State (delhi Administration) v. Puran Mal

The following )udgments were delivered . VARADARAJAN, J. This appeal by special leave is by the Delhi Administration and directed against the judgment of a learned Single Judge of the Delhi ltigh Court dismissing Criminal Revision No. 268 of 1982 in //mine. That criminal· revision was filed against the acquittal of the respondent by the learned Metropolitan Magistrate, Delhi in Case No. l_ 1 of 19~2. in which the respondent was tried for an offence under s. 7 read with s. 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter ·referred to as 'the Act'). The Food Inspector, P.W. 4 took a: sample of Jal mirchi pow­ der from the grocery shop of the respondent. Oh analysis by the Public Analyst it was found in Ex. PW l/C that the sample contained nine living meal worms. There was no other evidence in support of the case of the prosecution that the Jal mirchi powder was adul· terated. It was contended before the learned Magistrate that the evidence by way of the Public Analyst's report does not satisfy the requirement of the definition of 'adulterated ·article' -of food con­ tained in s. 2 (I) (f) of the Act. The learned Magistrate accepted this contention and found that the prosecution. has failed to prove that· the lal mrichi ·powder was adulterated and he accordingly acquitte~ the respondent. -· The Calcutta High Court. in M/s Narkeklange Roi/er Flour Mills and another v. The Corporation of Ca_lcutta(l) has observed : " ...... Clause (f) of Section 2 defines the word 'adulterated' a~d an article of food is said to b_e adulterated ff it is insect· infest~d. ·By physical examination the Public Ana_lyst, · found blackish worms and the sample there is at best worm infested. Is the word 'worm' synonymous with 'insect' ? Did the legislature intend to condemn wheat products due to presence of seaso~a~ worms ? } he w?rd 'insect' is_ defined in the.Oxford Dictionary as small mvertebrate segmented animal having head, thorax, abdomen, and three pairs of thoracic legs, usually with one or two pairs of thoracic ---------------- --·---- (I) 1973 (Prevention of Food Adulteration Cases) 257. ·v bliui! ADM!. v. pui{AN MAL (Vardara}a,n, f.) {7' 6 wings. "The word "worm" in the same .dictionary is defined as "kinds of invertebrate limbless or apparently limbless creeping animal, such as are segmented in rings or are parasite in t[le intestines or tissues." There is, th.erefore, a good deal of difference between worms and insects and a sample of food becomes adulterated only when' it is insect­ infested. In the present sample, however, ·worms were found to be present and that in our view, does not satisfy the requirements of the definition "adulterated" under· Section 2 of the Act." / According to the Webster's New World. Dictionary (1962 edition), 'worm' means "any of many long, slender, soft-bodied . creeping animals, some segmented, that live by burrowing . under- . ground or as parasites, as the ·earth-worm, tapeworm''. According to Webster's New World Dictionary 'illfest' means "to overrun or inhabit in large numbers, usually so as to be harmful or bother-some swarm in or about." According to that dictionary an 'insect' means any "of a large group of small invertebrate animals characterized, in the adult state, by division of the body into head, ·thorax, and abdomen, three pairs of membranous wings : beetless; bees, flies, wasps~ mosquitoes1· etc. are insects." · According to the Shorter Oxford English Dictionary, 'worm' B ,, .. means "a slender, creeping, naked, limbless animal usually brown E or reddish with a soft body divided· into a series of segments; an earthworm." According to that dictionary an 'inseci' means "a small invertebrate animal, usually having a body divided Into seg-. ments, and several pairs of legs, and often winged." ~ . . . ~ Therefore it is not possible to hold that a worm and an· insect F .. are the same. Even if worms and insects are the same the appellant is not out of difficulty in this case. As already stated the Public A~alyst has found ·in the sample only nine living meal worms and he bas neither ~~~~~cl \h~t it js insect-infested nor that it is ~nfit for h.uman · G consl\mPtion o~.account of the presence of the meal worms ncii- that it is 'otherwise unfit for human consumption. ~> I , . ' • · ' 'I · According to Webster's Illustrated Contemporary Dictionary (Encyclopedic Edition), 'infest' means "to overrun or spread in large ff numbers so as to be unpleasant or unsafe". G, 't .