iminal Appeal No. 314315 of 1976.
Appeals by special leave from the Judgment and order dated 4 1975 of the Bombay High Court in Criminal Revision Appln.
No. 1115/73.
M.C. Bhandare, (Mrs.) Sunanda Bhandare, M.S. Narasimhan, 7 3 .
K. Mathur and A.K. Sharma, for the Appellants.
M.N. Phadke and M.N. Shroff, for the Respondents.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Judicial fluctuations in sentencing and societal seriousness in punishing have combined to persuade Parliament to prescribe inflexible, judge proof, sentencing minima in the Food Adulteration law.
This depri vatory punitive strategy sometimes inflicts harsher than deserved compulsory imprisonment on lighter offenders, the situation being beyond judicial discretion even if prosecu tion and accused consent to an ameliorative course.
The two appeals, by special leave, partially illustrate this proposition.
Khurasani oil is an edible oil extracted by crushing oil seeds in mills.
Groundnut oil, also edible, is expressed likewise.
A firm by name almukand Hiralal Loya & Co., in a minor town in Maharashtra, ms an oil mill where Khurasani oil and groundnut oil are manufactured by the firm.
Sometimes they crush oil seeds for others on ire who pay milling charges.
The appellants in Criminal Appeal No. 314 are the manag ing partner and the manager of the mill and the appellant in Criminal appeal No. 315 is the operator of the expeller in the mill who actual sold the offending commodity.
On Febru ary 16, 1972 the Food inspector of Bhagur Municipality walked into the sales section of the Mill, asked for 375 grams of khurasani oil from accused No. 8, appellant in Criminal Appeal No. 315.
The quantity required was applied and, thereafter, the Food Inspector went through the statu tory exercises preparatory to an analysis by the Public Ana lyst.
After receiving the report of the Analyst to the effect that the sample of hurasani oil sent for analysis contained 30% of groundnut oil which amounted to a contra vention of rule 44(e) of the Prevention of Food Adultera tion Rules (for short, the rules), a complaint was lodged for selling adulterated food within the meaning of section 2(i) of he Prevention of Food Adulteration Act (hereinafter called the Act) read with sections 7(1) and 16 (1)(a) and r.44(e).
Evidence was led to make out a prima facie case.
The accused were questioned under section 342 Cr.
P.C., and the appellants confidently pleaded guilty to the charge where upon the trial Magistrate, perhaps agreeably to expecta tions, sentenced them each to a piffling fine of 3 Rs. 250.
Although the whole process in court is strongly suggestive of a tripartite consensual arrangement and re minds one of pie, bargaining procedures in the United States of America, the State Government appears to have taken a 7 3 trate 's adroit avoidance of the penal provisions which obligate him to inflict a minimum prison sentence, viz., section 2(i)(a) and section 16(1) with a view to apply the proviso to section 16(1).
This is, at best, a conjecture about the Magistrate and might as well be imputed to the prosecutor and the food inspector.
However, the State filed a revision to the High Court against the illegal and ultra lenient impost.
The revisional Judge converted the offence into one under section 2(i)(a) read with section 16(1 and enhanced the sentence to the minimum of six months an Rs. 1,000 by way of fine on the ground that the offence committee by the accused squarely fell within section 16(1)(a) and did not face within the proviso of that provision which vests a guarded discretion in the Court to soften the sentence to special cases.
The appel lants, shocked by this drastic reversal of fortune at the High Court 's hand: have sought restoration of the Magis trate 's conviction and sentence If this aggravated convic tion is correct, the enhanced punishment is inescapable.
The circumstances leading up to and constituting the offence hay 'been briefly set out already and the divergence between the trial court and the High Court turns on the legal inferance to be drawn from the factual matrix.
Has there been adulteration of food, in the sens imputed to that expression by section 2(i)(a)? Assuming it fails under section 2(i) (1) of the definition, does that factor exclude it from section 2(i) (a) Even if section 2(i)(a) does apply, is the benigrant proviso to section 16(1 attracted on the score that the crime in this case constitutes a violation of r. 44(e) prescribing minimum standards? These questions agricultural to the submission made by Shri Bhandare for the appellants.
his argument being that the scheme of s.2 is to erect separate corn apartments for the many types of adulteration so that if a food article is adulterated within the meaning of s.2(i)(1) more appropriately it falls outside the ambit of s.2(i)(a).
