judgement:
Criminal Appeal No. 227 of 1983.
From the Judgment and Order dated 19.8.1982 of the Allahabad High Court in Crl.
Appeal No. 680 of 1976.
R.L. Kohli and Shakil Ahmed Syed for the Appellants.
Prithvi Raj and Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal by special leave is from the judgment of the High Court of judicature at Allahabad in Criminal Appeal No. 680 of 1976 dismissing the appeal of the four instant appellants namely, Lalji, Mansa, Milkhi and Bhagwati and upholding their conviction and sentence of life imprisonment under Sections 302/149 and also the conviction of Milkhi with sentence of two years R.I. under section 148 I.P.C and of the other three appellants under Section 147 I.P.C. with sentence of one year R.I. 133 The facts are simple.
On 24.6.1975 at noon Manju, son of Girdhaft Lal, man handled Chhotey Lal and Mansa, nephews of Minister Lal, after they gave him (Manju) a push.
The prose cution version was that Minister Lal with a cane in hand, Chhotey Lal with a Kanta, Milkhi and Chainu with spears and others with lathis arrived near Girdhaft Lal 's house and after an altercation started assaulting Girdhaft and Siddhu.
The alarm attracted Ram Avtar and Manju who came there.
The appellants party started assaulting them also whereupon they retreated to their house but were followed by Minister Lal, Lalji and others of the party.
Girdhaft Lal and Siddhu died in consequence of the assault.
Ram Avtar picked up the loaded gun of his father Girdhaft and fired a shot at Minis ter Lal who fell down dead and by another shot he injured Lalji.
The defence version was that Girdhaft Lal summoned Minister Lal to his house and the accused persons came with or after Minister Lal.
This resulted in a cross case on Lalji 's F.I.R. (exhibit Ka 19).
It has admittedly resulted in acquittal.
The present case was registered under F.I.R. (exhibit Ka l) upon the information lodged by Babu Ram son of Siddhu at P.S. Maigalganj.
Altogether eleven persons, including the appellants herein faced trial.
The learned trial court relying on the evidence of the three eye witnesses convicted eight and acquitted three of them, namely, Ram Lotan, Kripa Dayal and Barkau.
The eight convicted persons were appel lants before the High Court in Criminal Appeal No. 680 of 1976.
Out of them conviction of four appellants was upheld, while the other four, namely, Shiv Kumar, Chottey Lal, Munna and Chainu were acquitted by the High Court.
The learned counsel for the appellants Mr. R.L. Kohli, Sr.
Advocate submits that as out of the eleven persons three were acquitted by the trial court and four were acquitted by the High Court as there was no corroboration in their cases, the position of two of the appellants, namely, Milkhi and Bhagwati remains the same and they must also be similarly acquitted for want of corroboration.
The learned counsel for the State Mr. Prithvi Raj, Sr.
Advocate counters submitting that when the appellants have been convicted under section 302/149 I.P.C the question of corroboration in case of individual appellants would not arise; and there is enough corrobora 134 tion in the evidence including medical evidence on record to prove that they were members of the unlawful assembly when the offence was committed.
The precise question to be decided in this appeal, therefore, is whether in view of death caused to Girdhaft and Siddhu by the unlawful assembly which is punishable under section 302 with the aid of Section 149 I.P.C. the corroboration as to participation of each individual member of the assembly would be necessary, and if so, whether in the instant case there is such corroboration.
Section 149 I.P.C. provides that if an offence is com mitted by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the mem bers of the assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of committing of that offence is a member of the same assembly, is guilty of that offence.
As has been defined in Section 141 I.P.C., an assembly of five or more persons is designat ed an 'Unlawful Assembly ', if the common object of the persons composing that assembly is to do any act or acts stated in clauses 'First ', 'Second ', 'Third ', 'Fourth ', and 'Fifth ' of that section.
An assembly, as the explanation to the section says, which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Whoever being aware of facts which render any assembly an unlawful assem bly intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
Thus, when ever so many as five or more persons meet together to sup port each other, even against opposition, in carrying out the common object which is likely to involve violence or to produce in the minds of rational and firm men any reasonable apprehension of violence, then even though they ultimately depart without doing anything whatever towards carrying out their common object, the mere fact of their having thus met will constitute an offence.
Of course, the alarm must not be merely such as would frighten any foolish or timid person, but must be such as would alarm person of reasonable firm ness and courage.
The two essentials of the section are the commission of an offence by any member of an unlawful assem bly and that such offence must have been committed in prose cution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
Not every person is necessarily guilty but only those who share in the common object.
The common object of the assembly must be one of the five objects mentioned in Section 141 I.P.C. Common object of the unlawful assembly can be gathered from the nature of the assembly, 135 arms used by them and the behaviour of the assembly at or before scene of occurrence.
It is an inference to be deduced from the facts and circumstances of each case.
Section 149 makes every member of an unlawful assembly at the time of committing of the offence guilty of that offence.
Thus this section created a specific and distinct offence.
In other words, it created a constructive or vicar ious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly.
However, the vicarious liability of the members of the unlawful assembly extends only to the acts done in pursuance of the common object of the unlawful assembly, or to such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object.
Once the case of a person fails within the ingredients of the section the question that he did nothing with his own hands would be immaterial.
He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the mem bers of the assembly knew to be likely to be committed in prosecution of that object.
Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined.
