KRISHNA CHANDRA Vs. STATE OF U P

JUDGEMENT

(1.) V. P. Mathur, J. This applicant was convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 and awarded a sentence of six months' R. I. and also a fine in a sum of Rs. 1000 by the then III Additional Munsif Magistrate, Banda. The judgment is dated 18-4-1981. It was further provided that in default of the payment of fine, the applicant has to undergo three months' R. I. Criminal Appeal No. 35 of 1981 was preferred by the applicant and came up for hearing before the then 1st Additional Sessions Judge, Banda who partly allowed the appeal by his judgment, dated 30-9-1981. The conviction of the appellant under Section 7 read with Section 16 of Preven tion of Food Adulteration Act was upheld but in view of the provisions of Section 16 (l) (a) (ii) of the Act, the sentence was minimised to three months' R. I. and line of Rs. 500 and in default of the payment of the fine, further three months R. I. was provided. Criminal Revision No. 1597 of 1981 was then moved and came up for hearing before this Court. A Single Judge of this Court brother Justice B. N. Katju considered two cases, which in his view were applicable to the facts of the present case. One of them was the case of Kailash Kumar Shukla v. State, 1982 A. C. R. page 114 and the other in which a contrary view has been taken was the case of Ibrahim Hussain and others v. State of U. P. , 1982 Excise and Food Adulteration Reports 425. He was of the view that since the two views were contradictory, the matter should go before a Division Bench for a decision.

(2.) UNDER the orders of Hon'ble the Chief Justice the case came up before a Divisional Bench of the Court comprising of Hon'ble R. K. Shukla, J. and Hon'ble O. P. Mehrotra, J. They took into consideration the Supreme Court's decision in the case of Pyarali K. Tejani v. Mahadeo Ramchandra Dange and others, AIR 1974 SC 228, where a similar question with respect to Supari was disposed of by the Supreme Court. The Division Bench was of the view that on the analogy of the case before the Supreme Court, there could be difference between the case of Supari and the case of Pan Masala, both being articles of food and in both use of SACCHARINE was completely prohibited in view of Rules 4 (g) and 47 of the Rules framed under the Prevention of Food Adulteration Act. The Division Bench passed its judgment on 6th May, 1987 and directed the record to be laid before the learned Single Judge who according to them had made refer ence for their opinion. The case then went up before Hon'ble Mr. Justice B. N. Katju who vide his order dated 25-11-1987 took the view that the decision of the Bench could not be referred to him because he had no further jurisdiction to decide the matter after the Hon'ble the Chief Justice had already transferred to case for decision in the light of his referring order to a Division Bench. No question of law was referred to the Division Bench for the decision and opinion but whole case had been sent to the Division Bench for decision.

(3.) ONE of the points which was taken before the learned Sessions Judge and has now been re- agitated before us is whether in view of the Appendix B which provides in A. 07. 10 as to how much saccharin is permissible for being mixed in food articles, can use of saccharine in food article like Pan Masala, be deemed to be completely prohibited or whether the court will have to look into and find out as to hov much quantity has been used and whether the quantity is in excess of the so-called permitted quantity according to A. 07. 10. The learned Sessions Judge considered this point and in the light of the rules 44 (g) and 47 of the Rules framed under the Prevention of Food Adulteration Act, 1954 and the Supreme Court's dictum mentioned above, he came to the conclusion that here was an absolute ban on the use of saccharine in food articles except where specifically article wise permission has been given. This is also the view of the Division Bench of tin's Court vide judgment, dated 6th May, 1987. When the Supreme Court sat down to decide the case of Pyarali K. Tejani (supra), Appendix B was very much in existence and in spite of this the Supreme Court held that there could be no admixture of saccharine in Supari and a detailed reason for coming to that conclusion was given by the Supreme Court in their judgment. A note of warning was also appended when it was laid down that it was no part of the judicial function to enter into research, controversy or scientific dispute where Parliament has entrusted the Central Government with the power of formulating and passing Laws to uphold the duty of protecting public health against potential hazards and where the Central Government after consultation with the high powered technical body has prohibited the use of saccharine. We are also of the view that Appendix B of which the reference has been made above does not in any way go counter to the provisions of Rules 44 (g) and 47 of the Rules framed under the Prevention of Food Adulteration Act. A harmonious interpretation of the rules and Appendix B will make it clear that normally there is complete ban on the use of saccharine in all food articles. But this ban can be modified to the extent that the law specifically lays down any minimum quantity that can be used for separate articles of food to be specifically mentioned. There is such a mention as regards carbonated water. If the Legislature so wanted, they could exempt some small quantity of saccharine for use in Supari and Pan Masala but unless this is done the ban is complete and howsoever small the quantity of saccharine is mixed in the Pan Masala i. e. subject of the resent case, it will be infraction of the Jaw and hence punishable. We are completely in agreement with the argument and the view of the Division Bench which has delivered the judgment of 6th May, 1987 and we hold that the peti tioner has committed offence under Section 7 and punishable under Section 16 of the Prevention of Food Adulteration Act.