# PREM BALLAR & ANR v. THE STATE (DELHI ADMINISTRATION) September 15. 1976

- **Citation:** [1977] 1 S.C.R. 592
- **Court:** Supreme Court of India
- **Decided:** 1977
- **Case number:** Criminal Revision No. 310 of 1970
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prem-ballar-anr-v-the-state-delhi-administration-september-15-1976-6960
- **Pages:** 9

## Headnote

A
B
c
D
E
F
G
H
592
PREM BALLAR & ANR
v.
THE STATE (DELHI ADMINISTRATION)
September 15. 1976
[P. N. BHAGWATI AND S. MURTAZA FAZAL Au, JJ.T
Preventiol! of Food Ad11/teratio11 Act 1954-Sec. 16(1 )(a) (i)-2(1 )---2(1) (cl
--2(1) (i)-2(1) (l)-Preve11tio11 of Food Ad11lteration Rules-R11/es 23-28 and
29-Can col!viction be based 011 sole testimony of a Food Inspector-Can an
article fall under c/a11se (j) & (I) of Sec. 2(i)-Are they 11111t11a/ly cxclusfre or
overlappi11g-Whe11 mies are silent abo11t colouring material can 11se of dye be
punished-Do provisions of probation of offe11der.1· Act apply to o(fenccs under
the prevention of Food Adulteration Act.
The second appellant was the owner of a grocery shop and the first appellant was his salesman in the shop. Food Inspector Bhanot purchased a sample
from appellant No. 1 of mustard oil after complying with the formalities prescribed by the Act.
The Public Analyst reported that the sample was misbranded as it was of !in-seed oil and it was adulterated due to the presence of
artificial dye. the appellants were charge-sheeted under section 16( 1 )(a ){i).
The learned Magistrate convicted the appellants and sentenced them to suffer
rigorous imprisonment for 9 months.
On appeal, the learned Sessions Judge confirmed the conviction but reduced
the sentence from 9 months to 6 months. The High Court, in revision upheld
the decision of the Sessions Judge.
On appeal of Special Leave the appellants wntended :
1. The conviction was bad since it rested solely on the evidence of Food
Inspector Bhanot.
2. The offence committed by the appellants on the opinion of the Public
Analyst fell under section 16(1 )(a)(i) read with clause (1) of section
2 (i) and, therefore, the Court had discretion under the proviso to
section 16 (1) to impose a lesser sentence than the minimum of 6
months.
3. In alny event, the benefit of the Probation of Offenders Act, 1958,
should be given to the appellants.
Dismissing the appeal,
HELD : l. There is no rule of law that conviction cannot be based on the
sole testimony of. a Food Inspector. It is only out of a sense of caution that the
courts insist that the testimony of a Food Inspector should be corroborated by
some independent witnesi:.
This is a necessary caution which has to be borne
in mind because the Food Inspector may in a sense be regarded as an interested
witness. But this caution is a rule of prudence and not a rule of law. If it were
otherwise it would be possible for many guilty persons to escape punishment by
resorting to the device of bribing Panch witnesses.
In the present case, the
sample was taken in the presence of witness Krishan Datt Sharma who has turned
hostile.
His explanation is palpably dishonest and cannot be ac<:epted. There
is also the evidence of another Food Inspector Bhatnagar. The Courts below
accepted their evidence and there is no reason to interfere with the concurrent
view taken by the courts belo;;. '[595A-Gl
2. Section 2( 1) defines "Adulterated" and says that an article of food shall
be deemed to be adulterated if the article falls within the ·description given in·
any of the succeeding cla'l!ses (a) to (I). Clause (j) provides that an article
of food shall be deemed to be adulterated if any colouring matter other than·
._
>
/
I-
::
.,.
PREM BALLAS V. DELHI STATE (Bhagwati, J.)
593
that prescribed in respect thereof and in amounts not within the prescribed
A
limits of variability is present in the srticle.
Clause (1) deems an article of
food to be adulterated if the quality or purity of the article falls below the
prescribed standard or its constituents are present in quantities which are
in
excess of the prescribed limits of variability.
