PETITIONER:
M.RAJA MOHAMMED AND ANR.
Vs.
RESPONDENT:
FOOD INSPECTOR, PALGHAT MUNICIPALITY
DATE OF JUDGMENT22/11/1991
BENCH:
YOGESHWAR DAYAL (J)
BENCH:
YOGESHWAR DAYAL (J)
SHETTY, K.J. (J)
CITATION:
1992 AIR 1611 1991 SCR Supl. (2) 390
1992 SCC (1) 372 JT 1991 (4) 503
1991 SCALE (2)1098
ACT:
Prevention of Food Adulteration Rules, 1955: Rules 44(g)
and 47 (As amended by Prevention of Food Adulteration
(Third Amendment) Rules, 1968 and as they stood prior to
Amendment of 15.4.1988)–,Appendix ‘B’—Restriction on sale
of Articles containing/Irtificial sweetener/
Saccharin–Prescription of standard of saccharin or any
artificial sweetener in Appendix ‘B’ is not relevant-Stand-
ard must be prescribed in respect of Article of sale–Stand-
ard must permit user of sweetener in the Article–No stand-
ard laid down for Supari and Pan Masala–Held addition of
artificial sweetener saccharin in Pan Masala and Supari is
prohibited.
HEADNOTE:
The appellant (in Criminal Appeal No. 553/89) was prose-
cuted for selling adulterated supari with admixture of
saccharin. He filed a petition in the Kerala High Court
under section 482 of the Criminal Procedure Code for quash-
ing the criminal proceedings which was dismissed by a single
judge. Against the decision of the single judge an appeal
was filed in this Court.
The appellant (In Criminal Appeal No. 283/91) was also
prosecuted for selling adulterated Supari but was acquitted
by the Chief Judicial Magistrate, Palakkad. On appeal the
Kerala High Court set aside his acquittal and convicted him
under section 16(1) (a) (i) of the Prevention of Food Adul-
teration Act and sentenced him to imprisonment for 6 months
and a fine of Rs.1000. Against the order the Kerala High
Court an appeal was filed in this Court.
The appellant (In Criminal Appeal No. 284/91) was con-
victed ruder section 7(i) and (v) read with sections 16(i)
(a) (ii) of the prevention of Food Adulteration Act for sale
of adulterated supari with admixture of saccharin. He filed
a Revision Petition in the Kerala High Court and a Single
Judge dismissed the same. Against the order of the Single
Judge an appeal was filed in this Court.
The facts in the connected civil appeal (Nos. 3708-
13/89) are that a batch of writ petitions was filed in the
Andhra Pradesh High
391
Court for a declaration that the admixture of saccharin in
supari was in accordance with Rule 44 of the Prevention of
Food Adulteration Rules, 1955 and for restraining the re-
spondents from interfering with the business of sale of
supari. A Division Bench of the High Court allowed the writ
petitions. Against the decision of the Division Bench Union
of India has filed appeals in this Court.
Civil Appeal No. 1897/91 is directed against the order
of the Division Bench of the Kerala High Court which held
that the learned Single Judge should have declined jurisdic-
tion for the reason that the relief claimed was of a general
character for a declaration that the admixture of saccharin
in Roja Scented betelnut is not a blanket ban under Rule 47
read with Appendix ‘B’ of the Prevention of Food Adultera-
tion Rules, 1955.
Criminal Appeal No. 722/91 is directed against the order
of the High Court of Kerala setting aside the order of
acquittal passed by the trial court and remanding the matter
to the trial court for fresh disposal according to law. The
High Court did not agree with the submission that the arti-
cle of Supari was not adulterated as saccharin could be
added to Supari. Accordingly it held that saccharin could
not be added to supari and consequently remanded the matter
to the trial court for fresh disposal according to law.
In appeals to this court it was contended on behalf of
the accused that on the construction of Rule 44(c) it per-
mits sale of Article of food which contains artificial
sweetener with the standard as laid down in Appendix ‘B’ to
Prevention of Food Adulteration Rules, 1955.
