1. Mr N.S. Bindra is an eminent counsel, an author of repute of "The Interpretation of Statutes" and a contributor to this esteemed Journal. In his article1 Mr Bindra has strongly criticised our two articles2 on two Supreme Court decisions in Gopalan's case3 and Mohammed Yamin's case.4 According to Mr Bindra, our criticism of these two Supreme Court decisions "is absolutely misconceived and entirely misleading" and that "much of the research made and exhibited" in our two articles is "otiose". For all his errors we welcome Mr Bindra's article and take his criticism, though erroneous and unjustified in our stride as part of the debate and dialogue on the subject. In the words of Mr Justice Holmes,5 "the best test of truth is the power of the thought to get itself accepted in the competition of the market" or in the words of Mr Justice Cardozo,6 "The tide rises and falls, but the sands of error crumble."

2. Mr Bindra's errors.— In his article Mr Bindra has forcefully pointed out what he considers to be our errors. Mr Bindra, however, has performed the unusual feat of committing a threefold error in just one sentence of less than three lines. Mr Bindra's that gem of a sentence reads:

"In the said article (our first article) at page 8, Para 4 (not numbered) the learned advocates (that is ourselves) appear to admit that the percentage of Saccharin in the sample came to 7 per cent as certified by the Public Analyst."

The he adds in triumph "Hence the sugar was in fact adulterated". The truth is—

(i) The percentage of saccharin in the sample was not 7 per cent;

(ii) The Public Analyst did not certify that the percentage of saccharin in the sample was 7 per cent;

(iii) The so-called admission is non-esse. Mr Bindra is misquoting us.

In Gopalan case, the sample of sugar was taken by the Food Inspector from the tea-stall of the accused on November 17, 1965. According to the report of the Public Analyst, dated December 28, 1965 the sample in question contained saccharin to the extent of 14 gms per 100 gms. which works to 0.014 per cent as explicitly set out in our first article.

The Public Analyst also certified that the sample contained artificial sweetner saccharin equivalent to about 7 per cent of cane sugar and therefore it was adulterated. As explicitly stated in our first article, in dilute solutions, saccharin is about 500 times sweeter than sucrose (cane sugar) and the figure of 7 per cent was arrived at by the Public Analyst by multiplying 0.014 i.e. percentage of saccharin by 500. In other words, in dilute solutions one gm. of saccharin gives as much sweetness as is given by 500 gms. of cane sugar i.e. in terms of sweetness:

Saccharin		Cane sugar
1 gm.	=	500 gms.
0.014 gm.	=	7 gms.

Mr Bindra has wrongly equated the percentage of saccharin with its degree of sweetness vis-a-vis that of cane sugar and incidentally ignored the difference of as many as 500 times between the two.

3. Primary question: Whether the sample was adulterated?—The primary question still survives whether the presence of this trifling and negligible 0.014 per cent of saccharin rendered the sample of sugar adulterated within the meaning of Section 2 of the Act and Rule 5-A.07.01 (Definition of Sugar) and Rules 44(g) and 47 applicable at the relevant time (November 17, 1965). The definition of cane sugar is silent on the question as to whether it was permissible to add saccharin to it or not. It is Rules 44(g) and 47 which answer this question and their consideration is a sine qua non to decide the question. According to Mr Bindra the reference to these rules is not 'apposite'. These rules applicable at the material time would bear reproduction:

"44 Sale of certain admixture prohibited.—Notwithstanding the provisions of Rule 43, no person shall either by himself of 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 had added saccharin to it. No saccharin was found in the tea-stall of the accused. The prosecution case was that as per the report of the Public Analyst saccharin was found in the sample of sugar. The accused, on the admission of the Food Inspector, were not dealing in sugar not were the accused selling sugar in a container. Hence the emphasis placed by Mr Bindra that this sugar was kept in bottles not labelled is meaningless. It is only the party who adds saccharin to any food has to comply with Rule 47 by mentioning the fact of addition of saccharin on the label. On the facts of the case Rule 47 did not apply to the accused. 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. Assuming that Rule 47 was applicable and further assuming that there was a breach thereof by the accused, such breach would not render the sample adulterated. 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 the sample was not adulterated. In any case the Supreme Court could not legally find the accused guilty (even technically) unless and until the Supreme Court held that on the interpretation of these rules addition of saccharin was prohibited and rendered the sample adulterated. The Supreme Court, however, did not consider this aspect of the matter. In Mr Bindra's view since there was no compliance with Rule 47, the benefit of Rule 44(g) "if properly read" was not available to the accused.

