K.
Krishna Iyer Vs. State of Kerala & Anr [1993] INSC 168 (30 March 1993)
Anand,
A.S. (J) Anand, A.S. (J) Singh N.P. (J)
CITATION:
1993 SCR (2) 707 1993 SCC (3) 226 JT 1993 Supl. 58 1993 SCALE (2)358
ACT:
Prevention
of Food Adulteration Act, 1954:
Sections
7(1), 16(1-A) and 161(a) (i)--Ice stick containing sacharin--Prohibition of
artificial sweetener--Sample not in conformity with standards prescribed--Hence
adulterated--Presence of dulcin--Found by Public Analyst and Central Food
Laboratory excluding it--Conviction altered.
HEAD NOTE:
The
appellant was selling ice-sticks. The Food inspector took samples and sent one
sample to the Public Analyst, who opined that it contained artificial
sweeteners viz. saccharin and dulcin and was therefore adulterated. A complaint
was filed before the Judicial Magistrate.
Appellant
pleaded not guilty and exercised his right to have the sample analysed by the
Central Food Laboratory.
According
to the report of the Central Food Laboratory the sample contained artificial
sweetener identified as saccharin. The Magistrate convicted the appellant for
an offence under sec. 16(1) (a) read with see. 7(1) of the Act, sentenced him
to suffer one year rigorous imprisonment and to pay a fine of Rs. 2,000 and in
default to undergo imprisonment for three months. The appeal preferred by the
appellant was dismissed by the Sessions Judge. The Criminal Revision petition
riled before the High Court was also dismissed. Hence the present appeal.
On
behalf of the appellant it was contended that since the report of the Public
Analyst which had found the presence of dulcin in the sample stood superseded
by the report of the Central Food Laboratory which had not found the presence
of dulcin, the consumption of which was injurious to health under the Rules,
the conviction of the appellant for an offence under Section 16(1-A) of the
Prevention of Food Adulteration Act, 1954 was not justified; and that the
presence of artificial sweetener like saccharin, which has not been declared as
injurious to health could not attract the provisions of S.16(1A) of the Act.
Partly
allowing the appeal, this Court 708
HELD:1.
It would be seen from Section 16(1-A) of the Prevention of Food Adulteration
Act, 1954 that in order to maintain a conviction under the said provision, the
article of food which is adulterated should fall either in one of the sub-clauses(e)
to (1) of clause (ia) of Section 2 or should contain an adulterant which is
injurious to health.
The
adulterated article of food sold in this case admittedly does not fall in any
of the sub-clauses (e) to (1) of Section 2(ia). According to the report of
Central Food Laboratory, it also does not contain any adulterant declared as
'injurious to health'. [712 E, F] 2.However, keeping in view the fact that the
Article of food, 'ice-stick' sold by the appellant did not conform to the
standard as prescribed in Item A.07.04 of Appendix B and contained an
artificial sweetener saccharin it is obvious that the article of food sold by
the appellant was adulterated within the meaning of Section 2(ia)(m) of the Act
and the same would, therefore, be punishable under Section 16(1) (a) (i) of the
Act. [713 C] 3.It cannot be said that since the appellant had been charged for
an offence under Section 16(1-A) of the Act, he could not be convicted for an
offence under Section 16(1) (a) (i) of the Act. The penalty for an offence
under Section 16(1) (a) (i) admittedly is less than the penalty prescribed for
the offence under Section 16(1-A), which is a graver offence and therefore,
there is no impediment in the way of the court, on the findings of the fact
recorded by it, to convert the conviction of the appellant from the one under
Section 16(1-A) to one under Section 16(1) (a) (i) of the Act, notwithstanding
the fact that the appellant had been charge-sheeted for an offence under
Section 16(1-A) of the Act. [713 E, F] 4.Judicial notice is taken of the fact
that the type of adulterated article sold by the appellant is the one generally
consumed by children and it is not only illegal but even immoral to serve them
with articles containing artificial sweeteners use whereof has been prohibited
by the statute. Just because the appeal has remained pending here since 1985
the society cannot be made to suffer for this delay by letting the criminal go
unpunished as a crime of this nature, being a crime against the society at
large, cannot be ignored. Sympathy in such cases is totally misplaced. [714
B-D] 5.The conviction of the appellant is altered from the one under Section
16(1-A) read with Section 7(1) of the Act to the one under Section 16(1) (a) (i)
read with Section 7(1) of the Act and the sentence is reduced from one year 709
R.I. and a fine of Rs. 2,000 to the minimum prescribed for the said offence ie.
six months R.I. and a fine of Rs. 1,000 in default of which the appellant shall
suffer imprisonment for one month more. [714 E]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 781 of 1985.