[596C-D]
3. It is wrong to contend that if an article falls within clause (I) it cannot
fall under clause (j) or any other clause. Different clauses of section 2(i) are
not mutually exclusive; they, overlap one another and it is quite possible that
B
an article of food may be found adulterated under

## Text

A
B
c
D
E
F
G
H
592
PREM BALLAR & ANR
v.
THE STATE (DELHI ADMINISTRATION)
September 15. 1976
[P. N. BHAGWATI AND S. MURTAZA FAZAL Au, JJ.T
Preventiol! of Food Ad11/teratio11 Act 1954-Sec. 16(1 )(a) (i)-2(1 )---2(1) (cl
--2(1) (i)-2(1) (l)-Preve11tio11 of Food Ad11lteration Rules-R11/es 23-28 and
29-Can col!viction be based 011 sole testimony of a Food Inspector-Can an
article fall under c/a11se (j) & (I) of Sec. 2(i)-Are they 11111t11a/ly cxclusfre or
overlappi11g-Whe11 mies are silent abo11t colouring material can 11se of dye be
punished-Do provisions of probation of offe11der.1· Act apply to o(fenccs under
the prevention of Food Adulteration Act.
The second appellant was the owner of a grocery shop and the first appellant was his salesman in the shop. Food Inspector Bhanot purchased a sample
from appellant No. 1 of mustard oil after complying with the formalities prescribed by the Act.
The Public Analyst reported that the sample was misbranded as it was of !in-seed oil and it was adulterated due to the presence of
artificial dye. the appellants were charge-sheeted under section 16( 1 )(a ){i).
The learned Magistrate convicted the appellants and sentenced them to suffer
rigorous imprisonment for 9 months.
On appeal, the learned Sessions Judge confirmed the conviction but reduced
the sentence from 9 months to 6 months. The High Court, in revision upheld
the decision of the Sessions Judge.
On appeal of Special Leave the appellants wntended :
1. The conviction was bad since it rested solely on the evidence of Food
Inspector Bhanot.
2. The offence committed by the appellants on the opinion of the Public
Analyst fell under section 16(1 )(a)(i) read with clause (1) of section
2 (i) and, therefore, the Court had discretion under the proviso to
section 16 (1) to impose a lesser sentence than the minimum of 6
months.
3. In alny event, the benefit of the Probation of Offenders Act, 1958,
should be given to the appellants.
Dismissing the appeal,
HELD : l. There is no rule of law that conviction cannot be based on the
sole testimony of. a Food Inspector. It is only out of a sense of caution that the
courts insist that the testimony of a Food Inspector should be corroborated by
some independent witnesi:.
This is a necessary caution which has to be borne
in mind because the Food Inspector may in a sense be regarded as an interested
witness. But this caution is a rule of prudence and not a rule of law. If it were
otherwise it would be possible for many guilty persons to escape punishment by
resorting to the device of bribing Panch witnesses.
In the present case, the
sample was taken in the presence of witness Krishan Datt Sharma who has turned
hostile.
His explanation is palpably dishonest and cannot be ac<:epted. There
is also the evidence of another Food Inspector Bhatnagar. The Courts below
accepted their evidence and there is no reason to interfere with the concurrent
view taken by the courts belo;;. '[595A-Gl
2. Section 2( 1) defines "Adulterated" and says that an article of food shall
be deemed to be adulterated if the article falls within the ·description given in·
any of the succeeding cla'l!ses (a) to (I). Clause (j) provides that an article
of food shall be deemed to be adulterated if any colouring matter other than·
._
>
/
I-
::
.,.
PREM BALLAS V. DELHI STATE (Bhagwati, J.)
593
that prescribed in respect thereof and in amounts not within the prescribed
A
limits of variability is present in the srticle.
Clause (1) deems an article of
food to be adulterated if the quality or purity of the article falls below the
prescribed standard or its constituents are present in quantities which are
in
excess of the prescribed limits of variability.
