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Erroneous Interpretation of Erroneous Decision By Supreme Court
by Smt Lajvanti v. Ganatra, Advocate, High Court, Bombay V. B. Ganatra, Advocate, Supreme Court of India
Cite as : (1972) 2 SCC (Jour) 29
1. Court v. Error v. Review.—"Everybody is presumed to know the law except His Majesty's judges, who have a court of appeal set over them to put them right." It is with this classic caustic remark attributed to Judge Maule1 that Prof Helen Silving "First Lady of American Criminal Law"2 and Prof Paul K. Ryu (of Korea) open their research paper "Error Juris; a Comparative Study".3 Abbott, C.J., in Montriou v. Jefferys4 exclaimed, "God forbid that it should be imagined that an attorney, or a counsel, or even a judge is bound to know all the law!" Mr Justice Jackson of the U.S. Supreme Court has observed,5 "Whenever decision of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversal of State Courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final."6 Our Supreme Court is the highest court of the land from whose judgment there is no appeal and under Article 141 of the Constitution of India the law declared by the Supreme Court is binding on all courts within the territory of India. Because to err is human and because there is no appeal from the judgment of the Supreme Court, to rectify the error, to prevent the failure and miscarriage of justice and to promote and perpetuate justice, under Article 137, power has been conferred on the Supreme Court, "to review any judgment pronounced or order made by it". In the judgment of the Supreme Court in Food Inspector, Calicut Corporation v. Cherukattil Gopalan (hereinafter referred to as Gopalan case7) we submit that there is a triple error; going to the root of the matter, and the interpretation by the Supreme Court of Gopalan case in Mohammed Yamin v. State of U.P.8 is erroneous. The Supreme Court ought to review them suo motu in exercise of its power under Article 137.
2. Sugar v. Saccharin: Gopalan case.—In Gopalan case, the two accused (husband and wife) were the owners and licensees of a tea-stall. The prosecution case was that the sample of sugar purchased by the Food Inspector on November 17, 1965, from Accused No. 2 from the stock of sugar kept in the premises to be used in the preparation of tea sold to customers was adulterated as per the report, dated December 28, 1965, of the Public Analyst as it contained saccharin 14.0 mgs. per 100 gms. The trial court, namely, the learned District Magistrate, Calicut, while holding that the report of the Public Analyst established that the sample of sugar was adulterated acquitted the accused on the ground that sugar as such was not sold in the tea-stall of the accused. In appeal against acquittal, the Kerala High Court9 noticed Rules 44(g) and 47 of the Prevention of Food Adulteration Rules, 1955, but did not go into the correctness of the report of the Public Analyst and did not go into the question whether the sample was adulterated and did not hold that the sample was adulterated. It confirmed the acquittal on the ground that as the accused were not dealers in sugar, the purchase by the Food Inspector was not a purchase under the Prevention of Food Adulteration Act, 1954. In appeal by Special Leave by the Food Inspector, the Supreme Court (speaking through Vaidialingam, J.) held10, "We are also of the opinion 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 . . . . Coming to the case on hand, on the findings of the two courts the sugar in question has been found to be adulterate . . . . 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 the offence with which they were charged . . . "(Emphasis supplied.)(The Supreme Court, however, did not set aside the order of acquittal.)
3. Gopalan case interpreted.—With reference to Gopalan case, the Supreme Court in Mohammed Yamin v. State of U.P.11 (speaking through Mathew, J.) observed, "In that case it was assumed by this Court that the sugar was adulterated. Whether it was adulterated or not as a matter of fact, this Court proceeded on the assumption that it was adulterated. If that be so, we see no reason to doubt the correctness of the ratio of the case." (Emphasis supplied.)
4. Questions for consideration.—This interpretation of Gopalan case in Mohammed Yamin case gives rise to the questions —
(i) Whether this interpretation is correct?
(ii) Whether the view taken by the Supreme Court in Gopalan case "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 is or could be the ratio?
(iii) Whether the Supreme Court ought to review suo motu Gopalan case and its interpretation in Mohammed Yamin case.
(iv) Whether in Mahommed Yamin case the question "that the person by whom the article of food was sold to the Food Inspector need not be a dealer as such in the article" to make him liable did arise for determination and whether without determining this question, the matter could not be disposed of?
