http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: JAI NARAIN

       Vs.

RESPONDENT: MUNICIPAL CORPORATION OF DELHI

DATE OF JUDGMENT23/08/1972

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. DUA, I.D. KHANNA, HANS RAJ

CITATION:  1972 AIR 2607            1973 SCR  (1) 923  1972 SCC  (2) 637  CITATOR INFO :  R          1974 SC1818  (16)

ACT: Prevention  of  Food Adulteration Act,  1954-Ss.  2(1)  (J), 7(1),  16(1) -Sale of patisa prepared with unpermitted  coal tar  dye--Activity--being  distinctly anti-social  if  s.  4 Probation  of  Offenders Act could be  applied-Probation  of Offenders Act, 1958.

HEADNOTE: In Isherdas v. Punjab this Court held on a consideration  of s.  18 of the Probation of offenders Act that its  operation is not excluded in cases of persons found guilty of offences under  the Prevention of Food Adulteration Act, 1954.   That decision.   however,  expressed  a  note  of  caution   that adulteration of food being a menace to public health and the Act having been enacted with the object of eradicating  that antisocial evil and for ensuring purity of articles of  food sold to the members of the public, Courts should not lightly resort  to  the  provisions  of  s.4  of  the  Probation  of Offenders Act. Isherdas v. Punjab A.I.R. 1972 S.C. 1295. The appellant, an employee of a sweetmeat shop found  guilty under  s.7(1) read with s. 16(1) of the Prevention  of  Food Adulteration Act and sentenced to simple imprisonment for  a period  of  six months and of rupees  onethousand.   It  was found   that   the  patisa  sold  by   him   were   prepared withunpermitted coal tar dye and therefore, were adulterated food  stuffas  defined  by s. 2(1)  (j).   On  the  question whether  in the circumstancesof the case and the  nature  of the evil to prevent which s. 16 of the  Prevention  of  Food Adulteration  Act,  was enacted, s. 4, of the  Probation  of Offenders Act could be applied., HELD  :  The  sale  of an  article  of  food  prepared  with unpermitted  coal  tar  dye  is  an  anti-social   activity, deleterious to the health of those who would consume them as article  of food, the eradiction of which is  the  principal aim of the Act and in particular of s.16 thereof.  The  evil would appear to be more pernicious when it is realised  that patisa  are  more often than not purchased and  consumed  by children  and by persons from the non-affluent  sections  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

the  society.   The colouring matter was obviously  used  to attract customers, without any regard to the injury it would cause to those who consumed them.  The appellant’s  activity being  thus  distinctly anti.-social, it  would  be  neither expedient  nor in consonance with the object with which  the Prevention of Food Act.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 172  of 1969. Appeal  by certificate under Article 134(1)(c) of  the  Con- stitution  of India from the judgment and order  dated  June 20,  1969 of the Delhi High Court at New Delhi  in  Criminal Revision No. 385 of 1968. 924 Hardev Singh, for the appellant. Jindra Lal and B. P. Maheshwari, for the respondent. The Judgment of the Court was delivered by Shelat, J. In March 1967, the appellant was an employee in a sweetmeat shop, known as Bengal Sweet Shop being shop No. 6, Sector  11, in Ramakrishna Puram, New Delhi.  The  shop  was owned by one Budh Ram and one A. K. Bhattacharya. On  March 15, 1967, wit.  F. Dean, a Food Inspector  in  the employment  of the Municipal Corporation of Delhi,  went  to the said shop and purchased ’patisa’ which were sold to  him by the appellant.  These were sold to him from a lot exposed for  sale.  The Food Inspector then divided the patisa  into three portions and packed each of them into sealed  bottles, one of which was handed over by him to the appellant. On an analysis of the sample by the Public Analyst appointed under  the  Prevention of Food Adulteration Act,  XXXVII  of 1954  it  was  found  that the  patisa  were  prepared  with unpermitted  coal tar dye, and therefore,  were  adulterated food stuff.  A complaint to that effect was filed before the Magistrate, 1st Class, Delhi, who, after recording evidence, found  the appellant and the said Budh Ram guilty  under  s. 7(1)  read with S. 16(1) of the Act, and sentenced  each  of the  two accused to simple imprisonment for a period of  six months and a fine of Rs. 1,000, in default imprisonment  for a  further  period  of three months.  On an  appeal  by  the appellant  and  his  co-accused,  the  said  Budh  Ram,  the Additional Sessions Judge allowed Budh Ram’s appeal and  set aside  the  order of conviction passed against  him  on  the ground  that  though  he  and  the  said  Bhattacharya  were partners  in the firm which carried on the said shop,  there was nothing to show that Budh Ram was in charge of the  said shop  or its business or was in any way responsible for  the sale  of articles sold in the shop.  He found that Budh  Ram was, on the contrary, an employee of a club in New Delhi and was  therefore  at best a sleeping partner.  So far  as  the appellant was concerned, the Additional Sessions Judge  held that  he  was an employee of the firm,  concerned  with  the sales,  that the prosecution had led sufficient evidence  to establish   its  case  against  him,  and   therefore,   his conviction  could  not be interfered  with.   Regarding  the sentence  awarded  to  him, the  Additional  Sessions  Judge remarked that (a) the case was not covered by S. 2(i) (j) of the Act, but was one which amounted to violation of rules 23 to 30 of the Rules framed under the Act, (b) that there  was nothing  in  the  evidence  to show  that  the  use  of  the unpermitted coal tar dye in the manufacture of the patisa in question  rendered  them injurious to health, and  (c)  that there was no allegation of the appel-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

