M. Raja Mohammed and Another vs Food Inspector, Palghat Municipality

Yogeshwar Dayal, J.—Special leave granted.

This order will dispose of six matters namely, Criminal Appeal Nos. 553 of 1989, 283 of 1991, 284 of 1991 Civil Appeal Nos. 3708-13 of 1989, 1897 of 1991 and criminal appeal arising out of SLP (Cri.) No. 2647 of 1991. Facts

Cri. A. No. 553 of 1989

This appeal arises from the judgment of the learned Single Judge of the High Court of Kerala dated June 6, 1988 whereby the learned Single Judge declined to quash the prosecution of the Petitioner therein u/s 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 that the report prima facie goes to show that accused has sold adulterated article of food and consequently declined to quash the prosecution u/s 482 of the Code Gopi v. State of Kerala, (1988)2 KLT 5.

Cri. A No. 283 of 1991

This appeal is directed against the order of the Kerala High Court dated January 22, 1991 accepting the appeal against the order of acquittal passed by the Chief Judicial Magistrate, Palakkad, in S.T. No. 36 of 1988. The appeal was filed against the acquittal of accused 2 and 3 therein and out of whom N. Raja Mohammed, the Joint Managing Director of M/s. N. v. K. Mohammed Saltan Rawther (P) Ltd., is the Appellant before us. The High Court confirmed the acquital of accused 2 but sentenced the Appellant before us u/s 16(1)(a)(i) of the Prevention of Food Adulteration Act to undergo simple imprisonment for six months and to pay a fine of Rs 1000 with a default sentence of simple imprisonment for two more months.

Cri. A No. 284 of 1991

This appeal is filed against the order dated December 21, 1990 passed by the learned Single Judge of the Kerala High Court dismissing the revision petition whereby accused 1 therein was sentenced to pay Rs. 1000 as fine and the two other accused were sentenced to simple imprisonment for six months each and Rs 1000 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 Sections 7 (i) and (v) read with Sections (16) (1)(a)(ii) of the Prevention of Food Adulteration Act for having sold Roja Sugandha Supari with admixture of saccharin. The sample was taken on December 22, 1986.

Civil Appeal Nos. 3708-13 of 1989

These appeals are filed by the Union of India against the judgment of the Division Bench of the High Court of Andhra Pradesh dated June 16, 1986 whereby the Division Bench following the judgment of a learned Single Judge in Cri. Misc. Petition No. 1569 of 1984 allowed the writ petitions. A batch of writ petitions were filed for a daclaration that the admixture of saccharin in Anjali Sugandhi Supari; Roja Scented Betel-nut; Nizam Supari; A R.R. Sugandha Supari and Ajanth Sugandhi Supari is in accordance with Rule 44 of the Rules and restraining the Respondents/appellant herein from interfering with the business of sale of supari with such an admixture.

Civil Appeal No. 1891 of 1991

This appeal is directed against the order of the Division Bench of the Kerala High Court dated November 22, 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 is of a general character for a declaration that the admixture of saccharin in Roja Scented Betel - nut is not a blanket ban under Rule 47 read with Appendix B of the Prevention of Food Adulteration Rules, 1955.

Criminal appeal arising out of SLP (Cri) No. 2647 of 1991

This appeal is directed against the order of the High Court of Kerala dated December 21, 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 veiw that the sample was properly taken. On a plea being raised 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 April 15, 1988 and the amendment of Rule 47 by Notification No. GSR 454(E) dated April 15, 1988 (with effect from April 15, 1988) as corrected by GSR 1157(E) dated December 9, 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

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.

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 Prevention of Food Adulteration (Third Amendment) Rules, 1968, redrafted Rules 44 (g) and 47, and it is these rules which were extant at the time of the alleged offence. It is proper at this stage to reproduce these two rules:

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 artificial sweetener is permitted in accordance with the standards laid down in Appendix B.

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 addition of such artificial sweetener is permitted in accordance with the standards 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 Vs. Mahadeo Ramchandra Dange and Others, took the view that at the relevant time the article like saccharin could not be added to the supari 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 supari is concerned. Therefore under Rule 44 (g) there was a total prohibition of use of saccharin, which is an artificial sweetener, to any article of food including supari and regarding saccharin it was specifically provided in Rule 47 that it shall not be added to 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, under Ruler 47 again so far as saccharin is concerned and for which no standards have been prescribed in Appendix 'B' there was total prohibition of adding the same in any article of food. This was the view taken in the aforesaid case of Pyarali K. Tejani.2 For the period relevant for the Tejant case2 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 April 15, 1988 are concerned. We may mention that w.e.f. April 15, 1983 Rule 44 (g) was omitted and Rule 47 was substituted by new Rules.