Disposing the appeals, this Court,
FIELD: 1. Rule 44(g) of the Prevention of Food Adultera-
tion Rules, 1955 indicates that sale of any article of food
which contains artificial sweetener is banned. The ban is
lifted only if such artificial sweetener is permitted to be
added to the article of food for which standards have been
laid down in Appendix ‘B’ to the Rules. Rule 47 in other
form specifically bars saccharin or any other article of
artificial sweetener to be added in any article of food,
except where the addition of such artificial sweetener is
permitted in accordance with the standards laid down in
Appendix’ ‘B’. Thus both Rules 44(g) and 47 constitute a
total blanket ban on the addition of any artificial sweeten-
er including saccharin to any article of food
392
unless standards for that article of food is prescribed
which authorises the use of such an artificial sweetener.
[398 G, 399 A-B]
2. The prescription of standard of saccharin or any
artificial sweetener in Appendix ‘B’ is really irrelevant.
It is not the question of standard being prescribed for
saccharin which is irrelevant what is relevant is the stand-
ard being prescribed in Appendix ‘B’ of the article of food
which is being sold and which standard permits user of
saccharin. This is the real intention of the legislature
while enacting Rule 44(g) of the Rules. [399 E-F]
3. What one has to see is the article of food in which
the artificial sweetener is sought to be added. The article
which was being sold should contain a standard and the
standard should permit artificial sweetener to be added. If
the standards for that article of food is provided in Appen-
dix ‘B’ to the Rules and such standards permit the addition
of saccharin or any other artificial sweetener, then and
then only saccharin or any other artificial sweetener could
be added and not otherwise. [399 A-C]
4. Admittedly no standard has been laid down for Pan
Masala or Supari i.e. the article of food which was being
sold. Therefore, the exception permitted by clause (g) of
Rule 44 has no application and no relevance. [398 H, 399-A]
Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Ors.,
[1974] 1 S.C.C. 167, explained and applied.
State of Maharashtra v. Ranjitbhai Babubhai Suratwalla,
[1979] FAJ 231; Thummalapudi Venkata Gopala Rao v. The
State. [1986] Crl. L.J. 1699, M/s Wahab and Co. a proprie-
tary concern represented by its’ proprietor N.A. Wahab son
of N. Mohammad Sheriff v. Food lnspector. Tiruchirappalli
Municipal Corpn., Trichy. [1990] L.W. (Crl.) 437; Kailash v.
The ,State of Rajasthan, [1985] 1. F.A.C. 282; State of
Assam v. Ram Karani anti Ors., (1987) 3 All India Prevention
of Food Adulleration Journal 153; Ujjain Municipal Corpn.,
Ujjain v. Chetan Das, (1985) I F.A.C. 46, overruled.
State by public prosecutor v.K.R. Balakrishnan, (1986) 1
F.A.C. 384; Food Inspector v. Usman. (1985) K.L.T. 1038;
Krishna Chandra (In jail) v. State of Uttar pradesh, (1990)
1 F.A.C. 35, approved.
393
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION:Criminal Appeal No. 722
of 1991.
From the Judgment and Order dated 21.12.1990 of the
Kerala High Court in Criminal Appeal No. 425 of 1989.
B.R.L. lyanger, R. Mohan, V. Krishnamurthy and V. Bala-
chandran for the Appellants.
P.S. Poti, T.T. Kunhikannan, E.M.S..Anam, Ms. Indira
Sawlmey, P. Parmeswaran, Ms. Sushma Suri, K. Ram Kumar and
Y.P. Rao for the Respondents.
The Judgment of the Court was delivered by
YOGESHWAR DAYAL, J. Special leave granted.
This order will dispose of six matters namely, Crl.
Appeal Nos. 553/ 89, 283/91,284/91, Civil Appeal Nos. 3708-
13/89, 1897/91 and Criminal Appeal arising out of S.L.P.
(Crl.) No. 2647/91.