925 lant  having committed a similar offence before.   On  these ’grounds  he  partially allowed the appeal by  reducing  the sentence  of  imprisonment  to the  period  of  imprisonment already  undergone by the appellant before. he  was  granted bail.   The order awarding the said fine was not  interfered with. Against  that  order,  the  Municipal  Corporation  filed  a revision  petition in the High Court urging that in view  of the  mandatory provisions of s. 16 of the Act providing  for the  compulsory  miniMum sentence, the  Additional  sEssions Judge  ought  not to have interfered with  and  reduced  the sentence  imposed by the Trial Magistrate.  The  High  Court accepted  that  contention and setting aside  the  order  of sentence,  as  modified by the  Additional  Sessions  Judge, restored  the order of sentence passed by the  Trial  Magis- trate.  The High Court, however, granted a certificate under Art. 1 34 (c) of the Constitution.  The appellant filed this appeal on the strength of that certificate. Counsel for the appellant did not challenge before us either the  order  of conviction or the order  of  sentence  passed against  him  by  the  High  Court,  which,  as   aforesaid, confirmed the conviction and restored the order. of sentence passed  by the Trial Magistrate.  The only point  raised  by him was that the appellant should be given the benefit of s. 4  of the Probation of Offenders Act, 1958 under  which  the sentence  of imprisonment awarded to the appellant could  be dispensed with and an admonition should instead be given  to him. In a recent decision in Isher Das v. Punjab(1) to which  two of us were parties, it was held on a consideration of s.  18 of the Probation of Offenders Act that its operation is  not excluded in cases of persons found guilty of offences  under the  Prevention of Food Adulteration Act, 1954.  The  former Act was brought on the statute book in 1958, but no specific exception  as  regards the Prevention of  Food  Adulteration Act,  1954, though an earlier Act, is to be  found  therein, just  as  an  exception  in respect  of  the  Prevention  of Corruption   Act,  1947  has  been  expressly   made.    The provisions   of  the  Probation  of  Offenders  Act,   1958, therefore,   apply  to  persons  found  guilty   under   the Prevention   of  Food  Adulteration  Act.   That   decision, however,  expressed a note of caution that  adulteration  of food being a menace to public health and the Act having been enacted with the object of eradicating that antisocial  evil and  for  ensuring purity of articles of food  sold  to  the members  of the public courts should not lightly  resort  to the  provisions  of s. 4 of the Probation of  Offenders  Act which applies to offenders who are 21 years of age or above. (1)  A.I.R. 1972 S.C. 1295. 926 The  question, therefore, is whether we ought to, apply,  in the circumstances of the case and the nature of the evil to, prevent  which s. 16 of the Prevention of Food  Adulteration was  enacted,  s. 4 of the Probation of  Offenders  Act  and release   the   appellant  from  the  sentence   of   simple imprisonment awarded to him with an admonition and a warning only. Under s. 2 (i) (j), the patisa, in the preparation of  which a  nonpermissible  colouring  matter has been  used,  is  an adulterated article.  Such an article is adulterated food as defined by cl. (v) of s. 2, as that clause defines ’food’ to include any article used in the preparation of human food or any flavouring matter.  Sec. 7 provides that no person shall himself or by any person on his behalf manufacture for sale,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

or  store, or sell "any adulterated food" or any article  of food  in contravention of any other provision of the Act  or of any rule made thereunder.  Sec. 16 provides for a minimum sentence of imprisonment for not less than six months  inter alia  for  the  offence of selling  adulterated  food.   The proviso confering discretion to the courts in the matter  of sentence   does  not  apply  to  sales  of  food  which   is adulterated  under  s.  2(i)  (j).  The  policy  of  s.  16, therefore,  is  clearly to impose a sentence not  less  than that  provided therein inter alia for sale of food  articles adulterated  as defined _by s. 2 (i) (j).  Under rule 23  of the Prevention of Food Adulteration Rules, 1955, addition of a  colouring  matter  to  any  article  of  food  except  as specifically permitted under the rules is prohibited.   Rule 28   makes  only  the  coal  tar  dyes   specified   therein permissible in the preparation or manufacture of articles of food set out in rule 29. There is no dispute that the coal tar dye used in the patisa sold  by  the  appellant was not one of the  coal  tar  dyes permissible  under  rule 28.  That is also  clear  from  the report  of the Public Analyst, the correctness of which  was not  under  any challenge before us.  Though  there  was  no express  evidence  on  the  record  that  the  use  of   the particular coal tar dye in the making of the patisa sold  at this shop was injurious to health, it must be presumed to be so  from the fact that it is not one of the  permitted  coal tar dyes enumerated in r. 28.  It is, therefore, clear  that the  sale  of  such an article of food  was  an  anti-social activity,  deleterious  to  the health of  those  who  would consume them as article of food, the eradication of which is the  principal  aim of the Act and in particular  of  s.  16 thereof.  The evil would appear to be more pernicious  when. it is realised that patisa are more often than not purchased and consumed by children and by persons from the  unaffluent sections  of the society, who cannot afford to buy  costlier sweets  prepared  by  more  sophisticated  processes.    The colouring  matter was obviously used to  attract  customers, without any regard to the 927 injury  it  would  cause to those who  consumed  them.   The appellant’s  activity being thus distinctly anti-social,  we do  not  think  that  it would be  either  expedient  or  in consonance with the object with which the Prevention of Food Adulteration Act was passed to apply s. 4  of the  Probation of Offenders Act. There being no other point raised for our consideration, the appeal fails and is dismissed. K.B.N.                                                Appeal dismissed 928