Supreme Court erred in holding sugar sample adulterated1
Supreme court erred in holding that high court2
held it adulterated
The material facts were: The two accused (husband and wife) were the owners and licensees of a tea-stall at Calicut. On November 17, 1965, the Food Inspector, Calicut Corporation, purchased from Accused 2, 600 gms. of sugar for a price of 0.78 p. for analysis from the stock of sugar kept on the premises to be used in the preparation of tea; sold to customers in the said tea-stall run by Accused 2 under the licence issued by the Corporation. The Public Analyst by his report of December 28, 1965, certified that "The sample contained artificial sweetner Saccharin equivalent to about 7% of cane sugar and, therefore, it was adulterated". The result of analysis was as follows:
| Ash |
. . |
. . |
0.02% |
| Total Sugar as Cane Sugar |
. . |
. . |
96% |
| Saccharin |
. . |
. . |
14.0 mgs. per 100 gms. |
The accused were charged for an offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954. Both the accused pleaded not guilty and even denied having sold sugar to the Food Inspector.
The findings of the Trial Court, namely the learned District Magistrate, Calicut, inter alia were (as summarised in the Supreme Court judgment) "The report of the Public Analyst establishes that the sugar purchased from the tea-stall of he accused was adulterated, but in order to hold that the accused have committed an offence, it must be established that the accused were selling sugar as such in the tea-stall, which is not the fact in this case, On the other hand, the accused were selling tea and the sugar was kept only for the purpose of being mixed with tea which was sold to the customers and the Food Inspector has clearly admitted that sugar as such is not sold in the tea-stall of accused. Inasmuch as sugar was not kept for sale by the accused, they are not guilty of an offence", and the Trial Court acquitted both the accused.
The appeal against acquittal of the accused was heard by His Lordship T.C. Raghavan, J., of the Kerala High Court who by his judgment of June 26, 1968,3 confirmed the order of acquittal of the accused and dismissed the appeal. In para 2 of the judgment, the High Court noticed the provisions of Rules 44 and 47 (pertaining to Saccharin) of the Prevention of Food Adulteration Rules, 1955, but did not give any finding on them. The High Court did not go into the correctness of the report Public Analyst and did not go into the question whether the sample was adulterated and did not record the finding that the sample was adulterated (as is erroneously stated by the Supreme Court in its judgment). The High Court held, "Where, therefore, the accused persons are owner of the tea-shop dealing in prepared tea as beverage but are not dealers in sugar, and the Food Inspector purchases sugar from them, it is like a purchase of sugar by him from a private individual from his house. Such a purchase cannot be a purchase under the Act, which will make the vendor liable for an offence under the Act."
The Food Inspector, Calicut Corporation, filed an appeal, by special leave in the Supreme Court against the said judgment of the Kerala High Court. At the hearing before the Supreme Court the learned counsel, Mr A.S. Nambiar for the complainant — appellant Food Inspector — "made it clear that his clients do not want the respondents (the accused) to be convicted, in case his contentions are accepted. On the other hand, he stated that the Corporation is only anxious to have a decision of this Court on the legal point". (Whether the accused to be liable should be dealers as such in sugar.)
In para 7 of the judgment of the Supreme Court 1971(2) SCC 322: 1971 SCC (Cri) 522 summarising the findings of the Kerala High Court it is stated:
"The High Court agreed with the findings of the District Magistrate that . . . the said Article was adulterated as is established by the report of the Public Analyst."
The judgment of the Supreme Court in para 8 (infra) further says: "Mr A.S. Nambiar, the learned counsel for the appellant, urged that the view of both the High Court as well as the District Magistrate that the respondents are not guilty as they are not dealers in sugar as such is erroneous, especially after a finding that there has been a sale to the Food Inspector under the Act and the article was found to be adulterated."
