entry 18 list III Seventh
Schedule]. It is enacted to curb the wide spread evil of food adulteration and
is a legislative measure for social- defence. It is intended to suppress a
social and economic mischief--an evil which attempts to poison, for monetary
gains, the very sources of sustenance of life and the well- being of the
community. The evil of adulteration of food and its effects on the health of
the community are assuming alarming proportions. The offence of adulteration is
a socio-economic offence. In Municipal Corpn. v. Kacheroo Mal,  2 SCR
1(4) Sarkaria, J. said:
Act has been enacted to curb and remedy the widespread evil of
food-adulteration, and to ensure the sale of wholesome food to the people. It
is well-settled that wherever possible, without unreasonable stretching or
straining the language of such a statute, should be construed in a manner which
would suppress the mischief, advance the remedy, promote its object, prevent
its subtle evasion and foil its artful circumvention ..... " (Emphasis
Supplied) The construction appropriate to a social defence legis- lation is,
therefore, one which would suppress the mischief aimed at by the legislation
and advance the remedy.
offences under the 'Act' are really acts prohib- ited by the police-powers of
the State in the interests of public-health and wellbeing. The prohibition is
backed by the sanction of a penalty. The offences are strict statutory
offences. Intention or mental-state is irrelevant. In Good- fellow v. Johnson,
 1 All E.R. 941 at 944 referring to the nature of offences under the Food
and Drugs Act, 1955, it was said:
is well known, s. 2 of the Food and Drugs Act, 1955, constitutes an absolute
offence. If a person sells to the 147 prejudice of the purchaser any food, and
that includes drink, which is not of the nature or not of the substance or not
of the quality demanded by the purchaser he shall be guilty of an offence. The
forbidden act is the sell- ing to the prejudice of the purchaser .... " Smedleys
Limited v. Breed,  All ER 21 is a case, both interesting and
illustrative. Smedleys Ltd. were manu- facturers of canned peas of repute. Out
of the three and a half million tins of peas the company produced in the year
1971, only 4 complaints were received about the presence of extraneous-matter
in the tins. One of them had been pur- chased by a certain Mrs. Voss from a
well known stores. On opening the tin, Mrs. Voss found a small larva of a moth
in the tin. The commendable civic zeal of Mrs. Voss who report- ed the larva
infestation of the peas to the local authority had the effect of arraigning Smedleys
Ltd. before court on charge of violation of the Food and Drugs Act, 1955.
Section 3(3) of the Act enabled a defence which the company raised that the
extraneous-matter was "an unavoidable consequence of the process of
collection or preparation" The company, it would appear from the facts
appearing in the report, had installed and elaborate system of spot-checking of
the peas by mechanical screening-process before canning which elimi- nated
extraneous-matter of significantly higher or lower specific-gravity than that
of the peas. This process was also strengthened and supplemented by
visual-inspections by properly trained and experienced employees who worked for
short periods to enable sustained concentration along the conveyer-belt
carrying the peas to the canning site. To the strange ill luck and
embarrassment of Smedleys the larva which had a specific-gravity and size
similar to that of the peas beat the screening-machine and also managed, by
virtue of its colour and shape, to escape the surveillance of the alert
visual-inspectors, who, it is said, were also paid a bonus if they detected and
extracted any extraneous-matter.
peas, incidentally, would be pressure-cooked for 20 minutes at 250xF which,
would render the larva harmless to human health even if consumed. The company
contended that the existence of the larva was despite every possible pre-
caution and was "an unavoidable consequence of the process of collection
and preparation" within the meaning of Section 3(3) of the Act. The defence
did not succeed. Smedleys as well as the seller were convicted. The House of
Lords con- firmed the conviction. Lord Hailsham said:
..... This innocent insect, thus deprived of its natural destiny, was in fact
entirely harmless, since, prior to its 148 entry into tin, it had been
subjected to a cooking process of 20 minutes duration of 250xF, and, had she
cared to so, Mrs. Voss could have consumed the caterpillar without injury to
herself, and even, perhaps, with benefit ........" [p. 24]
"Thereafter, the caterpillar achieved a sort of posthumous apotheosis.