[596C-D]
3. It is wrong to contend that if an article falls within clause (I) it cannot
fall under clause (j) or any other clause. Different clauses of section 2(i) are
not mutually exclusive; they, overlap one another and it is quite possible that
B
an article of food may be found adulterated under two or more c1auscs of se.ction 2(i). [597A-CJ
4. The report of !)le public analyst showed that the linseed oil contained
artificial dye and this was clearly prohibited under rule 23. The only artificial
dyes which were permitted to be used in food were those set out in rule 28 and
Rule 29. prohibited the use of permitted coal tar dyes in or upon any articles
of food other than those ennmerated in that Rule. Lin-seed oil was not one of
the articles of food enumerated in rule 29 arid hence artificial dye, even if
C
permitted coal tar dye could not be added to linseed oil. f597G-H, 598A]
5. The contention of the appellants that clause (j) would be attracted only
Y
if colouring matter is prescribed and the article of food is found to conlain a
colouring matter different from that prescribed was negatived. When no colouring matter is permitted to be used in respect of an article of food what i~ prescribed in respect of the article is 'nil' colouring matter and if the article contains any colouring matter it would be "other than that prescribed in r~spect"
.. '
t
of the article.
[597 A-C, 598B-D]
D
Vidyacharan Shukla v. Khubchand Baghel, [1964) 6 S.C.R. 129, relied on.
6. The operation of the Probation of Offenders Act is not excluded in case
of persons found guilty of offence under tile Prevention of Food Adulteration
Act, 1954.
However, imperatives of social defence must discourage the applicability of the probation principle.
No chances can be taken by Society with
a man whose anti-social activities in the guise of a respectable trade jeopardise
E
the health and well-being of numerous innocent consumers.
The adulterator
is a social risk; it might be dangerous to leave him free to carry on his nefarious
activities by applying the probation principle to him. Adulteration_ is an economic offence prompted by profit motive and it is not likely to lend itself easily
to therapeutic treatment by probationary measure.
[599D, G-H, 600A-Bl
!sher Das v. State [1972] 3 S.C.R. 65, and P. K. Tejani v. M. R. Dha11ge,
[1974] 2 S.C.R. 154 followed.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 287 /
71.
-F
""---
Appeal by Special Leave from the Judgment and
Order
dated
10-9-71 of the Delhi High Court in Criminal Revision No. 310 of
1970.
A. N. Mulla, (Miss) Uma Mehta, R. K. Mehta, S. K. Bagga and
(Mrs.) S. Bagga; for the Appellants.
S. N. Anand and R. N. Sachthey; for the Respondent.
D. Mookerjee, B. P. Maheshwari, Suresh Sethi and N. K. Jain for
the Intervener.
The Judgment of the Court was delivered bx
BHAGWATI, J.-This appeal, by special leave, is directed against
a judgment of the High Court of Delhi confirming the conviction of
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594
SUPREME COURT REPORTS
[ 1977) 1 S.C.R.
A
the appellants under section 7(i) read with section 16(1) (a) (i)
of
the Prevention of Food Adulteration Act, 1954.
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The prosecution case was that all material times the 2nd appellant was the owner of a grocery shop situate at Maharani Bagh,
New Delhi and the 1st appellant was employed as a salesman in the
shop.
On 23rd June, 1969 Bhanot, a Food Inspector went to the
shop of the 1st appellant and finding the 1st appellant there as a salesman, took from him a sample of mustard oil for analysis after paying
its purchase price.
He divided the sample into three parts and sent
one part to the Public Analyst for analysis, handed over the other part
lo the 2nd appellant and retained the 3rd part with him.
Tile Public
Analyst reported .that the sample was misbranded as it was of Lin
Seed Oil and it was adulterated due to the presence of artificial dye.
On the strength of this report, the appellants were chargesheeted under
section 7(i) read with section
16(1) (a) (i)
before the Judicial
Magistrate, Delhi. The defence of the 1st appellant was that the 2nd
appellant was at no time engaged by him as the
~;alcsman and no
mustard oil was purchased by Bhanot from the 2nd appellanl.
The
2nd
appellant
also
claimed. that
he
was
never
an
employee of the 1st appellant and while he was going to his house
after purchasing sarson oil for his personal use, he was caught by two
or three persons near Maharani Bagh and a sample was taken from
the oil which he was carrying and his signatures were obtained by
threat on certain papers.
The learned Judicial Magistrate accepted
the evidence Jed on behalf of the prosecution and rejected the defence
version and held that the appellants were guilty of the offence of selling
!in seed oil containing artificial dye which was an offence punishable
under section 7(i) read with
section
16(1)(a) (i). The learned
Judicial Magistrate accordingly convicted the appellants and sentenced
each of them to suffer rigorous imprisonment for nine months and to
pay a fine of Rs. 1000/-. The appellants preferred an appeal, but the
appeal was rejected by the learned Sessions Judge and the conviction
was confirmed with only a slight modification in the sentence.
