PETITIONER:
PREM BALLAB & ANR
Vs.
RESPONDENT:
THE STATE (DELHI ADMINISTRATION)
DATE OF JUDGMENT15/09/1976
BENCH:
BHAGWATI, P.N.
FAZALALI, SYED MURTAZA
CITATION:
1977 AIR 56 1977 SCR (1) 592
1977 SCC (1) 173
ACT
Prevention of Food Adulteration Act 1954--Sec. 16 (1)
(a) (i) --2 (1)---2 (1) (c) --2(1)(j)--2(1)(l)--Prevention
of Food Adulteration Rules Rules 23-28 and 29--Can convic-
tion be based on sole testimony of a Food Inspector--Can an
article fall under clause (j) & (I) of Sec. 2(i)--Are they
mutually exclusive or overlapping--When rules are silent
about colouring material can use of dye be punished--Do
provisions of probation of offenders Act apply to offences
under the prevention of Food Adulteration Act.
HEADNOTE
The second appellant was the owner of a grocery shop and
the first appellant was his salesman in the shop. Food
Inspector Bhanot purchased a sample from appellant No. 1 of
mustard oil after complying with the formalities prescribed
by the Act. The Public Analyst reported that the sample was
misbranded as it was of in-seed oil and it was adulterated
due to the presence of artificial dye. The appellants were
charge-sheeted under section 16(1)(a)(i). The learned Magis-
trate convicted the appellants and sentenced them to suffer
rigorous imprisonment for 9 months.
On appeal, the learned Sessions Judge confirmed the
conviction but reduced the sentence from 9 months to 6
months. The High Court, in revision upheld the decision of
the Sessions Judge.
On appeal of Special Leave the appellants contended:
1. The conviction was bad since it rested solely
on the evidence of Food: Inspector Bhanot.
2. The offence committed by the appellants on
the opinion of the Public Analyst fell under sec-
tion 16(1)(a)(i) read with clause (1) of section 2
(i) and, therefore, the Court had discretion under
the proviso to section 16(1) to impose a lesser
sentence than the minimum of 6 months.
3. In any event, the benefit of the Probation of
Offenders Act, 1958,, should be given to the appel-
lants.
Dismissing the appeal,
HELD: 1. There is no rule of law that conviction cannot
be based on the sole testimony of a Food Inspector. It is
only out of a sense of caution that the courts insist that
the testimony of a Food Inspector should be corroborated by
some independent witness. This is a necessary caution which
has to be borne in mind because the Food Inspector may in a
sense be regarded as an interested witness. But this cau-
tion is a rule of prudence and not a rule of law. If it were
otherwise it would be possible for many guilty persons to
escape punishment by resorting to the device of bribing
Panch witnesses. In the present case, the sample was taken
in the presence of witness Krishan Datt Sharma who has
turned hostile. His explanation is palpably dishonest and
cannot be accepted. There is also the evidence of another
Food Inspector Bhatnagar. The Courts below accepted their
evidence and there is no reason to interfere with the con-
current view taken by the courts below. [595A-G]
2. Section 2(1) defines "Adulterated" and says that an
article of food shall be deemed to be adulterated if the
article fails within the description given in my of the
succeeding clauses (a) to (1). Clause (j) provides that an
article of food shall be deemed to be adulterated if any
colouring matter other than
593
that prescribed in respect thereof and in amounts not within
the prescribed limits of variability is present in the
article. Clause (1) deems an article of food to be adulter-
ated if the quality or purity of the article fails below the
prescribed standard or its constituents are present in
quantities which are in excess of the prescribed limits of
variability. [596C-D]
3. It is wrong to contend that if an article fails
within clause (1) it cannot fail under clause (j) or any
other clause. Different clauses of section 2(i) are not
mutually exclusive; they, overlap one another and it is
quite possible that an article of food may be found adulter-
ated trader two or more clauses of section 2(i). [597A-C]
4. The report of the public analyst showed that the
linseed oil contained artificial dye and this was clearly
prohibited under rule 23. The only artificial dyes which
were permitted to be used in food were those set out in rule
28 and Rule 29. prohibited the use of permitted coal tar
dyes in or upon any articles of food other than those enu-
merated in that Rule. Lin-seed oil was not one of the arti-
cles of food enumerated in rule 29 and hence artificial dye,
even if permitted coal tar dye could not be added to linseed
oil. [597G-H, 598A]
5. The contention of the appellants that clause (j)
would be attracted only if colouring matter is prescribed
and the article of food is found to con:sin a colouring
matter different from that prescribed was negatived. When
no colouring matter is permitted to be used in respect of an
article of food what is prescribed in respect of the article
is ’nil’ colouring matter and if the article contains any
colouring matter it would be "other than that prescribed in
respect" of the article. [597A-C, 598B-D]
Vidyacharan Shukla v. KhubchandBaghel, [1964] 6 S.C.R. 129,
relied on.