5. Article on Gopalan case.—In our article on Gopalan case under the captions, "Sugar v. Saccharin"12 "Supreme Court erred in holding sugar sample adulterated" "Supreme Court erred in holding that High Court held it adulterated". We stated and submitted:
(i) Under Rules 44(g) and 47 of the Prevention of Food Adulteration Rules, 1955, applicable at the material time, the addition of saccharin to cane sugar was permissible, and was not prohibited and hence assuming in favour of the prosecution that sachharin 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. The Supreme Court has not considered this crucial aspect of the matter.
(ii) The trial court erred in accepting the report of the Public Analyst and in holding that the sample was adulterated.
(iii) The Kerala High Court did not hold the sample to be adulterated and the Supreme Court erred in holding that the Kerala High Court had held the sample to be adulterated. The Supreme Court erred in holding that there were concurrent findings (of fact) of the trial Court and the High Court that the sample was adulterated.
(iv) The Supreme Court erred in finding the accused guilty (technically).
(v) The Supreme Court ought to exercise its power to review and ought to uphold the order of acquittal of the accused.
(vi) The primary and 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 be 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.
(vii)The question decided by the Supreme Court should be kept open and at large.
6. Gopalan case — Interpretation erroneous.—In Gopalan case according to the Supreme Court, there were concurrent findings (of fact) of the Trial Court and the High Court that the sample was adulterated (though actually there was no such finding by the High Court) and in effect the Supreme Court accepted those findings and expressly held that the accused respondents had contravened Sections 7 and 16(1)(a)(i) of the Act and expressly found them technically guilty, and in doing so the Supreme Court has not, and could not have, stated that it was assuming that the sugar was adulterated, whether it was adulterated or not is a matter of fact. The question whether the sample in Gopalan case was adulterated or not was a question of law and not of fact. If the interpretation of Gopalan case in Mohammed Yamin case is correct, it would mean that in Gopalan case, the Supreme Court found the accused technically guilty on assumption of adulteration and not on proof and finding of adulteration. The principle that the accused can only be found guilty on proof and finding of guilt and not on assumption of guilt is too well settled to be unsettled. We submit that the interpretation of Gopalan case in Mohammed Yamin case is not in accord with the judgment in Gopalan case and is erroneous.
7. Ratio decidendi.— The question still survives whether the view of the Supreme Court in Gopalan case, "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 is or could be the ratio of that judgment.
Before the Supreme Court, counsel for the Food Inspector in Gopalan case stated that the Corporation was only anxious to have a decision of the Supreme Court on the legal point, namely whether to make the accused liable they should be dealers in sugar. As stated in our aforesaid article, as the presence of saccharin in sugar was permissible at the relevant time, no complaint could be filed against the accused. Yet the case travelled through three Courts. The questions in issue before the Supreme Court were —
(i) (Assuming that saccharin was present in the sample) was the sample adulterated?
(ii) Whether to make the accused liable they should be dealers in sugar?
If either question was answered in favour of the accused, the other question would not survive for decision. However, if either question was answered in favour of the prosecution and against the accused, the other question would still survive, and it was the first question which was the primary and principal question.
The question whether the presence of saccharin rendered the sample adulterated under Section 2 of the Act in the light of Rules 44(g) and 47 was a question of law and not of fact.
We submit that there is a triple error, going to the root of the matter, in the Supreme Court judgment. The Supreme Court erred —
(i) in holding that there were concurrent findings of fact that the sample was adulterated;
(ii) in treating the question whether the sample was adulterated as a question of fact instead of law;
(iii) in not considering Rules 44(g) and 47 and in finding the accused guilty (technically).
We submit that as the presence of saccharin in sugar was permissible at the material time and as the sample was not adulterated, the question of law decided by the Supreme Court, viz. "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" would not arise for determination and hence the determination of this question of law is not and could not be the ratio of the Supreme Court judgment.13
Assuming that the interpretation of Gopalan case in Mohammed Yamin case is correct, according to this interpretation the Supreme Court assumed that the sample was adulterated, "whether it was adulterated or not as a matter of fact". Therefore, the Supreme Court decided the aforesaid question of law without deciding whether the sample was adulterated or not. However, without deciding the question whether the sample was adulterated the matter could not be finally disposed of. The decision on the aforesaid question of law by the Supreme Court on the hypothesis or assumption that the sample was adulterated and further erroneously treating it as a question of fact instead of law is not and could not be the ratio.14 The Supreme Court in Mohammed Yamin case has stated, "If that be so, we see no reason to doubt the correctness of the ratio of the case." Are these words, "if that be so" a way of expression or an expression of a lingering doubt?
