minal Appeal No 781 of 1985
From the Judgment and Order dated 881984 of the Kerala High Court in Crl
RPNo
459 of 1981
TSK Iyer Ms Prasanthi Prasad and N Sudhakaran for the Appellant
MT George for the Respondents
ANAND J
The appellant was convicted for an offence under Section 71 read with Section 16 1 A i of the hereinafter the Act by the Additional Judicial Magistrate 1st Class Trivandrum on 1771981 and sentenced to suffer one year RI and to pay a fine of Rs 2000 and in default to undergo imprisonment for three months
The conviction and sentence were upheld by the Additional Sessions Judge Trivandrum who dismissed his appeal on 28101981
Criminal Revision Petition No 459 of 1981 filed in the High Court of Kerala also failed on 8th August 1984
It is thereafter that he has come up to this court by appeal on special leave being granted
On 1221980 the Food Inspector of the Corporation of Trivandrum after disclosing his identity purchased from the appellant 600 gms
of ice stick  and paid Rs 125
One of the samples was sent to the Public Analyst at Trivandrum who vide report dated 631980 opined that the said sample contains artificial sweeteners saccharin and dulcin and is therefore adulterated
The Public Analyst also stated in his report that the use of dulcin in food articles is not permitted on account of the fact that its consumption is injurious to health
According to the report of the Public Analyst dulcin to the extent of 1000 parts per million and saccharin to the extent of 900 parts per million was found present in the sample sent for analysis
A complaint was accordingly filed before the Additional Judicial 1st Class Magistrate Trivandrum
The appellant pleaded not guilty and also exercised his right to have the sample analysed from the Central 710 Food Laboratory
The sample was then set to the Central Food Laboratory and after analysis of the sample it opined that the sample does not conform to the standards laid down for ice candy under the provisions of PFA Act 1954 and the Rules thereunder 
It was found by the Central Food Laboratory that the sample contained an artificial sweetener identified as saccharin to the extent of 190 parts per million
The sample had also tested positive for presence of cane sugar
Before the trial court it was urged that the ice stick  sold by the appellant to the Food Inspector PWl could not be treated as ice candy and since no standard for ice stick  had been prescribed in the Act the conviction of the appellant was not warranted
It was also argued that for the offence committed by the appellant the sentence imposed was not justified
The trial court negatived both the contentions and recorded a finding of fact to the effect that the appellant had sold an article of food ice stick to PWl for purposes of analysis and that the ingredients of the ice candy and the ice tick were the same and the standards prescribed for ice candy etc
were applicable to the article sold by the appellant also
It was further held that since the sample did not conform to the standards laid down for ice candy under the provisions of the Act and the Rules framed thereunder as per the certificate of the Public Analyst the sample was adulterated and in view of presence of dulcin the adulterant was injurious to health
The trial court held that the offence of the appellant squarely fell under Section 7 read with Section 16 I A i of the Act
The sentence imposed is the minimum prescribed for the said offence
Similar arguments were raised in the appeal before the Sessions Court also
It was once again found on facts that the ice stick sold by the appellant was an article of food and that the ingredients of the ice candy and the ice stick were the same
It was also found that since the sample contained the prohibited artificial sweetener saccharin it was adulterated and the conviction and sentence were justified
Similar grounds were once again raised before the High Court which also found In this case therefore from the evidence available especially Ext
P9 report it is clear that the petitioner sold ice candy which is described as ice stick for it was frozen ice containing sugar
In this view it did not conform to the standard prescribed under the Rules      711 Undeterred by the finding of fact recorded by all the three courts below to the effect that the ice stick  sold by the appellant was covered by the articles mentioned in Item A0704 of Appendix B and was required to conform to the standards laid therein a strenuous argument was once again raised before us to the effect that the ice stick  sold by the appellant could not be treated to be ice candy  and therefore the standards prescribed in Item A0704 of Appendix B were not applicable to it
We are afraid we cannot agree with this submission
All the three courts hive carefully gone into the matter and found that the article sold by the appellant was an article of food covered by the Item A0704 of Appendix B
Their finding is supported by the entry itself
