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PETITIONER: SRI KRISHAN GOPAL SHARMA ANR.

       Vs.

RESPONDENT: GOVERNMENT OF N.C.T. OF DELHI

DATE OF JUDGMENT:       07/05/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

CITATION:  1996 SCC  (4) 513        JT 1996 (5)   102  1996 SCALE  (4)378

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CRIMINAL APPEAL NO.632 OF 1996         (Arising out of S.O.P.(CRL) NO 2650 OF 1995)                       J U D G M E N T G.N. RAY J.      Leave granted. Heard learned counsel for the parties.      Order dated 15.2.1995 passed by the Delhi High Court in Criminal Misc. (Main) Petition No. 2802 of 1994 and Criminal Misc. (Main)  Petition  No.  3202  of  1994  dismissing  the application of  the appellants under Section 482 of the Code of Criminal Procedure for quashing the Criminal case No. 149 of 1988  and 42  and  1990  pending  in  the  Court  of  the Metropolitan Magistrate,  New Delhi  under Sections 7 and 16 of the  Prevention of  Food Adulteration Act, 1934 initiated on the  basis of  the complaint  made by  the  Local  Health Authority of the Delhi Administration is under challenge.      Criminal Case  No. 149 of 1988 relates to the sample of Chutki Pan  Masala purchased  from accused  No.1 Murari  Lal Gupta, partner  of the accused No.3 M/s Lal Chand Gupta, and manufactured and supplied by accused No.4 M/s K.K.Karyalaya, of which  accused No.5  Krishna Gopal Sharma is the nominee. Case No.  42 of  1990 relates  to  sample  of  Chukki  Mouth Freshner purchased by Food Inspector D.P. Singh on 21.8.1989 from accused  No.1 Krishna  Gopal Sharma, the nominee of the manufacturer  M/s   K.K.   Karyalaya.   According   to   the prosecution case  both the  samples of Chutki Pan Masala and Chutki Mouth  Freshner were  analyzed by the Public Analyst, Delhi and  the Analyst found both the samples as adulterated because it  contained saccharin to the extent of 2000 p.p.m. In the first sample and 2450 p.p.m. in the second sample. It may be  stated here  that at the relevant time when the said samples were  purchased, under  the existing  Rule 44(g) and Role 47  of the  Prevention of  Food Adulteration Rules, the saccharin contents  as found  by the  Public Analyst  in the samples were in violation of the Rules.

