PETITIONER:
MURLIDHAR MEGHRAJ LOYA ETC.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA ETC.
DATE OF JUDGMENT19/07/1976
BENCH:
KRISHNAIYER, V.R.
GOSWAMI, P.K.
CITATION:
1976 AIR 1929 1977 SCR (1) 1
ACT
Prevention of Food Adulteration Art, 1954--5. 16,
proviso--Scope of.
Accused pleaded guilty--If lesser sentence could be awarded.
HEADNOTE
An analysis of a sample of khurasani oil from the appel-
lants’ mill collected by the Food Inspector showed 30%
groundnut oil content amounting to contravention of r. 44(a)
of the Rules which prohibits sale of a mixture of two or
more edible oils as an edible oil. The appellants were
charged with an offence under s. 2(i) of the Act read with
ss. 7 and 16(1)(a) and r. 44(a). The appellants having
pleaded guilty, each of them was sentenced to pay a small
fine. On revision, the High Court converted the offence
into one under s. 2(i) (a) read with s. 16(1) and enhanced
the sentence to a minimum of six month, imprisonment and
fine of rupees one thousand on the ground that the offence
committed by them fell within s. 16(1)(a) and did not fall
within the proviso to that section.
On appeal to this Court it was contended that even
assuming s. 2(i)(a) is all comprehensive it must be read as
the genus and thereafter sub-clauses (b) to (e) fall under
two broad categories namely adulteration with injurious
substances and adulteration with innocent additions or the
substance sold merely violates a standard or degree of
purity prescribed and in this case the offence would fall
under the non-injurious type covered by s. 2(i)(1).
Dismissing the appeal,
HELD: 1. (a) Sub-clause (a) of s. 2(1) has a wide sweep.
There causes be any doubt that if the article asked for is
100% khurasani oil and the article sold is 70% khurasani oil
and 30% groundnut oil, the supply ’is not of the nature,
substance and quality which it purports or is represented to
be. [4 E]
(b) It is not possible to invoke the proviso to s. 16(1)
and the High Court is legally right in its conversion of the
provision for conviction and enhancement of the sentence.
Though s. 2(i)(a) is read speciously and if the facts al-
leged are accommodated by the definition of adulteration
under that sub-clause, s. 16.(1) is attracted. The first
proviso to s. 16(1) will be attracted if and only if s.
2(i)(1) applies. [4 F-G]
In the present case the facts disclose that the offence
is both under s. 2(i)(a) and under s. 7(v) for breach of r.
44(e). Section 2(i)(1) is repelled on the facts and this is
not a case. where either s. 2(i)(1) or r. A17.12 applies.
2.(a) The proviso cannot apply in extenuation and the
High Court was right in convicting the appellants. Judicial
compassion can play upon the situation only if the offence
is under s. 16(1)(a)(i) and the adulteration is one under s.
2(i)(1). The proviso applies if the offence is under cl.
(a)(ii), that is to say, the offence is not one of adultera-
tion but is made up of a contravention of the other provi-
sions of the Act or of any rule made thereunder. Since in
this case the offence falls under s. 2(i)(a) proviso (ii)
has no application. [5 E-F]
(b) The judicial jurisdiction to soften the sentence
arises if the offence of adulteration falls only under s.
2(i)(1). This case does not fall under this sub-clause. [5
G]
[The Court drew attention to (a) the propriety of ac-
cepting by the prosecution and the Courts the accused’s plea
of guilty of a lesser offence in dangerous economic crimes
and food offences and (b) in view of the fact that a sub-
stantial number of cases of the kind were withdrawn by the
Government because
2
variably groundnut oil is observed in Khurasani oil, the
Government may consider whether in the circumstances of
this case it is not a matter for exercise its commutation
powers].
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 314315
of 1976.
Appeals by special leave from the Judgment and order
dated 4-1975 of the Bombay High Court in Criminal Revision
Appln. No. 1115/73.
M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S. Narasimhan, 7 3
. K. Mathur and A.K. Sharma, for the Appellants.
M.N. Phadke and M.N. Shroff, for the Respondents.