Item A0704 of Appendix B as it stood at the relevant time reads thus A0704 Ice candy or Ice Lollies or Edible Ice  by whatever name it is sold means the frozen ice produce which may contained the permitted flavors and colors sugar syrup fruit fruit juice nuts cocoa citric acid stabilizers or emulsifiers not exceeding 05 per cent
It shall not contain any artificia l sweetener
 Considering the nature of the article sold we have no doubt in our mind that the ice stick  was edible ice and sold as frozen ice in the shape of a stick
It admittedly contained sugar and coloring as is evident from the report of the Central Food Laboratory
It was therefore required to conform to the standards prescribed in Item A0704 of Appendix B and since according to the report of the Public Analyst as also the Central Food Laboratory the article contained an artificial sweetener saccharin it did not conform to the standard laid down in the entry which specifically prohibits the use of any artificial sweetener
Faced with this situation learned counsel for the appellant then submitted that since the report of the Public Analyst Trivandrum which had found the presence of dulcin in the sample stood superseded by the report of the Central Food Laboratory which had not found the presence of dulcin an article the consumption of which is injurious to health under the Rules the conviction of the appellant for an offence under Section 16 1 A was not justified
Learned counsel submitted that the mere presence of artificial sweetener like saccharin in the sample which has not been declared as injurious to health could not attract the provisions of Section 712 16 1 A of the Act
We find force in this submission
The report of the Central Food Laboratory definitely excluded the presence of dulcin in the sample
It only found presence of the prohibited artificial sweetener saccharin
Section 16 1 A provides 1A If any person whether by himself or by any other person on his behalf imports into India or manufactures for sale or stores sells or distributes iany article of food which is adulterated within the meaning of any of the sub clauses e to 1 both inclusive of clause ia of section 2 or ii any adulterant which is injurious to health he shall in addition to the penalty to which he may be liable under the provisions of section 6 be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less than two thousand rupees
 It would be seen from the above provision that in order to maintain a conviction under the said provision the article of food which is adulterated should fall either in one of the sub clauses e to 1 of clause ia of Section 2 or should contain an adulterant which is injurious to health
The adulterated article of food sold in this case admittedly does not fall in any of the sub clauses e to 1 of Section 2 ia
According to the report of Central Food Laboratory it also does not contain any adulterant declared as injurious to health
Thus on the face of it is not possible to hold that the appellant had committed an offence punishable under Section 161 A of the Act and the conviction of the appellant for an offence under Section 161 A of the Act cannot be sustained
The article of food sold by the appellant however has been found by the Central Food Laboratory to contain an artificial sweetener the use whereof in such article of food is prohibited
It therefore does not conform to the standards prescribed in Item A0704 of Appendix B Section 161ai of the Act makes a person liable to punishment if whether by himself or by any other person on his behalf he inter alia manufactures for sale or stores or sells any article of food which is 713 adulterated within the meaning of sub clause m of clause ia of Section 2 of the Act
Section 2 ia m reads thus 2ia adulterated  an article of food shall be deemed to be adulterated m 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 Keeping in view the fact that the article of food ice stick  sold by the appellant did not conform to the standard prescribed for it in Appendix B and contained an artificial sweetener saccharin it is obvious that the article of food sold by the appellant was adulterated within the Meaning of Section 2iam of the Act and the same would therefore be punishable under Section 16 1ai of the Act
We are unable to accept the argument of the learned counsel for the appellant that since the appellant had been charged for an offence under Section 16 I A of the Act he could not be convicted for an offence under Section 161ai of the Act
There is no basis for such an argument
The penalty for an offense under Section 161ai is admittedly less than the penalty prescribed for the offence under Section 161 A which is a graver offence and therefore there is no impediment in the way of the court on the findings of the fact recorded by it to convert the conviction of the appellant from the one under Section 161 A to the one under Section 161ai of the Act notwithstanding the fact that the appellant had been charge sheeted for an offence under Section 161 A of the Act
In view of our findings recorded above we alter the conviction of the appellant from the one under Section 71 read with Section 161 A of the Act to the one under Section 71 read with Section 161ai of the Act
