Ramjee Prasad & Anr vs State Of Bihar

This appeal has been filed by the two accused persons who stand

convicted by the High Court for an offence punishable under Section 16(1)(a)(ii) of

the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act")

for having been found selling an adulterated food article - "Chhena Mithai".

In the light of what we intend to hold in this matter, the detailed facts

would not be necessary.

The Public Analyst in his report found that the above-mentioned food

article was adulterated with starch.

This opinion was only partially maintained by the Central Food

Laboratory as it opined that the foodstuff was adulterated, but there was no

reference whatsoever to the adulteration by starch. The trial court and the first

appellate court tried and convicted the appellants, who are father and son, for an

offence punishable under Section 16(1)(a)(i) of the Act and sentenced them to

various terms of imprisonment.

The matter was taken in revision before the High Court and the learned

Single Judge in his judgment dated 20th November, 2001 held that a case under

Section 16(1)(a)(i) of the Act could not be made out against the appellants, but as 2

the trial court and the first appellate court had mis-applied the penal provision, it

was the obligation of the High Court to see that the accused did not escape from

criminal liability and accordingly convicted them for an offence punishable under

Section 16(1)(a)(ii) of the Act.

It is in these circumstances that the matter is before us after grant of

special leave.

Mr. Gaurav Agrawal, the learned counsel for the appellants has raised

several arguments, but we are of the opinion that the matter can be disposed of on a

simple admitted fact. We see that Section 16 (1)(a)(i) of the Act is relatable to

Section 2(ia)(m) which provides that a food article shall be deemed to be adulterated

if the quality or purity of the article falls below the prescribed standard or its

constituents are present in quantities not within the prescribed limits of variability

but which does not render it injurious to health. The High Court has, however,

thought it fit to render the conviction under clause 16(1)(a)(ii) of the Act which

stipulates that the food article shall be deemed to be adulterated if it is not of the

nature, substance or quality which it purports or is represented to be. A bare

reading of these two provisions and the finding of the first two courts reveal that the

evidence required for recording a conviction under the two clauses would be

distinct and different as the ingredients thereof are entirely different. In this view

of the matter, it appears that the appellants were seriously prejudiced in the fact

that the High Court had thought it fit to change the nature of the offence for which

they had been brought to trial. While dealing with a similar matter, this Court in

Municipal Corporation of Delhi v. Ram Sarup (1980) 1 SCC 580, in para 4 has held

as under:-

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"In the view we have taken we would have set aside the acquittal of the respondent and restored the judgment of the trial Court, but we are inclined to think that it will not be proper to do so in the facts and circumstances of this case. There is nothing in the three judgments on record, and more particularly in the impugned judgment of the High Court, to show whether the respondent was put on trial for selling an adulterated article of food within the meaning of clause (f) of Section 2(ia) of the Act, or whether he was tried for selling, within the meaning of clause (l) of that section, an article of food of which the quality or purity fell below the standard prescribed by the Rules. The possibility that the respondent was prejudiced in his defence because of the ambiguity cannot therefore be ruled out. In this view of the matter, we are not inclined to allow the appeal and set aside the respondent's acquittal."

We are, therefore, of the opinion that the matter is settled in favour of the

appellants by the cited judgment. The learned counsel appearing for the

respondent has, however, pointed out that no prejudice had been caused to the

appellants on account of this change in the nature of the offence. In the light of

what has been observed by this Court (ibidem), the prejudice is writ large more

particularly as the ingredients of the two provisions are substantially different and

the evidence of one cannot lead to a finding of guilt for the other. The appeal is

allowed. The orders of the courts below are set aside and the appellants are

acquitted. As the accused appellants are on bail, their bail bonds are discharged.

...................J. (Harjit Singh Bedi)

...................J. (J.M. Panchal) New Delhi;

April 22, 2009.