Otherwise, he argues, there is no point in itemising the various sub divisions even though he con cedes that marginally there may be overlapping among the sub clauses He further contends that even assuming that s.2(i)(a) is all corn prehensive, it must be read as the genus and thereafter sub clause (b) to (1) fall under two.
broad categories, viz., adulteration where injurious sub stances have been admixed and adulteration where innocent additions have been made or the substances sold merely violate a standard or degree of purity prescribed.
If there were force in this submission, the culpa, according to counsel, could reasonably 'fall under the non injurious type of adulteration covered by s.2(i)(1) The statute, says Shri Bhandare, sensibly dichotomises the senreno.
and invests a discretion in the court in the second category to reduce the sentence below the minimum stipulated, if special reasons exist for such clemency.
Of course, counsel concedes that if the adulteration is of the injurious brand, judicial sympathy is statutorily supplanted 73 4 this, he reasons, fits into and explains the scheme of s.16 which is a penal provision with dual limbs.
We wilt examine the validity of this interpretative dissection.
Indeed, if this somewhat strained argument fails,.
everything fails because, otherwise, the appellants have glibly convicted themselves, but of their own mouth, by an unusually obliging 'yes ' to every material question under s.342 Cr. P. Code.
Thus, on the merits, the sole question is about the proper offence made out on the facts admitted.
This, in turn, depends on the acceptability of the interpre tative dexterity displayed by counsel for the appellants.
It is trite that the social mission of Food Laws should inform the interpretative process so that the legal blow may fail .on every adulterator.
Any narrow and pedantic, liter al and lexical construction likely to leave loopholes for this dangerous criminal tribe to sneak out of the meshes of the law should be discouraged.
For the new criminal juris prudence must depart from the old canons, which make indul gent presumptions and favoured constructions benefiting accused persons and defeating criminal statutes Calculated to protect the public health and the nation 's wealth.
This humanist approach and cute construction persuades us to reject Shri Bhandare 's analysis of s.2(1).
Sub clause (a) of s.2(i) has a wide sweep and loyalty to the intendment of the statute forbids truncating its ambit.
There cannot be any doubt that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani oil and 30% groundnut oil, the supply 'is not of the nature, substance or quality which it purports or is represented to be ' The suggestion that there is no format evidence of representa tion or prejudice as stated in the section does not merit consideration being a quibble over a trifle.
If we read s.2(i)(a) spaciously and if the facts alleged are accommodated by the definition of 'adulteration ' under that sub clause,.
section 16 ( 1 ) is attracted.
The first proviso to section 16 ( 1 ) will be attracted if and only if s.2(i)(1) applies.
In the present case the facts disclose that the offence is both under s.2(i)(a) and under section 7(v) for breach of r.44(e).
Section 2(i)(1) is repelled on the facts and it is obvious that this is not a case where either s.2(i)(1) or r.
A 17.12 urged by Shri Bhandare applies.
In this view it is not possible to invoke the amelioratory proviso to s.16(1) and the High Court is legally right in its conversion of the provision for conviction and enhance ment of the sentence.
We unhesitatingly hold that if s.2(i)(a) adequately fits in, adulteration under that provision must be found.
73 Once this position is made plain, the penalty that the appellants must suffer is fool proof.
Section 16 lays down the penalties and classifies them.
We are particularly concerned with s,16(1) of the Act which itself clubs togeth er many categories out of which we have to pick out only two for the purposes of this case, viz., (i) sale of any article of food which is adulterated; and (ii) sale of any article of 5 food other than one which is adulterated 'in contravention of any of the provisions of this Act or of any rule made thereunder '.
Ordinarily, both these clauses.
of offences are punishable with the minimum prescribed 'of not less ,than six months ' imprisonment, together with fine which shall not be less than Rs. 1,000/ '.