The argument of the learned counsel for the appellant that since the appellant has been on bail in this court and the occurrence took place more than a decade ago a sympathetic view be taken and his appeal be accepted and he be acquitted is to say the least a rather ambitious submission and we cannot agree
Indeed there has been some lapse of time since the offence was committed in 1981 but that lapse of time alone cannot come to the aid of the appellant because having found the appellant guilty of an 714 offence under Section 16iai read with Section 71 of the Act this Court is obliged to convict the appellant and not let the crime go unpunished
The appellant has been prosecuting the case in appeal and revision and the High Court dismissed his revision petition in 1985
The appeal has remained pending in this Court ever since and as the appellant had obtained an order of bail he obviously was not interested in an early disposal of the appeal and took no steps in that behalf
The pendency of the appeal in this Court for about six years does not by itself render the conviction bad or raise any other equity in his favour
We can take even a judicial notice of the fact that the type of adulterated article sold by the appellant is the one generally consumed by children and it is not only illegal but even immoral to serve them with articles containing artificial sweeteners use whereof has been prohibited by the statute
Just because the appeal has remained pending here since 1985 the society cannot be made to suffer for this delay by letting the criminal go unpunished as a crime of this nature being a crime against the society at large cannot be ignored
Sympathy in such cases is totally misplaced
As a result of the above discussion the conviction of the appellant is altered from the one under Section 161 A read with Section 71 of the Act to the one under Section 161ai read with Section 71 of the Act and the sentence is reduced from one year RI and a fine of Rs 2000 to the minimum prescribed for the said offence ie to six months RI and a fine of Rs 1000
In default of payment of fine the appellant shall further suffer imprisonment for one month more
The appeal succeeds and is partly allowed to the extent indicated above
The appellant is on bail
His bail bonds shall stand cancelled
He shall be taken into custody to suffer the remaining period of the sentence
GN Appeal partly allowed


Summary:
The proviso to clause 1 of Article 316 of the Constitution requires that as nearly as may be  one half of the members of the Public Service Commission shall be from service category
Clause 2 of the Article entities a member of a Public Service Commission to hold office for a term of six years from the date on which he enters upon his office or he attains the age of superannuation provided therein whichever is earlier
Subclause c of clause 3 of Article 317 provides for removal of a member of the Public Service Commission by reason of infirmity of mind or body
Respondent No 6 a blind acknowledged scholar of English and Associate Professor in the Patna University was appointed the seventh non service member of the Bihar State Public Service Commission on 4th March 1991
The total strength of the Public Service Commission was eleven
The other four members belonged to the services category
On 11th September 1991 respondent No5 the Chairman of the said Commission gave a certificate stating that the respondent has been performing his duties with exceptional excellence without letting his blindness hinder his work and strongly recommended conferment of a national award in recognition of his excellence despite his blindness
On 22nd October 1991 the State Government addressed a letter to the Union Ministry of Home Affairs recommending him for the prestigious national award of 518 Padamshree  for his services as a member of the Public Service Commission
On 15th March 1992 the President of India conferred on him the National Award
On 14th January 1992 the appellant in a public interest ligigation challenged the appointment of respondent No 6 as a member of the Bihar Public Service Commission
The High Court dismissed the writ petition
In the appeal by special leave it was contended that the appointment of the seventh member from the non service category was violative of the proviso to Article 3161 of the Constitution
It was submitted that the expression as nearly as may be one half  occurring in the said proviso has been used to convey that a fraction may be ignored if the total number of members cannot be exactly halved between service and non service categories
The argument was that if the representation of the service members of the Commission fell short of 50 then all persons to be appointed on the Commission till the said proportion was made up had to be from the service category that being their necessary qualification
It was further contended that respondent No 6 was totally blind even from a date prior to his appointment and was unfit to be appointed by reason of the said physical infirmity