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    The learned  Metropolitan Magistrate  in dismissing the applications made  under Section 248 of the Code of Criminal Procedure held, inter alia, that although from 9th November, 1993, Rule  47 of  the Prevention of Food Adulteration Rules 1955 had  undergone a  change and saccharin to the extent of 8000 ppm  in pan masala has been permitted under the amended Rule 47,  even then  accused were  not entitled  to get  any benefit of  subsequent amendment  of  Rule  47.  As  at  the relevant time, the accused had sold the Pan Masala and Mouth Freshner in  violation of  the mandate under the Act and the Rules  framed   thereunder,  the  prosecution  initiated  on account of such violation was legal and justified.      The learned  Judge relied on the Full Bench decision of the Delhi  High Court  in Municipal Corporation of Delhi Vs. Charanjit  Lal  (1980  (1)  PFC  page  55)  wherein  similar contentions were negatived by the Full Bench.      Against the  said decision,  the appellants  moved  the Delhi High  Court under  Section 482 of the Code of Criminal Procedure inter  alia praying for quashing the said criminal ases. By  the impugned judgment, the High Court held that at the relevant time, when the samples were taken and analyzed, the saccharin content as found by the analyst in the samples was not  permissible. Hence,  the  offence  under  the  Food Adulteration Act  had been  committed and  consideration  of subsequent change  of the  permissible limit of saccharin in Pan Masala  and Mouth  Freshner was  not Germane.  The  High Court, therefore,  dismissed the  Misc. Cases arising out of Section  482   of  the   Criminal  Procedure  Code  with  an observation that it would open to the accused petitioners to urge the  implication of  subsequent change  in the Rules by permitting user  of saccharin upto the extent of 8000 ppm in Pan Masala at the hearing of the criminal cases.      Mr.Sanghi, the learned senior counsel appearing for the appellants,  has  strongly  contended  that  the  extent  of saccharin since  found by  the analyst  cannot  be  held  as injurious to health because on the basis of further research and analysis about the effect of saccharin on human body, it has been  ascertained that  presence  of  saccharin  upto  a reasonable  limit  was  not  at  all  injurious  to  health. Precisely for  such change  in the  outlook, Rule  47 of the Prevention of  Food Adulteration Rules has been changed with effect from  9th November, 1993, by indicating that in a Pan Masala,  the   saccharin  content  even  upto  8000  ppm  is permissible. Mr.  Sanghi has  submitted that at the relevant time when  2000 ppm of saccharin was added to the Chutki Pan Masala and  the Mouth  Freshner, the accused in fact had not committed any  illegal act by adding saccharin in quantities noted because  such quantity  of saccharin was not injurious to health.  It was  only because  our  knowledge  about  the effect of  saccharin  on  human  system  was  imperfect,  an unreasonable embargo  on the user of saccharin in Pan Masala and Mouth  Freshner was  imposed in  Rule 47. As it is quite evident that  imposition of restriction on user of saccharin in Pan  Masala and Mouth Freshner was unjustified because of lack of  knowledge about  the effect  of saccharin  on human system, and  as it  can not  be contended  that presence  of saccharin to  the extent  of 2000  ppm and  2450 ppm  in Pan Masala and  Mouth Freshner was either injurious to health or such user  of   saccharin had adversely affected the quality of the  articles by  degenerating the  same, it must be held that the  accused appellants  had in fact did not commit any improper act  by selling  an adulterated  food.  Because  of imperfect knowledge, the wrong restriction was imposed under the Prevention  of Food  Adulteration Rules  at the relevant time and  such unjust  imposition of  restriction of user of

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saccharin must  be held  to be arbitrary, unjust and without any reasonable  basis. Mr.  Sanghi has  submitted that it is nobody’s case  that the  Chutki Pan Masala or Mouth Freshner since sent  for analysis  contained any  substance which had degenerated  the  quality  of  the  articles  or  made  them injurious  to   health.  Hence,   it  cannot  be  reasonably contended that  in fact  the said  articles were adulterated food even  at the  time of  collection of  the samples.  Mr. Sanghi has  submitted that  in the  aforesaid facts, it will not be  fair and  proper to  prosecute the  accused  and  to punish them  for using  saccharin in  Pan Masala  and  Mouth Freshner to an extent much below the permissible limit which has been  accepted by  the concerned authority by rectifying the misconceived  notion about  the effect  of saccharin  by amending Rule  47 of  the Rules. The alleged violation being based on  misconception should  not be countenanced by Court and the  accused should  not  be  exposed  to  trial  for  a criminal offence  when in fact no offence had been committed by the  accused. In  The facts  of the case, the prosecution will amount  to gross abuse of process of law. Hence, prayer for quashing should have been allowed by the High Court.      Mrs. Amareshwari,  the learned senior counsel appearing for the respondent, has however submitted that imposition of restriction of  adding saccharin  as contained in Rule 47 of Prevention of  food Adulteration  Rules at the relevant time was not arbitrary and capricious. Such imposition was fairly made consistent  with the  existing knowledge  about harmful effect of  saccharin on  the human  system. Mrs. Amareshwari has submitted that it is nobody’s case that at the relevant time on  the basis  of the available information flowing for research and  analysis there  was no  occasion  for  putting embargo on  the free  user of saccharin on the articles sold and restriction  in the  user of saccharin in Rule 47 of the Rules was wholly arbitrary, capricious and ipsi dikit of the Rule making  authority. Rule  47 of  the Rules  having  been fairly made  in proper exercise of the power consistent with the then available information on the effect of saccharin on human system,  it must  be held  that such Rule, even though amended at  a later  stage on the basis of further knowledge on the  effect of saccharin on human system, was quite legal and valid.  So long Rule 47 being validly made was in force, compliance of  the mandate  under the  Rules was unavoidable and  prosecution  initiated  on  violation  of  Rule  47  as operative at  the relevant time cannot be held to be illegal and without   any  sanction  of  law.  She  has,  therefore, submitted that  the complaint  made against  the accused and consequential  initiation   of  criminal   case  under   the Prevention of  food  Adulteration  Act  cannot  be  held  as illegal and  invalid for  which an  order of  quashing  such criminal cases was warranted.      After giving our careful consideration to the facts and circumstances of  the case  it appears  to us  that  at  the relevant time  when the  samples of  the Pan  Masala and the Mouth Freshner were taken, the saccharin content as found by the Public  Analyst in  the said  articles of  food  was  in violation of  Rule 47 of the Prevention of Food Adulteration Rules. The Pan Masala and the Mouth Freshner are undoubtedly within the  meaning  of  food  under  Section  2(v)  of  the Prevention of Food Adulteration Act. food under said act has been defined  very widely.  The validity of Rule 47 prior to its amendment  in 1993  restricting the user of saccharin in pan masala  cannot be  challenged on the ground of arbitrary and  capricious   exercise  of  power  by  the  Rule  making authority has  not been  demonstrated  that  despite  widely accepted view  by the  experts about the effect on saccharin