However, there is a kindly proviso which confers on the court a power to be exercised for any adequate and special reasons to be men tioned in the judgment whereby a sentence of imprisonment for a lesser term than six months or of fine smaller than Rs. 1,000/ or of both may be imposed, but this more moder ate punitive net is conditioned by the proviso itself.
We may read the proviso: "Provided that (i) if the offence is under sub clause (i) of clause (a) and is with respect to an article of food which is adulterated under sub clause (1) of clause (i) of sec. 2 or misbranded under sub clause (k) of clause (ix) of that section; or (ii) if the offence is under sub clause (ii) of clause (a).
the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a terms of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
" Judicial compassion can play upon the situation only if the offence is under sub cl.
(i) of cl.
(a) of s.16(1) and the adulteration is one which fails under sub cl.
(1) of el.
(i) of s.2.
Secondly, the proviso also applies if the offence is under sub cl.
(ii) of el.
(a), that is to say, the offence is not one of adulteration but is made up of a contravention of any of the other provisions of the Act or 7 3 already found that the accused is guilty of an offence of adulteration of food under s.2(i)(a).
Therefore, proviso (ii) is out.
Proviso (i) will be attracted, according to Shri Bhandare, if s.2(i)(1) applies to the species of adul teration committed.
In our view, the only sensible under standing of proviso (i) is that judicial jurisdiction to soften the sentence arises if the offence of adulteration fails only under sub cl.
(1) of cl.
(i) of s.2 and we have held that it does not.
We cannot but deplore the clumsy draftsmanship displayed in a statute which affects the common man in his daily bread.
It is unfortunate that easy comprehensibility and simplicity for the laity.
are discard ed sometimes through oversophisticated scholarship in the art of drawing up legislative bills.
It cannot be over stressed that a new orientation for drafting methodology adopting directness of language and avoiding involved refer ence and obscurity is overdue.
Be that as it may, in the present case s.2(i) (a) applies and s.16(1)(a) has been breached.
Therefore the proviso cannot be applied in exten uation and the conviction of the High Court has to be up held.
6 The possibility of long argument in a case where the accused has pleaded guilty arises because the provision lends itself to adroit exercises.
The court has to look at the interpretative problem in the social setting of the statute, visualising the rough and tumble of the market place, the finesse with which clever victuallers fob off adulterated edibles and gullible buyers goofily fall victim.
Viewed this way, chasing recondite semantics or niceties of classification or chopping of logic has no scope for play.
The appeals must fail, without more.
But we have to take note of a few circumstances of significance brought to our notice by counsel for the appellant .with which the State 's counsel could not express serious disagreement, although he made no concessions.
, We now proceed to refer to these factors which do not deflect us from confirming the conviction.
The curtain has been drawn thereon.
To begin with, we are free to confess to a hunch that the appellants had hastened with their pleas of guilty hopefully, induced by an informal, tripartite understanding of light sentence in lieu of nolo contendere stance.
Many economic offenders resort to practices the American call 'plea bargaining ', 'plea negotiation ', 'trading out ' and 'compromise in criminal cases ' and the trial magistrate drowned by a docket burden nods assent to the sub rosa ante room settlement.
The business man culprit, confronted by a sure prospect of the agony and ignominy of tenancy of a 7 3 being a plea of guilt, coupled with a promise of 'no jail '.
These advance arrangements please everyone except the dis tant victim, the silent society.
The prosecutor is relieved of the long process of proof, legal technicalities and long arguments, punctuated by revisional excursions to.
higher courts, the court sighs relief that its ordeal, surrounded by a crowd of papers and persons, is avoided by one case less and the accused is happy that even if legalistic bat tles might have held out some astrological hope of abstract acquittal in the expensive hierarchy of the justice system he is free early in the day to pursue his old professions.
It is idle to speculate on the virtue of negotiated settle ments of criminal cases, as obtains in the United States but in our jurisdiction, especially in the area of dangerous economic crimes and food offences, this practice intrudes on society 's interests by opposing society 's decision expressed through pre determined legislative fixation of minimum sentences and by subtly subverting the mandate of the law.
