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PETITIONER:

M.RAJA MOHAMMED AND ANR.

Vs.

RESPONDENT:

FOOD INSPECTOR, PALGHAT MUNICIPALITY

DATE OF JUDGMENT22/11/1991

BENCH:

YOGESHWAR DAYAL (J)

BENCH:

YOGESHWAR DAYAL (J)

SHETTY, K.J. (J)

CITATION:

1992 AIR 1611 1991 SCR Supl. (2) 390

1992 SCC (1) 372 JT 1991 (4) 503

1991 SCALE (2)1098

ACT:

Prevention of Food Adulteration Rules, 1955: Rules 44(g)

and 47 (As amended by Prevention of Food Adulteration

(Third Amendment) Rules, 1968 and as they stood prior to

Amendment of 15.4.1988)--,Appendix 'B'---Restriction on sale

of Articles containing/Irtificial sweetener/

Saccharin--Prescription of standard of saccharin or any

artificial sweetener in Appendix 'B' is not relevant-Stand-

ard must be prescribed in respect of Article of sale--Stand-

ard must permit user of sweetener in the Article--No stand-

ard laid down for Supari and Pan Masala--Held addition of

artificial sweetener saccharin in Pan Masala and Supari is

prohibited.

HEADNOTE:

The appellant (in Criminal Appeal No. 553/89) was prose-

cuted for selling adulterated supari with admixture of

saccharin. He filed a petition in the Kerala High Court

under section 482 of the Criminal Procedure Code for quash-

ing the criminal proceedings which was dismissed by a single

judge. Against the decision of the single judge an appeal

was filed in this Court.

The appellant (In Criminal Appeal No. 283/91) was also

prosecuted for selling adulterated Supari but was acquitted

by the Chief Judicial Magistrate, Palakkad. On appeal the

Kerala High Court set aside his acquittal and convicted him

under section 16(1) (a) (i) of the Prevention of Food Adul-

teration Act and sentenced him to imprisonment for 6 months

and a fine of Rs.1000. Against the order the Kerala High

Court an appeal was filed in this Court.

The appellant (In Criminal Appeal No. 284/91) was con-

victed ruder section 7(i) and (v) read with sections 16(i)

(a) (ii) of the prevention of Food Adulteration Act for sale

of adulterated supari with admixture of saccharin. He filed

a Revision Petition in the Kerala High Court and a Single

Judge dismissed the same. Against the order of the Single

Judge an appeal was filed in this Court.

The facts in the connected civil appeal (Nos. 3708-

13/89) are that a batch of writ petitions was filed in the

Andhra Pradesh High

391

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Court for a declaration that the admixture of saccharin in

supari was in accordance with Rule 44 of the Prevention of

Food Adulteration Rules, 1955 and for restraining the re-

spondents from interfering with the business of sale of

supari. A Division Bench of the High Court allowed the writ

petitions. Against the decision of the Division Bench Union

of India has filed appeals in this Court.

Civil Appeal No. 1897/91 is directed against the order

of the Division Bench of the Kerala High Court which held

that the learned Single Judge should have declined jurisdic-

tion for the reason that the relief claimed was of a general

character for a declaration that the admixture of saccharin

in Roja Scented betelnut is not a blanket ban under Rule 47

read with Appendix 'B' of the Prevention of Food Adultera-

tion Rules, 1955.

Criminal Appeal No. 722/91 is directed against the order

of the High Court of Kerala 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

High Court did not agree with the submission that the arti-

cle of Supari was not adulterated as saccharin could be

added to Supari. Accordingly it held that saccharin could

not be added to supari and consequently remanded the matter

to the trial court for fresh disposal according to law.

In appeals to this court it was contended on behalf of

the accused that on the construction of Rule 44(c) it per-

mits sale of Article of food which contains artificial

sweetener with the standard as laid down in Appendix 'B' to

Prevention of Food Adulteration Rules, 1955.

Disposing the appeals, this Court,

FIELD: 1. Rule 44(g) of the Prevention of Food Adultera-

tion Rules, 1955 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. 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'. Thus both Rules 44(g) and 47 constitute a

total blanket ban on the addition of any artificial sweeten-

er including saccharin to any article of food

392

unless standards for that article of food is prescribed

which authorises the use of such an artificial sweetener.

[398 G, 399 A-B]

2. The prescription of standard of saccharin or any

artificial sweetener in Appendix 'B' is really irrelevant.