• 468 , [i9ssl 3 s.c.it. In Municipal Corporation of Delhi v. Kacheroo Mal, .(1) the Public Analyst had reported : . u. " Date of Analysis: 10-1-1969, Insect-infested pieces of Kajus : 21.9% and I am o( the opinion that the same is adulterated due to insect infested pieces of Kajus to'the " extent of 21.9%". • Sarkaria, J. speaking for himself and Gupta, 1: has observed· in· that case : " In view of the construction that the expression 'insect-infested', includes. infestation even by dead insects, the further point to be considered is, whether mere insect- · infestation, without more, would be sufficient to hold the 'article to be 'adulterated' within the meaning· of sub-clause (f) of clause (I) of s. 2 of the Act ....... .'.The point sought· to be made out is that in this case, the prosecution, the . defence and the High Court all felt that the report of the Public Analyst was vague, inadequate and deficient, an~ in the absence of clear proof of the sample being unfit for human consumption, it could ·not constitute a valid basis for holding the article to be adulterated within the meaning of sec. 2(1)(f). As against the above, Mr. F.S. Nariman, the learned Counsel for the appellant Corporation submits that in the case of food articles for which no minimum standard· or purity is prescribed, the moment it is proved that a· propor­ tion of percentage of the article not being a proportion or percentage as would be covered by the rule, de minimis non curat lex - is putrid, filthy, disgusting, decomposed or insect-infested, it would be deemed to be unfit for human consumption and therefore adulterated within the contem­ plation of s. 2(1 )(f). In any case, proceeds the argument, it is implicit in the report of the Public Analyst that the article in question was found unfit for human consumption. This implication according to the learned Counsel flows from the Analyst's conclusion that the article was "adul­ terated''. Counsel has criticised the view taken by the Bench in Dhanraj's case that if for an article of food, no --------------- (I) [1976] 2 S.C.R I. > · 'DELHI AbMN. v. i>URAN MAL (Vardarajan, Ji 46~ standard of quality or purity has been prescribed ·Or no limits have been prescribed for the validity or its constitu­ ents, then sub-clause OJ of clause (fl of sec. 2 will not apply and that the Public Analyst is not competent to. say·as " to what extent of insect-infestation would make the article "adulterated". The relevant part of Section 2 reads as under : , "(!) "adulterated" - an article of food J shall be .deemed to be adulterated- (a) to (e) (f) ifthe article consists wholly or in part of ariy filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or ·is 'insect-infested or is otherwise unfit for human consumption". The phrase "or is otherwise unfit for human consump­ tion" can be read conjunctively as well as 'disjunCtively. If it is read conjunctively, that is, in association with what · · precedes it, sub-clause (f) with slight consequent rearrange­ ment and parenthesis would read like this : "If the article '· is unfit for human consumption on account of (a) its consis­ ting wholly or in part of any filthy' putrid, aisgusting rotten; decomposed or diseased animal or vegetable Sub­ stance or being insect-infested, (b) or on account of any other cause". In this view of the sub-clause; proof of unfitness of the article for human consumption is a must . for bringing the case within its purview. - ' If the phrase is to be read disjunctively the mere proof of-whole or any part ,of the article being "filihy, putrid, disgusting,.rotten ......... or insect· infested" would. be con- clnsive to bring the case 'within the mischief of this sub­ clause, and it would not be necessary in such ~ case to prove further that the article was unfit for human consumption. We would prefer the first construction a·s it comports best with reason, commonsense, realities, the tenor of this - provision and the main purpose and scheme of the Act. The adjectives "filthy", "putrid'', "disgusting'~, '~decoillposf:dh~ ,E ,G :c 47o t!98Sj j S.0.R. "rotten" ......... "insect-infested" refer to the quality of the article and furnish the indicia for presuming the article to he unfit for human consumption. But the presumption may not he conclusive in all cases, irrespective of the charac· ter of the article, and the nature and extent of the vice affiicting