From
the Judgment and Order dated 8.8.1984 of the Kerala High Court in Crl. R.P.No. 459
of 1981. T.S.K. Iyer, Ms. Prasanthi Prasad and N. Sudhakaran for the Appellant.
M.T. George for the Respondents.
The
Judgment of the Court was delivered by DR. ANAND, J. The appellant was
convicted for an offence under Section 7(1) read with Section 16 (1-A) (i) of
the Prevention of Food Adulteration Act, 1954 (hereinafter the Act) by the
Additional Judicial Magistrate, 1st Class, Trivandrum on 17.7.1981 and
sentenced to suffer one year R.I. and to pay a fine of Rs. 2000 and in default
to undergo imprisonment for three months. The conviction and sentence were
upheld by the Additional Sessions Judge, Trivandrum who dismissed his appeal on 28.10.1981. Criminal Revision Petition No.
459 of 1981 filed in the High Court of Kerala also failed on 8th August, 1984. It is, thereafter, that he has
come up to this court by appeal on special leave being granted.
On
12.2.1980, the Food Inspector of the Corporation of Trivandrum after disclosing
his identity purchased from the appellant 600 gms. of 'ice-stick' and paid Rs.
1.25. One of the samples was sent to the Public Analyst at Trivandrum, who vide report dated 6.3.1980
opined that the "said sample contains artificial sweeteners saccharin and dulcin
and is therefore adulterated". The Public Analyst also stated in his report
that the use of dulcin in food articles is not permitted on account of the fact
that "its consumption is injurious to health". According to the
report of the Public Analyst, dulcin to the extent of 100.0 parts per million
and saccharin to the extent of 90.0 parts per million was found present in the
sample sent for analysis. A complaint was accordingly filed before the
Additional Judicial 1st Class Magistrate, Trivandrum. The appellant pleaded not guilty and also exercised his right to have
the sample analysed from the Central 710 Food Laboratory. The sample was then
set to the Central Food Laboratory and after analysis of the sample, it opined
that "the sample does not conform to the standards laid down for ice-candy
under the provisions of PFA Act 1954 and the Rules there under'. It was found
by the Central Food Laboratory that the sample contained "an artificial
sweetener" identified as saccharin to the extent of 190 parts per million.
The sample had also tested positive for presence of cane- sugar.
Before
the trial court, it was urged that the 'ice-stick' sold by the appellant to the
Food Inspector PWl could not be treated as ice-candy and since no standard for
'ice-stick' had been prescribed in the Act, the conviction of the appellant was
not warranted. It was also argued that for the offence committed by the
appellant the sentence imposed was not justified. The trial court, negatived
both the contentions and recorded a finding of fact to the effect that the
appellant had sold an article of food ice-stick- to PWl for purposes of
analysis and that the ingredients of the ice-candy and the ice-:;tick were the
same and the standards prescribed for ice candy etc. were applicable to the
article sold by the appellant also. It was further held that since the sample
did not conform to the standards laid down for ice candy under the provisions
of the Act and the Rules framed thereunder, as per the certificate of the
Public Analyst, the sample was adulterated and in view of presence of dulcin,
"the adulterant was injurious to health". The trial court held that
the offence of the appellant squarely fell under Section 7 read with Section 16
(I-A) (i) of the Act. The sentence imposed is the minimum prescribed for the
said offence. Similar arguments were raised in the appeal before the Sessions
Court also. It was once again found, on facts, that the ice-stick sold by the
appellant was an article of food and that the ingredients of the ice candy and
the ice-stick were the same. It was also found that since the sample contained
the prohibited artificial sweetener, saccharin it was adulterated and the
conviction and sentence were justified. Similar grounds were once again raised
before the High Court which also found:
"In
this case, therefore, from the evidence available especially Ext. P9 report, it
is clear that the petitioner sold ice candy which is described as ice stick
for, it was frozen ice containing sugar. In this view, it did not conform to
the standard prescribed under the Rules .......................