The Judgment of the Court was delivered by
KRISHNA IYER, J.--Judicial fluctuations in sentencing
and societal seriousness in punishing have combined to
persuade Parliament to prescribe inflexible, judge-proof,
sentencing minima in the Food Adulteration law. This depri-
vatory punitive strategy sometimes inflicts harsher-than-
deserved compulsory imprisonment on lighter offenders, the
situation being beyond judicial discretion even if prosecu-
tion and accused consent to an ameliorative course. The
two appeals, by special leave, partially illustrate this
proposition. Khurasani oil is an edible oil extracted by
crushing oil seeds in mills. Groundnut oil, also edible, is
expressed likewise. A firm by name almukand Hiralal Loya &
Co., in a minor town in Maharashtra, ms an oil mill where
Khurasani oil and groundnut oil are manufactured by the
firm. Sometimes they crush oil seeds for others on ire who
pay milling charges.
The appellants in Criminal Appeal No. 314 are the manag-
ing partner and the manager of the mill and the appellant in
Criminal appeal No. 315 is the operator of the expeller in
the mill who actual sold the offending commodity. On Febru-
ary 16, 1972 the Food inspector of Bhagur Municipality
walked into the sales section of the Mill, asked for 375
grams of khurasani oil from accused no. 8, appellant in
Criminal Appeal No. 315. The quantity required was applied
and, thereafter, the Food Inspector went through the statu-
tory exercises preparatory to an analysis by the Public Ana-
lyst. After receiving the report of the Analyst to the
effect that the sample of hurasani oil sent for analysis
contained 30% of groundnut oil which amounted to a contra-
vention of rule 44(e) of the Prevention of Food Adultera-
tion Rules (for short, the rules), a complaint was lodged
for selling adulterated food within the meaning of s. 2(i)
of he Prevention of Food Adulteration Act (hereinafter
called the Act) read with ss. 7(1) and 16 (1)(a) and
r.44(e). Evidence was led to make out a prima facie case.
The accused were questioned under s. 342 Cr.P.C., and the
appellants confidently pleaded guilty to the charge where-
upon the trial Magistrate, perhaps agreeably to expecta-
tions, sentenced them each to a piffling fine of
3
Rs. 250. Although the whole process in court is strongly
suggestive of a tripartite consensual arrangement and re-
minds one of pie, bargaining procedures in the United States
of America, the State Government appears to have taken a 7 3
trate’s adroit avoidance of the penal provisions which
obligate him to inflict a minimum prison sentence, viz., s.
2(i)(a) and s. 16(1) with a view to apply the proviso to s.
16(1). This is, at best, a conjecture about the Magistrate
and might as well be imputed to the prosecutor and the food
inspector. However, the State filed a revision to the High
Court against the illegal and ultra-lenient impost. The
revisional Judge converted the offence into one under s.
2(i)(a) read with s. 16(1 and enhanced the sentence to the
minimum of six months an Rs. 1,000 by way of fine on the
ground that the offence committee by the accused squarely
fell within s. 16(1)(a) and did not face within the proviso
of that provision which vests a guarded discretion in the
Court to soften the sentence to special cases. The appel-
lants, shocked by this drastic reversal of fortune at the
High Court’s hand: have sought restoration of the Magis-
trate’s conviction and sentence If this aggravated convic-
tion is correct, the enhanced punishment is inescapable.
The circumstances leading up to and constituting the
offence hay ’been briefly set out already and the divergence
between the trial court and the High Court turns on the
legal inferance to be drawn from the factual matrix. Has
there been adulteration of food, in the sens imputed to that
expression by s. 2(i)(a)? Assuming it fails under s. 2(i)
(1) of the definition, does that factor exclude it from s.
2(i) (a) Even if s. 2(i)(a) does apply, is the benigrant
proviso to s. 16(1 attracted on the score that the crime in
this case constitutes a violation of r. 44(e) prescribing
minimum standards? These questions agricultural to the
submission made by Shri Bhandare for the appellants. his
argument being that the scheme of s.2 is to erect separate
corn apartments for the many types of adulteration so that
if a food article is adulterated within the meaning of
s.2(i)(1) more appropriately it falls outside the ambit of
s.2(i)(a). Otherwise, he argues, there is no point in
itemising the various sub-divisions even though he con cedes
that marginally there may be overlapping among the sub-
clauses He further contends that even assuming that
s.2(i)(a) is all-corn prehensive, it must be read as the
genus and thereafter sub-clause (b) to (1) fall under two.
broad categories, viz., adulteration where injurious sub-
stances have been admixed and adulteration where innocent
additions have been made or the substances sold merely
violate a standard or degree of purity prescribed. If there
were force in this submission, the culpa, according to
counsel, could reasonably ’fall under the non-injurious type
of adulteration covered by s.2(i)(1) The statute, says Shri
Bhandare, sensibly dichotomises the senreno. and invests a
discretion in the court in the second category to reduce the
sentence below the minimum stipulated, if special reasons
exist for such clemency. Of course, counsel concedes that
if the adulteration is of the injurious brand, judicial
sympathy is statutorily supplanted 73
4
this, he reasons, fits into and explains the scheme of s.16
which is a penal provision with dual limbs.