6. The operation of the Probation of Offenders Act is
not excluded in case of persons found guilty of offence
under the Prevention of Food Adulteration Act, 1954. Howev-
er, imperatives of social defence must discourage the ap-
plicability of the probation principle. No chances can be
taken by Society with a man whose anti-social activities in
the guise of a respectable trade jeopardise the health and
well-being of numerous innocent consumers. The adulterator
is a social risk; it might be dangerous to leave him free to
carry on his nefarious activities by applying the probation
principle to him. Adulteration is an economic offence
prompted by profit motive and it is not likely to lend
itself easily to therapeutic treatment by probationary
measure. [599D, G-H, 600A-B]
Isher Das v. State [1972] 3 S.C.R. 65. and 1. K. Tejani
v.M.R. Dhange, [1974] 2 S.C.R. 154 followed.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 287/
71.
Appeal by Special Leave from the Judgment and Order
dated 10-9-71 of the Delhi High Court in Criminal Revision
No. 310 of 1970.
A.N. Mulla, (Miss) Uma Mehta, R.K. Mehta, S.K. Bagga and
(Mrs.) S. Bagga, for the Appellants.
S.N. Anand and R.N. Sachthey; for the Respondent.
D. Mookerjee, B.P. Maheshwari, Suresh Sethi and
N.K..lain for the Intervener.
The Judgment of the Court was delivered by
BHAGWATI, J.--This appeal, by special leave, is directed
against a judgment of the High Court of Delhi confirming the
conviction of
594
the appellants under section 7(i) read with section
16(1)(a)(i) of the Prevention of Food Adulteration Act,
1954.
The prosecution case was that all material times the 2nd
appellant was the owner of a grocery shop situate at
Maharani Bagh, New Delhi and the 1st appellant was employed
as a salesman in the shop. On 23rd June, 1969 Bhanot, a
Food Inspector went to the shop of the 1st appellant and
finding the 1st appellant there as a sales man, took from
him a sample of mustard oil for analysis after paying its
purchase price. He divided the sample into three parts and
sent one part to the Public Analyst for analysis, handed
over the other part to the 2nd appellant and retained the
3rd part with him. The Public Analyst reported that the
sample was misbranded as it was of Lin Seed Oil and it was
adulterated due to the presence of artificial dye. On the
strength of this report, the appellants were chargesheeted
under section 7(i) read with section 16(1)(a)(i) before
the Judicial Magistrate, Delhi. The defence of the 1st
appellant was that the 2nd appellant was at no time engaged
by him as the salesman and no mustard oil was purchased
by Bhanot from the 2nd appellant. The 2nd appellant
also claimed that he was never an employee of the l st
appellant and while he was going to his house after pur-
chasing sarson oil for his personal use, he was caught by
two or three persons near Maharani Bagh and a sample was
taken from the oil which he was carrying and his signatures
were obtained by threat on certain papers. The learned
Judicial Magistrate accepted the evidence led on behalf of
the prosecution and rejected the defence version and held
that the appellants were guilty of the offence of selling
lin seed oil containing artificial dye which was an offence
punishable under section 7(i) read with section 16(1)(a)
(i). The learned Judicial Magistrate accordingly convicted
the appellants and sentenced each of them to suffer rigorous
imprisonment for nine months and to pay a fine of Rs.