The Supreme Court at page 329 held, "(W)hen there is a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under Section 16(1)(a)(i), read with Section 7 of the Act. . . . We are also of the opinion that the person from whom the article of food had been purchased by the Food Inspector need not be a dealer as such in that article. . . . Coming to the case on hand, on the findings of the two courts the sugar in question has been found to be adulterated . . . in this case the sale was for analysis and the article was an article of food and in view of the concurrent findings of both the courts that it was adulterated the respondents have contravened Sections 7 and 16(1)(a)(i) of the Act. Hence it must be held that the respondents are technically guilty of an offence with which they are charged and they have been wrongly acquitted by the High Court and the District Magistrate. But in view of the fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the respondents, we merely set aside the order and judgment of the High Court. But we may make it clear that apart form holding the respondents technically guilty, we are not setting aside the order of acquittal passed in their favour. In the result the judgment and order of the High Court are set aside and the appeal allowed." (Emphasis supplied)
The question arises: did the Kerala High Court hold that the sample was adulterated?
As stated hereinabove, the Kerala High Court (in its judgment as reported) did not go into the question whether the report of the Public Analyst was correct and whether the sample was adulterated and did not record the finding that the sample was adulterated. Thus there were no concurrent findings of both the courts, that the sample was adulterated. In the circumstances, instead of finding the accused technically guilty, the Supreme Court ought to have remanded the matter to the High Court, or ought to have proceeded on the footing that there was only the finding of the Trial Court that the sample was adulterated and then ought to have gone into the question whether the sample was really adulterated.
Further questions arise:
(i) Was the sample really adulterated?
(ii) Whether the accused were guilty?
According to the report of the Public Analyst the sample of sugar was adulterated because of the presence of Saccharin, and that the sample contained artificial sweetner Saccharin equivalent to about 7% of cane sugar.
The definition of cane sugar in Rule 5-A.07.01 of the Prevention of Food Adulteration Rules, 1955 applicable at the material time inter alia reads, "Cane sugar is the crystallised sugar obtained from sugarcane, beet root, etc. and includes the refined product obtained from Gur. It shall contain not more that 0.7% of ash and not less than 96.00 per cent of Sucrose." The percentages of ash and total sugar as cane sugar in the sample in question as per the report of the Public Analyst were 0.02 and 96.00 and, therefore, up to the standard. (The Public Analyst rightly did not take any objection because the percentage of total sugar as cane sugar was less by 0.5%.) The definition of cane sugar is silent on the question as to whether Saccharin can be added to it or not. For this purpose Rules 44(g) and 47 are relevant.
Rule 44(g) as originally framed read, (S.R.O. 2106 of September 12, 1955):
"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 or in the preparation of which artificial sweetner has been used."
Rule 47 as originally framed read:
"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 admixture of not more than. . . per cent of Saccharin. Exclusively meant for use by diabetic patients or persons suffering from obesity or where sugar is contra-indicated.' "
Rule 44 as originally framed was badly drafted. It conflicted with Rule 47. The conflict was set right and both these rules were amended by the notification No.S.R.O. 2755 of November 20, 1956,4 and the amended Rules 44(g) and 47 which were applicable in the instant case on the date of the sample, namely November 17, 1965, read thus:
"44. Sale of certain admixture 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 sweetner except Saccharin, or in the preparation of which any such artificial sweetner 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.' "
It was not the prosecution case that the accused were the manufacturers of the sugar in question or that the accused has added Saccharin to the sugar in question. The prosecution case was that as per the report of the Public Analyst Saccharin was found in the sample of sugar in question. The accused, on the admission of the Food Inspector, were not dealing in sugar, nor were the accused selling sugar in a container. Hence the question of labelling the container with an adhesive declaratory label indicating the presence of Saccharin in sugar would not arise. We do not read Rule 47 in the sense that if there is no container and if there is no adhesive declaratory label on the container indicating the presence of Saccharin, Saccharin cannot be added to the food. Reading Rules 44(g) and 47 together, the addition of Saccharin to cane sugar was permissible at the material time and was not prohibited, and hence assuming in favour of the prosecution that Saccharin to the extent of 14.0 mgms. per 100 gms. was present in the sample as per the report of the Public Analyst, the sample was not adulterated and no offence was committed by either of the accused and there was no justification for filing a complaint against the accused and make them undergo the ordeal of a trial in the Trial Court and the ordeals of appeals in the High Court and the Supreme Court.
Since the quantum of Saccharin in the sample in question was 14.0 mgms. per 100 gms, it works out to 0.014 gm. per 100 gms. (1000 mg.=1 gm.) that is the percentage of Saccharin in the sample was 0.014 which is trifling, negligible.