711
Undeterred by the finding of fact recorded by all the three courts below to the
effect that the 'ice-stick' sold by the appellant was covered by the articles
mentioned in Item A.07.04 of Appendix B and was required to conform to the
standards laid therein, a strenuous argument was once again raised before us to
the effect that the 'ice-stick' sold by the appellant could not be treated to
be 'ice-candy' and, therefore, the standards prescribed in Item A.07.04 of
Appendix B were not applicable to it. We are afraid, we cannot agree with this
submission. All the three courts hive carefully gone into the matter and found
that the article sold by the appellant was an article of food covered by the
Item A.07.04 of Appendix B. Their finding is supported by the entry itself.
Item A.07.04 of Appendix B, as it stood at the relevant time, reads thus:
"A.07.04
'Ice-candy or Ice Lollies or Edible Ice' by whatever name it is sold, means the
frozen ice produce which may contained the permitted flavors and colors, sugar,
syrup, fruit, fruit-juice, nuts, cocoa, citric acid, stabilizers or emulsifiers
not exceeding 0.5 per cent. It shall not contain any artificia l
sweetener." Considering the nature of the article sold, we have no doubt
in our mind that the 'ice-stick' was edible ice and sold as frozen ice in the
shape of a stick. It admittedly contained sugar and coloring as is evident from
the report of the Central Food Laboratory. It was, therefore, required to
conform to the standards prescribed in Item A.07.04 of Appendix B and since
according to the report of the Public Analyst as also the Central Food
Laboratory the article contained an artificial sweetener, saccharin, it did not
conform to the standard laid down in the entry which specifically prohibits the
use of any artificial sweetener.
Faced
with this situation, learned counsel for the appellant then submitted that
since the report of the Public Analyst, Trivandrum, which had found the
presence of dulcin in the sample stood superseded by the report of the Central
Food Laboratory, which had not found the presence of dulcin, an article the
consumption of which is "injurious to health", under the Rules, the
conviction of the appellant for an offence under Section 16 (1-A) was not
justified. Learned counsel submitted that the mere presence of artificial
sweetener like saccharin in the sample, which has not been declared
as-"injurious to health", could not attract the provisions of Section
712 16 (1-A) of the Act. We find force in this submission. The report of the Central
Food Laboratory definitely excluded the presence of dulcin in the sample. It
only found presence of the prohibited artificial sweetener, saccharin.
Section
16 (1-A) provides:
"(1A)
If any person whether by himself or by any other person on his behalf imports into
India or manufactures for sale, or stores, sells or distributes (i)any article
of food which is adulterated within the meaning of any of the sub-clauses (e)
to (1) (both inclusive) of clause (ia) of section 2; or (ii) any adulterant
which is injurious to health, he shall, in addition to the penalty to which he
may be liable under the provisions of section 6, be punishable with
imprisonment for a term which shall not be less than one year but which may
extend to six years and with fine which shall not be less than two thousand
rupees." It would be seen from the above provision that in order to
maintain a conviction under the said provision, the article of food which is
adulterated should fall either in one of the sub-clauses (e) to (1) of clause (ia)
of Section 2 or should contain an adulterant which is injurious to health.
The
adulterated article of food sold in this case admittedly does not fall in any
of the sub-clauses (e) to (1) of Section 2 (ia). According to the report of
Central Food Laboratory, it also does not contain any adulterant declared as
"injurious to health". Thus, on the face of it is not possible to
hold that the appellant had committed an offence punishable under Section
16(1-A) of the Act and the conviction of the appellant for an offence under
Section 16(1-A) of the Act cannot be sustained.