The
sentence ~as reduced from nine months to six months rigorous imprisonment. . This led to the filing of a revision application in the
High Court by the appellants, but the revision application was also
unsuccessful.
Hence the present appeal by special leave
obtained
from this Court.
The first contention raised on behalf of the appellant in support of
the appeal was that the conviction was bad inasmuch
as it rested
solely ori the evidence of Bhanot and one other Food Inspector.
namely, Bhatnagar, who happened to come there at the time of taking
the sample and there was no independent witness to suppcrt the prosecution case. Now, it is true that the prosecution could not produce any
independent witness to depose to the taking of the sample by Bhanot
from the 2nJ appellant at the shop of the l st appellant but that by itself cannot be regarded as sufficient to warrant rejection of the prosecution case out of hand. The· sample was taken by Bhanot in the
presence of one Keshav Dutt Sharma and a panchnama evidencing
the transaction was prepared and signed by Keshav Dutt Sharma on
the spot. But in the witness box Keshav Dutt Sharma turned hostile
and denied that he was present at the time of taking the sample.
Of
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PREM BALLAB v. DELHI STATE (Blwgwati, J.)
595
course, he could not deny that the endorsement B to B on. the Pancbanama was in his hand-writing and he had put his signatme at the
foot of it, but his explanation was that one Food Inspector came to the .
shop wl1ere he was working and asked him either to give a sample of
the ice cream he was selling at the shop or to give his signature on
the panc_hanama.
This explanation is palpably dishonest and cannot
be accepted by any court.
Moreover, it does not explain· how the
endorsement B to B came to be made by Keshav Dutt Sharma in his
handwriting. There can be no doubt that Keshav Dutt Sharma was
present at the time 'of taking of the sample and he wrote down the
endorsement B to .B on the panchanarna and signed it as he was a
witness to the transaction. It is unfortunately not an infrequent occurrence to find that pancha witnesses turn hostile and go back upon
w.hat is stated in the 'panchanama in utter disregard of truth. This
betrays lack of character and absence of civic sense which not only
result in the guilty escaping the punishment but lead to general deterioration in standards of honesty and integrity. This is a highly reprehensible phenomenon which has to be 'curbed in the larger interest
of the administration of justice. Here, apart from the endorsement B,
to B in the panchanama and the signature at the foot of it showing
that Keshav Dutt Sharma was a witness to the taking of the sample,
we have the statement ·of Bhanot who said in his evidence that Keshav
Dutt Sharma was taken by him to witness the taking of the sample
and Keshav Dutt Sharma made the endorsement B .to B on the
panchanama and put his signature below it and this statement made
by Bhanot was not challenged in the cross-examination, nor was it
even suggested to Bhanot that Keshav Dutt Sharma was not present
at the taking of the sample. The prosecution case obviously ~annot be
thrown out merely because Keshav Dutt Sharma refused to support
what had been stated by him, in his own hand writing in the panchanama and went back upon it to tl}e utter dismay of the prosecution.
It is true that by reason of the defection of Keshav Dutt Sharma, the
prosecution was left only with the evidence of Bhanot and Bhatnagar,
but this evjdence was regarded by the High Court as well . as the
learned J uclicial Magistrate and the learned Sessions Judge sufficient
to found the conviction of the appellants and we do not see why we
should interfere with the concurrent view taken by them as regards the
appreciation of this evidence. There is no rule of law that conviction
cannot be based on the sole testimony of a food Inspector. It is only
out of a sense of caution that the courts insist that the testimony of
a food Inspector should be corroborated by some independent witness.
This is a necessary caution which has to be borne in mind because
the food Inspector m(ly in a sense be regarded as an interested witness, but this caution is a rule of prudence and not a rule of law: if
it were otl1erwise, it would be possible for many guilty persons to escape punishment by resorting to the device of bribing punch witnesses.
The conviction of the appellants cannot, therefore, be assailed as infirm
on the ground that it rested merely on the evidence of Bhanot and
Bhatnagar.
