Case: Dineshchandra Jamnadas Gandhi Vs. State of Gujarat &amp; Another

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 ....." 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 .......". 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 maximum fixed by the statute could hardly be said to have been led astray by his conscience while the harm proscribed 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 proscribed act required to be proved. There is thus no merit in the second point either. The appeal would, therefore, require to fail. The sentence, which is the statutory minimum, cannot also be lightened by the court. But there is one poignant aspect on which learned counsel made an impassioned plea. 13. Sri Ganatra pointed out the hardship of a small time tradesmen who, as here, purchase the goods from big manufacturers and sell them in retail. Very often, the manufacturers or wholesalers are not touched, but the small fry are exposed to prosecution. Indeed in Ganoshmal Jashraj v. Govt. of Gujarat, 1980 (1) SCR 1114 : (AIR 1980 SC 264 ), Bliagwati 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 investigative machinery of the food department does not for some curious and inexplicable reason turn its attention to the wholesalers and manufacturers. The small tradesman who eke out a precarious existence living almost from hand to mouth are sent to jail for selling foodstuff 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 of SCR) : (At p. 266 of AIR). "......The result is that a wrong impression 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 laws while the bigger ones escape..." ".......The implementation of the law does create an impression that it is a law meant to be operative only against the smaller man and that the rich and the well to do are beyond its reach. Moreover the law operates very harshly against the small tradesman because a minimum sentence is provided and the small tradesmen are liable to be sent to jail ........." (p. 1118-19 of SCR) : (at p. 266 of AIR) (Emphasis supplied) Krishna Iyer J. in Inderjeet v. U. P. State, 1980 (1) SCR 255 : (AIR 1979 SC 1867 ) 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 of SCR) : (at p. 1868 of AIR) ".......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 law." (p. 257 of SCR) : (at p. 1868 the AIR). (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 S.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 precision. 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 R.29(f) has since been amended enumerating precisely the specific products in which the food colours permitted by R.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 R.29(f) in which the use of permitted coal tar food colours was allowed.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]4. We have heard Sri V. B. Ganatra learned counsel for the appellant and Sri Girish Chandra 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.It was not disputed that supari was an article of food. It was so held in Pyarali K. Tejani v. M. R. Dange (1974-2 SCR 1541 : (AIR 1974 SC 228 ). It was also not disputed that if "supari" did not admit itself of being classified under "Fruit products" or under "Flavouring Agents" under R.29(f) or 29(m) respectively, the use in "supari" of even a coal tar food colours permitted under R.28 would amount to adulteration.The argument that "Supari" or "Betel nut" is a "Flavouring Agent" 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 R.20(f).To appreciate Sri Ganatras contention, the scheme of the relevant rules, in particular Rules 23,28 and 29, requires notice. R.23 prohibits the addition of any colouring matter to any article of food except as specifically permitted by the rules. R.28 provides that no coal tar food colour or mixture thereof, except the food colours specifically enumerated in R.28, shall be used in food. Item 2 of the list of food colours permitted under R.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 R.28 and is, therefore, permitted to be used. Then R.29 prohibits the use of even the coal tar food colours permitted under R.28 in or upon any food other than those enumerated in R.29. "Fruit Products" is one such item of food so enumerated under clause (f) of R.29. The result is that permitted coal tar food colours, i.e. food colours permitted by R.28, can be used if the food articles in question are "Fruit products" as understood in R.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 Ganatras contention is that there having been no provision otherwise made in Appendix B in respect of supari and supari being includible in "Fruit products" the use in it of permitted coal tar food colours is not prohibited. Shri Ganatra submits that the legislation being penal the expression "Fruit Products" in R.29(f) should receive a reasonable liberal construction and that, so construed, "supari" would reasonably admit of being considered such a "Fruit Product".6. 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 (Parts II and III : at page 672) in support of Sri Ganatras contention that "Supari" or "Betel nut" being the usufruct of "Areca" tree must be held to be a "Fruit Product". Sri Ganatra says that having regard to the accepted canons 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 R.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 plausible meaning of the statute should be entitled to the benefit of the doubt.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 construction of "Fruit Products" in clause (7) which is in the nature of exception to R.29 results automatically in a corresponding narrower construction of the substantive provision in R.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 mechanism in a socio economic legislation. No form of words have ever yet be 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 understood in clause (f) of R.29. The first contention has, accordingly, nopresent 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 S.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 precision. 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 R.29(f) has since been amended enumerating precisely the specific products in which the food colours permitted by R.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 R.29(f) in which the use of permitted coal tar food colours was allowed.