It is not necessary that all the persons forming an unlawful assembly must do some overt act.
When the accused persons assembled together, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specif ic overt act was done by which of the accused.
This section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly.
While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149.
It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.
Thus, once the Court hold that certain accused persons formed in unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence.
After such a finding it would not be open to 136 the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts.
The prosecution would have no obligation to prove it.
In the instant case after having held that the appel lants formed an unlawful assembly carrying dangerous weapons with the common object of resorting to violence (as de scribed in the charge) it was not open to the High Court to acquit some of the members on the ground that they them selves did not perform any violent act, or that there was no corroboration of their participation.
In other words, having held that they formed an unlawful assembly and committed an offence punishable with the aid of section 149 I.P.C., the High Court erred in examining which of the members only did actively participate and in acquitting those who, according to the Court, did not so participate.
Doing so would amount to forgetting the very nature and essence of the offence created by section 149 I.P.C The Court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society.
On the basis of the evidence on record Milkhi and Bhag wati 's membership of the unlawful assembly at the relevant time has been satisfactorily established.
Both the courts below having held them to have been members of the unlawful assembly, the mere fact that they were not active partici pants, would be of no avail.
It is not open to the court to scrutinise as to whether any member of the unlawful assembly actively participated.
In an appeal by persons convicted under Section 302 with the aid of 149 I.P.C., the question whether a particular person was a member of that unlawful assembly at the rele vant time may of course be examined; and if it is found from the evidence on record that he was not a member of the unlawful assembly, he could not be convicted with the aid of section 149.
The question to be examined by us in the in stant case is whether Milkhi and Bhagwati were members of the unlawful assembly at the relevant time and not whether there was enough corroboration for their individual partici pation in the commission of the offence.
It has not been denied that the names of Milkhi and Bhagwati were mentioned in the F.I.R. (exhibit Ka l).
P.W. 2 Manju son of Girdhari, whose presence at the place of occur rence has not been challenged, mentioned Milkhi and Bhagwati among the accused persons with their relationship.
He cate gorically stated that the two, amongst others, 137 were present at his house beating his father and uncle and chasing him and Ram Avtar.
Milkhi according to him had a spear in his hand.
Manju denied the suggestion that Milkhi and Bhagwati were standing there on the side of the witness es.
P.W. 3 Smt.
Ram Devi clearly corroborated Milkhi 's participation.
P.W. 1 Babu Ram while giving vivid descrip tion of the occurrence stated that Milkhi was there in the assembly with spear and Bhagwati with a lathi and that all the persons present beat Girdhaft and Siddhu.
Milkhi also assisted in carrying Minister Lal after he was shot.
In reply to the question who beat Manju he clearly stated that Mansa and Bhagwati beat him with lathi when he was entering the house.
D.W. 2 Lalji stated that at the time of the occurrence Puran, Bhagwati, Kripal etc. had also come.
In the F.I.R. (exhibit Ka 19/C.I) lodged by Lalji on the same occurrence presence of Milkhi and Bhagwati was admitted by him.
The submission that they were mere spectators could not be believed.
From the above evidence on record it could not be held that Milkhi and Bhagwati were not members of the unlawful assembly at the the relevant time.
Whether any specific injury could individually be attributed to them or not could not at all be material.
The submission that the two be acquitted on ground of lack of corroboration has, therefore, to be rejected.
In the facts and circumstances of the case it is not open to this Court to apply the reasoning of the High Court to acquit members of the unlawful assembly for lack of corroboration as to their participation.
No other submission was made for the other appellants.
In the result, we do not find any merit in this appeal and hence it is dismissed.
Appellant Mansa is on bail.
He shall surrender to serve out his sentence.
T.N.A. Appeal dismissed.

summary:
The four appellants along with seven other accused were tried under Sections 147, 148 and 302 read with 149 of the Indian Penal Code.
The trial Court convicted the eight accused, including the four appellants, under section 302/149 I.P.C. and awarded life imprisonment.
Appellants Nos. 1, 2 & 4 were also convicted under Section 147 I.P.C. and each awarded one years R.I.
Appellant No. 3 was also convicted under Section 148 I.P.C. and awarded two years R.I.
The remaining three accused were acquitted by the Trial Court for want of corroboration.
On appeal by the eight convicted persons the High Court upheld the conviction of only four appellants on all the counts and allowed the appeal of the other four co accused for want of corrobora tion.
In this appeal by special leave it was contended that appellants No. 3 and 4 should also be acquitted for want of corroboration as the Trial Court has acquitted three accused and the High Court, on appeal, has further acquitted four accused for want of corroboration.
The appeal was contested on behalf of the State contend ing that in case of conviction under section 302 read with section 149 of the I.P.C. corroboration in case of individu al accused was not necessary and there 131 was enough corroboration on record to prove that the accused were members of the unlawful assembly at the time of commis sion of offence.
Dismissing the appeal, HELD: 1.
Section 149 creates a specific and distinct offence.
It imposes constructive or vicarious criminal liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of the assembly.
[135B] 1.1.
It is not necessary that all persons forming an unlawful assembly must do some overt acts.
The section makes a member of the unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly.
While overt acts and active partic ipation may indicate common intention of the persons perpe trating the crime, the mere presence in the unlawful assem bly may fasten vicarious criminal liability under the sec tion.
The basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with requisite common object or knowledge.
[135E F] 1.2.