it" ...... In Dhanraj's case (I.L.R. 1970 Delhi 681) the High Court construed this sub-clause (f) thus : "The word 'otherwise' in sub-clause (f) of cl, (I)' of sec. 2 does suggest that all the adjectives used earlier refer to the quality of the article being unfit for human consumption. To fall under that sub-clause an article of food must be unfit for human consumption because it consists wholly or in part of any filthy, putrid, dis­ gusting, rotten, decomposed or diseased animal or vegetable substance or because it is insect-infested or on account of any other cause". On the basis of that decision it is stated as follows in the Pre· vention of Food Adulteration Act, published by the Easter~ Book Company, seventh eddition, with reference to s. 2 (1) (f) of that Act thus : " The phrase "or otherwise unfit for human consump­ tion" should be read conjunctively and not disjunctively, that is, in association with what precedes it. This sub-clause would read like this : If the article is unfit for human consumption on account of- (a) its consisting wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or being insect-infested, (b) or on account of any other cause. In this view of the sub-clause proof of the unfitness of the -"': - -J article for human consumption is a must for bringing the case >4' within its purview. Municipal Corporation, Delhi v. Kacheroo .....,. Ma/(1) H ------------- (!) (19761 2 S.C.R. I ) ' )..· ., '' . , DELHI ADM! .. v. PURAN MAL (Vardarajan, J.) All the adjectives used in thisZsub-clause are~fpresumptive 'and not an absolute test of the quality of the article being unfit for human consumption. To be more precise, in the case of an article in 'respect of which the Rules do not pres­ cribe any minimum standard of purity or any minimum proportion of insect infestation that "would exclude in from the definition of "adulterated article" it wilt be a mixed question of law and fact whether the insect infestation ·is of such a nature, degree and extent as renders the article unfit for human consumption. The opinion of the public analyst who examines and analyses the sample would con· stitute legal evidence. As an expert in the science he is competent to opine and testify about this fact. Municipal Corporation, Delhi v. Kacheroo Mal [(1976) 2 SCR !]". 4?1 An equally strong Bench of this Court has taken a different view in regard to s. 2(I)(f) of the Act in Municipal Corpora1 ion of Delhlv. Tek Chand Bhatia(l), where A.P. Sen, J. speaking for himself and Murtaza Fazal Ali, J. has ·observed : " In Dhanraj's case (supra) the High Court construed sub-i::J; (f) thus : ' "The word 'otherwise' in sub-clause (f) of cl.. (l) of i(!C. i does suggest that all the adjectives used earlier fefer to ~he quality of the article being unfit for human . . cpnsmilptipn. To fall under that sub-clause an article . ' !lf food must be unfit for human consumption because it i:pns.ists wholly or· in part of any filthy, ·putrid, . !lisgusting, rotten, de~omposed or diseased animal er vegetable substance or because It ia inscct·infciteil or on · . ~\lCQunt of any ot!wr ca11s~," We are of the opinion that the High Court was clearly wrong in its inter-pretation of s. 2(I)(f). On the plain language of the definitio.n section, it is quite apparent that the words 'or is otherwise unfit for human consumption' are disjunctive of the rest of the wortb-preceding them. It relates to a distinct and separate.'class alto~e\~ef· It seem~ t1> \l§ (I) [l980j 1 S.C.R, 9!0: . - , .. - .. -. ~ F. ' a . r Ii '472 SUPREME COURT REPORTS (19851 3 S.C.R. cA , that the last clause 'or is otherwise unfit for human consump- tion' is residuary provision which would apply to a case , not covered by. or falling squarely within the clauses prece­ . , ding it. If the phrase is to be read disjunctively the mere proof of the article of food being 'filthy, putrid, rotten, . , decortiposed .... : .. .,or insect-infested' would be per se suffi- B cient to bring ·the case within the purview of the wo.rd 'adulterated' as defined in sub-cl. {f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption. .D .F ! ' ' It is, however, pointed out that the construction placed by the High Court in Dhanraj's case upon s. 2(l)(f) of the Act has been received with approval by this Court in Municipal Corporation of Delhi v. Kacheroo Mal [(1976) 2 S.C.R. I] where it is observed that 'the construction placed by the High Court in Dhanraj' s case is the correct