1000/-. The appellants preferred an appeal, but the appeal
was rejected by the learned Sessions Judge and the convic-
tion was confirmed with only a slight modification in the
sentence. The sentence was reduced from nine months to six
months rigorous imprisonment. This led to the filing of a
revision application in the High Court by the appellants,
but the revision application was also unsuccessful. Hence
the present appeal by special leave obtained from this
Court.
The first contention raised on behalf of the appellant
in support of the appeal was that the conviction was bad
inasmuch as it rested solely on the evidence of Bhanot and
one other Food Inspector, namely, Bhatnagar, who happened to
come there at the tinge of taking the sample and there was
no independent witness to support the prosecution case.
Now, it is true that the prosecution could not produce :my
independent witness to depose to the taking of the sample by
Bhanot from the 2nd appellant at the shop of the 1st appel-
lant but that by itself cannot be regarded as sufficient to
warrant rejection of the prosecution case out of hand. The
sample was taken by Bhanot in the presence of one Keshav
Dutt Sharma and a panchnama evidencing the transaction was
prepared and signed by Keshav Dutt Sharma on the spot. But
in the witness box Keshav Dutt Sharma turned hostile and
denied that he was present at the time of taking the sample.
Of
595
course. he could not deny that the endorsement B to B on the
Panchanama was in his hand-writing and he had put his signa-
ture at the foot of it, but his explanation was that one
Food Inspector came to the shop where he was working and
asked him either to give a sample of the ice cream he was
selling at the shop or to give his signature on the. pancha-
nama. This explanation is palpably dishonest and cannot be
accepted by any court. Moreover, it does not explain how
the endorsement B to B came to be made by Keshav Dutt Sharma
in his handwriting. There can be no doubt that Keshav Dutt
Sharma was present at the time of taking of the sample and
he wrote down the endorsement B to B on the panchanama and
signed it as he was a witness to the transaction. It is
unfortunately not an infrequent occurrence to find that
pancha witnesses turn hostile and go back upon what is
stated in the panchanama in utter disregard of truth. This
betrays lack of character and absence of civic sense which
not only result in the guilty escaping the punishment but
lead to general deterioration in standards of honesty and
integrity. This is a highly reprehensible phenomenon which
has to be curbed in the larger interest of the administra-
tion of justice. Here, apart from the endorsement B to B in
the panchanama and the signature at the foot of it showing
that Keshav Dutt Sharma was a witness to the taking of the
sample, we have the statement of Bhanot who said in his
evidence that Keshav Dutt Sharma was taken by him to witness
the taking of the sample and Keshav Dutt Sharma made the
endorsement B to B on the panchanama and put his signa-
ture below it and this statement made by Bhanot was not
challenged in the cross-examination, nor was it even sug-
gested to Bhanot that Keshav Dutt Sharma was not present at
the taking of the sample. The prosecution case obviously
cannot be thrown out merely because Keshav Dutt Sharma
refused to support what had been stated by him, in his own
hand writing in the panchanama and went back upon it to the
utter dismay of the prosecution. It is true that by reason
of the defection of Keshav Dutt Sharma, the prosecution was
left only with the evidence of Bhanot and Bhatnagar, but
this evidence was regarded by the High Court as well as the
learned Judicial Magistrate and the learned Sessions Judge
sufficient to found the conviction of the appellants and we
do not see why we should interfere with the concurrent view
taken by them as regards the appreciation of this evidence.
There is no rule of law that conviction cannot be based on
the sole testimony of a food Inspector. It is only out of a
sense of caution that the courts insist that the testimony
of a food Inspector should be corroborated by some independ-
ent witness. This is a necessary caution which has to be
borne in mind because the food Inspector may in a sense be
regarded as an interested witness, but this caution is a
rule of prudence and not a rule of law: if it were other-
wise, it would be possible for many guilty persons to escape
punishment by resorting to the device of bribing punch
witnesses. The conviction of the appellants cannot, there-
fore, be assailed as infirm on the ground that it rested
merely on the evidence of Bhanot and Bhatnagar.