How did the Public Analyst work out that the quantum of Saccharin was equivalent to about 7% of cane sugar? What is Saccharin? What is the ratio of the sweetness of Saccharin to cane sugar?
SACCHARIN synonyms: Benzoic sulphimide, Gluside, Garantose, Saccharinol, Saccharinose, Saccharol, Saxin, Sykose.
Saccharin was synthesized orginally by Ira Remsen and C. Fahlberg in the course of an academic investigation of the oxidation of O — Toluene-sulfonamide at John Hopkins University in 1879. The sweetness was discovered accidently when Fahlberg ate a piece of bread and noticed it had a distinctly sweet taste. He traced the taste to the chemical he had handled in the laboratory. Saccharin has been in use commercially since 1900. The insoluble Saccharin often is used in pharmaceutical tablets. In liquid products and in foods the soluble sodium or calcium salt is customarily preferred.
Saccharin, U.S.P. XVII C6 H4 CONHSO2 occurs as intensely sweet, white crystals or as a white crystalline powder. 1 gm. dissolves in 290 ml. water. It is 200-700 times sweeter than sucrose (cane sugar). In dilute solutions, it is about 500 times sweeter than sucrose. Sweet taste depends upon concentration of the sweetner temperature, pH, type of medium used and sensivity of the taster. Saccharin has no food value, is not metabolised, is excreted unchanged from the body in the urine. The Saccharin of commerce is derived from Toluene. Saccharin is used in the diets of diabetics and other persons who must avoid excessive sugar intake and also in the preparation of dietetic foods, dentifrices, mouth-washes and cosmetics and for sweetening tobacco and medical preparations, particularly where the presence of sugar might lead to spoilage by fermentation or mould growth. It is known as non-nutritive sweetner. (Internationally, the terms "Synthetic" and "Artificial" sweetners have fallen in disfavour for describing the non-carbohydrate sweetners.)5
Sweetness of Saccharin in dilute solutions being about 500 times than that of cane sugar, the percentage of Saccharin, namely 0.014x500 comes to 7% as certified by the Public Analyst. But as stated above, the addition of Saccharin to cane sugar was permissible at the material time, and the Public Analyst erred in condemning the sample as adulterated.
Rules 44(g) and 47 have been amended with effect from August 24, 1968 (i.e. subsequent to the date of the sample and analysis) by the Prevetion of Food Adulteration (Amendment) Rules 19686 and the amended Rules 44(g) and 47 applicable from August 24, 1968 read as under:
"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 sweetner except where such artificial sweetner is permitted in accordance with the standards laid down in Appendix 'B'."
"47. Addition of artificial sweetner to be mentioned on the label.—Saccharin or any other artificial sweetner shall not be added to any article of food, except where the addition of such artificial sweetner is permitted in accordance with the standards laid down in Appendix 'B' and where any artificial sweetner 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 of . . . (name of the artificial sweetner).' "
Thus as from August 28, 1968, the addition of Saccharin to cane sugar is prohibited.
The primary and the preliminary question in all the three courts, namely the Trial Court, the High Court and the Supreme Court was whether the sample was adulterated. The question whether to make the accused liable they should dealers in sugar or not, would only arise if the sample was adulterated and not otherwise. Since the sample was not adulterated, the second question did not arise for determination. The Trial Court while erroneously holding that the sample was adulterated acquitted the accused on the ground that since sugar as such was not sold in the tea-stall of accused and since sugar was not kept for sale by the accused they were not guilty of any offence. The High Court, as stated above, did not go into the question whether the sample was adulterated, and did not hold that the sample was adulterated. The High Court confirmed the acquittal on the ground that since the accused were not dealers in sugar, they had not committed any offence. This was a case where no complaint could be filed against the accused, and yet the case travelled through three courts. The Supreme Court could not legally find the accused guilty (even technically) unless and until the Supreme Court held that on the interpretation of Rules 44(g) and 47 applicable at the material time, the addition of Saccharin was prohibited and that the addition of Saccharin rendered the sample adulterated. The Supreme Court, however, has not considered this aspect of the matter. We respectfully submit that the Supreme Court erred in finding the accused guilty (technically). We submit that the accused were innocent and had committed no offence, and their acquittal ought to have been upheld by the Supreme Court.