FACTS
Crl. A. No. 553/89
This appeal arises from the judgment of the learned
Single Judge of the High Court of Kerala dated 6th June,
1988 whereby the learned Single Judge declined to quash the
prosecution of the petitioner therein under Section 482 of
the Code of Criminal Procedure. The petitioner therein has
been prosecuted for selling adulterated “Ashoka special
supari” on the basis of a certificate issued by the Director
of Central Food Laboratory showing that the article of Food
purchased from the accused contained 2000 mgs/kg. saccharin
and that the sample does not conform to the Prevention of
Food Adulteration Rules, 1955, (hereinafter referred to as
the Rules). The High Court took the view the report prima
facie goes to show that accused has sold adulterated article
of food and consequently declined to quash the prosecution
under Section 482 of the Code. [1988 (2) K.L.T. 5].
Crl. A. No. 283/91
This appeal is directed against the order of the Kerala
High Court dared 22nd January, 1991 accepting the appeal
against the order of
394
acquittal passed by the Chief Judicial Magistrate, Palakkad,
in S.T No. 36 of 1988. The appeal was filed against the
acquittal of accused Nos. 2 and 3 therein and out of whom N.
Raja Mohammed, the Joint Managing Director of M/S N.V.K.
Mohammed Sultan Rawther (P) Ltd., is the appellant before
us. The High Court confirmed the acquittal of second accused
but sentenced the appellant before us under Section
16(1)(a)(i) of the Prevention of Food Adulteration Act to
undergo simple imprisonment for six month and to pay a fine
of Rs. 1,000 with a default sentence of simple imprisonment
for two more months.
Crl. A.NO. 284/91.
This appeal is filed against the order dated 21st Decem-
ber, 1990 passed by the learned Single Judge of the Kerala
High Court dismissing the revision petition whereby accused
No. I therein was sentenced to pay Rs. 1,000 as fine and the
two other accused were sentenced to simple imprisonment for
six months each and Rs. 1,000 as fine and in default of
payment of fine to undergo simple imprisonment for a period
of one month more. Their conviction were recorded under
Section 7(i) and (v) read with Section (16) (1) (a) (ii) of
the Prevention of Food Adulteration Act for having sold Roja
Sungandha Suparit with admixture of saccharin. The sample
was taken on 22nd December, 1986.
Civil Appeal Nos. 3708-13/89
These appeals are filed by the Union of India against
the judgment of the Division Bench of the High Court of
Andhra Pradesh dated 16th June, 1986 whereby the Division
Bench following the judgment of a learned Single Judge in
Crl. Misc. Petition No. 1569 of 1984 allowed the writ peti-
tions. A batch of writ petitions were filed for a declara-
tion that the admixture of saccharin in Anjali Sugandhi
Supari; Roja Scented Betelnut; Nizam Supari; A.R.R. Saugan-
tha Supari and Ajantha Sugandhi Supari is in accordance with
Rule 44 of the Rules and restraining the respondents/ appel-
lant herein from interfering with the business of sale of
Supari with such an admixture.
Civil Appeal No. 1897/91
This appeal is directed against the order of the Divi-
sion Bench of the Kerala High Court dated 22nd November,
1990 whereby the learned Division Bench was inclined to take
the view that the learned Single Judge should have declined
jurisdiction for the reason that the relief claimed
395
is of a general character for a declaration that the admix-
ture of saccharin in Roja Scented Betelnut is not a blanket
ban under Rule 47 read with Appendix B of the Prevention of
Food Adulteration Rules, 1955.
Crl. Appeal at, sing out of SLP (Crl.) No. 2647/91
This appeal is directed against the order of the High
Court of Kerala dated 21st December, 1990 setting aside the
order of acquittal passed by the trial court and remanding
the matter to the trial court for fresh disposal according
to law. The trial court had inter alia taken the view that
the sample of Supari in question was taken contrary to Rule
22-A of the Rules. The High Court took the view that the
sample was properly taken. On a plea being raises that the
article of Supari was not adulterated as saccharin could be
added to Supari, the High Court did not agree with the
submission and held that saccharin could not be added to
Supari and consequently the High Court remanded the matter
to the trial court for fresh disposal according to law.