8. Review.— In Gopalan case, in fact there were no concurrent findings of fact by the trial court and the High Court that the sample was adulterated and there could not be such concurrent findings of fact because the question whether the sample was adulterated by the presence of saccharin was a question of law and not of fact. Even when there are concurrent findings of fact, in proper cases, the Supreme Court does disturb such findings.15
In Parle Products (P) Ltd. v. J.P. & Co., Mysore,16 the Supreme Court laid down the principle, "Normally, no doubt this Court does not disturb a concurrent finding of fact, but where, as here we find that the finding was arrived at not on proper consideration of law on the subject it is our duty to set the same aside on appeal," (by special leave under Article 136 of the Constitution of India). In Gopalan case not only there were no concurrent findings of fact but there was no consideration at all by the Supreme Court of the relevant Rules 44(g) and 47 under which, in our submission, the presence of saccharin in sugar was permissible at the relevant time.
In Gopalan case, the Food Inspector came to the Supreme Court by special leave under Article 136. The Supreme Court in Union of India v. G.K. Apte,17 laid down the principle, "It has now to be seen whether there should be interference with the orders of the High Court under Article 136 of the Constitution. The limitation on the exercise of that power cannot be defined with any precision. But the power is of an exceptional and overriding nature and has got to be exercised sparingly, the paramount consideration always being the perpetuation of justice."
In Pillai Investment Corporation Pvt. Ltd. v. I.T.O.18 the Supreme Court laid down the principle that it will review its decision if some patent aspects of the question remained unnoticed or if the attention of the court was not drawn to any relevant material, statutory provisions or if any previous decision of the Court bearing on the point was not noticed or if the decision was clearly erroneous. In view of these principles the Supreme Court ought to review its decision in Gopalan case, and the interpretation thereof in Mohammed Yamin case, to perpetuate and promote justice.
9. Shakkar v. Shelkari: Mohammed Yamin case.—In Mohammed Yamin case,19 the appellant/accused went to the Supreme Court by Special Leave under Article 136 of the Constitution of India against the judgment of the Allahabad High Court in State v. Mohammed Yasin,20 (Yasin is a misprint for Yamin). The Allahabad High Court held:
(i) that shakkar was jaggery;
(ii) that rab was an article of food;
(iii) that shelkhari a kind of stone in a powdered form was being mixed in the shakkar in question and the shakkar was adulterated;
(iv) that the respondent/accused had purchased shakkar for Rs 12,000 or so and the rab that was in the process of manufacture must have been for sale and that it was not shown that such a huge quantity of rab would have been utilised by the Respondent for any other purpose;
(v) that the Respondent case that shakkar found in the godown was to be or being manufactured into rab has no substance.
(Findings (iv) and (v) appear to be inconsistent)
The Supreme Court held, "the finding of the High Court is that the shakkar was kept by the appellant (accused) for the purpose of sale and not for the purpose of manufacturing rab out of it and that the attempt of the appellant was to sell the shakkar as an article of food after mixing shelkhari with it. We see no reason to think that the finding was wrong." As the Supreme Court accepted this finding of the High Court, the further question did not arise for determination. However, the judgment of the Supreme Court proceeds "But assuming that the finding was wrong and that the appellant kept the shakkar not for sale but for manufacturing rab out of it, what follows? If shakkar is an article of food, it does not matter whether the appellant kept it for sale or for manufacturing rab out of it, provided the appellant has sold it. And a sale to the Food Inspector is a sale for the purpose of Section 16 of the Act." Then the judgment proceeds to consider Gopalan case. In Gopalan case, it was expressly admitted by the Food Inspector that sugar as such was not sold in the tea-stall of the accused and the trial court acquitted the accused, and the Kerala High Court confirmed the acquittal on this ground. In Gopalan case, it was not the prosecution case that the accused were the manufacturers of the sugar or that saccharin was added by the accused to sugar; the prosecution case was that saccharin according to the report of the Public Analyst was found in the sample of sugar taken from the tea-stall of the accused. In Mohammed Yamin case the accused had purchased shakkar for Rs 12,000 or so and shelkhari was being mixed in the Shakkar in question for manufacturing rab. Gopalan was concerned with sugar, saccharin and prepared tea, while Mohammed Yamin was concerned with shakkar, shelkhari and rab. In Gopalan case the accused were not dealers in sugar but were selling prepared tea wherein sugar is a normal ingredient. In Mohammed Yamin, the accused dealing in shakkar the mixing of shelkhari to shakkar was downright adulteration and the defence that the accused was doing so to manufacture rab was an afterthought. Thus the material facts in Gopalan case and Mohammed Yamin case, were not identical, and the question whether to make the accused liable the accused should be a dealer in the particular commodity which would have been directly in issue in Gopalan case if the sample would have been really adulterated was not in issue in Mohammed Yamin case, and more so in view of the acceptance of the findings of the High Court by the Supreme Court.