The two essentials of the section are the commis sion of an offence by any member of an unlawful assembly and that such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
The common object of the assembly must be one of the five objects mentioned in section 141 of the Indian Penal Code.
[134G H] 2.
In an appeal by the persons convicted under section 302 with the aid of section 149 I.P.C. the question whether a particular person was a member of the unlawful assembly at the relevant time may be examined; and if it is found from the evidence on record that he was not a member of the unlawful assembly, he could not be convicted with the aid of section 149.
[136F G] 2.1.
But once the Court holds that certain accused persons formed an unlawful assembly and an offence is com mitted by any member of that assembly in prosecution of the common object of that assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing that offence was a member of the same assembly is to be held guilty of that offence.
After such a finding it is not open to the 132 Court to see as to who actually did the offensive act.
The prosecution is not obliged to prove which specific overt act was done by which of the accused.
[135G H; 136A] 2.2.
From the evidence on record it has been satisfacto rily established that appellants No. 3 and 4 were members of the unlawful assembly at the relevant time.
Both the Courts below have held them to have been members of the unlawful assembly.
The fact that they were not active participants and whether any specific injury could individually be at tributed to them or not are not at all material.
[136D E] 2.3.
In the instant case the High Court having held that the appellants formed an unlawful assembly carrying danger ous weapons with the common object of resorting to violence and committed an offence punishable with the aid of Section 149 I.P.C. erred in acquitting some of the members on the ground that they themselves did not perform any violent act or that there was no corroboration of their participation.
Doing so would amount to forgetting the very nature and essence of the offence created by Section 149.
[136B D] 2.4 The Court in undeserving cases cannot afford to be charitable in the administration of criminal justice which is so vital for peace and order in the society.
[136D]


judgement:
Criminal Appeal No. 26 of 1989.
From the Judgment and Order dated 17.4.1984 of the Gujarat High Court in Crl.
Appeal No. 1097 of 1980.
V.B. Ganatra and V.N. Ganpule for the Appellant.
Girish Chandra, M.N. Shroff and M.N. Goswami for the Respondents.
The Judgment of the Court was delivered by 142 VENKATACHALIAH, J.
By this petition for grant of Special Leave under Article 136 of the Constitution, coming up after notice to the State of Gujarat, the applicant seeks leave to appeal to this Court from the judgment of the High Court of Gujarat in Criminal Appeal No. 1097 of 1980 restoring the conviction and sentence passed by the Chief Judicial Magis trate, Valsad, against the petitioner in Criminal Case of 48 of 1979 for an offence under the Prevention of Food Adulter ation Act 1954.
( 'Act ' for short) Special Leave is granted and the appeal is taken up for final hearing, heard and disposed of by this judgment.
Appellant was charged before the Chief Judicial Magistrate, Valsad, by the Food Inspector, Navasari Munici pality, with the offence of selling "Kesari coloured sweet supan sali" alleged to have been adulterated with "Yellow basic coal tar dye".
The learned Magistrate found the appel lant guilty of the offence and imposed a sentence of an year 's simple imprisonment and a fine of Rs.2,000, both of which were the statutorily compulsory minimum sentences under Section 16(1)(A)(i) of the Act.
Learned Sessions Judge, Valsad, by his judgment, dated 14.3.1980, in Criminal Appeal 32 of 1979 preferred by the appellant, however, set aside the conviction and sentence and acquitted the appellant of the charge.
On further appeal by the State against the said acquit tal, the High Court of Gujarat allowed the State 's appeal and, in reversal of the judgment of acquittal of the learned Sessions Judge, restored the conviction and sentence passed by the learned Chief Judicial Magistrate.
Appellant is a tradesman carrying on business within the limits of Navsari Municipality.
On 7.12.1978, respondent No. 2, the ' food inspector of Navsari Municipality, pur chased from the appellant 600 gins.
of "kesari coloured sweet supari sali" and after complying with the procedural formalities packed and sealed the "supari" into three sepa rate packages of 200 gins.
each and one of them was sent to the Public Analyst who by his report dated 20.12.1978 (Ext. 12) affirmed that the sample contained a "yellow basic coal tar dye" and that it did not conform to the standard laid down under the Rules.
On 19.1.1979, the Food Inspector with the prior sanction of the District Health Officer, Valsad, (Ext.14), filed a complaint in the Court of the 143 Chief Judicial Magistrate, Valsad.
The prosecution culminat ed, as aforesaid, in the conviction and sentence imposed by the learned Chief Judicial Magistrate, and later restored by the High Court.
Appellant now seeks to assail the legality of the conviction.
We have heard Sri V.B. Ganatra, learned counsel for the appellant and Sri Girish Chandara and Sri M.V. Goswami, learned counsel for Respondents.
1 and 2, respectively.
Though a number of grounds are taken in the memorandum of the Petition for special leave, however, at the hearing Sri Ganatra confined his submission only to one aspect of the matter which, if accepted as correct, would go to the root of the case for the prosecution.
Apparently, this contention in the form in which it is presented here was not placed before the High Court as we find no reference to it in the judgment.
Appellant 's Learned Counsel contended that "Supari" or "Betel nut" is basically and essentially an yield of the Areca Palm and must, therefore, be held to fall under "Fruit products" within the meaning of Rule 29(f) of the Prevention of Food Adulteration Rules, 1955, ( 'Rules ' for short) and, accordingly, the use of permitted coal tar food colours in it is not prohibited by law.