The case inter alia involves interpretation of Rule 44
(g) of the Rules before its deletion with effect from 15th
April, 1988 and the amendment of Rule 47 by Notification No.
GSR 454 (E) dated 15.4.1988 (with effect from 15.4.1989) as
covered by GSR 1157 (E) dated 9.12.1988. Rules 44(g) and 47
as they originally stood and as they stood modified at the
relevant time of taking of the sample, figured during the
arguments and they are extracted hereunder with comments :-
“44.Sale of certain admixtures 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”.
”
“47. Addition of Saccharin to be mentioned on
the label.
Saccharin may be added to any food if the
container of such food is labelled 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 Preven-
tion of Food Adulteration (Third Amendment) Rules 1968,
redrafted Rules 44 (g) and 47. and it
396
is these Rules which were extant at the time of the alleged
offence. 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 artifi-
cial sweetener is permitted in accordance with
the standards laid down in Appendix ‘B ‘.
“47.Addition of artificial sweetener to be
mentioned on the label—Saccharin or any
other artificial sweetener shall not be added
to any article of food, except where the addi-
tion of such artificial sweetener is permitted
in accordance with the stand-
ards laid down in Appendix ‘B’ and where any
artificial sweetener is added to any food the
container of such food shall be labelled with
an adhesive-declaratory label which shall be
in the form given below:
This ….. (name of food) …..
contains an admixture ….. (name of
the artificial sweetener)”.
The Supreme Court in its decision Pyarali K. Tejani v.
Mahadeo Ramchandra Dange and Others, [1974] 1 SCC 167 took
the view that at the relevant time the article like saccha-
rin could not be added to the Supan in view of the amended
Rules 44(g) and 47 of the Rules. It will be noticed that
till date no standard has been prescribed in Appendix ‘B’ to
the Rules so far as the Supari is concerned. Therefore under
Rule 44(g) there was a total prohibition of use of saccha-
rin, which is an artificial sweetener, to any article of
food including Supari and regarding saccharin it was specif-
ically provided in Rule 47 that it shall not be added to any
article of food, except where the addition of such artifi-
cial sweetener is permitted in accordance with the standards
laid down in Appendix ‘B’. Therefore, under Rule 47 again so
far as saccharin is concerned and for which no standards
have been prescribed in Appendix ‘B’ there was total prohi-
bition of adding the same in any article of food. This was
the view taken in the aforesaid case of Pyarali K. Tejani.
For the period relevant for the Tejani’s case the Rules
permitted saccharin to be added in case of carbonated water
in item 5(B)-A 1.01.01 only but no such permission was
noticed by the Supreme Court in the case of Supari. Thus the
Supreme Court had settled the law, as far as the Rules
between August 24, 1968 and 15th April, 1988 are concerned.
We may mention that w.e.f. 15.4. 1988 Rule 44(g) was omitted
and Rule 47 was substituted by new Rules.
397
However, it appears that with effect from 26th May, 1971
for the first time a standard was prescribed for Saccharin
Sodium as item No. A.07.10 in Appendix ‘B’ to the Rules.
After the provision of standard for Saccharin Sodium in
Appendix ‘B’ to the Rules, the Bombay High Court in the case
of State of Maharashtra v. Ranjitbhai Babubhai Suratwalla,
[1979] FAJ 231 (Bombay) distinguished the judgment of the
Supreme Court in Tejani’s case (supra) and took the view
that because standards; have been prescribed for saccharin,
Rule 47 permitted its user in article of food. This view was
followed by Single Judge of the Andhra Preadesh High Court
in the case reported as Thummalapudi Venkata Gopala Rao v.