However, it appears that with effect from May 26, 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 Suratwala (1979) FAJ 231: (1979)1 FAC 206 (Bom) distinguished the judgment of the Supreme Court in Tejant case2 and took the view that because standards have been prescribed for saccharin, Rule 47 permitted its user in articles of food. This view was followed by Single Judge of the Andhra Pradesh High Court in the case reported as Thummalapudi Venkatd Gopala Rao v. State 1986 Cri. LJ 1699: (1986) 1 APLJ (AP) 42 A similar view was taken by another Single Bench of the Madras High Court in the case Wahab and Company v. Food Inspector 1990 LW (Cri) 437 (Mad) without noticing the earlier contrary view of the same High Court reported as State by Public Prosecutor v. K.R. Balakrishnan. (1986) 1 FAC 384: AI Cr LR 686 (Mad) The Rajasthan High Court also took the same view in the case reported as Kailash v. State of Rajasthan (1985)1 FAC 282: 1985 Raj LR 238: 1985 CrLR (Raj 167. The Gauhati High Court in the case reported as State of Assam v. Ram Karani (1987) 3 FAJ 153: (1987) 1 FAC 343 (Gau) following some of the aforesaid decisions also took the view that addition of artificial sweetener like saccharin in supari or pan-ka-masala, if it conforms to the standards 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 1 FAC 46 (MP) followed the view the Bombay High Court in the lease reported as Ranjitbhai Babubhai Suratwala3.

On the other hand 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 interpretation of Rule 47. The Kerala High Court in the case reported as Food Inspector v. Usman 1985 KLT 1038 (Ker) noticed the view of the Bombay High Court in Ranjitbhai Babubhai Suratwala3 and dissented from it and held:

Rule 47 of the Prevention of Food Adulteration Rules provides that saccharin or any other artificial sweetener shall not be added to any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standards 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 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 sweetener is not permitted by the standards laid down in Appendix 'B' and the prohibition under Rule 47 operates as an absolute prohibition 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 addition is prohibited.

Following the decision of the Supreme Court in Tejani case2 the Court set aside the acquittal of accused 1 and sentenced him.'

A Division Bench of the Allahabad High Court in Krishna Chandra v. State of U.P. (1990) 1 FAC 35: 1990 FAJ 335 (All) differed with the earlier decision of the Single Bench in Ibrahim Hussian v. State of U. P (1984)1 FAC 143 (All) and also differed with the view of the Bombay. High Court in Ranjitbhai Babubhai Suratwala case3 and declined to distinguish the Tejani case2 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 the standard prescribed in Appendix 'B' to the Rules and purported to follow the decision of this Court in Tejani case

Before us also Mr. B.R. L. Iyengar, who appeared for accused made submission that on the construction of Rule 44(f) it permits sale of any article of food which contains artificial sweetener with the standard as laid down in Appendix 'B' to the Rules. We are unable ' to accept the submission. We are also unable to accept the decisions of the High Court 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 standard has been laid down for pan masala or supari. It is this article of food which was being sold. No standard was prescribed for this article of food. Therefore, the exception permitted by Clause (g) has no application 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 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'. 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 Appendix '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 articles 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 artifical sweetener, could be added and not otherwise.

It appears that the Bombay High Court and the other High Courts which have taken the opposite view seem to have fallen into error while interpreting Rule 44(g). They have assumed that if once the standards of saccharin or the artificial 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 case2 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 prescribed for sacharin 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 prescribed.

In this view of the matter, we agree with the decision of the Kerala High Court in Food Inspector v. Usman; Allahabad High Court in Krishna Chandra v. State of U.P. and Madras High Court in State by Public prosecutor v. K R. Balakrishnan.

The decisions in State of Maharashtra v. Ranjitbhai Babubhai Suratwalas of the Bombay High Court; Thummolapudi Venkata Gopala Rao v. State of the Andhra Pradesh High Court; Wahab and Co, v. Food Inspector of the Madras High Court; Kailash v. State of Rajasthan of the Rajasthan High Court; State of Assam v. Ram Karani of the Gauhati High Court and Ujjain Municipal Corporation Ujjain v. Chetan Das 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 June 16, 1986 is set aside. Criminal Appeal Nos. 553 of 1989, 283 of 1991, 284 of 1991, Civil Appeal No. 1897 of 1991 and the appeal arising out of SLP (Crl) No. 2647 of 1991 are dismissed.