4.Our first Article — Mr Bindra knocks the bottom out.— According to Mr Bindra: (i) the Trial Court held that the sample was adulterated; (ii) that this fact was not questioned in the Kerala High Court; and (iii) was not challenged in the Supreme Court, "how can you take exception to the Supreme Court basing its decision on the fact so established?" According to him, "This knocks out the bottom of the entire criticism of the Supreme Court Judgment" in Gopalan case, in our first article.

Mr Bindra leans heavily on the following passage from the Supreme Court judgment:

"It is not necessary for us to deal with the definition of the expression "adulterated", in Section 2(i) as well as the requirements under Item A.07.01 of the Appendix B of the Rules as there is no challenge to the report of the Public Analyst that the sugar in question was adulterated, as it does not conform to the requirements of the item mentioned above."

Mr Bindra significantly omits the sentence which follows: "In fact the High Court as well as the District Magistrate (Trial Court) have also proceeded on that bases." Whether the sample in the instant case was adulterated or not cannot be decide merely by reference to Section 2(i) or Item A.07.01. This question can only be decided by considering in addition Rules 44(g) and 47, to which there is no reference in this passage. The report of the Public Analyst consisted of two parts: (i) finding of fact, namely the presence of saccharin, (ii) the expression of an opinion that the presence of saccharin rendered the sample adulterated. Under Section 13(5) of the Act the report of the Public Analyst "may be used as evidence of the facts stated therein". The Public Analyst does not appear to have been examined as a witness in the instant case and subjected to cross-examination. As held by the Supreme Court in Ram Dayal v. Municipal Corporation of Delhi7 though under Section 13(5) the report of the Public Analyst is evidence without formal proof there is no presumption that its contents are true or correct. This ratio read in the light of Section 13(5) can only mean that what is evidence in the report of the Public Analyst is the finding of fact and not his opinion. However even if the finding of the Public Analyst that saccharin was present in the sample is accepted, it is axiomatic that it is for the court, and not for the Public Analyst, to decide whether the presence of saccharin rendered the sample of sugar adulterated. In other words the interpretation of Section 2, Item A.07.01 and Rules 44(g) and 47 fell exclusively within the province of the court and not within the province of the Public Analyst.

Trial Court: The finding of the Trial Court as summarised in paragraph 6 of the Supreme Court judgment in Gopalan case, reads, "The report of the Public Analyst establishes that the sugar purchased from the tea-stall of the accused was adulterated." From the findings of the Trial Court as set out in Supreme Court judgment it does not appear that the Trial Court applied its mind to Rules 44(g) and 47 and recorded a finding thereon.

High Court: The Kerala High Court8 in para 2 of its judgment noticed Rules 44(g) and 47 but did not record any finding on them. The Kerala High Court confirmed the acquittal of the accused on the ground that the accused were not dealers in sugar and hence not liable. Mr Bindra is at pains to emphasise that before the Kerala High Court the accused did not challenge that the sample was adulterated, conveniently forgetting that the accused had not gone in appeal against conviction but it was the appeal of the complainant against acquittal and since the High Court confirmed the acquittal on the above ground no need or occasion arose for the accused to challenge it. In the High Court judgment there is no mention that the accused did not challenge the report of the Public Analyst and that it was proceeding on the basis that the sample was adulterated.

Supreme Court: According to Mr Bindra:

"The Supreme Court found in Gopalan case (supra), the following facts as material—

(i) The accused sold the sugar to the Food Inspector;

(ii) This sugar was sold as a sample for analysis;

(iii) The sugar was adulterated (this fact was not challenged before the Supreme Court)."