· The· ;tppellants then contended that on the opinion expressed by
the Public Analyst, the offence committed by the appellants was one
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596
SUPREME COURT REPORTS
(1977] 1 S.C.R.
under section 16(1) (a)·(i) with respect to ~ article of food adulterated under clause (1) of section 2 and the Court had, therefore, discretion, under the ·proviso to section 16 ( 1) to impose a lesser sentence
of imprisonment than six months for adequate and special reasons.
The argument of the appellants was that this was a fit case in which
the discretion under the proviso to section 16( 1) should have been
exercised and the minimum sentence of six
months
imprisonment
should not have been imposed on the appellants.
This was in substance a plea for reduction of the sentence of imprisonment and this
plea raises the question as to which is the clause of section 2 (i) in
which the present case falls.
Does it fall within the clause (I) as
claimed by the appellants or within clause (j) as contended on behalf
of the prosecution or within both and, if it falls within both, what the
effect? Section 2 (i) defines 'adulterated' and says that an article of
food shall be deemed to be adulterated if the article falls within the
description given in any of the succeeding clauses (a) to (1). Clause
(j) provides that an article of food shall be deemed to be adulterated:
"(j) if any colouring matter other than that prescribed
in respect thereof and in amounts not within the prescribed
limits of variability is pres.ent in the article."
and clause (1) deems an article of food to be adulterated :
"(l) if the quality or purity of the article falls below the
p.rescribed standard or if constituents are present in quantities which are in excess of the prescribed limits of variability."
Tn the present case what was sold by the appellants was linseed oil
which contained artificial dye.
The standard of quality of linseed oil
is defined in Paragraph A.17 .04 of Appendix B to the Prevention of
Food Adulteration Rules, 1955 as follows :
"A-17.04.-Linseed oil (Tilli ka tel) means the oil obtained by process of expressing clean and sound linseed
(Li.num usitatissimum). It shall be clear, free from rancidity,
suspended or other foreign matter, separated water, added
colouring or flavouring substances, G>r mineral oil.
It shall
conform to the following standards :
(a) Butyro-refractometer reading at 40°C ...... 69.5 to 74.3
(b) Saponification value
............ 188 to 195
( c) Iodine value
(d) Unsaphnifiable matter
.......... Not less than 170
........ Not more than 1.5
per cent
(e) Free fatty acid as Oleic acid-not more than 2.0 per cent."
The argument of the 'appellants was that the requirement of this
paragraph that linseed oil shall be free from foreign matter or added
colouring substances lays down a standard of quality of linseed oil and
since the linseed oil sold by the appellants contained artificial dye,
the quality of the linseed oil fell below the prescribed standard and
•
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PREM BALLAB I'. OELHI STATE (Bhagwati, I.)
597
hence the case was covered by clause (i) of section 2(i). The appellants contended that if clause (1) of section 2(i) was applicable in
the present case, it excluded the applicability of clause (j) and the
linseed oil cQntaining artificial dye could not be said to be adulterated
under that clause. It was also urged on behalf of the appellants that,.
in any event, no colouring matter was prescribed in respect of linseed·
· oil and, therefore, it could not be said that there was present in the
linseed oil sold by the appellants artificial dye "other than that prescribed in respect thereof and in amounts not within the prescribed
limits of variability" so as to bring the case within the scope of
clause (j) of section 2 (i). These contentions of the appellants,
plausible though they may seem at first sight, are without merit and
must be rejected.
Our reasqns for saying so are as follows.
It may be made clear at the out set that .the different clauses oi
section 2(i) are not mutually exclusive.
They overlap one anQther
and, it is quite: possible that an article of food may be found adulterated under two or more clauses of section 2(i). Take for example a
case where an article of food contains a foreign · substance which
affects injuriously the quality thereof and at the same time renders it
unfit for human consumption. Such a case would clearly fall within
clauses (b) and (f) of section 2(i) and the article of food would be
deemed to be adulterated under both these clauses.
So also, a case
may arise where a colouring matter not permitted under the rules is
added to an article of food and such colouring matter ·affects iqjuriously
the quality of the article of food and in such a case too more than one
clause of section 2(i) would be attracted, namely, clause (b) and (j).