The
article of food sold by the appellant, however, has been found by the Central
Food Laboratory to contain an artificial sweetener, the use whereof in such
article of food is prohibited. It, therefore, does not conform to the standards
prescribed in Item A.07.04 of Appendix B. Section 16(1)(a)(i) of the Act makes
a person liable to punishment if whether by himself or by any other person on
his behalf, he inter alia, manufactures for sale, or stores or sells any
article of food which is 713 adulterated within the meaning of sub-clause (m)
of clause (ia) of Section 2 of the Act. Section 2 (ia) (m) reads thus:
"2(ia)
"adulterated' an article of food shall be deemed to be adulterated
"(m) if the quality or purity of the article falls below the prescribed
standard or its constituents are. present in quantities not within the
prescribed limits of variability but which does not render it injurious to
health:" Keeping in view the fact that the article of food, 'ice- stick'
sold by the appellant did not conform to the standard prescribed for it in
Appendix B and contained an artificial sweetener saccharin, it is obvious that
the article of food sold by the appellant was adulterated within the Meaning of
Section 2(ia)(m) of the Act and the same would, therefore, be punishable under
Section 16 (1)(a)(i) of the Act.
We are
unable to accept the argument of the learned counsel for the appellant that
since the appellant had been charged for an offence under Section 16 (I-A) of
the Act, he could not be convicted for an offence under Section 16(1)(ai) of
the Act. There is no basis for such an argument. The penalty for an offense
under Section 16(1)(ai) is admittedly less than the penalty prescribed for the
offence under Section 16(1-A), which is a graver offence and therefore, there
is no impediment in the way of the court, on the findings of the fact recorded
by it, to convert the conviction of the appellant from the one under Section
16(1- A) to the one under Section 16(1)(ai) of the Act, notwithstanding the
fact that the appellant had been charge sheeted for an offence under Section
16(1-A) of the Act. In view of our findings recorded above, we alter the
conviction of the appellant from the one under Section 7(1) read with Section
16(1-A) of the Act to the one under Section 7(1) read with Section 16(1)(a)(i)
of the Act.
The
argument of the learned counsel for the appellant that since the appellant has
been on bail in this court and the occurrence took place more than a decade
ago, a sympathetic view be taken and his appeal be accepted and he be
acquitted, is to say the least, a rather ambitious submission and we cannot
agree. Indeed, there has been some lapse of time since the offence was
committed in 1981 but that lapse of time alone cannot come to the aid of the
appellant because having found the appellant guilty of an 714 offence under
Section 16(i)(a)(i) read with Section 7(1) of the Act, this Court is obliged
'to convict the appellant and not let the crime go unpunished. The appellant
has been prosecuting the case in appeal and revision and the High Court
dismissed his revision petition in 1985. The appeal has remained pending in
this Court ever since and as the appellant had obtained an order of bail, he,
obviously was not interested in an early disposal of the appeal and took no
steps in that behalf. The pendency of the appeal in this Court for about six
years does not by itself render the conviction bad or raise any other equity in
his favour. We can take even a judicial notice of the fact that the type of
adulterated article sold by the appellant is the one generally consumed by
children and it is not only illegal but even immoral to serve them with
articles containing artificial sweeteners use whereof has been prohibited by
the statute. Just because the appeal has remained pending here since 1985 the
society cannot be made to suffer for this delay by letting the criminal go
unpunished as a crime of this nature, being a crime against the society at
large, cannot be ignored. Sympathy in such cases is totally misplaced.
As a
result of the above discussion, the conviction of the appellant is altered from
the one under Section 16(1-A) read with Section 7(1) of the Act to the one
under Section 16(1)(a)(i) read with Section 7(1) of the Act and the sentence is
reduced from one year R.I. and a fine of Rs. 2000 to the minimum prescribed for
the said offence i.e. to six months R.I. and a fine of Rs. 1000. In default of
payment of fine the appellant shall further suffer imprisonment for one month
more.
The
appeal succeeds and is partly allowed to the extent indicated above.
The
appellant is on bail. His bail bonds shall stand cancelled. He shall be taken
into custody to suffer the remaining period of the sentence.
G.N.
Appeal partly allowed.
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