Qua (iii) our answer is—

(a) The Supreme Court did not go into the question and decide for itself whether the sugar was adulterated;

(b) The fact that there was no challenge by the accused in the Supreme Court that the sugar was adulterated did not weigh with the Supreme Court in holding that the accused were guilty of the offence (technically);

(c) The Supreme Court proceeded on the footing that there was concurrent findings (of fact) of the Trial Court and the High Court that the sample was adulterated and accepting these findings the Supreme Court held that the accused were guilty of the offence (technically);

(d) The question whether the sample was adulterated was a question of law and not of fact and it is self-contradictory to say that there could be concurrent findings of fact on this question of law.

In Para 7 of its judgment the Supreme Court states, "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."

In Para 26 of its judgment the Supreme Court states, "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 Section 16(1)(a)(i) of the Act. Hence it must be held that the respondents are technically guilty of an offence with which they were charged and they have been wrongly acquitted by the High Court and the District Magistrate."

However, in fact the High Court did not hold the sample to be adulterated and, therefore, there was no concurrent findings of fact of the Trial Court and the High Court that the sample was adulterated.

Mr Bindra turns a blind eye and a deaf ear to this vital error on the part of the Supreme Court as it vitiates his reasoning. No wonder that Mr Bindra should find our criticism of the Supreme Court decision as "absolutely misconceived and entirely misleading". The trifling percentage of 0.014 of saccharin was magnified 500 times to 7 per cent under Mr Bindra's "microscope", and when it suits him, Mr Bindra "holds a telescope to the Nelson's eye".9

5. Our Second Article.—Mr Bindra virtually agrees with us that the interpretation of Gopalan case, in Mohammed Yamin case, was erroneous.

6. Ratio.—On the question of determination of ratio decidendi, Mr Bindra is simply echoing the theory propounded by Prof.A.L. Goodhart in his famous lecture "Determining the ratio decidendi of a case"10 before the University of London in 1930. However, we ourselves have relied upon Dr. Goodhart's theory in our second article in saying that the material facts in Gopalan case and Mohammed Yamin case were not identical. Prof. Goodhart's theory however presupposes that there is no error, much less a vital error, on the part of the Court in enunciating the facts. The Supreme Court took it as a material fact that there were concurrent findings of fact the Trial Court and the High Court that the sample was adulterated while in fact there was no such finding by the High Court and, therefore, no reliance can be placed by Mr Bindra on Prof Goodhart's theory. In our submission, since the sample of sugar was not adulterated the question of law decided by the Supreme Court in Gopalan case 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 determination of this question of law is not and could not be the ratio of the Supreme Court judgment.11 (Emphasis supplied.)

1. "Sugar v. Saccharin" by N.S. Bindra, (1972) 2 SCC 37-40 (Journal), i.e. December 1, 1972 number. Return to Text
2. (i) Sugar v. Saccharin, (1971) 2 SCC 4 (Journal). (ii) Erroneous Interpretation of Erroneous decision by Supreme Court, 1972 2 SCC 29 (Journal). Return to Text
3. Food Inspector, Calicut Corporation v. Cherukattil Gopalan, (1971) 2 SCC 322. Return to Text
4. Mohammed Yamin v. State of U.P., (1972) 2 SCC 184. Return to Text
5. Abrams v. United States, 250 US 616, 630 (1919) dissent: 63 L Ed 1173, 1180. Return to Text
6. The Nature of the Judicial Process, 1921, p. 177: Selected Writings of Benjamin Nathan Cardozo, edited by Margaret E. Hall, 1947, p. 182. Return to Text
7. (1969) 3 SCC 35. Return to Text
8. Food Inspector, Calicut Corporation v. C. Gopalan, AIR 1969 Ker 179: ILR (1969) 1 Ker 22. Return to Text
9. Dr A.L. Goodhart in (1971) 87 LQR 454, 456. Return to Text
10. Essays on Jurisprudence and the Common Law-A.L. Goodhart, Reprint, 1937, pp. 1-26, cited at Footnote 14(vi) of our second article. Return to Text
11. 'Law In the Making'-Sir C.K. Allen, 7th Edn., 1964, pp. 259-268, also cited at Footnote 14(v) of our second article. Return to Text