From local authority to the Dorchester magistrates, from the Dorchester
magistrates to a Divisional Court presided over by the Lord Chief Justice of England,from
the Lord Chief Justice to the House of Lords, the immolated insect has at
length plodded its methodical way to the highest tribunal in the land. It now
falls to me to deliver my opinion on its case." [p. 24] Referring to the
nature of the penalties under laws against food adulteration, Lord Chancellor
Lords, as has been pointed out by my noble and learned friend, Lord Diplock,
the expres- sion 'absolute offence' is imprecise. Clearly the offence contemplated
in s. 2(1) of the Food and Drugs Act 1955 is an absolute offence if all that is
.meant by that is an absence of mens rea. It is one of those offences de-
scribed by Wright J in Sherras v. De Rutuzen which 'are not criminal in any
real sense, but are acts which in the public interest are prohibited under a
penalty'." [p. 26] Confirming the conviction, Lord Chancellor held:
..... sympathise as one may with a manu- facturer with a reputation and record
as excellent as that of the appellants, to con- strue the Food & Drugs Act
1955 in a sense less strict than that which I have adopted would make a serious
in road on the legisla- tion for consumer protection which Parliament has
adopted and by successive Acts extended, over a period, now, of more than a century
..... " [ p.29] In Pyarali K. Tejani v. Mahadeo Ramchandra Dange,  2
SCR 154 this court held that what constitutes the offence under the 149 'Act'
is nothing more than the 'actus reus' and mens-rea need not separately be
Law by J.C. Smith & Brian Hogan, (5th Edn.), referring to offences in their
social-context the authors say:
courts are greatly influenced in their construction of the statute by the
degree of social danger which they believe to be in- volved in the offence in
question. They take judicial notice of the problems with which the country is
confronted. The greater the degree of social danger, the more likely is the
offence to be interpreted as one of strict liability. Inflation, drugs, road
accidents and pollution are constantly brought to our attention as pressing
evils; and in each case the judges have at times invoked strict li- ability as
a protection for society." [p.9 2]
now come to the specific question whether "supari" is includible under
"Fruit-Products" under rule 29(f). Sri Girish Chandra says that in
arriving at the meaning of "Fruit-Products", it is not the technical
or scientific sense, but the sense as understood in commonparlance that
matters. That sense is one Sri Girish Chandra says, which people conversant
with the subject matter with which the statute is dealing would attribute to
it. The words must be understood, says counsel, in their popular sense, in
their common commercial understanding, "for the legislature does not suppose
our merchant to be naturalists or geologists or botanists." The standard
of the test for ascertaining the meaning of words in common-parlance is set by
the Candanian case in Planters Nut and Chocolate Co. Ltd. v. The King,  1
a house-holder when asked to bring home fruits or vegetables for the evening
meal bring home salted Peanuts, cashew-nuts or nuts of any sort? The answer is
obviously 'NO'." This test has been referred to with approval by this
Budhai Prasad v. The Assistant Sales Tax Officer, (XII STC 286)] Sri Girish
Chandra says that in the context of the Indian House-holder we may, with justifica-
tion, add Betel-nut to the list of salted pea-nuts, cashew nuts etc.
The distinction between literal and legal meaning of statutory language lies at
the heart of the problem of interpretation of statutes. The court is not
entitled to decline to determine the legal meaning of a statute on the
principle 'non-liquet'. In the present case, a wider con- struction of
"Fruit-Products" in clause (f) which is in the nature of exception to
Rule 29 results automatically in a corresponding narrower construction of the
substantive provision in Rule 29. This is not a case of a relieving provision
excepting from the definition of an offence where the Rule of construction
against doubtful penalisation operates. The offence is really a violation of a
prohibition imposed on a penalty as a social-defence mechanism in a
socio-economic legislation. No form of words have ever yet been framed, with
regard to which some ingenious counsel could not suggest a difficulty. But in
the context of the present statute, it would be a strain on the statutory
language and the statutory-scheme to include "supari" in the form in
which it was sold, within "Fruit-Products" as under- stood in clause
(f) of Rule 29. The first contention has, accordingly, no substance.
The second contention is that petitioner had acted bona fide on a particular
understanding of the Rule 29(f) which could not be said to be wholly
implausible and that, therefore, even if that understanding is found to be defec-
tive, he should be entitled to the benefit of the doubt. The question of what a
word means in its context within the 'Act' is a question of legal interpretation
and, therefore, one of law. The choice of the proper rule of construction to be
applied to ascertain the meaning is again a matter of law. To countenance the
contention of Sri Ganatra would be to "contradict one of the fundamental
postulates of a legal order that Rules of law enforce objective meanings to be
ascertained by the courts" and to "substitute the opinion of the
person charged with the breach of the law for the law itself." Otherwise,
the consequence would be that whenever a defendant in a criminal case
"thought that the law was thus and so, he is to be treated as though the
law was thus and so, that is, the law actually is thus and so". [See
Criminal Law: Smith & Hogan p. 70]. Justice Holmes in United States v. Wurzbach,
 280 US 396 at 399 said:
the law draws a line there will be cases very near each other on opposite
precise course of the line maybe uncer- tain, but no one can come near it
without knowing that he does so, if he thinks, and if he does so it is familiar
to the criminal law to make him take the risk." 151 Referring to the
principles that guide the matter, learned authors in Criminal Law (Smith &
..... for, in the great majority of cases, it is irrelevant whether he knows it
must usually be proved that D intended to cause, or was reckless whether he
caused, the event or state of affairs which, as a matter of fact, is forbidden
by law; but it is quite immaterial to his conviction (though it may affect his
punishment) whether he knew that the event or state of affairs was forbidden by
law ..." [p.68 ] " .... It was held that a Frenchman might be guilty
of murder in the course of duelling in England, even if he did not know that duelling
was against English law ....." [p.68]
The plea in the last analysis reduces itself to one of ignorance of the law.
