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Sugar v. Saccharin
by N.S. Bindra
Cite as : (1972) 2 SCC (Jour) 37

Shri V. B. Ganatra and Smt Lajwanti V. Ganatra, Advocates have been pleased to impugn the correctness of the decision of the Supreme Court in Food Inspector, Calicut Corporation v. Gopalan and his Wife, (1971) 2 SCC 322: (C.A. Vaidialingam and A.N. Ray, JJ.—Judgment delivered by Vaidialingam, J.) in their article, Sugar v. Saccharin, published in (1971) 2 SCC 4 — 10 (Journal). This judgment has been followed by the Supreme Court in Mohamed Yasin v. State of Uttar Pradesh, (1972) 2 SCC 184 — (Judgment delivered by K.K. Mathew, J., sitting with P. Jaganmohan Reddy, J.). The aforesaid learned Advocates have impugned the correctness of this later decision as well in their article: "Erroneous Interpretation of Erroneous Decision by Supreme Court", published in (1972) 2 SCC 29 — 36 (Journal). They have suggested that the Supreme Court should review both the above-mentioned erroneous judgments and should leave the question as to whether the Prevention of Food Adulteration Act, 1954, requires that the sale must be by a 'dealer' left open. The criticism, in my view is absolutely misconceived and entirely misleading.

The District Magistrate in Gopalan case found the following material facts:

(i) Food Inspector purchased sugar from the tea-stall of the accused as a sample (for analysis).

(ii) The report of the Public Analyst established that the sugar so purchased was adulterated.

(iii) That the accused were not selling sugar as such, i.e. they were not 'dealers'.

He came to the conclusion:

(iv) That there was a sale as defined in the Act of sugar to the Food Inspector by the first accused.

(v) It was necessary in law to establish that the accused was selling sugar as such in the tea-stall.

The accused were acquitted as the last element was not proved. The High Court on appeal by the Department Reported in ILR (1969) 1 Ker 22: AIR 1969 Ker 179 found the following material facts:

(i) Food Inspector purchased sugar from the tea-stall of the accused as a sample for analysis. This sugar was kept in bottles not labelled.

(ii) It may be noticed that there was no contention on behalf of the respondents (accused) that the report of the Public Analyst to the effect that the said sugar was adulterated — was not correct.

(iii) That the vendor was not 'dealer' or selling sugar as such.

The High Court was also of the opinion that it was necessary in law to establish that the accused was selling sugar as such in the tea-stall. The High Court agreed with the trial Court that there was a sale as defined in the Act of sugar to the Food Inspector by the first accused. (This fact had been admitted by the Counsel for the respondents — accused.) The High Court accordingly dismissed the appeal of the Department.

In the Supreme Court , it is observed:

"It is not necessary for us to deal with the definition of the expression 'adulterated' in Section 2(i) as well as the requirements under Item A-07.01 of the Appendix B of the Rules as there is no challenge to the report of the Public Analyst that the sugar in question was adulterated, as it does not conform to the requirements of the item numbered above."

If a fact is held proved in the trial Court, and is not questioned in the appellate court and is not challenged in the Supreme Court, how can you take exception to the Supreme Court, basing its decision on the fact so established? This knocks out the bottom of the entire criticism of the Supreme Court's judgment published in the first articles by Smt Lajwanti and Shri Ganatra.

In the said article at page 8, para 4 (not numbered) the learned Advocates appear to admit that the percentage of Saccharin in the sample came to 7% as certified by the Public Analyst. Hence the sugar was in fact adulterated.

The learned Advocates have referred to Rules 44 and 47. If properly read and Rules necessarily imply:

"No person shall . . . sell any article of food which contains any artificial sweetner . . . ."

The exception made in the case of Saccharin comes into play only if the container of such food is labelled with an adhesive declaratory label, which shall be in the form given below:

"This sugar contains an admixture of Saccharin."

It is mentioned by the High Court that the sugar was kept in bottles not labelled. Hence the reference to Rules mentioned above was not apposite in the said article.

Both the District Magistrate and the High Court omitted to notice that the expression 'sale' in Section 2 (xiii) of the Act includes a sale of any article of food for analysis. Hence the question whether the sale was by a 'dealer' was irrelevant and unnecessary. The Supreme Court was bound to declare it as such, when counsel urges that it is necessary to hold that the sale was by a 'dealer' to bring the guilt home to the accused.

In the second article of the learned Advocates they have laid much stress upon the doctrine of precedent based on ratio decidendi of the case. The principle of the case is found by taking account —

(a) of the facts treated by the Judge as material, and

(b) his decision based on them.

In finding the principle it is also necessary to establish what facts were held to be immaterial by the Judge for the principle may depend as much on exclusion as it does on inclusion.

The Supreme Court found in Gopalan case the following facts as material:

(i) The accused sold the sugar to the Food Inspector.

(ii) This sugar was sold as a sample for analysis.

(iii) The sugar was adulterated (This fact was not challenged before the Supreme Court).

The Supreme Court opined.

(i) It was a sale of adulterated article of food under the Act.

(ii) It was not relevant to enquire whether the vendor was a 'dealer' in such article of food.

Hence no question could be left open by the Supreme Court as pleaded for the husband and wife by Shri and Smt Ganatra, either in Gopalan case or in Mohd. Yasin case.

It is unfortunate that Mathew, J., made the following observations in Mohd. Yasin case about Gopalan case:

". . . in that case it was assumed by the Court that the sugar was adulterated. Whether it was adulterated or not as a matter of fact the Court proceeded on the assumption that it was adulterated."

As already explained there is no warrant for thinking that in Gopalan case the Court proceeded on assumption. However much of the research made and exhibited in the said two articles by the learned authors was otiose.

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