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PETITIONER: K.   KRISHNA IYER

       Vs.

RESPONDENT: STATE OF KERALA AND ANR.

DATE OF JUDGMENT30/03/1993

BENCH: ANAND, A.S. (J) BENCH: 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.

HEADNOTE: 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was contended that since  the report of the Public Analyst which had found the presence of dulcin  in the sample stood superseded by the report of  the Central Food Laboratory which had not found the presence  of dulcin,  the  consumption of which was injurious  to  health under  the 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

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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]

JUDGMENT: 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,

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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  thereunder’.   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

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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

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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

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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. 715

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