TMI Blog1973 (10) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... mum of six months imprisonment and one thousand rupees fine. The aggrieved dealer has reached here, through the twin routes, of art. 32 a writ petition bristling with challenges of settled concepts and hanging every argument on the familiar peg of breach of fundamental rights and of art. 136 a remedy to correct gross errors of law leading to the manifest injustice of loss of liberty for a long term of one who, the prosecution charged, jeopardised the lives of many consumers. The petitioner before us is the active partner of a firm, Gits Food Products (India), Poona, which, among other things, deals in scented supari. A sample of this stuff was purchased from the accused by the Food Inspector, Poona (P.W. 1) at a price of ₹ 24/- for 600 grants on January 25, 1971. A little diary of events will help unfold the rival contentions. The supari sample was duly analysed by the Public Analyst and his report dated February 12, 1971 revealed the offending presence of two artificial sweeteners. namely, saccharin and cyclamate. The Municipal Medical Officer of Health, Poona, granted the requisite statutory consent to prosecute and the very next day, February 26, 1971. a complaint was lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Standard Chemical and Pharmaceutical Co., Bombay, that these Cycle brand tins were stated to be of extra pure quality and the receptacles themselves contained a printed warranty like Ex. 31. The story of the accused is that it was such ultra pure quality of saccharin for which the manufacturer had given a warranty that found its way into the sweet supari he sold and that cyclamate was expressly declared to be absent therein by the manufacturer of the sweetener. His good faith was thus above board, according to the advocate for the appellant. A close-up of the law relevant to this case will help focus attention on the criminal area into which the appellant is alleged to have entered. The central concept of the statute, is prevention of adulteration of food in the sombre background of escalating manoeuvres by profiteers who seek to draw dividends from the damage to the health of the people caused by trade in adulteration. The social sternness and wide sweep of the statute can be realised from the thought that an insidious host that internally erodes the vitality of a nutritionally deficient nation is, in one sense, a greater menace than a visible army of aggression at o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns rea and indemmity derived from a warranty, section 19 needs mention. It runs thus and is self-explanatory : 19( 2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves- (a) that he purchased the article of food- (i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer; (ii) in any other case, from any manufacturer, distributor or dealer; with a written warranty in the prescribed form; and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it . Two rules, as they originally stood and as now modified, figured during arguments and they had better be extracted here without comment. 4. Sale of certain admixture$ prohibited- Notwithstanding the provisions of Rule 43, no person shall either himself or by any servant or agent sell- (g) any article of food which contains any artificial sweetener, except Saccharin, or in the preparation of which any such artificial sweetener has been used . 47-Addition of Saccharin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the State may-ban their use. But it these additives are,toxic it is a failure of. duty of the Food Inspector not to have averred in the complaint and Adduced evidence in support, a matter which the concerned authorities will consider. Indifferent action of the prosecution also occasions failure of justice to the community especially when faceless victims are involved like under food regulation laws. Any way, the fact is-and the court cannot help it the absence of evidence (a) that the supari contains any poisonous or other ingredients which renders it injurious to health or (b) that it contains any other substance causing injury as indicated in s. 2(i) (b) puts the offence out of s. 7 (i) and brings it within s. 7(v). The further fortunes of saccharin and cyclamate in official eyes as a bearing on the plea of the accused. It transpires that the Central Committee for Food Standards, constituted under s. 23(1) of the Act is stated to have accepted the recommendation of its sub-committee to the effect that saccharin may be permitted to be used in scented supari to the extent of 100 parts per million, and steps are under way for suitable amendments to the rules. It is also on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, unconstitutional restriction on freedom of trade to prevent and punish sales of articles innocuously sweetened by these innocent additives ? (4) Does not the history of the Rules (and the D G Rules claiming down control on the use of saccharin and cyclamate recently) demonstrate-particularly in the context of the technical and administrative rethinking on admixture of saccharin reflected in the circulars the arbitrariness and unreasonableness of the new rules 44(g) and 47, liable therefore to be struck down under art. 13 read with arts. 14 and 19? (5) In the light of carbonated waters being permitted to use saccharin, is it not arbitrary to single out supari for discriminatory embargo on the use of this artificial sweetner and does not rule 47 fail for violation of art. 14? (6) Does the offence, assuming the facts of the prosecution to be proved, fell under s. 16(i)(a)(i) the impact of such finding being material so the issue of sentence? (7) Should the sentence, in the facts and circumstances of the case be so draconian? (8) In any view, the respectable trader, that the accused is, the Probation of Offenders Act and its beneficent provision must be applied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, drew our attention to Dr. Nandkarni s Indian Materia Medica, invited us to the great Susruta s reference to this aromatic stimulant in a valiant endeavor to persuade us to hold that supari was more medicinal than edible. We are here concerned with a law regulating adulteration of food which effects the common people in their millions and their health. We are dealing with a commodity which is consumed by the ordinary man in houses, hotels, marriage parties and even routinely. In the field of legal interpretation, dictionary scholarship and precedent-based connotations cannot become a universal guide or semantic tyrant, oblivious of the social context, subject of