The argument was that the blindness was an infirmity of body and if it was a ground for removal from office under Article 3173 c it was much more a disqualification for appointment and hence respondent No 6 should be prevented from continuing in his office
In the affidavit riled on behalf of the State Government on 23rd January 1993 it was stated that although the proviso to Article 3161 was not mandatory that by itself was not a good ground for departing from the suggestion of the Constitution and hence the appointment of respondent No 6 as the 7th non Government member was not justified
It was further stated that at the time of the appointment the aspect about his blindness was not specifically considered as the same was stated in the bio data of respondent No 6 in very causal way and in such a manner that it had escaped the attention of the constitutional authorities at the time of recommending respondent No 6 for appointment
The affidavit further stated that while conducting the interviews members of the Commission had to visually interview each of the candidates to determine his suitability and after the appointment of respondent No 6 it had come to 519 the notice of the respondent State that the blindness of respondent No 6 was clearly hampering the effective discharge of official duties by him
It was contended for respondent No 6 that it was on account of his academic distinctions and with the full knowledge that he was totally blind from childhood that he was appointed as a member of the Public Service Commission that his blindness did not come in his way of discharging his duties effectively  that the only thing he could not do was to assess the individuals external personality on the basis of the candidate s external appearance which was not a material requirement for the candidates for many posts that his dependence upon the opinion of the other members of the interview board for this aspect was not of a kind which vitiated the assessment of the interview board as a whole that he had made a representation to the President of India the Governor of Bihar and others against the serious misconduct gross malpractices and wilful violation of the constitutional mandate by the Chairman of the Commission and that it was this dispute with the Chairman who was backed by the Chief Minister of the State which had led to the writ petition
Dismissing the appeal the Court HELD 11
Merely because at the time of appointment of respondent No 6 there were four service members and six non service members it cannot be said that he was disqualified for being appointed as the 7th member from the non service category
531D 12
The reasonable interpretation of the proviso to Article 3161 of the Constitution requiring that as nearly as may be one half of the members of the Public Service Commission shall be from service category is to treat it not as a strict rule to be enforced but as a binding guideline to be followed in practice in spirit as far as possible and without deliberately flouting it
531D 13
The expression as nearly as may be used in the proviso itself suggests that the proportion of 50 of the service members is not exact but approximate and is meant not to be mandatory but directory
The said proviso does not in terms say that In no case and at no point of time the said proportion should either go above or fall below 50
The fraction is and can be taken care of without the aid of the expression as nearly as may bell and a document like Constitution does not have to Incorporate 520 normal rules of interpretation
The need to have 50 members from the service category also cannot be said to be of such paramount importance to the composition of the Commission that the breach of it at any particular point of time would defeat the very object of constituting the Commission
528F G 529F 14
Furthermore when the members are appointed they are bound to differ in age whether they belong to the service category or the non service category
In the normal course they would retire at different points of time
At that time a suitable person from the same category may not be available to be appointed in their place
It is not always possible to make an advance list of persons of either category who are suitable for such appointment
Hence the total strength of the Commission as well as the number from each of the categories are bound to vary from time to time
At any given point of time therefore it may not be possible to maintain the proportion between the two categories strictly in accordance with the direction given in the Constitution
529B C 15
By providing the proportion between the service and non service members of the Commission the framers of the Constitution sought to strike a balance amongst the two categories
However on that account the framers of the Constitution cannot be presumed to ensure that on all occasions there shall be an exact balance of views between these two categories of members
It is unrealistic to believe that individuals with different backgrounds always insist on the acceptance of the outlook dictated by their background alone and refuse to share the viewpoint of others