These instances which we have given are merely by way of illustration
·and they show that merely because an article of food is covered by
one clause of section 2(i), it does not exclude the applicability of
another clause of the section an article of food may be deemed to be
adulterated under more than one clauses of section 2 ( i). It is, therefore, not a valid argument that because the present case falls under
clause (I) of section 2(i), the applicability of clause (j) is ipso facto
negatived and the case cannot come within that clause.
That takes us to the question whether the present case falls within
clause (j) of section 2 (i), for if it does, it would be immaterial whet here it falls also within clause (I) of section 2 (i) and in so far as the
linseed oil sold by the appellants is deemed to be 'adulterated under
clause (j) of section 2 (i), the proviso to section 16(1) would not
be attracted. Now, the .report of the Public Analyst showed that the
linseed oil sold by the appellants contained artificial dye and this was
clearly prohibited under the Rules.
Rule 23
provided
that the
addition of a colouring matter to an article of food, except as specifi-
·cally permitted by the Rules, shall be prohibited. The only artificial
dyes, which were permitted to be used in food, were those set out in
Rule 28, and Rule 29 prohibited the use of permitted coal tar dyes
in or upon any food other than those enumerated in that Rule. Linseed
oil was admittedly not one of the articles of food enumerated in Rule
29 and hence even· permitted coal tar dyes could not be added to
linseed oil. It does not appear from the report of the Public Analyst
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A
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598
SUPREME COURT REPORTS
[ 1977] 1 S.C.R.
as to what was the artificial dye found mixed in the sample of linseed
oil sent to him but we will assume in favour of the defence that it
was a permitted coal tar dye. Even so, by reason of Rules 23 and 29,
it could not be added to linseed oil. In the circumstances, the linseed
oil sold by the appellants contained artificial dye which was prohibited
under the Rules.
The argument of the appellants was that since
colouring matter was prohibited in respect of linseed oil, it could not
be said that any colouring matter was prescribed in respect of linseed
oil by the Rules and hence the presence of artificial dye in linseed oil
did not attract the applicability of clause .(j) of section 2(i). It was
said that clause (j) of section 2(i) would be attracted only if a colouring matter is prescribed in respect of an article of food and the article
is found to contain a colouring matter different from that prescribed.
But if no colouring matter is prescribed, which would be the position
where colouring matter is totally prohibited, it cannot be said that the
article of food contains a colouring matter other than that prescribed
in respect of it.
This argument has the merit of ingenuity but it has
no force and cannot be sustained. When no colouring matter is permitted to be used in respect of an article of food, what is prescribed
in respect of the article is "nil colouring matter" and if the article
contains any colouring matter, it would be "other than that prescribed
in respect" pf the article.
Clause ( j) of section 2 ( i) is not merely
intended to cover a case where one type of colouring matter is permitted to be used in respect of an article of food and the article contains another type of colouring matter but it also takes in a ca~e where
no colouring matter is permitted to be used in respect of an article of
food, or in other words, it is prohibited and yet the article contains a
E
colouring matter.
There is really no difference in principle between
. the two kinds of cases.
Both arc equally reprehensible; in fact the
latter may in conceivable cases be more serious than
the former.
Where no colouring matter is permitted to be 11sed in an article of
food, what is prescribed in respect of the article is that no colouring
matter shall be used and if any colouring matter is present in the
article in breach of that prescription, it would clearly involve violation
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of cl. (j) of section 2(i). The words of clause (j) of section 2(i)
"other than that prescribed in respect thereof" recall to
the mind
similar words used in section 29(2) of the Limitation Act which
makes certain provisions of the Limitation Act applicable in cases
where a special or local law prescribes a period of limita.tion different
from the period prescribed by the Schedule to the Limitation Act.
These words of section 29(2) of the Limitation Act came up for
interpretation before this Court in Vidyacharan Shukla v. Khubchand
Bag he I.(') It was contended! in that case that, on a. true construction
of these words, it is. only where a period of limitation is specifically
prescribed in the Schedule and a special or local law
prescribes a
different period of limitation, that section 29(2) would be attracted •
and that section would have no application where no time limit is
prescribed by the Schedule. This contention was negatived a·nd it was
held by this Court that where the Schedule does not specifically prescribe any period of limitation for an application but is silent and a
special or local law prescribes a period of limitation for such an
(I) (1964] 6 S.C.R
129.