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on human  system on  the basis  of information  flowing from research and  analysis, the restriction of user of saccharin in Can Masala or touth Freshner as imposed in Rule 47 of the Rules at  the relevant time was wholly arbitrary, unjust and capricious. Human  knowledge is  not static  The  conception about the  harmful effect  of saccharin on  human system has undergone  changes   because  of  information  derived  from further research  and  analysis.  The  knowledge  about  the effect of  saccharin on  human system  as accepted today may undergo a cringe in future on the basis of further knowledge flowing from subsequent research and analysis and it may not be unlikely  that previous view about saccharin may be found to be  correct later on. If the Rule making authority on the basis of  human knowledge  widely  accepted  by  the  expert framed rule  by imposing restriction of user of saccharin in Pan Masala or Mouth Freshener at a particular point of time, such exercise  of power  must be  held to  have been validly made, founded  on good reasons; and challenge of the Rule on the   score of  arbitrary and  capricious exercise  of power must fail.  In this connection, reference may be made to the decision of a Constitution Bench of thus Court in Pyarali K. Tejani Vs.  Mahadeo Ramchandra Dange and Ors.  (1974 (2) SCR page 154) In the said case, a Dealer in scented ’supari’ was charged for  the offence  of having  sold and  retained  for selling scented  ’supari’ with  saccharin and  cyclamate, in contravention of Section 7(i) (ii) and Rule 47 of Prevention of Food  Adulteration Rules.  In the  said case,  because of such contravention, the dealer was prosecuted for an offence punished under  Section 16(1)  (a) (i)  of the Prevention of Food Adulteration  Act. The  dealer  was  convicted  by  the learned Magistrate by imposing a fine Rs.100/-. On revision, the High  Court enhanced  the punishment  to  the  statutory minimum of six months imprisonment and a fine of Rs. 1000/-. At the hearing of the appeal before this Court, there was no dispute  that   the  article  in  question  which  was  sold contained saccharin and cyclamate. It was however urged that Section 23(i)(b)  empowered the  framing of  Rules regarding the  articles  of  food  for  which  standards  were  to  be prescribed. It  was contended that supari was not a food. It was further  contended that  neither saccharin nor cyclamate was a  bio-chemical risk  and the  blanket ban on the use of those   substances   was   unconstitutional   amounting   to unreasonable restriction  on the freedom of trade guaranteed under Article  19 of the Constitution It was also urged that although saccharin  was permitted  to be  used in carbonated water, restriction  of user  of saccharin in supari amounted to hostile discrimination.      The Constitution  Bench, however,  held that supari was food under  Section 2 (v) of the Act. Food was defined under the Act  in a  very wide amplitude covering any article used as food  and every  component which enters into it including even flavoring  matter and condiments. It was also indicated in  the   said  decision  that  in  offences  relating  food articles, strict  liability was  the rule. Nothing more than actus reus  was needed  where regulation of private activity in vulnerable  areas like public health was intended. Social defence reasonably overpowered individual freedom. Section 7 of the  Prevention of  food Adulteration  Act  had  cast  an absolute obligation   regardless  of scienter, bad faith and mens rea.  There would be no more argument about it. The law had denied  the right  of a  dealer to  rob the  health of a consumer of  supari .  The Constitution Bench in this regard noticed and  relied on  an earlier decision of this Court in Andhra Pradesh  Grain and  Seed  Merchants  Association  Vs. Union of India (1971 (1) SCR 166).

