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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.692 OF 2002

RAMJEE PRASAD & ANR.                    Appellant(s)

                     VERSUS

STATE OF BIHAR                         Respondent(s)

O R D E R This  appeal  has  been  filed  by  the  two  accused  persons  who  stand  

convicted by the High Court for an offence punishable under Section 16(1)(a)(ii) of  

the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act")  

for having been found selling an adulterated food article - "Chhena Mithai".  

In the light of what we intend to hold in this matter, the detailed facts  

would not be necessary.  

The Public  Analyst  in his  report found that the above-mentioned food  

article was adulterated with starch.  

This  opinion  was  only  partially  maintained  by  the  Central  Food  

Laboratory  as  it  opined  that  the  foodstuff  was  adulterated,  but  there  was  no  

reference whatsoever to the adulteration by starch.  The trial court and the first  

appellate court tried and convicted the appellants, who are father and son, for an  

offence punishable under Section    16(1)(a)(i) of the Act and sentenced them to  

various terms of imprisonment.   

The matter was taken in revision before the High Court and the learned  

Single Judge in his judgment dated 20th November, 2001 held that a case under  

Section 16(1)(a)(i) of the Act could not be made out against the  appellants, but as

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the trial court and the first appellate court had mis-applied the penal provision, it  

was the obligation of the High Court to see that the accused did not escape from  

criminal liability and accordingly convicted them for an offence punishable under  

Section 16(1)(a)(ii) of the Act.

It is  in these circumstances that the matter is  before us after grant of  

special leave.

Mr. Gaurav Agrawal, the learned counsel for the appellants has raised  

several arguments, but we are of the opinion that the matter can be disposed of on a  

simple admitted fact.   We see that  Section 16 (1)(a)(i)  of  the Act is  relatable to  

Section 2(ia)(m) which provides that a food article shall be deemed to be adulterated  

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.   The High Court has, however,  

thought it  fit  to render the conviction under clause 16(1)(a)(ii)  of  the Act which  

stipulates that the food article shall be deemed to be adulterated if it is not of the  

nature,  substance  or  quality  which  it  purports  or  is  represented  to  be.  A bare  

reading of these two provisions and the finding of the first two courts reveal that the  

evidence  required  for  recording  a  conviction  under  the  two  clauses  would  be  

distinct and different as the ingredients thereof are entirely different.  In this view  

of the matter, it appears that the appellants were seriously prejudiced in the fact  

that the High Court had thought it fit to change the nature of the offence for which  

they had been brought to trial. While dealing with a similar matter, this Court in  

Municipal Corporation of Delhi v. Ram Sarup (1980) 1 SCC 580, in para 4  has held  

as under:-

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"In the view we have taken we would have set aside the acquittal of  the respondent and restored the judgment of the trial Court, but we  are inclined to think that it will not be proper to do so in the facts and  circumstances of this case.  There is nothing in the three judgments on  record, and more particularly in the impugned judgment of the High  Court, to show whether the respondent was put on trial for selling an  adulterated article of food within the meaning of clause (f) of Section  2(ia)  of  the  Act,  or  whether  he  was  tried  for  selling,  within  the  meaning of clause (l) of that section, an article of food of which the  quality or purity fell below the standard prescribed by the Rules.  The  possibility that the respondent was prejudiced in his defence because  of the ambiguity cannot therefore be ruled out.  In this view of the  matter,  we  are  not  inclined  to  allow  the  appeal  and  set  aside  the  respondent's acquittal."  

We are, therefore, of the opinion that the matter is settled in favour of the  

appellants  by  the  cited  judgment.   The  learned  counsel  appearing  for  the  

respondent  has,  however,  pointed out  that  no  prejudice  had been caused to the  

appellants on account of this change in the nature of the offence.  In the light of  

what has been observed by this Court (ibidem), the prejudice is writ large more  

particularly as the ingredients of the two provisions are substantially different and  

the evidence of one cannot lead to a finding of guilt for the other. The appeal is  

allowed.  The  orders  of  the  courts  below  are  set  aside  and  the  appellants  are  

acquitted.  As the accused appellants are on bail, their bail bonds are discharged.  

...................J. (Harjit Singh Bedi)

...................J. (J.M. Panchal)

New Delhi; April 22, 2009.