Holding

The appellant was not guilty of an offence under Section 16(1‑A) but was guilty under Section 16(1)(a)(i) because the ice‑stick was adulterated by failing to meet the prescribed standard.

Summary

The appellant sold ice‑sticks that were examined by a public analyst who reported the presence of saccharin and dulcin, the latter being an adulterant declared injurious to health. A subsequent analysis by the Central Food Laboratory found only saccharin and no dulcin. The trial court convicted the appellant under Section 16(1‑A) read with Section 7(1) of the Prevention of Food Adulteration Act, 1954, imposing a one‑year rigorous imprisonment and a fine. On appeal, the Supreme Court held that conviction under Section 16(1‑A) requires either a listed sub‑clause of Section 2(ia) or an adulterant injurious to health; neither condition was satisfied. However, the ice‑stick failed to meet the standard prescribed in Item A.07.04 of Appendix B, which prohibits any artificial sweetener, making it adulterated under sub‑clause (m) of Section 2(ia). Consequently, the conviction was altered to Section 16(1)(a)(i) with the sentence reduced to six months’ rigorous imprisonment and a fine of Rs 1,000. The appeal was partly allowed, the bail cancelled, and the appellant ordered to serve the reduced sentence.

Issues considered

Whether the presence of saccharin alone, without an adulterant declared injurious to health, sustains a conviction under Section 16(1‑A) of the Prevention of Food Adulteration Act, 1954.
Whether non‑conformity with the standard prescribed in Appendix B, which bans artificial sweeteners, renders the product adulterated under sub‑clause (m) of Section 2(ia).
Whether a court may alter a conviction from Section 16(1‑A) to Section 16(1)(a)(i) despite the original charge‑sheet.
Appropriate quantum of sentence for the offence under Section 16(1)(a)(i).

Legislation cited

Prevention of Food Adulteration Act, 1954s. 16(1-A), s. 16(1)(a)(i), s. 2(ia)(m), s. 7(1)

Subjects

Food adulterationArtificial sweetenerSaccharinDulcinSection 16(1-A)Section 16(1)(a)(i)Conviction alterationStandards of foodIce candyCriminal law

Judgment

K. KRISHNA IYER A
v.
STATE OF KERALA AND ANR.

MARCH 30, 1993

(DR. A.S. ANAND AND N.P. SINGH, JJ.] B

Prevention of Food Adulteration Act, 1954:
. .
Sections 7(1), 16(1-A) and 161(a)(i)-lce stick containing sacharin-
Prohibition of artificial sweetener-Sample not in confonnity with standards C
prescribed-Hence adulterated-Presence of dulcin-Found by Public Analyst
and Central Food Laboratory excluding it-Conviction altered.

The appellant was selling ice-sticks. The Food inspector took samples
and sent one sample to the Public A/lalyst, who opined that it contained
artificial sweeteners viz. sacharjn and dulcin and was therefore adulterated. D
A complaint was filed before the Judicial Magistrate. Appellant pleaded not
guilty and exercised his right to have the sample analysed by the Central
Food Laboratory. According to the report of the Central Food Laboratory
the sample contained artificial sweetener identified as sacharin. The
Magistrate convicted the appellant for an offence under sec. 16(1)(a) read E
with see. 7(1) of the Act, sentenced him to suffer one year rigorous imprison-
ment and to pay a line of Rs. 2,000 and in default to undergo imprisonment
for three months. The api>eal preferred by the appellant was dismissed by
the Sessions Judge. The Criminal Revision petition filed before the High
Court was also dismissed. Hence the present appeal.
F
On behalf of the appellant it was contended that since the report of
the Public A/lalyst 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, the consumption of which was injurious
to health under the Rules, the conviction of the appellant for an offence G
under Section 16(1-A) of the Prevention of Food Adulteration Act, 1954
was not justified; and that the presence of artificial sweetener like sac-
charin, which has not been declared as injurious to health could not attract
the provisions of S.16(1A) of the Act.

Partly allowing the appeal, this Court H
707
708 SUPREME COURT REPORTS (1993] 2 S.C.R.