G.W. Paton and G. Sawer in their article "Ratio decidendi and obiter dictum in Appellate Courts"21 observe, "From the realistic point of view, we are not sure of the ratio of a decision until we can discover its reception and its treatment by subsequent cases. This horrifies the purist, who wants to know exactly and finally, immediately a decision is given what is the binding principle and what is not. But a case represents rather the plotting of a new point on the graph of the law; whether that point marks-beginning of an upward curve or merely makes a small bump in the line of the graph which soon returns to normal, can be determined only by history. There is a certain ebb and flow which cannot be predicted."
"Salmond on Jurisprudence" states,22 "If we think of the rule of law as a line on a graph then the case itself is like a point through which that line is drawn."
Mohammed Yamin case, by accepting the ratio of Gopalan case, seeks to put it on the stream of the upward curve instead of allowing it to rest in a horizontal line. However, as submitted above, the point did not arise for decision in Mohammed Yamin case, and what is held to be the ratio of Gopalan case, is not and could not be the ratio.
10. A Lordly reproof.— Is it open to the lower courts not to follow Gopalan case, on the ground that it is erroneous? The answer is in the negative. Under Article 141, right or wrong, the law declared by the Supreme Court is binding on all courts within the territory of India. Not only the ratio of the Supreme Court judgment is binding on all the courts but its judicial dicta (when there is no decision contrary to judicial dicta) are binding, and the obiter dictum of the Supreme Court, if not treated as binding, is entitled to great weight and is persuasive authority. Hence the imperative need and urgency for reviewing suo motu by the Supreme Court the decision in Gopalan case, and its interpretation in Mohammed Yamin case.
"A decision of the U.S. Supreme Court,23 is utterly binding in federal matters on all courts below, State as well as federal, regardless of sporadic food-dragging and aberrations."
In Broome v. Cassel & Co. Ltd.24 the Court of appeal in England bluntly refused to follow the decision of the House of Lords in Rookes v. Barmard,25 on exemplary damages and the Court of appeal went to the extent of saying that the trial Judges also should not follow that decision of the House of Lords.26 On appeal, the House of Lords in Broome v. Cassel & Co.27 administered to the Court of appeal the "Lordly Reproof"28 with studied moderation. The Lord Chancellor observed (p. 653) "I hope it will never be necessary to say so again, that in the hierarchical system of courts which exist in this country, it is necessary for each lower tier, including the Court of appeal, to accept loyally the decisions of the higher tiers."
- Criminal Law (The General Part) Dr Glanville Williams, 2nd Edition, 1961, p. 290.
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- Essays on Mental Incapacity and Criminal Conduct-Helen Silving, Prof of Law, University of Puerto Rico, 1967, Preface, Page VIII.
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- 24 University of Chicago Law Review, 421-471 (1957).
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- (1825) 2 Car. p. 113, 116: 176 ER 51, 53.
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- Brown v. Allen, 344 US 443, 540: 97 L Ed 469, 533 (Decided on April 27, 1953).
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- (i) Lord Reid: "A decision of the House of Lords is final not because it is right but because no one can say it is wrong except writers in legal journals" — XII Journal of the Society of Public Teachers of Law, new Series, p. 22 (January, 1972 number).
(ii) 65 Yale Law Journal 459 (1956).
(iii) Cardozo, The Nature of the Judicial Process 30 (1921).
(iv) The Spirit of Liberty — Papers and Addresses of (Judge) Learned Hand, 1959, p. XX.
(v) Rustam Cawasjee Cooper v. Union of India, (1970) 2 SCC 298, 301.
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- (1971) 2 SCC 322: Coram: C.A. Vaidialingam and A.N. Ray, JJ., May 6, 1971.
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- (1972) 2 SCC 184-Coram: Jaganmohan Reddy and K.K Mathew, JJ., April 26, 1972.