The appellants then contended that on the opinion
expressed by the Public Analyst, the offence committed by
the appellants was one
596
under section 16(1)(a)(i) with respect to an article of food
adulterated under clause (1) of section 2 and the Court had,
therefore, discretion, under the proviso to section 16 (1 )
to impose a lesser sentence of imprisonment than six months
for adequate and Special reasons. The argument of the
appellants was that this was a fit case in which the discre-
tion under the proviso to section 16(1) should have been
exercised and the minimum sentence of six months imprison-
ment should not have been imposed on the appellants. This
was in substance a plea for reduction of the sentence of
imprisonment and this plea raises the question as to which
is the clause of section 2(i) in which the present case
falls. Does it fail within the clause (1) as claimed by the
appellants or within clause (j) as contended on behalf of
the prosecution or within both and, if it falls within both,
what the effect ? Section 2(i) defines ’adulterated’ and
says that an article of food shah be deemed to be adulterat-
ed if the article fails within the description given in any
of the succeeding clauses (a) to (1). Clause (j) provides
that an article of food shall be deemed to be adulterated:
"(j) if any colouring matter other than that
prescribed in respect thereof and in amounts not
within the prescribed limits of variability is
present in the article."
and clause (1) deems an article of food to be adulterated:
"(1) if the quality or purity of the article
fails below the prescribed standard or if constitu-
ents are present in quantities which are in excess
of the prescribed limits of variability."
In the present case what was sold by the appellants was
linseed oil which contained artificial dye. The standard of
quality of linseed oil is defined in Paragraph A. 17.04 of
Appendix B to the Prevention of Food Adulteration Rules,
1955 as follows:
"A-l7.04.--Linseed oil (Tilli ka tel) means the
oil obtained by process of expressing clean and
sound linseed (Linum usitatissimum). It shall be
clear, free from rancidity, suspended or other
foreign matter, separated water, added colouring
or flavouring substances, or mineral oil. It shall
conform to the following standards:
(a) Butyro-refractometer reading at 40
deg.C ...... 69.5 to 74.3
(b) Saponification value ............ 188 to 195
(c) Iodine value .......... Not less than 170
(d) Unsaphnifiable matter ........ Not more than
1.5
per cent
(e) Free fatty acid as Oleic acid--not more than
2.0 per cent."
The argument of the appellants was that the requirement of
this paragraph that linseed oil shall be free from foreign
matter or added colouring substances lays down a standard of
quality of linseed oil and since the linseed oil sold by the
appellants contained artificial dye, the quality of the
linseed oil fell below the prescribed standard and
597
hence the case was covered by clause (i) of section 2(i).
The appellants contended that if clause (1) of section 2(i)
was applicable in the present case, it excluded the applica-
bility of clause (j) and the linseed oil containing artifi-
cial dye could not be said to be adulterated under that
clause. It was also urged on behalf of the appellants that,
in any event, no colouring matter was prescribed in respect
of linseed oil and. therefore, it could not be said that
there was present in the linseed oil sold by the appellants
artificial dye "other than that prescribed in respect there-
of and in amounts not within the prescribed limits 0f
variability" so as to bring the case within the scope of
clause (j) of section 2(i). These contentions of the
appellants, plausible though they may seem at first sight,
are without merit and must be rejected. Our reasons for
saying so are as follows.
It may be made clear at the out set that the different
clauses of section 2(i) are not mutually exclusive. They
overlap one another ,red, it is quite possible that an
article of food may be found adulterated under two or more
clauses of section 2(i). Take for example a case where an
article of food contains a foreign substance which affects
injuriously the quality thereof and at the same time renders
it unfit for human consumption. Such a case would clearly
fall within clauses (b) and (f) of section 2(i) and the
article of food would be deemed to be adulterated under both
these clauses. So also, a case may arise where a colouring
matter not permitted under the rules is added to an article
of food and such colouring matter affects injuriously the
quality of the article of food and in such a case too more
than one clause of section 2(i) would be attracted, namely,
clause (b) and (i). These instances which we have given are
merely by way of illustration and they show that merely
because an article of food is covered by one clause of
section 2(i), it does not exclude the applicability of
another clause of the section an article of food may be
deemed to be adulterated under more than one clauses of
section 2(i). It is, therefore, not a valid argument that
because the present case falls under clause (1) of section
2(i), the applicability of clause (j) is ipso facto nega-
tived and the case cannot come within that clause.