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PREM BALLAB v. DELlll STArE (Bhagwati, 1.)
599
application, it can appropriately be said that the special or local law
A
has prescribed a period of limitation different from that prescribed
in the Schedule and section 29(2) would be applicable. The analogy
of this decision is very apt and it supports the construction we are
inclined to place on the words "other than that prescribed in respect
thereof" in clause (j) of section 2(i). We take the view that even
where the Rules prescribe that no colouring matter or artificial dye
shall be usetl in respect of an article of food, clause (j) of section 2(i)
B
would apply if it is found that some colouring matter or artilicial dye
is present in the article.
Here, the linseed oil sold by the appellants
contained artificial dye despite the prohibition in the Rules and hence
the case was clearly covered by clause (j) of section 2 (i) and the
!insecd oil must be deemed to be adulterated under that caluse. That
would exclude the applicability of tllf proviso to section 16 (l), since
the offence in this view would be one with respect to an article of
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food deemed to be adulterated under clause (j) of section 2(i). The
appellants' plea invoking the liberality of the provision enacted in the
provjso to section 16 ( 1) must, in the circumstances, be rejected and
the minimum sentence of imprisonment for six months must be maintained.
The appellants then pleaded that in any event on the facts and
D
circumstani;:es of the present case the benefit of the Probation of
Offenders Act 1958 should be given to them and they should not be
consigned to the rigours of jail life.
This plea also does not impress
us.
It is no doubt true and that was laid down by this Court in the
first pronouncement made by it on the subject in !sher Das v. Sta.te( 1)
that the operation of the Probation of Offenders Act, 1958 is
not
excluded in case of persons found guilty of offences under the Prevenc
E
tion of the Food Adulteration Act, 1954.
To quote the words of
Krishna Iyer, J., in P. K. Tejani v. M. R. Da11ge(2) "The rehahilatory
purpose of the Probation of Offenders Act, 1958 is pervasive enough
technically to take within its wings an offence even under the Act".
But in the very same decision in !sher Das's case (supra) this Court
sounded a note of caution which must be borne in mind:
"Adulteration of food is a menace to public health. The
Prevention of Food Adulteration Act has been enacted with
the aim of eradicating that anti-social evil and for ensuring
purity in tl1e articles of food. In view of the abovle object of
the Act and the intention of the legislature as revealed by
the fact that a minimum sentence of imprisonment for
a
period of six months and a fine of rupees one thousand has
been prescribed, the courts should not lightly resort to the
provisions of the Probation of Offenders Act in the case of
persons above 2.1 years of age found guilty of offences under
the Prevention of Food Adulteration Act. .... "
The imperatives of social defence must discourage the applicability
of the probation principle. No chances can be taken by society with
a man whose anti-·social activites, in the guise of a respectable trade,
jeopardise the health and well being of numerous innocent consumers.
(1) [1972] 3 S.C.R. 65.
(2) [1974] 2 S.C.R. 154.
F
G
H
A
6
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SUPREME COURT REPO!lTS
[1977] 1 S,CR,
The adulterator is a social risk, It might be dangerous to leave him
free to carry on his nefarious activities by applying
the probation
principle to him, Moreover, it must be remembered that aduiteration
is an economic offence prompted by profit motive and it is not like] y
Jo lend itself easily to therapeutic treatment by the probationary measure. It may be pointed out that the Law Commission also in its
Forty Seventh Report recommended the exclusion of applicability of
the probationary process in case of social and economic offences and
presumably in response to this recommendation, the Legislature has
recently amended the Prevention of Food Adulteration Act, 1954 by
introducing section 20AA providing that nothing contained
in the
Probation of Offenders Act, 1958 or section 360 of the Code of Criminal Procedure, 1973 shall apply to a person convicted of an offence
under the Act unless that person is under eighteen years of age This
.C
amendment of course would not apply in the present case but it shows
the legislative trend which it would not be right for ~he court to ignore.
We cannot, therefore, give the benefit of the Probation of Offenders
Act, 1958 to the appellants and release them on probation.
We accordingly confirm the conviction and
sentence recorded
ag;iinst the appellants and dismiss the appeal.
:p.H.P.
Appeal dismissed.
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