It is not the question of standard being prescribed for

saccharin which is irrelevant what is relevant is the stand-

ard 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. [399 E-F]

3. What one has to see is the article of food in which

the artificial sweetener is sought to be added. The article

which was being sold should contain a standard and the

standard should permit artificial sweetener to be added. If

the standards for that article of food is provided in Appen-

dix '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 artificial sweetener could

be added and not otherwise. [399 A-C]

4. Admittedly no standard has been laid down for Pan

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Masala or Supari i.e. the article of food which was being

sold. Therefore, the exception permitted by clause (g) of

Rule 44 has no application and no relevance. [398 H, 399-A]

Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Ors.,

[1974] 1 S.C.C. 167, explained and applied.

State of Maharashtra v. Ranjitbhai Babubhai Suratwalla,

[1979] FAJ 231; Thummalapudi Venkata Gopala Rao v. The

State. [1986] Crl. L.J. 1699, M/s Wahab and Co. a proprie-

tary concern represented by its' proprietor N.A. Wahab son

of N. Mohammad Sheriff v. Food lnspector. Tiruchirappalli

Municipal Corpn., Trichy. [1990] L.W. (Crl.) 437; Kailash v.

The ,State of Rajasthan, [1985] 1. F.A.C. 282; State of

Assam v. Ram Karani anti Ors., (1987) 3 All India Prevention

of Food Adulleration Journal 153; Ujjain Municipal Corpn.,

Ujjain v. Chetan Das, (1985) I F.A.C. 46, overruled.

State by public prosecutor v.K.R. Balakrishnan, (1986) 1

F.A.C. 384; Food Inspector v. Usman. (1985) K.L.T. 1038;

Krishna Chandra (In jail) v. State of Uttar pradesh, (1990)

1 F.A.C. 35, approved.

393

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION:Criminal Appeal No. 722

of 1991.

From the Judgment and Order dated 21.12.1990 of the

Kerala High Court in Criminal Appeal No. 425 of 1989.

B.R.L. lyanger, R. Mohan, V. Krishnamurthy and V. Bala-

chandran for the Appellants.

P.S. Poti, T.T. Kunhikannan, E.M.S..Anam, Ms. Indira

Sawlmey, P. Parmeswaran, Ms. Sushma Suri, K. Ram Kumar and

Y.P. Rao for the Respondents.

The Judgment of the Court was delivered by

YOGESHWAR DAYAL, J. Special leave granted.

This order will dispose of six matters namely, Crl.

Appeal Nos. 553/ 89, 283/91,284/91, Civil Appeal Nos. 3708-

13/89, 1897/91 and Criminal Appeal arising out of S.L.P.

(Crl.) No. 2647/91.

FACTS

Crl. A. No. 553/89

This appeal arises from the judgment of the learned

Single Judge of the High Court of Kerala dated 6th June,

1988 whereby the learned Single Judge declined to quash the

prosecution of the petitioner therein under Section 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 the report prima

facie goes to show that accused has sold adulterated article

of food and consequently declined to quash the prosecution

under Section 482 of the Code. [1988 (2) K.L.T. 5].

Crl. A. No. 283/91

This appeal is directed against the order of the Kerala

High Court dared 22nd January, 1991 accepting the appeal

against the order of

394

acquittal passed by the Chief Judicial Magistrate, Palakkad,

in S.T No. 36 of 1988. The appeal was filed against the

acquittal of accused Nos. 2 and 3 therein and out of whom N.

Raja Mohammed, the Joint Managing Director of M/S N.V.K.

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Mohammed Sultan Rawther (P) Ltd., is the appellant before

us. The High Court confirmed the acquittal of second accused

but sentenced the appellant before us under Section

16(1)(a)(i) of the Prevention of Food Adulteration Act to

undergo simple imprisonment for six month and to pay a fine

of Rs. 1,000 with a default sentence of simple imprisonment

for two more months.

Crl. A.NO. 284/91.

This appeal is filed against the order dated 21st Decem-

ber, 1990 passed by the learned Single Judge of the Kerala

High Court dismissing the revision petition whereby accused

No. I therein was sentenced to pay Rs. 1,000 as fine and the

two other accused were sentenced to simple imprisonment for

six months each and Rs. 1,000 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

Section 7(i) and (v) read with Section (16) (1) (a) (ii) of

the Prevention of Food Adulteration Act for having sold Roja

Sungandha Suparit with admixture of saccharin. The sample

was taken on 22nd December, 1986.