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- Food Inspector (Health Officer), Calicut Corporation v. C. Gopalan, AIR 1969 Ker 179: 1968 KLT 770: 1969 Cri LJ 733: (1969) ILR 1 Ker 22.
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- Ibid., Note 7.
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- Ibid., Note 8.
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- (1971) 2 SCC 4 (Journal).
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- The test of the discussion of the issue not being necessary and therefore the Court's holding not being the ratio was applied by Chief Justice Burger of the U.S. Supreme Court in Harris v. New York, (401 US 222: 28 L Ed 2d 1, 4 decided on February 24, 1971).
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- (i) Precedent in English Law-Rupert Cross, Second Edition, 1968.
(ii) Salmond on Jurisprudence, 12th Edition, 1966, pp. 179-183.
(
iii) A Text Book of Jurisprudence-G.W. Paton, 3rd Edition, 1964, p. 180.
(iv) Lectures on Jurisprudence-John Austin, 4th Edition, 1873. Lectures XXXVIII and XXXIX.
(v) Law in the making-Sir C.K. Allen, 7th Edition, 1964, pp. 259-267.
(vi) Essays in Jurisprudence and the Common Law-A.L. Goodhart, Reprint 1937, pp. 1-26, 75-76.
(vii) The articles on ratio decidendi at (1957) 20 Modern Law Review, 124, 413, 587 and at (1958)21 MLR 155, (1959) 22 MLR 117, 453 and 597 and at (1957) 71 Law Quarterly Review 196 and at 71 Columbia Law Review 1920 (1971).
(viii) Legal system and Lawyers Reasonings-Julius Stone, 1964, pp. 267-274 and 347.
(ix) Halsbury's Laws of England, 3rd Edition, Vol. 22, 1958, Paras 1682 and 1683 at p. 796-797 and 1972 Supplement.
(x) 75 Corpus Juris Secundum 610 and 21 CJS 309-317.
(xi) Practice statement of the House of Lords of July 26, 1966, (Rupert Cross, ibid., p. 107).
(xii) Quin v. Leathem, (1901) AC 495, 506.
(xiii) Great Western Railway Co. v. Owners of S.S. Mostyn, (1928) AC 57, 73.
(xiv) Reed v. J. Lyous & Co. Ltd., (1947) AC 156, 167.
(xv) Pretoria City Council v. Levison, (1949) 3 SA 405, 417, quoted in Rupert Cross, ibid.,
p. 79.
(xvi) Behrens v. Bertram Mills Circus Ltd., (1957) 1 All ER 583, 593.
(xvii) Scruttons Ltd. v. Midland Silicous Ltd., (1962) 1 All ER 1, 12.
(xviii) Miller-Meed v. Minister of Housing and Local Government, (1963) 2 QB 196, 235.
(xix) W.B. Anderson & Sons Ltd. v. Rodes, (1967) 2 All ER 850, 857.
(xx) Tesco v. Nattrass, (1972) AC 153, 202.
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- (i) Lallubhai v. State of Gujarat, 1972 SCC (Cri) 13.
(ii) Ram Ekbal v.
Jaldhari, (1972) 3 SCC 841.
(iii) Shree Agency v. S.K. Bhattacharji, AIR 1972 SC 780.
(iv) Gokul v. State of Rajasthan, AIR 1972 SC 209.
(v) Rai Singh v. State of Haryana, AIR 1971 SC 2505.
(vi) Mansur v. State of M.P., (1971) 2 SCC 369.
(vii) Matru v. State of U.P., (1971) 2 SCC 75.
(viii) Patel Uka Naran v. Kalyan Karson, AIR 1971 SC 759.
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- (1972) 1 SCC 618, 622.
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- (1971) 3 SCC 460, 465.
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- (1972) 1 SCC 122.
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- Ibid., Note 8.
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- ILR (1969) 1 All 343.
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- (1964) 63 LQR (Law Quarterly Review 461, 480.
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- "Salmond on Jurisprudence", 12th Edn., 1966, p. 179.
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- The Judicial Process-Henry J. Abraham, 2nd Edn., 1968, p. 364.
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- (1971) 2 WLR 853.
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- (1964) AC 1129.
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- For comments on the decision of Court of Appeal please see (1971) 87 LQR 454: (1971) MLR 520 and (1971) CLJ (Cambridge Law Journal) 187.
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- (1972) 2 WLR 645.
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- (1972) ALJ (Australian Law Journal) 98.
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