STATE OF MAHARASHTRA Vs. NANDIRAM BADILDAS AHUJA

JUDGEMENT

(1.) It is not only surprising but equally unfortunate the an incident that is alleged to have occurred in the year 1978 has given rise to a proceeding which till this day has remained undecided. The respondent accused was prosecuted before the learned trial Magistrate for an offence under section 7(i)(v) read with section 16 of the Prevention of Food Adulteration Act. It was alleged that he runs an Ice Candy Factory at Kolhapur. On 19-4-1978 the complainant Food Inspector visited the said factory along with two panchas. The respondent was present. Two types of ice candies were found in the factory, one red coloured and the other yellow coloured. This proceeding relates to red coloured candy since the proceeding pertaining to yellow coloured ice candy has finally terminated in the acquittal of the accused. After following the procedural formalities the sample of ice candy was purchased and after adding the formalin the same came to be sealed and ultimately forwarded to the Public Analyst who reported that it contains saccharine which is a non permissible sweetener and therefore the sample was adulterated. Necessary paper were then forwarded and sanction for prosecution was obtained from the Joint Commissioner, Pune Division, Food and Drug Administration, Maharashtra State, on 2nd of August, 1978 whereafter the Food Inspector filed complaint being Criminal Case No. 8101 of 1978 before the learned Chief Judicial Magistrate, Kolhapur for the said offence.

(2.) The respondent accused pleaded not guilty. He raised several contentions some of which related to the procedural technicalities. However, the learned Magistrate was persuaded to uphold the validity of one contention namely that addition of saccharine does not make the commodity in question as adulterated within the meaning of the said Act and as such no offence was committed by the accused. In keeping with these findings the learned Magistrate was pleased to acquit the respondent accused by his order dated 31st of August, 1979.

(3.) This order was challenged in this Court in Criminal Appeal No. 501 of 1980 by the State. The appeal was placed before the learned Single Judge for final hearing after it was admitted. Several contentions were raised on behalf of both the side. On behalf of the State it was mainly contended that it was an error to hold that addition of saccharine does not transform the commodity as adulterated. The learned Counsel who appeared on behalf of the respondent before the learned Single Judge also raised several contentions in addition to those which were raised before the learned trial Magistrate. As stated, the learned Magistrate dealt with only one contention and since it found favour with him no finding was recorded on other questions. One of the contentions used before the learned Single Judge was that there has been breach of Rules 16 and 17 of the Rules framed under the said Act. This contention did not find favour with the learned Single Judge and it was negatived on merits. The learned Single Judge was not impressed by the finding of the learned trial Magistrate that addition of saccharine does not formulate and offence under the Act. However, a situation arose when the learned Counsel for the respondent before the learned Single Judge placed reliance on a decision of the learned Single Judge of this Court recorded in Criminal Appeal No. 146 of 1977. The learned Single Judge was persuaded to uphold the contention in that matter that addition of saccharine in the betel-nut Supari did not make it the adulterated article of food and on the same analogy it was contended before the learned Single Judge that addition of saccharine in the ice candy would not make an adulterated article of food. The learned Single Judge in the other matter which judgement was cited has placed reliance on certain rules. Those rules were reconsidered by the learned Single Judge hearing this very matter and the learned Single Judge had his own reservations about the correctness of that ratio enunciated in the matter which was the subject matter of Criminal Appeal No. 146 of 1977. The learned Single Judge felt that it did not lay down correctly the position in law, as according to him, even on the basis of the rules relied upon, the finding of saccharine in ice candy would make it an adulterated article of food. However, in view of that disagreement the learned Single Judge felt that this was a fit case wherein the matter should be referred to the Division Bench that this point can be decided on that forum. It is under these circumstances that this appeal is placed before us for final disposal on reference having been made by the learned Single Judge formulating two points namely whether saccharine can be used in any article of food if the prescribed standard of that article of food does not permit the use of saccharine or any other artificial sweetener. The second portion was the corollary of food.