Civil Appeal Nos. 3708-13/89

These appeals are filed by the Union of India against

the judgment of the Division Bench of the High Court of

Andhra Pradesh dated 16th June, 1986 whereby the Division

Bench following the judgment of a learned Single Judge in

Crl. Misc. Petition No. 1569 of 1984 allowed the writ peti-

tions. A batch of writ petitions were filed for a declara-

tion that the admixture of saccharin in Anjali Sugandhi

Supari; Roja Scented Betelnut; Nizam Supari; A.R.R. Saugan-

tha Supari and Ajantha Sugandhi Supari is in accordance with

Rule 44 of the Rules and restraining the respondents/ appel-

lant herein from interfering with the business of sale of

Supari with such an admixture.

Civil Appeal No. 1897/91

This appeal is directed against the order of the Divi-

sion Bench of the Kerala High Court dated 22nd November,

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

395

is of a general character for a declaration that the admix-

ture of saccharin in Roja Scented Betelnut is not a blanket

ban under Rule 47 read with Appendix B of the Prevention of

Food Adulteration Rules, 1955.

Crl. Appeal at, sing out of SLP (Crl.) No. 2647/91

This appeal is directed against the order of the High

Court of Kerala dated 21st December, 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 view that the

sample was properly taken. On a plea being raises 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 15th

April, 1988 and the amendment of Rule 47 by Notification No.

GSR 454 (E) dated 15.4.1988 (with effect from 15.4.1989) as

covered by GSR 1157 (E) dated 9.12.1988. 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

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arguments and they are extracted hereunder with comments :-

"44.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".

"

"47. 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 Preven-

tion of Food Adulteration (Third Amendment) Rules 1968,

redrafted Rules 44 (g) and 47. and it

396

is these Rules which were extant at the time of the alleged

offence. It is proper at this stage to reproduce these two

Rules:

"44. 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 artifi-

cial sweetener is permitted in accordance with

the standards laid down in Appendix 'B '.

"47.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 addi-

tion of such artificial sweetener is permitted

in accordance with the stand-

ards 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 v.

Mahadeo Ramchandra Dange and Others, [1974] 1 SCC 167 took

the view that at the relevant time the article like saccha-

rin could not be added to the Supan 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 the Supari is concerned. Therefore under

Rule 44(g) there was a total prohibition of use of saccha-

rin, which is an artificial sweetener, to any article of

food including Supari and regarding saccharin it was specif-

ically provided in Rule 47 that it shall not be added to any

article of food, except where the addition of such artifi-

cial sweetener is permitted in accordance with the standards

laid down in Appendix 'B'. Therefore, under Rule 47 again so

far as saccharin is concerned and for which no standards

have been prescribed in Appendix 'B' there was total prohi-

bition of adding the same in any article of food. This was

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the view taken in the aforesaid case of Pyarali K. Tejani.

For the period relevant for the Tejani's case 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 15th April, 1988 are concerned.

We may mention that w.e.f. 15.4. 1988 Rule 44(g) was omitted

and Rule 47 was substituted by new Rules.

397

However, it appears that with effect from 26th May, 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 Suratwalla,

[1979] FAJ 231 (Bombay) distinguished the judgment of the

Supreme Court in Tejani's case (supra) and took the view

that because standards; have been prescribed for saccharin,

Rule 47 permitted its user in article of food. This view was

followed by Single Judge of the Andhra Preadesh High Court

in the case reported as Thummalapudi Venkata Gopala Rao v.

The State, (1986)Cr1 LJ 1699. Asimilar view was taken by

another Single Bench of the Madras High Court in the case

M/s..Wahab and Co., a Proprietory concern represented by its

proprietor M..A Wahab son of N. Mohamed Sheriff v. Food

Inspector, Tiruchirappalli Municipal corparation Trichy;

(1990)L.W.(CrI.)437 with out noticing the earlier cotract

view of the same High Court reported as State by Public

Prosecutor v. K..R. Balakrishnan, (1986) (I) FAC 384. The

Rajasthan High Court also took the same view in the case

reported as Kailash v. The State of Rajasthan, (1985) (I)

FAC 282. The Gauhati High Court in the case reported as

State of Assam v. Rant Karani and Others (1987) (3) All

India Prevention of food Adulteration Journal 153 following

some of the aforesaid decisions also look the view that

addition of artificial sweetener like saccharin in Supari or

Pan-Ka-Masala, if it conforms to the standard 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) (I) FAC

46. followed the view of the Bomaby High Court in the case

reported as Ranjitbhai Babubhai Suratwalla (supra).