The jurists across the Atlantic partly condemn the bad odour of purchased pleas of guilt and partly justify it philosoph ically as a sentence concession to a defendant who has, by his plea 'aided in ensuring the prompt and certain applica tion of correctional measures to him ', "In civil cases we find compromises actually encouraged as a more satisfactory method of set tling disputes between individuals than an actual trial.
However, if the dispute . finds itself in the field of criminal law, "Law Enforcement" repu diates the idea of compromise as immoral, or at best a necessary evil.
The "State" can never com promise.
It must 7 enforce the law.
" Therefore open methods of com promise are impossible." (Arnold, Law Enforcement An Attempt at Social Dissec tion, , 19 (1932).
We have no sanction, except surreptitious practice in some courts, for 'trading out ' of punitive severity although this aspect of the criminal system deserves Indian jurists ' consideration.
The sole relevance of this digression in this judgment is to highlight the fact that the appellants perhaps acted on an expectation which came to pass at the trial level but was reversed at the appellate level and this touch of 'immorality ' in the harsh morality of the punish ment is a factor counsel wants us to take note of.
But we can do nothing about it when the minimum is set by the 7 3 justice to the citizen and relieve over worked courts by more judicial agencies and streamlined procedures instead of leaving the uninformed public blindly to censure delayed disposals.
One real reason for long litigation is inaction or ineffective action of the legislature.
All knowledgeable law men may concede that the procedures in municipal and higher courts are ossified to the point, priced to the level, and slow to the degree where they cannot flexibly assist disputants in early resolution of their everyday disputes.
This, we hope, will change and the source of the evil eliminated.
The next draft on the court 's commiseration, made by counsel, is based on the milling operation realities sur rounding the commission of the crime.
It is asserted by the appellant 's advocate and not seriously controverted by his opponent that the small town milling practice is multi purpose, in the sense that whoever brings any edible oil seed for extraction of oil gets it done so that ground nut crushing may be followed by Khurasani seed or some other oil seed may chance to take turns by rotation.
Even the mill er 's own oil seeds may be sometimes khurasani; at other times, some other.
This process may result in the residue of one getting mixed up with the next.
May be, innocently some groundnut oil, in the present case, got into the khu rasani oil by the same expeller handling both.
Even so, the presence of 30% groundnut oil is, perhaps too high an admix ture to be explained away this easy way.
While we appreci ate the situation we must adhere to the provision.
Where the law lays down an absolute liability, alibis cancelling mens tea are out of bounds.
The last plea, urged ex mesericordium, ameliorative in appeal and unavailing against conviction, is that actually groundnut oil costs more and so profit motive stands nega tived, that the mixture of these edible oils, though techni cally forbidden, is in fact non injurious and a terrifying term of six months ' rigorous imprisonment is unjust.
The facts are probably right but ex necessitate legis the court has to inflict the heavy minimum sentence.
While in stray cases a jail term even in a trivial food offence may.
look harsh, Parliament, in its wider wisdom, and having regard .to social defence in a sensitive area standardised the sentence by insisting on a minimum, ignoring exceptional 2 1003SC1/76 8 cases where leniency is needed.
Individual hardships deserv ing of lighter sentence are sometimes exploited by counsel 's 7 3 offenders milder punishments.
It is worthy of note though that in the present case the mixing of the two oils is a motiveless act.
May be.
And the circumstances above men tioned add up to a plea for paring down the sentence and Shri Bhandare, for the appellants, sought to wheedle us into lending evedence to these circumstances and bring down.
the offence to a lesser one.
Logically and sociologically and, above all, legally, such a course is impermissible.
Never theless, there is one circumstance which has impressed us not to the extent of undoing the sentence imposed by the High Court but of drawing the attention of the top executive to what may justly be done by way of remission of sentence.
The appellants have sworn an affidavit in this Court stating that khurasam oil is the same as nigar seed oil.
This is backed by a certificate from the Maharashtra Chamber of Commerce and is evidently correct.
What is more important is that the appellants, when surprised by a modification of their sentence to a heavier one for what they thought was undeserving, moved in the matter of cases generally of adulteration of khurasani oil with groundnut oil.
They drew the attention of the authorities to punishment of innocents and it appears that the.