It was further urged that the Public Analyst had not held that the "Yellow basic coal tar dye", found in the sample, was not one of those food colours prohibited under Rule 28 and that, there fore, its use in "supari" which was a "Fruit product" cannot be said to be prohibited.
Alternatively, Sri Ganatra con tended that the "supari" in this case was a "flavouring agent" within the meaning of Rule 29(m) in which case also the use of permitted coal tar food colours, was not prohib ited.
On the contentions urged at the hearing, the points that fall for consideration are, first, whether the "supari" concerned in this case was a "Fruit product" or, alterna tively, a "Flavouring Agent" within the meaning of Rule 29(f) or (m) respectively and, accordingly, the use in it of permitted coal tar dyes or food colours was not prohibited and, secondly, whether, even if, after an elaborate enquiry, it was held that "supari" was not a "Food product" appellant having acted bonafide on a possible and not an unreasonable view of the nature and classification of the goods, was, at all events, entitled to the benefit of the doubt.
It was not disputed that supari was an article of food.
It was so held in Pyarali K. Tejani vs M.R. Dange, [1974] 2 SCR 154.
It was also not disputed that if "supari" did not admit itself of being classified 144 under "Fruit products" or under "Flavouring Agents" under Rule 29(f) or 29(m) respectively, the use in "supari" of even a coal tar food colours permitted under rule 28 would amount to adulteration.
The argument that "Supari".
or "Betel nut" is a "Flavou ringAgent" has clearly no substance.
The first contention, therefore, narrows itself down to whether "supari" in the form in which it was offered for sale though vegetative in origin and is derived from the usufruct of areca palm, can be said to be a "Fruit Product" in the sense in which that expression is used and is required to be understood in Rule 29(f).
To appreciate Sri Ganatra 's contention, the scheme of the relevant rules, in particular rules 23, 28 and 29, requires notice.
Rule 23 prohibits the addition of any colouring matter to any article of food except as specifi cally permitted by the rules.
Rule 28 provides that no coal tar food colour or a mixture thereof, except the food colours specifically enumerated in rule 28, shall be used in food.
Item 2 of the list of food colours permitted under Rule 28 includes 'Sun set Yellow FCF '.
We shall proceed on the premise that the basic yellow coal tar dye found in the "supari" by the Public Analyst is amongst those enumerated food colours excepted from the prohibition under Rule 28 and is, therefore, permitted to be used.
Then, Rule 29 prohibits the use of even the coal tar food colours permitted under rule 28 in or upon any food other than those enumerated in rule 29.
"Fruit Products" is one such item of food so enu merated under clause (f) of rule, 29.
The result is that permitted coal taar food colours, i.e. foodcolours permitted by Rule 28, can be used if the food articles in question are "Fruit Products" as understood in Rule 29(f).
But this exception from prohibition, in favour of "Fruit Products" is further subject to such exceptions or restrictions as are otherwise made in Appendix 'B '.
Sri Ganatra 's contention is that there having been no provision otherwise made in Appen dix 'B ' in respect of supari and supari being includible in "Fruit Products", the use in it of permitted coal tar food colours is prohibited.
Shri Ganatra submits that the legis lation being penal the expression "Fruit Products" in rule 29(f) should receive a reasonably liberal construction and that, so construed, "supari" would reasonably admit of being considered such a "Fruit Product".
We have had our attention drawn by Sri Ganatra to certain passages in 'Common Trees of India ' by Dr. Santatau (at page 111); in "Wealth of India Raw Materials" Vol.
I A (pages 390, 402 03) and certain passages in the 'Dravya Guna Vignyan ' (Part II & III: at page 145 672) in support of Sri Ganatra 's contention that "Supari" or "Betelnut" being the usufruct of "Areca" tree must be held to be a "FruitProduct".
Sri Ganatra says that having regard to the accepted cannons of construction appropriate to penal statutes, "supari" or "Betel nut" which was derived from the usufruct of Areca palm admits of being classified amongst "Fruit Products" in Rule 29(f).
At all events, says learned counsel, such a construction being a plausible one, the appellant who had conducted his affairs on such a plau sible meaning of the statute should be entitled to the benefit of the doubt.
In Encyclopaedia Britannica (Vol. 3, p. 55 1) with reference to "Betel nut" it is mentioned: "The name betel is applied to two different plants which in the east are very closely associated in the purposes to which they are applied.
The betel nut is the fruit of the areca or betel palm (Areca catechu) . . " "For chewing, the fruits are annually gathered between the months of August and November, before they are quite ripe, and deprived of their husks.
They are prepared by boiling in water, cutting up into slices and drying in the sun, by which treatment the slices assume a dark brown or black colours . " " . .
Betel nuts are used as a source of inferior catechu (g.v.); its chief alkaloid is arecoline, to which anthelmintic properties are attributed.
The drug finds some use in veterinary medicine as an anthelmintic.
" There is no dispute that "supari" is derived from and pre pared out of the usufruct of the Areca palm.
But the ques tion as to what is the context of the idea of "Fruit Products" in Rule 29(f).
The argument, no doubt, is somewhat attractively presented; but we are afraid, it is more attractive than sound.
The fact that a particular article of food, as indeed most of the articles of food of vegetative origin are, was of plant origin did not render that article necessarily a "Fruit Product".