On the other banal 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 interpretaion of

Rule 47. The Kerala High Court in the case reported as Food

Inspector v. Usman, (1985) K.L.T. 1038 noticed the view of

the Bombay High Court in Ranjitbhai Babubhai Suratwalla's

case (supra) and dissented from it and held:

"Rule 47 of the Prevention of Food Adultera-

tion Rules provides that saccharin or any

other artificial sweetener shall not be added

to any article of food, except where the addi-

tion of

398

such artificial sweetener is permitted in

accordance with the standards laid down in

Appendix 'B' and where any artificial sweeten-

er is added to any food, the container of such

food shall be labelled with an adhesive de-

claratory label to that effect. That means

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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 sweet-

ener is not permitted by the standards laid

down in Appendix 'B' and the prohibitions

under Rule 47 operates as an absolute prohibi-

tion 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 addi-

tion is prohibited".

Following the decision of the Supreme Court in Tejani's

case the Court set aside the acquittal of accused No. 1 and

sentenced him.

A Division Bench of the Allahabad High Court in Krishna

Chandra (in Jail,) v. State of Uttar Pradesh, (1990) (I)

F.A.C. 35 differed with the earlier decision of the Single

Bench in Ibrahim Hussain v. ,State of Uttar Pradesh and also

differed with the view of the Bombay High Court in Ranjitb-

hai Babubhai Suratwallas case and declined to distinguish

the Tejani's case 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 standard pre-

scribed in Appendix 'B' to the Rules and purported to the

decision of this Court in Tejani's case.

Before us also Mr. B.R.L. lyengar, who appeared for the

accused, made submission that on the construction of Rule

44(g) it permits sale of article of food which contains

artificial sweetener with the standard as laid down in

Appendix 'B' to Rules. We are unable to accept the submis-

sion. We are also unable to accept the decisions of the High

Courts 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 stand-

ard has been laid down for Pan Masala or Supari. It is this

article of food which was being sold. No standard was pre-

scribed for this article of food. Therefore, the exception

permitted by clause (g) has no application

399

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 specifi-

cally 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 Appen-

dix '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

article of food is provided in Appendix 'B' to the Rules and

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such standards permit the addition of saccharin or any other

artificial sweetener, then and then only saccharin or any

other artificial sweetener could be added and not otherwise

not.

It appears that the Bombay High Court and the other High

Courts which have taken the opposite view seem to have

fallen into errors while interpreting Rule 44(g1. They have

assumed as if once the standards of saccharin or the artifi-

cial 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's case 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 pre-

scribed for saccharin 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 pre-

scribed.

In this view of the matter, we agree with the decisions of

the Kerala High court in Food Inspector v. Usman (1985)

K.L.T. 1038; Allahabad High Court in Krishna Chandra, (in

Jail) v. State of Uttar Pardesh, 1990 (I) F.A.C. 35 and

Madras High Court in State by Public Prosecutor v. K.R.

Balakrishnan, 1986 (1) F.A.C. 384.

The decisions in: State of Maharashtra v. Ranjitbhai

Suratwalla, 179 FAJ 231 (Bombay) the Bombay High Court;

Thummalapudi Venkata Gopala Rao v. The State. (1986) Crl.

L.J. 1699 of the Andhra Pradesh High Court; M/s. Wahab and

Co., a Proprietory concern represented by its proprietor

M.,A. Wahab son of N. Mohammed Sheriff v. Food Inspec-

400

tor, Tiruchirapalli Municipal Corporation, Trichy, (1990)

L.W. (Crl.) 437 of the Madras High Court; Kailash v. The

State of Rajasthan, 1985 (I) F.A.C. 282 of the Rajasthan

High Court; The State of Assam v. Ram Karani and Others,

1987 (3) All India Prevention of Food Adulteration Journal

153 of the Gauhati High Court and Ujjain Municipal Corpora-

tion, Ujjain v. Chetan Das, 1985 (I) F.A.C. 46 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 16th June, 1986 is set aside Crl. Appeal

Nos. 553/89, 283/91,284/91, Civil Appeal No. 1897/91 and the

appeal arising out of S.L.P. (Crl.) No. 2647/ 91 are dis-

missed. -

T.N.A. Appeals dis-

posed of.

1

401