http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

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).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

the petitioner in the Delhi High Court for challenging the

vires of Rule 47 of the Prevention of Food Adulteration

Rules, stands dismissed.