The State, (1986)Cr1 LJ 1699. Asimilar view was taken by
another Single Bench of the Madras High Court in the case
M/s..Wahab and Co., a Proprietory concern represented by its
proprietor M..A Wahab son of N. Mohamed Sheriff v. Food
Inspector, Tiruchirappalli Municipal corparation Trichy;
(1990)L.W.(CrI.)437 with out noticing the earlier cotract
view of the same High Court reported as State by Public
Prosecutor v. K..R. Balakrishnan, (1986) (I) FAC 384. The
Rajasthan High Court also took the same view in the case
reported as Kailash v. The State of Rajasthan, (1985) (I)
FAC 282. The Gauhati High Court in the case reported as
State of Assam v. Rant Karani and Others (1987) (3) All
India Prevention of food Adulteration Journal 153 following
some of the aforesaid decisions also look the view that
addition of artificial sweetener like saccharin in Supari or
Pan-Ka-Masala, if it conforms to the standard laid down in
clause A.07.10 of the Appendix ‘B’ of the Rules, did not
violate Rule 44(g) read with Rule 47 of the Rules. The
Madhya Pradesh High Court in the case reported as Ujjain
Municipal Corporation, Ujjain v. Chetan Das, (1985) (I) FAC
46. followed the view of the Bomaby High Court in the case
reported as Ranjitbhai Babubhai Suratwalla (supra).
On the other banal the High court of Kerala, Allahabad
and another earlier Single Bench of the Madras High Court
took the view that prescription of standard of saccharin in
Appendix ‘B’ to the Rules could not alter the interpretation
of Rule 44(g) nor help could be taken from interpretaion of
Rule 47. The Kerala High Court in the case reported as Food
Inspector v. Usman, (1985) K.L.T. 1038 noticed the view of
the Bombay High Court in Ranjitbhai Babubhai Suratwalla’s
case (supra) and dissented from it and held:
“Rule 47 of the Prevention of Food Adultera-
tion Rules provides that saccharin or any
other artificial sweetener shall not be added
to any article of food, except where the addi-
tion of
398
such artificial sweetener is permitted in
accordance with the standards laid down in
Appendix ‘B’ and where any artificial sweeten-
er is added to any food, the container of such
food shall be labelled with an adhesive de-
claratory label to that effect. That means
unless and to the extent in accordance with
the standards prescribed in Appendix ‘B’
saccharin or any other artificial sweetener
are prohibited material in food articles. For
pan supari no standard is fixed in Appendix
‘B’. That means addition of artificial sweet-
ener is not permitted by the standards laid
down in Appendix ‘B’ and the prohibitions
under Rule 47 operates as an absolute prohibi-
tion against addition of saccharin or other
artificial sweetener so far as pan supari is
concerned. Whether addition of artificial
sweetener is injurious to health or life is
not a matter for consideration when its addi-
tion is prohibited”.
Following the decision of the Supreme Court in Tejani’s
case the Court set aside the acquittal of accused No. 1 and
sentenced him.
A Division Bench of the Allahabad High Court in Krishna
Chandra (in Jail,) v. State of Uttar Pradesh, (1990) (I)
F.A.C. 35 differed with the earlier decision of the Single
Bench in Ibrahim Hussain v. ,State of Uttar Pradesh and also
differed with the view of the Bombay High Court in Ranjitb-
hai Babubhai Suratwallas case and declined to distinguish
the Tejani’s case as held by this court and took the view
that the prescription of the standard of saccharin is not at
all relevant to the inquiry and saccharin could not be added
to any article of food unless permitted by standard pre-
scribed in Appendix ‘B’ to the Rules and purported to the
decision of this Court in Tejani’s case.
Before us also Mr. B.R.L. lyengar, who appeared for the
accused, made submission that on the construction of Rule
44(g) it permits sale of article of food which contains
artificial sweetener with the standard as laid down in
Appendix ‘B’ to Rules. We are unable to accept the submis-
sion. We are also unable to accept the decisions of the High
Courts supporting that view.