That takes us to the question whether the present case
falls within clause (i) of section 2(i), for if it does, it
would be immaterial whethere it falls also within clause (1)
of section 2 (i) and in so far as the linseed oil sold by
the appellants is deemed to be adulterated under clause (j)
of section 2(i), the proviso to section 16(1) would not be
attracted. Now, the ;report of the Public Analyst showed
that the linseed oil sold by the appellants contained arti-
ficial dye and this was clearly prohibited under the Rules.
Rule 23 provided that the addition of a colouring matter
to an article of food, except as specifically permitted by
the Rules, shall be prohibited. The only artificial dyes,
which were permitted to be used in food, were those set out
in Rule 28, and Rule 29 prohibited the use of permitted coal
tar dyes in or upon any food other than those enumerated in
that Rule. Linseed oil was admittedly not one of the arti-
cles of food enumerated in Rule 29 and hence even permitted
coal tar dyes could not be added to linseed oil. It does
not appear from the report of the Public Analyst
598
as to what was the artificial dye found mixed in the sample
of linseed oil sent to him but we will assume in favour of
the defence that it was a permitted coal tar dye. Even so,
by reason of Rules 23 and 29, it could not be added to
linseed oil. In the circumstances, the, linseed oil sold by
the appellants contained artificial dye which was prohibited
under the Rules. The argument of the appellants was that
since colouring matter was prohibited in respect of linseed
oil, it could not be said that any colouring matter was
prescribed in respect of linseed oil by the Rules and hence
the presence of artificial dye in linseed oil did not at-
tract the applicability of clause (j) of section 2(i). It
was said that clause (j) of section 2(i) would be attracted
only if a colouring matter is prescribed in respect of an
article of food and the article is found to contain a co-
louring matter different from that prescribed. But if no
colouring matter is prescribed, which would be the position
where colouring matter is totally prohibited, it cannot be
said that the article of food contains a colouring matter
other than that prescribed in respect of it. This argument
has the merit of ingenuity but it has no force and cannot be
sustained. When no colouring matter is permitted to be used
in respect of an article of food, what is prescribed in
respect of the article is "nil colouring matter" and if the
article contains any colouring matter, it would be "other
than that prescribed in respect" of the article. Clause (j)
of section 2(i) is not merely intended to cover a case where
one type of colouring matter is permitted to be used in
respect of an article of food and the article contains
another type of colouring matter but it also takes in a case
where no colouring matter is permitted to be used in respect
of an article of food, or in other words, it is prohibited
and yet the article contains a colouring matter. There is
really no difference h3 principle between the two kinds of
cases. Both are equally reprehensible; in fact the latter
may in conceivable cases be more serious than the former.
Where no colouring matter is permitted to be used in an
article of food, what is prescribed in respect of the arti-
cle is that no coIouring matter shall be used and if any
colouring matter is present in the article in breach of that
prescription, it would clearly involve violation of cl. (j)
of section 2(i). The words of clause (j) of section 2(i)
"other than that prescribed in respect thereof recall to
the mind similar words used in section 29(2) of the Limita-
tion Act which makes certain provisions of the Limitation
Act applicable in cases where a special or local law pre-
scribes a period of limitation different from the period
prescribed by the Schedule to the Limitation Act. These
words of section 29(2) of the Limitation Act came up for
interpretation before this Court in Vidyacharan Shukla v.
Khubchand Baghel.(1) It was contended in that case that on
,a true construction of these words, it is only where a
period of limitation is specifically prescribed in the
Schedule and a special or local law prescribes a different
period of limitation, that section 29(2) would be attracted
and that section would have no application where no time
limit is prescribed by the Schedule. This contention was
negatived and it was held by this Court that where the
Schedule does not specifically prescribe any period of
limitation for an application but is silent and a special
or local law prescribes a period of limitation for such
an
[1964] 6 S.C.R. 129.