Even products derived from, or associated in their origin with fruits need not ipso facto be "Fruit Products" for purposes and within the meaning of rule 29(f).
What were envisaged as "Fruit Products" in rule 29(f), will be indicated by the array of items dealt with in Appendix 'B ' under item 16 "Fruit 146 Products" though the list was in the nature of an exception of R.29.
Under the relevant head in Appendix 'B ' items referred are: "Fruit Juice"; "Tomato Juice"; "Fruit Syrup"; "Fruit Squash"; "Fruit Beverage" or "Fruit Drinks"; "Tomato Sauce"; "Tomato Ketchup"; "Tomato Relish";"Marmalade"; Fruit Chatni" and "Sauce" etc.
The object and the purpose of the Act are to eliminate the danger to human life from the sale of unwholesome arti cles of food.
The legislation is on the Topic 'Adulteration of Food Stuffs and other Goods ' [Entry 18 list III Seventh Schedule].
It is enacted to curb the wide spread evil of food adulteration and is a legislative measure for social defence.
It is intended to suppress a social and economic mischief an evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well being of the community.
The evil of adulteration of food and its effects on the health of the community are assuming alarming proportions.
The offence of adulteration is a socio economic offence.
In Municipal Corpn.
vs Kacheroo Mal, ; Sarkaria, J. said: "The Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people.
It is well settled that wherever possible, without unreasonable stretching or straining the language of such a statute, should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention . . " (Emphasis Supplied) The construction appropriate to a social defence legis lation is, therefore, one which would suppress the mischief aimed at by the legislation and advance the remedy.
The offences under the 'Act ' are really acts prohib ited by the police powers of the State in the interests of public health and wellbeing.
The prohibition is backed by the sanction of a penalty.
The offences are strict statutory offences.
Intention or mental state is irrelevant.
In Good fellow vs Johnson, at 944 referring to the nature of offences under the Food and Drugs Act, 1955, it was said: "As is well known, section 2 of the Food and Drugs Act, 1955, constitutes an absolute offence.
If a person sells to the 147 prejudice of the purchaser any food, and that includes drink, which is not of the nature or not of the substance or not of the quality demanded by the purchaser he shall be guilty of an offence.
The forbidden act is the sell ing to the prejudice of the purchaser . " Smedleys Limited vs Breed, is a case, both interesting and illustrative.
Smedleys Ltd. were manu facturers of canned peas of repute.
Out of the three and a half million tins of peas the company produced in the year 1971, only 4 complaints were received about the presence of extraneous matter in the tins.
One of them had been pur chased by a certain Mrs. Voss from a well known stores.
On opening the tin, Mrs. Voss found a small larva of a moth in the tin.
The commendable civic zeal of Mrs. Voss who report ed the larva infestation of the peas to the local authority had the effect of arraigning Smedleys Ltd. before court on charge of violation of the Food and Drugs Act, 1955.
Section 3(3) of the Act enabled a defence which the company raised that the extraneous matter was "an unavoidable consequence of the process of collection or preparation" The company, it would appear from the facts appearing in the report, had installed and elaborate system of spot checking of the peas by mechanical screening process before canning which elimi nated extraneous matter of significantly higher or lower specific gravity than that of the peas.
This process was also strengthened and supplemented by visual inspections by properly trained and experienced employees who worked for short periods to enable sustained concentration along the conveyer belt carrying the peas to the canning site.
To the strange ill luck and embarrassment of Smedleys the larva which had a specific gravity and size similar to that of the peas beat the screening machine and also managed, by virtue of its colour and shape, to escape the surveillance of the alert visual inspectors, who, it is said, were also paid a bonus if they detected and extracted any extraneous matter.
The peas, incidentally, would be pressure cooked for 20 minutes at 250xF which, would render the larva harmless to human health even if consumed.
The company contended that the existence of the larva was despite every possible pre caution and was "an unavoidable consequence of the process of collection and preparation" within the meaning of Section 3(3) of the Act.
The defence did not succeed.
Smedleys as well as the seller were convicted.
The House of Lords con firmed the conviction.
Lord Hailsham said: " . .
This innocent insect, thus deprived of its natural destiny, was in fact entirely harmless, since, prior to its 148 entry into tin, it had been subjected to a cooking process of 20 minutes duration of 250xF, and, had she cared to so, Mrs. Voss could have consumed the caterpillar without injury to herself, and even, perhaps, with benefit . . " [p. 24] "Thereafter, the caterpillar achieved a sort of posthumous apotheosis.
From local authority to the Dorchester magistrates, from the Dorchester magistrates to a Divisional Court presided over by the Lord Chief Justice of England,from the Lord Chief Justice to the House of Lords, the immolated insect has at length plodded its methodical way to the highest tribunal in the land.
It now falls to me to deliver my opinion on its case." [p. 24] Referring to the nature of the penalties under laws against food adulteration, Lord Chancellor said: "My Lords, as has been pointed out by my noble and learned friend, Lord Diplock, the expres sion 'absolute offence ' is imprecise.
Clearly the offence contemplated in section 2(1) of the Food and Drugs Act 1955 is an absolute offence if all that is .meant by that is an absence of mens rea.