exposi- tion of the law embodied ins. 2(1)(f)'. It is added for the . sake .of elucidation that the adjectives which precede the phrase 'or is otherwise unfit for human consumption' indi­ cate presumptive but not absolute criteria as to the quality · of the .article of food. If we may say so with respect, we have reservations about the correctness of this decision, but it is not ne~essary to refer the case to a larger Bench~ In Kacheroo Mal's case it is observed: "The phrase "or is .otherwise unfit for human consumption" · - can be read conjunctively as, well as disjunctively. If it is read conjunctively, that is, in association with what precedes it, sub-clause (f) with slight consequent rearrangement and · parenthesis would read like this ; "If the article is unfit for human consumption, on account of (a) its consisting wholly or in part of any filthy, putrid, disgusting, rotten, . decomposed or diseased animal or vegetable substance or ,_."being insect-infested, (b) or on account of any other cause". · In this view of the sub-clause,. proo,f of 'unfitness of the · artlde for human consumption' is a must for bringing the case within its purview. ' ,,, If the phrase is to be read disjunctively, the m·ore proof of the whole or any part of the article being "filthy, putrid, disgusting, rotten ...... , .. or insect-infested" would be conclu-, .f--. J ~-- ' ' ' [ I I I I . ' ! ' .! ~ -' I ,. J • I DELHI ADM!, v, PURAN MAL (Varadarajan, J.) 473 1sive. ·to bring·the case within the mischief of this sub-clause, ,A ; ' .· and it would not be necessary in such a case to prove further that the article was unfit for human consumption. We would prefer the first construction as· it comports · ·best with reason, commonsense, realities, the tenor of. this ·provision and the main purpose and scheme of the Act. The adje~tives "filthy", "putrid", "disgusting~', "decomposed", "rotten" ...... "insect-infested" refer to the quality of the article arid furnish the indicia for presuming the article to be unfit for human consumption. But the presumption may• not be conclusive in all cases, irrespective of the character of the article, and the nature nnd extent of the vice afflicting it. This is particularly so, where an article is found to' be "insect-infested." · With utmost respect, we are not able to share this view and would hold that the observations made in the judgment showld be confined to the particular facts of that case. " ·The decision in Kacheroo Mal's case (supra) was largely ' based on the circumstances that the standard of quality and purity was not prescribed in respect of cashew nuts. Now that r.,48-B of the Prevention of Food Adulteration Rules; 1955 has been framed, the decision in Kacheroo Mal's case (Supra) is rendered inapplicable." We also constitute a Bench of equal strength. Therefore, I refrain from expressing any opinion as to which of the two aforesaid , views is correct. Nor is it necessary for me to do so having regard F ?- to the facts of this case, · ' .,. "· Even if the nine worms found by the Public Analyst in the sample are considered to be insects, the certificate of the Public Analyst does not support the case of the prosecutio~ th.at the Jal mirchi powder was adulterated, for the Public Analyst has not expressed his opinion that the !al mirchi powder was either worm­ infested or insect-infested or that on account of the presence of the meal worms the sample was unfit for human consumption. There­ fore, I am of the opinion that the prosecution has not established by any satisfactory evidence the requirment of s. 2(I}(f) of the Act. Consequently, no interference is called for with the judgment of the. 474 SUPREME COURT REPORTS ti 9851 3 s.c.R. A High Court which, as stated above, has d,ismissed the criminal revi­ sion in limine. The appeal is accordingly dismissed. In my opjnion, the true meaning of Section 2{ia) (f) has been brought out in Municipal Corporation of Delhi v: Tek Chand Bhatia (supra) and the conclusion that 'it would not be necessary in such a case to prove further that the article of food was unfii for human consumption' is a correct statement of the law. I agree with 'my learned brother that the evidence led by the prosecution is inadequate to warrant interference with the judgment of acquittal passed by the trying Magistrate and upheld by the High" Court. · , c ~ I, therefore, agree that the appeal has to be dismissed. ML.A Appea / dismissed. ' ,.., ... ' .