State Government was satisfied about this grievance and has since withdrawn a substantial number of cases against dealers of khurasani oil whose sales were contaminated with presence of groundnut oil.
The affi davit on behalf of the appellants states: "I further say that various cases filed by the respondents against the dealers of khurasani oil are now being withdrawn as invariably groundnut oil is observed in khurasani oil.
I crave leave to refer to and rely on the Journal of Maharashtra Chumher Patrika dated 21st September, 1975, when produced.
" Probably, had the present case survived till the government took action, it might have been withdrawn.
Moreover, there are circumstances suggesting of innocent admixture although it is beyond us to pronounce definitely on this aspect and it is not for us to enquire into the matter when section 16( 1 ) is clear and the sentence is legal.
Nevertheless, it may be appropriate for government to consider whether in the cir cumstances of this case and in the light of the observa tions made by us in this judgment it is not a matter for exercise of commutation powers.
Sentencing policy has a punitive and a correctional role and we are sure that what is the need of the appellants will be meted out to them if they deserve any activist administrative empathy at all.
accordingly dismiss the appeals.


Summary:
An analysis of a sample of khurasani oil from the appel lants ' mill collected by the Food Inspector showed 30% groundnut oil content amounting to contravention of r. 44(a) of the Rules which prohibits sale of a mixture of two or more edible oils as an edible oil.
The appellants were charged with an offence under section 2(i) of the Act read with sections 7 and 16(1)(a) and r. 44(a).
The appellants having pleaded guilty, each of them was sentenced to pay a small fine.
On revision, the High Court converted the offence into one under section 2(i) (a) read with section 16(1) and enhanced the sentence to a minimum of six month, imprisonment and fine of rupees one thousand on the ground that the offence committed by them fell within section 16(1)(a) and did not fall within the proviso to that section.
On appeal to this Court it was contended that even assuming section 2(i)(a) is all comprehensive it must be read as the genus and thereafter sub clauses (b) to (e) fall under two broad categories namely adulteration with injurious substances and adulteration with innocent additions or the substance sold merely violates a standard or degree of purity prescribed and in this case the offence would fall under the non injurious type covered by section 2(i)(1).
Dismissing the appeal, HELD: 1. (a) Sub clause (a) of section 2(1) has a wide sweep.
There causes be any doubt that if the article asked for is 100% khurasani oil and the article sold is 70% khurasani oil and 30% groundnut oil, the supply 'is not of the nature, substance and quality which it purports or is represented to be.
[4 E] (b) It is not possible to invoke the proviso to section 16(1) and the High Court is legally right in its conversion of the provision for conviction and enhancement of the sentence.
Though section 2(i)(a) is read speciously and if the facts al leged are accommodated by the definition of adulteration under that sub clause, section 16.(1) is attracted.
The first proviso to section 16(1) will be attracted if and only if section 2(i)(1) applies.
[4 F G] In the present case the facts disclose that the offence is both under section 2(i)(a) and under section 7(v) for breach of r. 44(e).
Section 2(i)(1) is repelled on the facts and this is not a case.
where either section 2(i)(1) or r. A17.12 applies.
2.(a) The proviso cannot apply in extenuation and the High Court was right in convicting the appellants.
Judicial compassion can play upon the situation only if the offence is under section 16(1)(a)(i) and the adulteration is one under section 2(i)(1).
The proviso applies if the offence is under cl.
(a)(ii), that is to say, the offence is not one of adultera tion but is made up of a contravention of the other provi sions of the Act or of any rule made thereunder.
Since in this case the offence falls under section 2(i)(a) proviso (ii) has no application.
[5 E F] (b) The judicial jurisdiction to soften the sentence arises if the offence of adulteration falls only under section 2(i)(1).
This case does not fall under this sub clause.
[5 G] [The Court drew attention to (a) the propriety of ac cepting by the prosecution and the Courts the accused 's plea of guilty of a lesser offence in dangerous economic crimes and food offences and (b) in view of the fact that a sub stantial number of cases of the kind were withdrawn by the Government because 2 variably groundnut oil is observed in Khurasani oil, the Government may consider whether in the circumstances of this case it is not a matter for exercise its commutation powers].