We wilt examine the validity of this interpretative
dissection. Indeed, if this somewhat strained argument
fails,. everything fails because, otherwise, the appellants
have glibly convicted themselves, but of their own mouth, by
an unusually obliging ’yes’ to every material question under
s.342 Cr. P. Code. Thus, on the merits, the sole question
is about the proper offence made out on the facts admitted.
This, in turn, depends on the acceptability of the interpre-
tative dexterity displayed by counsel for the appellants.
It is trite that the social mission of Food Laws should
inform the interpretative process so that the legal blow may
fail .on every adulterator. Any narrow and pedantic, liter-
al and lexical construction likely to leave loopholes for
this dangerous criminal tribe to sneak out of the meshes of
the law should be discouraged. For the new criminal juris-
prudence must depart from the old canons, which make indul-
gent presumptions and favoured constructions benefiting
accused persons and defeating criminal statutes Calculated
to protect the public health and the nation’s wealth. This
humanist approach and cute construction persuades us to
reject Shri Bhandare’s analysis of s.2(1). Sub-clause (a)
of s.2(i) has a wide sweep and loyalty to the intendment of
the statute forbids truncating its ambit. There cannot be
any doubt that if the article asked for is 100% khurasani
oil and the article sold is 70% khurasani oil and 30%
groundnut oil, the supply ’is not of the nature, substance
or quality which it purports or is represented to be’ The
suggestion that there is no format evidence of representa-
tion or prejudice as stated in the section does not merit
consideration being a quibble over a trifle.
If we read s.2(i)(a) spaciously and if the facts alleged
are accommodated by the definition of ’adulteration’ under
that sub-clause,. s. 16 ( 1 ) is attracted. The first
proviso to s. 16 ( 1 ) will be attracted if and only if
s.2(i)(1) applies. In the present case the facts disclose
that the offence is both under s.2(i)(a) and under s. 7(v)
for breach of r.44(e). Section 2(i)(1) is repelled on the
facts and it is obvious that this is not a case where either
s.2(i)(1) or r.A 17.12 urged by Shri Bhandare applies. In
this view it is not possible to invoke the amelioratory
proviso to s.16(1) and the High Court is legally right in
its conversion of the provision for conviction and enhance-
ment of the sentence.
We unhesitatingly hold that if s.2(i)(a) adequately fits
in, adulteration under that provision must be found. 73
Once this position is made plain, the penalty that the
appellants must suffer is fool-proof. Section 16 lays down
the penalties and classifies them. We are particularly
concerned with s,16(1) of the Act which itself clubs togeth-
er many categories out of which we have to pick out only two
for the purposes of this case, viz., (i) sale of any article
of food which is adulterated; and (ii) sale of any article
of
5
food other than one which is adulterated---’in
contravention of any of the provisions of this Act or of any
rule made thereunder’. Ordinarily, both these clauses. of
offences are punishable with the minimum prescribed ’of not
less ,than six months’ imprisonment, together with fine
which shall not be less than Rs. 1,000/-’. However, there is
a kindly proviso which confers on the court a power to be
exercised for any adequate and special reasons to be men-
tioned in the judgment whereby a sentence of imprisonment
for a lesser term than six months or of fine smaller than
Rs. 1,000/- or of both may be imposed, but this more moder-
ate punitive net is conditioned by the proviso itself. We
may read the proviso:
"Provided that--
(i) if the offence is under sub-clause (i) of
clause (a) and is with respect to an article of
food which is adulterated under sub-clause (1) of
clause (i) of sec. 2 or misbranded under sub-
clause (k) of clause (ix) of that section; or
(ii) if the offence is under sub-clause (ii) of
clause (a).
the court may for any adequate and special reasons
to be mentioned in the judgment, impose a sentence
of imprisonment for a terms of less than six months
or of fine of less than one thousand rupees or of
both imprisonment for a term of less than six
months and fine of less than one thousand rupees."
Judicial compassion can play upon the situation only if
the offence is under sub-cl. (i) of cl. (a) of s.16(1) and
the adulteration is one which fails under sub-cl. (1) of el.