Justice Jackson of the Supreme Court of America has observed, "We are not final because we are infallible; but we are infallible only because we are final."7
Article 137 of the Constitution of India embodies the truth of this dictum. Our Supreme Court in Rustomji Cawasji Cooper v. Union of India8 has observed, ". . . . This Court does not claim to be always right although it does not spare any effort to be right according to the best of the ability, knowledge and judgment of the Judges . . . ." Article 137 reads, "Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it."
Article 137 has been incorporated in the Constitution of India to promote justice. Recently the Supreme Court exercised its power of review and set aside its decision in Narendrajitsingh v. State of U.P., (1970) 1 SCC 125. The Supreme Court can review its decision suo motu, the period of limitation for review does no apply to the suo motu power and the power of review covers mistake of law or — fact. We submit that the Supreme Court ought to review its decision in Food Inspector, Calicut Corporation v. Gopalan9 and ought to reverse its finding holding the accused guilty (technically) and ought to confirm the order of acquittal of the accused on the ground that the sample in question was not adulterated. We further submit that in the circumstances the point of law decided by the Supreme Court, namely that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article to make him liable ought to be kept open and at large, since this question would not arise for decision on the sample being held not adulterated.
To sum up, we respectfully submit:
(1) The sample of sugar in question was not adulterated;
(2) The Kerala High Court did not hold the sample to be adulterated;
(3) The Supreme Court erred in finding the accused guilty (technically);
(4) The Supreme Court ought to exercise its power of review and ought to uphold the order of acquittal of the accused;
(5) The question decided by the Supreme Court should be kept open and at large.
We also invite the kind attention of the reader of this article to our two previous articles in the Kerala Law Times, Part 8, March 1, 1971, and Parts 14 and 15, May 24, 1971. These two articles also relate to Rules 44(g) and 47 and the presence of Saccharin in the samples of prepared tea and the beverage (orange blood) and deal with the two judgments of the Kerala High Court.
The Supreme Court judgment is of May 6, 1971. A hundred years back the Privy Council by its judgment of January 23, 1871.10 laid down the principle,
"one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."
This principle has been approved by our Supreme Court.11 This salutary principle is of universal application in the administration of justice.
- Food Inspector, Calicut Corporation v. Gopalan, (1971) 2 SCC 322: 1971 SCC (Cri) 522: 1971 KLT 462 (SC). Coram C.A. Vaidialingam and A.N.Ray, JJ., May 6, 1971.
Return to Text
- Food Inspector (Health Officer), Calicut Corporation v. C. Gopalan, AIR 1969 Ker 179: 1968 KLT 770: 1969 Cr LJ 733: ILR 1969 (1) Ker 22.
Return to Text
- Same as f.n.2.
Return to Text
- Gazette of India, Part II, Section 3, dated November 24, 1956, pp. 1961-1964.
Return to Text
- Kirk-Othmer Encyclopedia of Chemical Technology, 2nd Completely Revised Edition, Vol. 19, 1969, pages 593-598; Dictionary of Applied Chemistry by T.E. Thorpe, 4th Edition, Vol. X, 1950: Van Nostrand's Scientific Encyclopedia, 1968 p. 1784; Encyclopedia Americana, Vol. 24, 1970, p. 87; Encyclopaedia Britanica, Vol. 19, 1968, p. 857; Webster's 3rd New International Dictionary, 1966, p. 1995; The Random House Dictionary of the English Language, 1967, p. 1258.
Return to Text
- The Gazete of India, Part II, Section 3(i), August 24, 1968, pp. 1968-1972.
Return to Text
- Brown v. Allen, 344 US 443, 540 (1953).
Return to Text
- 1970(2) SCC 298, 301.
Return to Text
- (1971) 2 SCC 322 : 1971 SCC (Cri) 522 : 1971 KLT 462 (SC).
Return to Text
- Alexander Rodger v. Comptoir D'Escompte De Paris, (1871) 3 PC 465, 475.
Return to Text
- Jagat Dhish Bhargava v. Jawaharlal Bhargava, AIR 1961 SC 832, 836.
Return to Text