It is one of those offences de scribed by Wright J in Sherras vs De Rutuzen which 'are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty '." [p. 26] Confirming the conviction, Lord Chancellor held: " . . sympathise as one may with a manu facturer with a reputation and record as excellent as that of the appellants, to con strue the Food & Drugs Act 1955 in a sense less strict than that which I have adopted would make a serious in road on the legisla tion for consumer protection which Parliament has adopted and by successive Acts extended, over a period, now, of more than a century . . " [ p.29] In Pyarali K. Tejani vs Mahadeo Ramchandra Dange, [1974] 2 SCR 154 this court held that what constitutes the offence under the 149 'Act ' is nothing more than the 'actus reus ' and mens rea need not separately be established.
In Criminal Law by J.C. Smith & Brian Hogan, (5th Edn.), referring to offences in their social context the authors say: "The courts are greatly influenced in their construction of the statute by the degree of social danger which they believe to be in volved in the offence in question.
They take judicial notice of the problems with which the country is confronted.
The greater the degree of social danger, the more likely is the offence to be interpreted as one of strict liability.
Inflation, drugs, road accidents and pollution are constantly brought to our attention as pressing evils; and in each case the judges have at times invoked strict li ability as a protection for society." [p.9 2] 9.
We now come to the specific question whether "supari" is includible under "Fruit Products" under rule 29(f).
Sri Girish Chandra says that in arriving at the meaning of "Fruit Products", it is not the technical or scientific sense, but the sense as understood in commonparlance that matters.
That sense is one Sri Girish Chandra says, which people conversant with the subject matter with which the statute is dealing would attribute to it.
The words must be understood, says counsel, in their popular sense, in their common commercial understanding, "for the legislature does not suppose our merchant to be naturalists or geologists or botanists.
" The standard of the test for ascertaining the meaning of words in common parlance is set by the Candanian case in Planters Nut and Chocolate Co. Ltd. vs The King, "Would a house holder when asked to bring home fruits or vegetables for the evening meal bring home salted Peanuts, cashew nuts or nuts of any sort? The answer is obviously 'NO '.
" This test has been referred to with approval by this court.
[See: Ramavatar Budhai Prasad vs The Assistant Sales Tax Officer, (XII STC 286)] Sri Girish Chandra says that in the context of the Indian House holder we may, with justifica tion, add Betel nut to the list of salted pea nuts, cashew nuts etc.
150 10.
The distinction between literal and legal meaning of statutory language lies at the heart of the problem of interpretation of statutes.
The court is not entitled to decline to determine the legal meaning of a statute on the principle 'non liquet '.
In the present case, a wider con struction of "Fruit Products" in clause (f) which is in the nature of exception to Rule 29 results automatically in a corresponding narrower construction of the substantive provision in Rule 29.
This is not a case of a relieving provision excepting from the definition of an offence where the Rule of construction against doubtful penalisation operates.
The offence is really a violation of a prohibition imposed on a penalty as a social defence mechanism in a socio economic legislation.
No form of words have ever yet been framed, with regard to which some ingenious counsel could not suggest a difficulty.
But in the context of the present statute, it would be a strain on the statutory language and the statutory scheme to include "supari" in the form in which it was sold, within "Fruit Products" as under stood in clause (f) of Rule 29.
The first contention has, accordingly, no substance.
The second contention is that petitioner had acted bona fide on a particular understanding of the Rule 29(f) which could not be said to be wholly implausible and that, therefore, even if that understanding is found to be defec tive, he should be entitled to the benefit of the doubt.
The question of what a word means in its context within the 'Act ' is a question of legal interpretation and, therefore, one of law.
The choice of the proper rule of construction to be applied to ascertain the meaning is again a matter of law.
To countenance the contention of Sri Ganatra would be to "contradict one of the fundamental postulates of a legal order that Rules of law enforce objective meanings to be ascertained by the courts" and to "substitute the opinion of the person charged with the breach of the law for the law itself.
" Otherwise, the consequence would be that whenever a defendant in a criminal case "thought that the law was thus and so, he is to be treated as though the law was thus and so, that is, the law actually is thus and so".
[See Criminal Law: Smith & Hogan p. 70].
Justice Holmes in United States vs Wurzbach, ; at 399 said: "Wherever the law draws a line there will be cases very near each other on opposite sides.
The precise course of the line maybe uncer tain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk.
" 151 Referring to the principles that guide the matter, learned authors in Criminal Law (Smith & Hogan) say: " . . for, in the great majority of cases, it is irrelevant whether he knows it or not.
It must usually be proved that D intended to cause, or was reckless whether he caused, the event or state of affairs which, as a matter of fact, is forbidden by law; but it is quite immaterial to his conviction (though it may affect his punishment) whether he knew that the event or state of affairs was forbidden by law . " [p.68 ] " .
It was held that a Frenchman might be guilty of murder in the course of duelling in England, even if he did not know that duelling was against English law . ." [p.68] 12.
The plea in the last analysis reduces itself to one of ignorance of the law.
This would be no justification.
Ten thousand difficulties, it is said, do not make a doubt.
As the learned authors (supra) put it.
"One who, being ignorant of the law, sells goods at a price in excess of the miximum fixed by the statute, could hardly be said to have been led astray by his conscience while the 'harm prescribed ' lacks objective wrongness".
The Statute we are concerned with prescribes a strict liability, without need to establish Mens Rea.
The Actus Reus is itself the offence.
There might be cases where some mental element might be a part of the Actus Reus itself.
This is not one of those cases where anything more than the mere doing of the prescribed act requires to be proved.
There is thus no merit in the second point either.
The appeal would, therefore, require to fail.