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    The Constitution  Bench also  indicated that lt was not the judicial  function to  enter  the  thicket  of  research controversy  or  scientific  dispute  where  Parliament  has entrusted  the   Central  Government   with  the  power  and therefore, the  duty of  protecting  public  health  against potential  hazards   and  the   Central   Government   after consultation with  the  high  powered  technical  body,  Had prescribed the  use  of  saccharin  and  cyclamate  in  some articles of  food. Where  expertise of  a complex nature was expected of the State in framing rules, the exercise of that power not  demonstrated as  arbitrary must be presumed to be valid as  a reasonable  restriction of the fundamental right of  the  citizen  and  Judicial  review  must  halt  at  the frontiers. The  contention that  there had  been  a  hostile discrimination against  supari vis-a-vis  carbonated  waters was  also   rejected  by  the  Constitution  Bench.  It  was indicated that there was a basis for the distinction and the Courts would  not make easy assumption - of unreasonableness of subordinate  legislation. The  challenge to  the vires of Section  23   (ii)(b)  of   empowering  framing   of   rules uncontrolled and  unguided power  was also  rejected by  the constitution Bench  by indicating the guidelines implicit in the statute,  built into the system, by the contained in the rule and  safeguard of laying the rules before the Houses of Parliament.      It will  be appropriate to mention here that the prayer for release  on  probation  on  good  on  good  conduct  was rejected by  the Constitution  Bench by  indicating that the kindly  application   of  probation   principle  was  to  be negatived  by   the  imperatives   of  social   defence  and improbabilities of  moral proselytisation  The  Constitution Bench had  also not approved imposition of only fine offence under Food Adulteration Act by indicating that the court has jurisdiction to  bring down  sentence to  less than  minimum prescribed in  Section 16(1)  of the Act provided there were adequate and  special reason  in that  behalf normally  food offences should  be deferrently  dealt  with.  When  primary necessaries of life were sold spurious admixtures for making profit, the  common man being at the mercy of vicious dealer had  only   protection  under   the   Prevention   of   Food Adulteration Act  and the court. If offenders could get away with trivial  fine, the  law would  would  be  brought  into contempt.      In the  back drop  of aforsaid  exposition of  law  for offences under the Prevention of Food Adulteration Act it is necessary to  consider the  facts and  circumstances of  the case. In these appeals, there is no dispute that saccharin was not added to Pan Masala and Mouth Freshner. It is contended  that even  if addition  of  saccharin  to  the extent as  stated to  have been  found  by  the  Analyst  is accepted to  have been  correctly determined, such addition, as a  matter of fact, was neither injurious to health nor it degenerated the  articles sold so that they could be branded as adulterated  fact. The ban on the use of saccharin in Pan Masala and touth Freshner was imposed on a misconception and erroneous view  of its injurious effect on human system. But later on,  it has been accepted by the Rule making authority that use  of saccharin  to the  extent of  8000 ppm  in  pan masala will not be harmful for human consumption and Rule 47 of the  Rules has  been amended.  As use of saccharin to the extent of  2000 and  2450 ppm was not injurious to health at any point  of  time,  it  must  be  held  that  even  before amendment of  Rule 47  such use  of saccharin  to the  above extent did  not constitute  an offence for adulterating food with substances injurious to health.