(i) of s.2. Secondly, the proviso also applies if the
offence is under sub-cl. (ii) of el. (a), that is to say,
the offence is not one of adulteration but is made up of a
contravention of any of the other provisions of the Act or 7 3
already found that the accused is guilty of an offence of
adulteration of food under s.2(i)(a). Therefore, proviso
(ii) is out. Proviso (i) will be attracted, according to
Shri Bhandare, if s.2(i)(1) applies to the species of adul-
teration committed. In our view, the only sensible under-
standing of proviso (i) is that judicial jurisdiction to
soften the sentence arises if the offence of adulteration
fails only under sub-cl. (1) of cl. (i) of s.2 and we have
held that it does not. We cannot but deplore the clumsy
draftsmanship displayed in a statute which affects the
common man in his daily bread. It is unfortunate that easy
comprehensibility and simplicity for the laity. are discard-
ed sometimes through oversophisticated scholarship in the
art of drawing up legislative bills. It cannot be over-
stressed that a new orientation for drafting methodology
adopting directness of language and avoiding involved refer-
ence and obscurity is overdue. Be that as it may, in the
present case s.2(i) (a) applies and s.16(1)(a) has been
breached. Therefore the proviso cannot be applied in exten-
uation and the conviction of the High Court has to be up-
held.
6
The possibility of long argument in a case where the
accused has pleaded guilty arises because the provision
lends itself to adroit exercises. The court has to look at
the interpretative problem in the social setting of the
statute, visualising the rough and tumble of the market
place, the finesse with which clever victuallers fob off
adulterated edibles and gullible buyers goofily fall victim.
Viewed this way, chasing recondite semantics or niceties of
classification or chopping of logic has no scope for play.
The appeals must fail, without more. But we have to take
note of a few circumstances of significance brought to our
notice by counsel for the appellant .with which the State’s
counsel could not express serious disagreement, although he
made no concessions.,
We now proceed to refer to these factors which do not
deflect us from confirming the conviction. The curtain has
been drawn thereon.
To begin with, we are free to confess to a hunch that
the appellants had hastened with their pleas of guilty
hopefully, induced by an informal, tripartite understanding
of light sentence in lieu of nolo contendere stance. Many
economic offenders resort to practices the American call
’plea bargaining’, ’plea negotiation’, ’trading out’ and
’compromise in criminal cases’ and the trial magistrate
drowned by a docket burden nods assent to the sub rosa
ante-room settlement. The business-man culprit, confronted
by a sure prospect of the agony and ignominy of tenancy of a 7 3
being a plea of guilt, coupled with a promise of ’no jail’.
These advance arrangements please everyone except the dis-
tant victim, the silent society. The prosecutor is relieved
of the long process of proof, legal technicalities and long
arguments, punctuated by revisional excursions to. higher
courts, the court sighs relief that its ordeal, surrounded
by a crowd of papers and persons, is avoided by one case
less and the accused is happy that even if legalistic bat-
tles might have held out some astrological hope of abstract
acquittal in the expensive hierarchy of the justice-system
he is free early in the day to pursue his old professions.
It is idle to speculate on the virtue of negotiated settle-
ments of criminal cases, as obtains in the United States but
in our jurisdiction, especially in the area of dangerous
economic crimes and food offences, this practice intrudes on
society’s interests by opposing society’s decision expressed
through pre-determined legislative fixation of minimum
sentences and by subtly subverting the mandate of the law.
The jurists across the Atlantic partly condemn the bad odour
of purchased pleas of guilt and partly justify it philosoph-
ically as a sentence concession to a defendant who has, by
his plea ’aided in ensuring the prompt and certain applica-
tion of correctional measures to him’,
"In civil cases we find compromises actually
encouraged as a more satisfactory method of set-
tling disputes between individuals than an actual
trial. However, if the dispute ... finds itself in
the field of criminal law, "Law Enforcement" repu-
diates the idea of compromise as immoral, or at
best a necessary evil. The "State" can never com-
promise. It must
7
enforce the law." Therefore open methods of com-
promise are impossible."
(Arnold, Law Enforcement--An Attempt at Social Dissec-
tion, 42 Yale L.J. 1, 19 (1932).
We have no sanction, except surreptitious practice in
some courts, for ’trading out’ of punitive severity although
this aspect of the criminal system deserves Indian jurists’
consideration. The sole relevance of this digression in
this judgment is to highlight the fact that the appellants
perhaps acted on an expectation which came to pass at the
trial level but was reversed at the appellate level and this
touch of ’immorality’ in the harsh morality of the punish-
ment is a factor counsel wants us to take note of. But we
can do nothing about it when the minimum is set by the 7 3
justice to the citizen and relieve over-worked courts by
more judicial agencies and streamlined procedures instead of
leaving the uninformed public blindly to censure delayed
disposals.