The sen tence, which is the statutory minimum, cannot also be light ened by the court.
But there is one poignant aspect on which learned counsel made an impassioned plea.
Sri Ganatra pointed out the hardship of a small time tradesmen who, as here, purchase the goods from big manufac turers and sell them in retail.
Very often, the manufactur ers or wholesalers are not touched, but the small fry are exposed to prosecution.
152 Indeed in Ganeshmal Jashraj vs Govt.
of Gujarat and Anr.
, ; Bhagwati, J. had occasion to say: " . .
It is common knowledge that these small tradesmen purchase the food stuff sold by them from the wholesalers and sometimes even directly from the manufacturers and more often than not the adulteration is made either by the wholesalers or by the manufacturers.
Ordinarily it is not the small retailers who adulterate the articles of food sold by them.
Yet it is only the small retailers who are caught by the food inspectors and the investi gative machinery of the food department does not for some curious and inexplicable reason turn its attention to the wholesalers and manufactures.
The small tradesmen who eke out a precarious existence living almost from hand to mouth are sent to jail for selling food stuff which is often enough not adulterated by them and the wholesalers and manufacturers who really adulterate the food stuff and fatten themselves on the misery of others escape the arm of the law . . " [p. 1117] " . .
The result is that a wrong impres sion is being created on the public mind that the law is being properly enforced, whereas in fact what is really happening is that it is only.
the small tradesmen who are quite often not themselves responsible for adulteration who are caught and sent to jail while there is no effective enforcement of the law against the real adulterators.
This is a failing which we notice in the implementation of many of our laws.
It is only the smaller flies which get caught in the web of these law while the bigger ones escape . . " [p.1118] " . .
The implementation of the law does create an impression that it is a law meant to be operative only against the smaller men and that the rich and the well to do are beyond its reach.
Moreover the law operates very harshly against the small tradesmen because a minimum sentence is provided and the small tradesmen are liable to be sent to jail . . " [p .1118 9] (Emphasis Supplied) 153 Krishna Iyer, J. in Inderjeet vs U.P. State, ; said: " . .
We are disturbed that it is possible that small men become the victims of harsh law when there is no executive policy which guides prosecution of offenders . . " [p. 257] " . .
Even otherwise, there is a general power in the Executive to commute sentences and such power can be put into action on a principled basis when small men get caught by the law." [p. 257] (Emphasis Supplied) The present case, as Sri Ganatra rightly pointed out, is one where bigger offenders who manufactured the supari and who distributed them to the retailers have gone scot free.
Unfortunately, appellant did not, and perhaps could not, invoke the benevolent provisions of Section 19(2) of the Act.
The offence was ten years ago and the appellate court had acquitted the appellant.
The expression "Fruit Products" in the context of what the Delegated legislative authority really meant and wanted to convey, was not a model of preci sion.
The degree of precision should be such that not only those who read it in good faith understand but also that those who read it in bad faith do not misunderstand.
Indeed this somewhat imperfect definition of "Fruit Products" in Rule 29(f) has since been amended enumerating precisely the specific products in which the food colours permitted by Rule 28 could be used leaving no room for the possibility of any argument of the kind advanced in this case.
This amendment which came into force with effect from 15.11.1984 deleted the expression "Fruit Products" and in its place specifically enumerated the items under Rule 29(f) in which the use of permitted coal tar food colours was allowed.
It is for these reasons that we think we should hold that this is a 'fit case in which the appropriate Government should exercise its executive powers of remission of the substantive sentence of imprisonment though not of the fine under Section 432 Cr.
P.C. or under other law appro priate to the case.
We, therefore, direct that the 154 imposition of the substantive sentence of imprisonment shall be postponed till appellant 's prayer for remission, which appellant shall make within a month from now before the appropriate Government or Authority, is considered and disposed of taking into account the observations made in this judgment.
Subject to these circumstances, the appeal is dismissed.
P.S.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
Rule 23 of the Prevention of Food Adulteration Rules, 1955 prohibits the addition of any colouring matter to an article of food, except as specifically permitted by the rules.
Rule 28 interdicts use of coal tar food colours or a mixture thereof, except those specifically enumerated there in, in food.
Item 2 of the said list includes 'sun set yellow FCF '.
Rule 29 prohibits the use of even the coal tar food colours permitted under Rule 28, in or upon any food, other than those enumerated in Rule 29. 'Fruit products ' was one such item of food so enumerated under cl.(f) of Rule 29 as it stood at the relevant time.
Section 16 of the Preven tion of Food Adulteration Act, 1954 provides for punishment of the offenders.
The appellant, a tradesman, was found guilty by the Trial Court of the offence of selling 'Kesari coloured sweet supari sali ' adulterated with yellow basic coal tar dye and sentenced to one year 's simple imprisonment and a fine of Rs.2,000, both being statutorily compulsory 139 minimum sentences under section 16(1)(a)(i) of the Act.
He was, however, acquitted of the charge by the first appellate court but on appeal by the State the High Court reversed the judgment of acquittal and restored the conviction and sen tence.
In this appeal by special leave, it was contended for the appellant that the legislation being penal, the expres sion 'Fruit products ' in Rule 29(1 ') should receive a rea sonably liberal construction, and if so construed, 'supari ' being basically and essentially an yield of the arecapalm would reasonably admit of being considered such a fruit product in which the use of coal tar colours was not prohib ited.