legislation and object of the law. The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the commonsense understanding of the word. The Act-defines food very widely as covering any article used as food and every component which enters into it, and even flavoring matter and condiments. It is commonplace knowledge that the word food is a very general term and applies to all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a biochemical risk and so a blanket ban on their use is an unconstitutional restriction on the freedom of trade, apart from being ultra vires the rule-making power in s. 23(1). Saccharin was surely a permissible sweetener till the rules were modified in August 1968. It is also a fact that cyclamate which was not permissible as an additive under the Rules was prohibited from going into medicinal preparations only in 1971 by a rule under the Drugs and Cosmetics Act. It is well known that saccharin is used by many people medicinally for diabetics or obesity. The short-term and long-term effects of saccharin- on rats and human beings were reviewed in the F.A.A./W.H.O. meeting held in Geneva in 1967 and the following comments were made: The extensive biochemical studies with saccharin and sodium saccharin show the inertness of these substances. Following an oral dose, saccharin appears unchanged in the urine of man within half-hour and is completely exerted within 48 hours. The long recorded use by man without any apparent deleterious effects in normal individuals and diabetic patients indicates the safety of the normal intakes of saccharin. Although longterm animal studies are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Drugs Administration, Maharashtra State. Even on cyclamates, the toxic degree is not too clear. There is considerable controversy both in the United States and the United Kingdom about a total ban on cyclamates but there is a growing volume of opinion that its use has caused bladder tumor when massive doses are fed on rats. In India also scientific opinion is sharply divided on the harmful consequences of cyclamates. However, in the United States and the United Kingdom, in Japan and other countries there is a ban on this substance and the Indian official view seems to be that without more information on the mechanism of bladder cancer induction in rats by the cyclamatesaccharin mixture we have to follow the example of the United States. No risks can be taken where millions of people and their lives are involved and cancer being a sure killer does not admit of biochemical gamble or medical speculation particularly when the Indian people, by and large, are less health-conscious and informed than Americans and Britons. Such being the facts, it is not the judicial function to enter the thicket of research controversy or scientific dispute where Parliament has entrusted the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end the citizen in the assertion of his fundamental rights against executive tyranny draped in discretionary power but here no case for it exists. It is surprising that the ruling in Kartar Singh s case([1964] 6 S.C.R. 679; 690) has not deterred the urging of this contention. Dealing with a similar argument under the same Act this Court overruled the High Court s judgment striking down the impugned rules, and stated : We do not consider that the Court was justified in practically legislating and laying down what the rules should be rather than give effect to the law by adherence to the rules as framed. We respectfully agree with this guide-line. Violation of arts. 14 and 19 by the Act and the Rules has been urged but repelled so late as in the Andhra Grain Merchants case([1971] 1 S.C.R. 166) but some constitutional pleas. here parties are rich, die had and ride on the hardships of the small man. Culpability being thus conclusive we have to fix the precise provision under which the guilt arises. In the absence of proof that the addition of saccharin and cyclamate are injurious to health the food cannot be called adulterated in statutory vocabulary. Never-the-less the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al proselytisation. No chances can be taken by society with a man whose anti-social operations, disguised as a respectable trade, imperil numerous innocents. He is a security risk. Secondly, these economic offenses committed by white collar criminals are unlikely to be dissuaded by the gentle Probationary process. Neither casual provocation nor motive against particular persons but planned profit making from numbers of consumers furnishes the incentive-not easily humanised by the therapeutic probationary measure. It is not without significance that the recent report (47th report) of the Law Commission of India has. recommended the exclusion of the Act to social and economic offenses by suitable amendments. it observed We appreciate that the suggested amendment would be in apparent conflict with current trends in sentencing. But ultimately, the justification of all sentencing is the protection of society. There are occasions when an offender is so antisocial that his immediate and sometimesprolonged confinement is the best assurance of society s protection. The consideration of rehabilitation has to giveway, because of the paramount need for the protection of society. We are, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal. We are not unmindful of the possibilities of village victualers and tiny grocers being victimised by dubious enforcement officials which may exacerbate when punishments become harsher, and the marginal hardships caused by stern sentences on unsophisticated small dealers. Every cause has its martyr and Parliament and Government-not the Court-must be disturbed over the search for solutions of these problems. Savage severity may not always prove effective and may be cruel on petty and marginal offenses. The learned Magistrate, we are constrained to observe, has completely failedto appreciate the gravity of food offenses, when he imposed a naively negligible sentence of one hundred rupees fine. In a country where consumerism as a movement has not developed, the common man is at the mercy of the vicious dealer. And when the primary necessaries of life are sold with spurious admixtures for making profit, his only protection is the Prevention of Food Adulteration Act and the Court. If offenders can get away with it by payment of trivial fines, as in the present case, it. brings the law into contempt and is enforcement a mockery. In this context, it is apposite to draw attenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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