This would be no justification. Ten thousand difficulties, it is said, do not
make a doubt. As the learned authors (supra) put it. "One who, being
ignorant of the law, sells goods at a price in excess of the miximum fixed by
the statute, could hardly be said to have been led astray by his conscience
while the 'harm prescribed' lacks objective wrongness".
Statute we are concerned with prescribes a strict liability, without need to
establish Mens Rea. The Actus Reus is itself the offence. There might be cases
where some mental element might be a part of the Actus Reus itself.
is not one of those cases where anything more than the mere doing of the
prescribed act requires to be proved.
is thus no merit in the second point either.
appeal would, therefore, require to fail. The sen- tence, which is the
statutory minimum, cannot also be light- ened by the court. But there is one
poignant aspect on which learned counsel made an impassioned plea.
Sri Ganatra pointed out the hardship of a small-time tradesmen who, as here,
purchase the goods from big manufac- turers and sell them in retail. Very
often, the manufactur- ers or wholesalers are not touched, but the small fry
are exposed to prosecution.
Indeed in Ganeshmal Jashraj v. Govt. of Gujarat and Anr.,  1 SCR 1114 Bhagwati,
J. had occasion to say:
..... It is common knowledge that these small tradesmen purchase the food stuff
sold by them from the wholesalers and sometimes even directly from the
manufacturers and more often than not the adulteration is made either by the
wholesalers or by the manufacturers.
it is not the small retailers who adulterate the articles of food sold by them.
is only the small retailers who are caught by the food inspectors and the investi-
gative machinery of the food department does not for some curious and
inexplicable reason turn its attention to the wholesalers and manufactures. The
small tradesmen who eke out a precarious existence living almost from hand to
mouth are sent to jail for selling food stuff which is often enough not
adulterated by them and the wholesalers and manufacturers who really adulterate
the food stuff and fatten themselves on the misery of others escape the arm of
the law ..... " [p. 1117] " ..... The result is that a wrong impres- sion
is being created on the public mind that the law is being properly enforced,
whereas in fact what is really happening is that it is only. the small
tradesmen who are quite often not themselves responsible for adulteration who
are caught and sent to jail while there is no effective enforcement of the law
against the real adulterators. This is a failing which we notice in the
implementation of many of our laws. It is only the smaller flies which get
caught in the web of these law while the bigger ones escape ..... " [p.1118]
" ..... The implementation of the law does create an impression that it is
a law meant to be operative only against the smaller men and that-the rich and
the well-to-do are beyond its reach. Moreover the law operates very harshly
against the small tradesmen because a minimum sentence is provided and the
small tradesmen are liable to be sent to jail .....
[p .1118-9] (Emphasis Supplied) 153 Krishna Iyer, J. in Inderjeet v. U.P. State, 
1 SCR 255 said:
..... We are disturbed that it is possible that small men become the victims of
harsh law when there is no executive policy which guides prosecution of
offenders. "[p. 257] " ..... Even otherwise, there is a general power
in the Executive to commute sentences and such power can be put into action on
a principled basis when small men get caught by the law." [p.257]
(Emphasis Supplied) The present case, as Sri Ganatra rightly pointed out, is
one where bigger offenders who manufactured the supari and who distributed them
to the retailers have gone scot-free.
appellant did not, and perhaps could not, invoke the benevolent provisions of
Section 19(2) of the Act. The offence was ten years ago and the appellate court
had acquitted the appellant. The expression "Fruit-Products" in the
context of what the Delegated legislative authority really meant and wanted to
convey, was not a model of preci- sion. The degree of precision should be such
that not only those who read it in good-faith understand but-also that those
who read it in bad faith do not misunderstand.
this somewhat imperfect definition of "Fruit- Products" in Rule 29(f)
has since been amended enumerating precisely the specific products in which the
food-colours permitted by Rule 28 could be used leaving no room for the
possibility of any argument of the kind advanced in this case. This amendment
which came into force with effect from 15.11.1984 deleted the expression
"Fruit-Products" and in its place specifically enumerated the items
under Rule 29(f) in which the use of permitted coal-tar food-colours was
for these reasons that we think we should hold that this is a 'fit case in
which the appropriate-Government should exercise its executive powers of
remission of the substantive sentence of imprisonment--though not of the
fine--under Section 432 Cr. P.C. or under other law appro- priate to the case.
We, therefore, direct that the 154 imposition of the substantive sentence of
imprisonment shall be postponed till appellant's prayer for remission, which
appellant shall make within a month from now before the appropriate Government
or Authority, is considered and disposed of taking into account the
observations made in this judgment.
Subject to these circumstances, the appeal is dismissed.