Rule 44 (g) indicates that sale of any article of food
which contains artificial sweetener is banned. The ban is
lifted only if such artificial sweetener is permitted to be
added to the article of food for which standards have been
laid down in Appendix ‘B’ to the Rules. Admittedly no stand-
ard has been laid down for Pan Masala or Supari. It is this
article of food which was being sold. No standard was pre-
scribed for this article of food. Therefore, the exception
permitted by clause (g) has no application
399
and no relevance. The article which was being sold should
contain a standard and the standard should permit artificial
sweetener to be added. Again Rule 47 in other form specifi-
cally bars saccharin or any other article of artificial
sweetener to be added in any article of food, except where
the addition of such artificial sweetener is permitted in
accordance with the standards laid down in Appendix ’B’.
Therefore both Rules 44(g) and 47 constitute a total blanket
ban on the addition of any artificial sweetener including
saccharin to any article of food unless standards for that
article of food is prescribed which authorises the use of
such an artificial sweetener. The argument that since the
standards of saccharin have been provided for in the Appen-
dix ‘B’ to the Rules and therefore, it could be added in
view of the language of Rule 44(g) is fallacious. What one
has to see is the article of food in which the artificial
sweetener is sought to be added. If the standards for that
article of food is provided in Appendix ‘B’ to the Rules and
such standards permit the addition of saccharin or any other
artificial sweetener, then and then only saccharin or any
other artificial sweetener could be added and not otherwise
not.
It appears that the Bombay High Court and the other High
Courts which have taken the opposite view seem to have
fallen into errors while interpreting Rule 44(g1. They have
assumed as if once the standards of saccharin or the artifi-
cial sweetener have been prescribed it could be freely added
to any article of food. It is necessary to point out that
the prescription of standard of saccharin or any artificial
sweetener in Appendix ‘B’ is really irrelevant. What was
emphasised in Tejani’s case is the standard of food and the
standard should permit saccharin or any artificial sweetener
to be added. It is not the question of standard being pre-
scribed for saccharin which is relevant; what is relevant is
the standard being prescribed in Appendix ‘B’ of the article
of food which is being sold and which standard permits user
of saccharin. This is the real intention of the legislature
while enacting Rule 44(g) of the Rules. For Supari and Pan
Masala, it is undisputed that there is no standard pre-
scribed.
In this view of the matter, we agree with the decisions of
the Kerala High court in Food Inspector v. Usman (1985)
K.L.T. 1038; Allahabad High Court in Krishna Chandra, (in
Jail) v. State of Uttar Pardesh, 1990 (I) F.A.C. 35 and
Madras High Court in State by Public Prosecutor v. K.R.
Balakrishnan, 1986 (1) F.A.C. 384.
The decisions in: State of Maharashtra v. Ranjitbhai
Suratwalla, 179 FAJ 231 (Bombay) the Bombay High Court;
Thummalapudi Venkata Gopala Rao v. The State. (1986) Crl.
L.J. 1699 of the Andhra Pradesh High Court; M/s. Wahab and
Co., a Proprietory concern represented by its proprietor
M.,A. Wahab son of N. Mohammed Sheriff v. Food Inspec-
400
tor, Tiruchirapalli Municipal Corporation, Trichy, (1990)
L.W. (Crl.) 437 of the Madras High Court; Kailash v. The
State of Rajasthan, 1985 (I) F.A.C. 282 of the Rajasthan
High Court; The State of Assam v. Ram Karani and Others,
1987 (3) All India Prevention of Food Adulteration Journal
153 of the Gauhati High Court and Ujjain Municipal Corpora-
tion, Ujjain v. Chetan Das, 1985 (I) F.A.C. 46 of the Madhya
Pradesh High Court cannot be said to have been correctly
decided and are hereby overruled.
The result is that civil Appeal Nos. 3708-13 of 1989 are
accepted and the impugned judgment of the Andhra Pradesh
High Court dated 16th June, 1986 is set aside Crl. Appeal
Nos. 553/89, 283/91,284/91, Civil Appeal No. 1897/91 and the
appeal arising out of S.L.P. (Crl.) No. 2647/ 91 are dis-
missed. -
T.N.A. Appeals dis-
posed of.
1
401