In the alternative, it was contended that 'supari ' in the form in which it was offered for sale in this case was a 'flavouring agent ' within the meaning of Rule 29(m), in which case also the use of permitted coal tar food colours was not prohibited.
It was further contended that the appel lant having acted bona fide on a particular understanding of Rule 29(1) which could not be said to be wholly implausible, he should be entitled to the benefit of doubt.
Lastly, a grievance was made that the appellant, who was a small time tradesman and had purchased the supari from a big manufac turer to sell in retail, had alone been exposed to prosecu tion while the distributor had gone scot free.
Dismissing the appeal, HELD: 1.1 The scheme of Rule 23, 28 and 29 of the Pre vention of Food Adulteration Rules, 1955 makes it apparent that coal tar food colours permitted by Rule 28 can be used if the food articles in question are 'Fruit products ' as understood in Rule 29(1).
[144C, F] 1.2 'Supari ' in the form in which it was offered for sale in the instant case though vegetative in origin and derived from and prepared out of the usufruct of areca palm, does not admit of being classified as a 'Fruit product ' under Rule 29(1).
Merely because a particular article of food was of plant origin did not render that article neces sarily a 'Fruitproduct '.
Even products derived from, or associated in their origin with fruits need not ipso facto be 'Fruit products ' for purposes and within the meaning of Rule 29(1).
Item 16 of Appendix B to the Rules, which dealt with 'Fruit products ', referred to juice, syrup, squash, beverage, drinks, sauce, ketchup, relish, marmalade, chatni etc.
That indicated what were envisaged as 'Fruit products ' in Rule 29(1). 'Supari ' also does not admit of being classi fied as a 'flavouring agent ' under Rule 29(m).
[145F H; 146A] 140 2.
The distinction between literal and legal meaning of statutory language lies at the heart of the problem of interpretation of statutes.
The Court is not entitled to decline to determine the legal meaning of a statute on the principle of non liquet.
In the instant case, a wider con struction of 'Fruit Products ' in cl.(f) which is in the nature of exception to Rule 29, results automatically in a corresponding narrower construction of the substantive provision in Rule 29.
This is not a case of relieving provi sion excepting from the definition of an offence where the rule of construction against doubtful penalisation operates.
The offence is really a violation of a prohibition imposed on a penalty as a social defence mechanism in a socio eco nomic legislation.
The construction appropriate to such a legislation would be one which would suppress the mischief aimed at and advance the remedy.
It would, therefore, be a strain on the statutory language and the statutory scheme to include 'supari ' in the form in which it was sold, within 'Fruit products ' as understood in cl.(f) of Rule 29.
[150A D] Planters Nut and Chocolate Co. Ltd. vs The King, ; Ramavatar Budhai Prasad vs The Assistant Sales Tax Officer, XII STC 286; Municipal Corpn.
vs Kacheroo Mal, ; ; Goodfellow vs Johnson, [1965] 1 All E.R. 941 and Criminal Law: Smith & Hogan, 5th Edn.
p. 92, re ferred to.
3.1 The question of what a word means in its context within the Act is a question of legal interpretation and, therefore, one of law.
The choice of the proper rule of construction to be applied to ascertain the meaning is again a matter of law.
To countenance the contention of the appel lant that he had acted bona fide on a particular understand ing of Rule 29(f) would be to contradict one of the funda mental postulates of a legal order that rules of law enforce objective meaning to be ascertained by the courts, and to substitute the opinion of the person charged with the breach of the law for the law itself.
Otherwise, the consequence would be that whenever a defendant in a criminal case thought that the law was thus and so, he is to be treated as though the law was thus and so, that is, the law actually is thus and so.
[150D G] United States vs Wurzbach, ; (@) 399; Criminal Law: Smith & Hogan, 5th Edn.
p. 70, referred to. 3.2 The statute prescribes a strict liability without need to establish mens rea.
The actus reus is itself an offence.
There might be cases where some mental element might be a part of the actus reus itself.
This is not one of those cases where anything more than the mere doing 141 of the prescribed act requires to be proved.
The appellant is, therefore, not entitled to the benefit of doubt.
[151F] Pyarali K. Tejani vs M.R. Dange, [1974] 2 SCR 154; Goodfellow vs Johnson, ; Smedleys Limited vs Breed, and Criminal Law: Smith & Hogan, 5th Edu.
p. 92, referred to.
The big offenders who manufactured the 'supari ' and who distributed them to the retailer in the instant case have gone scot free.
The offence was committed ten years ago and the appellate court had acquitted the appellant.
Fur thermore, the expression 'Fruit products ' in Rule 29(f) in the context of what the delegated legislative authority really meant and wanted to convey was not a model of preci sion and has since been deleted enumerating in its place precisely the specific products in which the food colours permitted by Rule 28 could be used, leaving no room for the possibility of any argument of the kind advanced in this case.
[153D E, F] This is, therefore, a fit case in which the appropriate Government should exercise its executive powers of remission of the substantive sentence of imprisonment, though not of fine, under section 432 Cr.
P.C. or under other law appropriate to the case.
The imposition of the substantive sentence of imprisonment on the appellant to be postponed till his prayer for remission, which he shall make, is considered and disposed of.
[153G H; 154A B] Ganeshmal Jashraj vs Govt.
of Gujarat and Anr.
, ; and Inderjeet vs U.P. State, ; , referred to.