599
application, it can appropriately be said that the special
or local law has prescribed a period of limitation differ-
ent from that prescribed in the Schedule and section
29(2) would be applicable. The analogy of this decision
is very apt and it supports the construction we are
inclined to place on the words "other than that prescribed
in respect thereof" in clause (j) of section 2(i). We
take the view that even where the Rules prescribe that no
colouring matter or artificial dye shall be used in
respect of an article of food, clause (j) of section 2(i)
would apply if it is found that some colouring matter or
artificial dye is present in the article. Here, the
linseed oil sold by the appellants contained artificial
dye despite the prohibition in the Rules and hence the
case was dearly covered by clause (j) of section 2(i) and
the linseed oil must be deemed to be adulterated under that
caluse. That would exclude the applicability of the provi-
so to section (1), since the offence in this view would be
one with respect to an article of food deemed to be adul-
terated under clause (j) of section 2(i). The appellants’
plea invoking the liberality of the provision enacted in the
proviso to section 16(1) must, in the circumstances, be
rejected and the minimum sentence of imprisonment for six
months must be maintained.
The appellants then pleaded that in any event on the facts
and circumstances of the present case the benefit of the
Probation of Offenders Act 1958 should be given to them
and they should not be consigned to the rigours of jail
life. This plea also does not impress us. It is no doubt
true and that was laid down by this Court in the first
pronouncement made by it on the subject in Isher Das v.
State(1) that the operation of the Probation Of Offenders
Act, 1958 is not excluded in case of persons found guilty
of offences under the Prevention of the Food Adulteration
Act, 1954. To quote the words of Krishna lyer, 3., in
P.K. Tejani v.M.R. Dange(2) "The rehabilatory purpose of the
Probation of Offenders Act, 1958 is pervasive enough
technically to take within its wings an offence even under
the Act". But in the very same decision in Isher Das’s case
(supra) this Court sounded a note of caution which must be
borne in mind:
"Adulteration of food is a menace to public health. The
Prevention of Food Adulteration Act has been enacted with
the aim of eradicating that anti-social evil and for ensur-
ing purity in the articles of food. In view of the above
object of the Act and the intention of the legislature as
revealed by the fact that a minimum sentence of imprisonment
for a period of six months and a fine of rupees one thou-
sand has been prescribed, the courts should not lightly
resort to the provisions of the Probation of Offenders Act
in the case of persons above 21 years of age found guilty of
offences under the Prevention of Food Adulteration
Act ....."
The imperatives of social defence must discourage the
applicability of the probation principle. No chances can be
taken by society with a man whose anti-social activites, in
the guise of a respectable trade, jeopardise the health and
well being of numerous innocent consumers.
(1) [1972] 3 S.C.R. 65. (2) [1974] 2 S.C.R. 154.
600
The adulterator is a social risk. It might be dangerous to
leave him free to carry on his nefarious activities by
applying the probation principle to him. Moreover, it
must be remembered that adulteration is an economic offence
prompted by profit motive and it is not likely to lend
itself easily to therapeutic treatment by the probationary
measure. It may be pointed out that the Law Commission
also in its Forty Seventh Report recommended the exclusion
of applicability of the probationary process in case of
social and economic offences and presumably in response to
this recommendation, the Legislature has recently amended
the Prevention of Food Adulteration Act, 1954 by introducing
section 20AA providing that nothing contained in the
Probation of Offenders Act, 1958 or section 360 of the Code
of Criminal Procedure, 1973 shall apply to a person convict-
ed of an offence under the Act unless that person is under
eighteen years of age This amendment of course would not
apply in the present case but it shows the legislative trend
which it would not be right for the court to ignore. We
cannot, therefore, give the benefit of the Probation of
Offenders Act, 1958 to the appellants and release them on
probation.
We accordingly confirm the conviction and sentence
recorded against the appellants and dismiss the appeal.
P.H.P. Appeal dismissed.
1
?
601