A HELD: 1. It would be seen from Section 16(1-A) of the Prevention of
Food Adulteration Act, 1954 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 (I) 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
B (e) to (I) of Section 2(ia). According to the report of Central Food
Laboratory, it also does not contain any adulterant declared as 'injurious
to health'. [712 E, Fl

2. However, keeping in view the fact that the Article of food, 'ice-stick'
C sold by the appellant did not conform to the standard as prescribed in Item
A.07.04 of Appendix Band contained an artificial sweetener-sacharin-it
is obvious that the article of food sold by the appellant was adulterated
within the meaning of Section 2(ia)(m) of the Act and the same would,
therefore, be punishable under Section 16(1) (a) (i) of the Act. [713 CJ

D 3. It cannot be said that since the appellant had been charged for an
offence under Section 16(1-A) of the Act, he could not be convicted for an
offence under Section 16(1) (a)(i) of the Act. The penalty for an offence
under Section 16(l)(a)(i) admittedly is less than the penalty prescribed
for the offence under Section 16(1 ·A), which is a graver offence and
E 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 16(1-A) to one under Section 16(1)(a)(i) of the Act,
notwithstanding the fact that the appellant had been charge-sheeted for an
offence under Section 16(1-A) of the Act. [713 E, F]

F 4.Judicial notice is taken of the fact that the type ofadulterated 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
G 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. Sym-
pathy in such cases is totally misplaced. [714 B-D)

5. The conviction of the appellant is altered from the one under Section
16(1-A) read with Section 7(1) of the Actto the one under Section 16(1)(a)(i)
H read with Section 7(1) oftbe Act and the sentence is reduced from one year
K.K. iYER v. STATEOFKERALA[ANAND,J.J 709

R.I. and a line of Rs. 2,000 to the minimum prescribed for the said offence i.e. A
six months R.I. and a line of Rs.1,000 in default of which the appellant shall
sulTer imprisonment for one month more. [714 E]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
781 of 1985.
B
From the Judgment and Order dated 8.8.1984 of the Kerala High
Court in Cr!. R.P.No. 459 of 1981.

T.S.K. Iyer, Ms. Prasanthi Prasad and N. Sudhakaran for the Appel-
lant.
c
M.T. George for the Respondents.

The Judgment of the Court was delivered by

DR. ANAND, J. The appellant was convicted for an offence under
Section 7(1) read with Section 16 (1-A) (i) of the Prevention of Food D
Adulteration Act, 1954 (hereinafter the Act) by the Additional Judicial
Magistrate, !st Class, Trivandrum on 17.7.1981 and sentenced to suffer one
year R.l. and to pay a line of Rs. 2000 and in default to undergo imprison-
ment for three months. The conviction and sentence were upheld by the
Additional Sessions Judge, Trivandrum who dismissed his appeal on E
28.10.1981. Criminal Revision Petition No. 459 of 1981 tiled 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 12.2.1980, the Food Inspector of the Corporation of Trivandrum
after disclosing his identity pure.based from the appellant 600 gms. of F
'ice-stick' and paid Rs. 1.25. One of the samples was sent to the Public
Analyst at Trivandrum, who vide report dated 6.3.1980 opined that the
"said sample contains artificial sweeteners - sacharin 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 G
Public Analyst, dulcin to the extent of 100.0 parts per million and sacharin

r to the extent of 90.0 parts per million was found present in the sample sent
for analysis. A complaint was accordingly filed before the Additional
Judicial 1st Class Magistrate, Trivandr.um. The appellant pleaded not guilty
and alSo exercised his right to have the sample analysed from the Central H
710 '5UPREME COURT REPORTS [1993] 2 S.C.R.

A Food Laboratory. The sample was ther. 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 Rides thereunder". It was found by the Central Food
Laboratory that the sample contained "an artificial sweetener" identified as
sacharin to the extent of 190 parts per million. The sample had also tested
B 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. standerd for 'ice-stick' had been prescribed in the Act, the
c 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
D 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
E injurious to health". The trial court held that the offence of the appellant
squarely fell under Section 7 read with Section 16 (1-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
F 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, sacharin it was adulterated and the convic-
tion and sentence ·W'ere justified. Similar grounds were once again raised
before the High Court which also found:

G
"In this case, therefore, from the evidence available espe-
cially 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
H standard prescribed under the Rules ......................"
K.K. !YER v. STATEOFKERALA[ANANb,J.) 711
~ ,.\..__
Undeterred by the finding of fact recorded by all the three courts A
below to the effect that the 'ice-stick' sold by the appellant was covered by
the articles mentioned in Item A.07.04 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
'fr not be treated to be 'ice-candy' and, therefore, the standards prescribed in
B
Item A.07.04 of Appendix B were not applicable to it. We are afraid, we
• cannot agree with this submission. All the three courts have carefully gone
lnto the matter and found that the article sold by the appellant was an
article of food covered by the Item A.07.04 of Appendix B. Their finding
is supported by the entry itself. Item A.07.04 of Appendix B, as it stood at
the relevant time, reads thus: c
. ·y "A.07.04 - 'Ice-candy or Ice Lollies or Edible Ice' by
whatever name it is sold, means the frozen ice produce
which may contained tbe permitted flavours and colours,
sugar, syrup, fruit, fruit·juice, nuts, cocoa, citric acid,
D
stabilizers or emulsifiers not exceeding 0.5 per cent. It
shall not contain any artificial 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
_i._ of a stick. It admittedly contained sugar and colouring as is evident from E
the report of the Central Food Laboratory. It was, therefore, required to
conform to the standards prescribed in Item A.07.04 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, sacharin, it did not
conform to the standard laid down in the entry which specifically prohibits F
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 G
of dulcin, an article the consumption of which is 11 injurious to health 1', 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 sacharin in the sample, which has not been
declared as-"injurious to health", could not attract the provisions of Section H
712 SUPREME COURT REPORTS (1993] 2 S.C.R.

A . 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. k only found presence of the prohibited artificial sweetener,
sacharin. Section 16 (1-A) provides: '
"{lA) If any person whether by himself or by any other
B person on his behalf imports into India or manufactures
for sale, or stores, sells or distributes -

(i) any article of food which is adulterated within the
meaning of any of the sub-clauses (e) to (I) (both in-
c clusive) of clause (ia) of section 2; or

(ii) any adulterant which is injurious to health,

he shall, in additio11 to the penalty to which he may be
liable under the provisions of section 6, be punishable with
D 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 adul-
E terated should fall either in one of the sub-clauses (e) to {I) 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
F declared as "injurious to health". Thus, on the face of it; it is not possible
to hold that the appellant had committed an offence punishable under
Section 16{1-A) of the Act and the conviction of the appellant for an
offence under Section 16{1-A) of the Act cannot be sustained.

The article of food sold by the appellant, however, has been found
G by the CentraLFood 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 A.07.04 of AppendiX B.
Section 16(l)(a)(i) of the Act makes a person liable to punishment if
whether by himself or by any other person on his behalf, he inter a/ia, ·
H manufactures for sale, or stores or sells any article of food which is
K.K.IYER v. STATEOFKERALA[ANAND,J.] 713

adulterated within the meaning of sub-clause (m) of clause (ia) of Section A
2 of the Act. Section 2 (ia) (m) reads thus:

"2(ia) "adulterated" - an article of food shall be deemed
to be adulterated -

"(m) if the quality or purity of the article falls below the B
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 C
the appellant did not conform to the standard prescribed for it in Appendix
B and contained an artificial sweetener - sacharin, it is obvious that the
article of food sold by the appellant was adulterated within the meaning of
Section 2(ia)(m) of the Act and the same would, therefore, be punishable
under Secticn 16 (l)(a)(i) of the Act.
D
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 (1-A) of the Act, he could not be convicted for an offence under
Section 16(1)(ai) 'of the Act. There is no basis for such an argument. The
penalty for an offene under Section 16(1)(ai) is admittedly less than the E
penalty prescribed for the offence under Section 16(1-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 16(1-A) to the one under Section
16(1)(ai) of the Act, notwithstandi'.'g the fact that the appellant had been
charge sheeted for an offence under Section 16(1-A) of the Act. In view F
of our findings recorded above, we alter the conviction of the appellant
from the one under Section 7(1) read with Section 16(1-A) of the Act to
the one under Section 7(1) read with Section 16(1)(a)(i) 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 G
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 H
714 SUPREME COURT REPORTS [1993) 2 S.C.R.

A offence under Section 16(1)(a)(i) read with Section 7(1) of the Act, this
Court is obliged ·to convict the appellant and aot let the crime go un-
punished. 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 ~arty
B 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
C 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
D 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 16(1-A) read with Section 7(1) of
the Act to the one under Section 16(1)(a)(i) read with Section 7(1) of the
Act and the sentence is reduced from one year R.I. and a fine of Rs. 2000
E to the minimum prescribed for the said offence i.e. to six months R.I. 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.
F
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.

G.N. Appeal partly allowed.