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    In our view, at the relevant time, saccharin content in Pan Masala and Mouth Freshner to the extent of 2000 and 2450 ppm as  found by  the Analyst  was not permissible under the Prevention of  Food Adulteration  Rules. We  have  indicated that such Rule was valid and operative at the relevant time. Hence, there had been violation of the Food Adulteration Act and the  Rules framed  thereunder in  selling Pan Masala and Mouth Freshner  with saccharin content to the extent of 2000 and 2450  ppm. Hence,  the complaints  made  by  the  Health Department  of   Delhi  Administration   and  initiation  of criminal cases  against the  accused cannot  be held  to  be without justification.  It cannot  also be contended that on the face  of the  complaint,  no  offence  was  prima  facie committed. Hence, the impugned decision of the High Court in dismissing the  applications under  section 482  Cr.P.C. can not be held to be unjustified.      It, however,  appears to  us that even if the complaint is accepted to be correct, the only offence committed by the appellants amounts  to technical violation of the mandate of Rule 47  for adding saccharin to the extent of 2000 and 2450 ppm in  the Chutki  Pan  Masala  and  Mouth  freshner.  Such addition of  saccharin   cannot be  held to  be injurious to health because,  considering later  findings on research and analysis  on  the  effect  of  saccharin  on  human  system, addition of  saccharin to  the extent 8000 ppm in Pan Masala has been  allowed by amending Rule 47. The articles sold are not alleged  to be injurious to health and such allegations, even if  made, cannot  be accepted.  There is  no allegation that any other injurious substance was added to the articles sold making  them potentially health hazards. It is also not the case that Pan Masala and Mouth Freshner were of inferior quality and  sub-standard. In  a case like this, the offence committed is  on account  of technical violation of Rule 47. It should  be emphasized that strict adherence to Prevention of food  Adulteration Act and Rules framed thereunder should be insisted  and enforced  for safeguarding  the interest of consumers of  articles of  food. In  the Constitution  Bench decision in Tejani’s case (supra) it has been indicated that in ordered  to prevent  unmerited leniency  in the matter of awarding sentence  for an  offence under  the Prevention  of food Adulteration  Act, the  legislature  by  amendment  has incorporated the  provision of  minimum sentence. But it was also been indicated that the court, for adequate and special reasons,  may   bring  down   the  minimum   sentence.   The Constitution Bench  has also observed that all violations of provisions of  the Act  and Rules  need not be treated alike because "there are violations. In the special facts of these cases, it  appears to  us that  a  defferent  punishment  of imprisonment is  not called  for and  imposition of  fine of will meet  the ends  of justice.  The  criminal  cases  were initiated on the basis of samples taken in 1967. The accused appellants have  already faced the ordeal of criminal trials for a  number of  years.  In  the  aforesaid  circumstances, further agony  of criminal  trial  need  not  be  prolonged. Conclusion of  the criminal  cases will  also save  time and expenditure of the respondent.      In that view of the matter, we direct for quashing the criminal  cases in  question  on  payment  of  costs  at Rs.7500/- in  each of  these appeals  as  in  our  view,  on conviction of the appellants in the criminal cases initiated against them,  such fine would have met the ends of justice. The appeals are accordingly disposed of.      In view of decision in the criminal appeals the Special Leave Petition  (Criminal) No.  2650 of  1995 arising out of the order  of dismissal passed on the writ petition filed by

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the petitioner  in the  Delhi High Court for challenging the vires of  Rule 47  of the  Prevention of  Food  Adulteration Rules, stands dismissed.