One real reason for long litigation is inaction or
ineffective action of the legislature. All knowledgeable
law-men may concede that the procedures in municipal and
higher courts are ossified to the point, priced to the
level, and slow to the degree where they cannot flexibly
assist disputants in early resolution of their everyday
disputes. This, we hope, will change and the source of the
evil eliminated.
The next draft on the court’s commiseration, made by
counsel, is based on the milling operation realities sur-
rounding the commission of the crime. It is asserted by the
appellant’s advocate--and not seriously controverted by his
opponent that the small town milling practice is multi-
purpose, in the sense that whoever brings any edible oil-
seed for extraction of oil gets it done so that ground-nut
crushing may be followed by Khurasani seed or some other oil
seed may chance to take turns by rotation. Even the mill-
er’s own oil seeds may be sometimes khurasani; at other
times, some other. This process may result in the residue
of one getting mixed up with the next. May be, innocently
some groundnut oil, in the present case, got into the khu-
rasani oil by the same expeller handling both. Even so, the
presence of 30% groundnut oil is, perhaps too high an admix-
ture to be explained away this easy way. While we appreci-
ate the situation we must adhere to the provision. Where the
law lays down an absolute liability, alibis cancelling mens
tea are out of bounds.
The last plea, urged ex mesericordium, ameliorative in
appeal and unavailing against conviction, is that actually
groundnut oil costs more and so profit motive stands nega-
tived, that the mixture of these edible oils, though techni-
cally forbidden, is in fact non-injurious and a terrifying
term of six months’ rigorous imprisonment is unjust. The
facts are probably right but ex necessitate legis the court
has to inflict the heavy minimum sentence. While in stray
cases a jail term even in a trivial food offence may. look
harsh, Parliament, in its wider wisdom, and having
regard .to social defence in a sensitive area standardised
the sentence by insisting on a minimum, ignoring exceptional
2--1003SC1/76
8
cases where leniency is needed. Individual hardships deserv-
ing of lighter sentence are sometimes exploited by counsel’s 7 3
offenders milder punishments. It is worthy of note though
that in the present case the mixing of the two oils is a
motiveless act. May be. And the circumstances above-men-
tioned add up to a plea for paring down the sentence and
Shri Bhandare, for the appellants, sought to wheedle us into
lending evedence to these circumstances and bring down. the
offence to a lesser one. Logically and sociologically and,
above all, legally, such a course is impermissible. Never-
theless, there is one circumstance which has impressed us
not to the extent of undoing the sentence imposed by the
High Court but of drawing the attention of the top executive
to what may justly be done by way of remission of sentence.
The appellants have sworn an affidavit in this Court stating
that khurasam oil is the same as nigar-seed oil. This is
backed by a certificate from the Maharashtra Chamber of
Commerce and is evidently correct. What is more important is
that the appellants, when surprised by a modification of
their sentence to a heavier one for what they thought was
undeserving, moved in the matter of cases generally of
adulteration of khurasani oil with groundnut oil. They drew
the attention of the authorities to punishment of innocents
and it appears that the. State Government was satisfied
about this grievance and has since withdrawn a substantial
number of cases against dealers of khurasani oil whose sales
were contaminated with presence of groundnut oil. The affi-
davit on behalf of the appellants states:
"I further say that various cases filed by
the respondents against the dealers of khurasani
oil are now being withdrawn as invariably groundnut
oil is observed in khurasani oil. I crave leave to
refer to and rely on the Journal of Maharashtra
Chumher Patrika dated 21st September, 1975, when
produced."
Probably, had the present case survived till the government
took action, it might have been withdrawn. Moreover, there
are circumstances suggesting of innocent admixture although
it is beyond us to pronounce definitely on this aspect and
it is not for us to enquire into the matter when s. 16( 1 )
is clear and the sentence is legal. Nevertheless, it may be
appropriate for government to consider whether in the cir-
cumstances of this case--and in the light of the observa-
tions made by us in this judgment--it is not a matter for
exercise of commutation powers. Sentencing policy has a
punitive and a correctional role and we are sure that what
is the need of the appellants will be meted out to them if
they deserve any activist administrative empathy at all.
accordingly dismiss the appeals.
P.B.R. Appeals 7 3
9