It is certainly not expected of the members of such high ranking constitutional body as the Public Service Commission
Furthermore the Service Commissions mostly sit in Committees and are aided and assisted by experts from the concerned faculties disciplines and departments
The Committees take their decision collectively after due deliberations and discussion
It is therefore the composition of these Committees and not so much the composition of the Commission at any particular point of time that matters
530C E 16
The appointing authority therefore cannot be said to have no option under any circumstance whatever to allow reduction of representation from the service category and a breach of the requirement contained in the proviso to Article 3161 by reasons of appointment of a 521 member from non service category would vitiate such appointment or the duties performed by such appointee as a member of the Public Service Commission
530G 2
Respondent No 6 cannot be said to be unfit to carry on his duties as a member of the Commission because of his blindness
Nothing concrete has been brought on record to show that he had failed to perform his duties as a member of the Commission efficiently
Except the external appearance of the candidates appearing before him he is able to ascertain the required merits or demerits of the candidates as to the other members of the Commission
The Commission operates through Committees
For selecting the candidates for almost all disciplines and departments the experts from the concerned departments sit in these Committees and the opinion of the experts ordinarily prevails in such appointments since the members of the Committees who are the members of the Commission do not have the expertise in the relevant fields
This shows that all members of the Commission sitting on the interview Committees have also to be guided in their opinion by the experts
If respondent No 6 has to take guidance only in the matter of external appearance of the candidates all members of the Commission have to be guided by the experts with regard to the most vital equipment of the candidates viz the intellectual caliber and the proficiency of the candidates in the relevant subjects
There is therefore nothing wrong if only for external appearance for which only a small percentage of the total marks is reserved respondent No 6 has to depend on the advice opinion or guidance of other members of the Committees and the Commission
532B E 31
By infirmity of body  what is spoken of in sub clause c of clause 3 of Article 317 of the Constitution is an infirmity which disables the member from discharging his functions as such member effectively
It is not every infirmity of body or every loss of use of every limb of the body
The defect or deficiency must be such as would disable the member from carrying out his duties satisfactorily and consistent with the trust reposed in him
The said infirmity further must necessarily be such as has arisen after the appointment and not the one which existed at the time of the appointment unless of course the Government was unaware of the same at the time of appointment
533A B D 32
In the instant case not only the blindness of respondent No 6 522 does not prevent him from discharging his duties expected of him but in fact the services rendered by him as such member have been eulogised and commended for a national award by no other than the State Government itself and the Chairman of the Commission who had first hand knowledge of his functioning
This is apart from the fact that the Governor who appointed him on the advice of the Council of Ministers is presumed to have done so after satisfying himself that the loss of eyesight was not an infirmity which would impede him in the discharge of his duties
533C 41
No responsible public authority could have made the claim that none of the constitutional functionaries concerned was aware that respondent No 6 was totally blind from his childhood when that fact must have been widely known in the State and in all probability the extra ordinary Abilities exhibited by him despite his blindness must have been the main reason for his appointment as a member of the Public Service Commission
The State Government should not have considered it compulsive to allow such blatantly rabid statements to be made on oath with impunity
The affiant by making such statement has made the constitutional authorities look ridiculous and their functioning a mockery
534H G 42
Neither the certificate given by respondent No 5 the Chairman of the Public Service Commission on 11th September 1991 nor the letter of the State Government to the Union Home Ministry dated 22nd October 1991 has been controverted by the Chairman and the State Government
The averment in the affidavit that the blindness of respondent No 6 is hampering his work therefore has no basis
The belated claim of the State Government against respondent No 6 has its obvious roots in the strained relations between him on the one hand and the Chairman and the State Government on the other
535E F 5
The appellant and the respondent State is directed to pay the costs of the appeal to respondent No 6
537C