It will thus be seen that the law laid down in Delhi Municipality v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316) was expressly affirmed by Ranganath Mishra, J. (as his lordship then was) and that view was not overruled in the main judgment. In our view, I therefore, the law laid down in Municipal Corporation of Delhi v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316) holds the field and various decisions of this Court rendered by learned single Judge as referred to above holding to the contrary, are, hereby, overruled. Where an article of food is shown to be insect-infested, it is not duty of the prosecution to further prove that the article was otherwise unfit for human consumption.
Equivalent Citation: 1992CriLJ742
IN THE HIGH COURT OF PUNJAB AND HARYANA
Criminal Appeal No. 416-DBA of 1985
Decided On: 25.09.1991
Appellants: State of Punjab
Vs.
Respondent: Kewal Krishan and Ors.
Vs.
Respondent: Kewal Krishan and Ors.
Hon'ble Judges/Coram:
Anand Parkash Chowdhri and J.B. Garg, JJ.
Anand Parkash Chowdhri and J.B. Garg, JJ.
1. Dr. Surinder Kumar Bansal, Food Inspector went to the shop of M/s Sham Lal & Sons at Malerkotla on 28-9-1983 at 12.30 p.m.He was accompanied by Dr. Rakesh Kumar Chopra PW-3. After giving requisite notice, the Food Inspector took sample of saunf from out of 10 kg. of the commodity kept in polythene bag and meant for human consumption in the shop. The sample was divided into three equal parts and sealed in three dry and neat polythene bags and duly sealed. On analysis, the public analyst found the sample to be adulterated. Necessary notice with regard to the report of the public analyst was given to the accused. Kewal Krishan, Sham Lal and Inder Mohan, three partners of the aforesaid firm, were tried in the Court of Judicial Magistrate Ist Class Malerkotla under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). By judgment dated May 27, 1985, the accused were acquitted. Aggrieved by the order of acquittal, the State has preferred this appeal.
2. At the trial, the prosecution examined the Food Inspector, Dr. Surinder Kumar Bansal, PW-1 Dr. Rakesh Kumar Chopra, PW-3 and Siri Krishan, Senior Clerk office of the C.M.O. Local (Health) Authority, Sangrur. The plea of the accused in their statements under Section 313 was one of denial. They examined Yash Paul, D.W. 1 in defence. Yash Paul stated that at the time of taking of sample, Kewal Krishan, accused informed the Food Inspector that the saunf of which sample was taken, was meant for consumption by the cattle and the same was not meant for human consumption. He further stated that except Kewal Krishan who runs the shop known as Sham Lal & Sons, the remaining partners namely Sham lal and Inder Mohan were running a separate business in gur, shakar etc. in the Mandi. They were merely sleeping partners in Sham Lal & Sons.
3. On an appreciation of the evidence, the trial Court held that the sample could not be considered to be adulterated as extraneous matter not exceeding 5 per cent was permissible in the rules framed under the Prevention of Food Adulteration Rules (hereinafter referred to as the Rules). It was also held that the prosecution failed to prove that the saunt in question was kept by the accused for human consumption. The learned trial court also held that prosecution was liable to fail because the public analyst did not declare that the sample was otherwise unfit for human consumption. The plea of the accused that the remaining two partners were sleeping partners was also accepted by the trial Court.
4. Learned Counsel Mr. P.S. Thiara, AAG, Punjab, appearing for the State has assailed all the findings of the trial Court while Shri Dinesh Goyal, learned counsel for the accused has supported the judgment of acquittal on all the grounds taken in the judgment as well as on an additional ground which will be discussed at the proper stage below.
5. We proceed to deal with the contentions raised by the learned counsel for both the parties.
6. The relevant part of the report of the public analyst Exhibit-PD reads as under :--
Macro and Micro analysis done on 3-10-83 = Twelve living, Five dead insects detected, Four sparrow droppings detected. Two jalas detected.
Inorganic Extraneous matter = 0.10%
Organic Extraneous matter = 0.63%
Insect damaged grain = 1.0%
Foreign Edible seeds = Almost nil.
and am of the opinion that : the contents of the sample contain seventeen living and dead insects. It also contains four sparrow excreta pieces and two jalas.
7. Shri Goyal has advanced two contentions regarding the above report of the public analyst. Firstly, according to him, the Food article cannot he held to be adulterated, in the absence of a finding of the public analyst that the sample was "otherwise unfit for human consumption". He has placed strong reliance on the observations appearing in State (Delhi Admn.) v. Puran Mal MANU/SC/0110/1985. Secondly, he has contended that under entry A.05.11 of Appendix B to the rules, extraneous matter not exceeding 5 per cent is permissible and therefore, the sample in question was not adulterated. There is no force in either of his contentions. Sub-clause (f) of Clause (ia) of Section 2 of the Act lays down that an article of food shall be deemed to be adulterated --
(f) If the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infected or is otherwise unfit for human consumption.
8. The contention is that in addition to the food article being insect-infested, it is further necessary to prove that the food article is otherwise unfit for human consumption. Learned counsel referred to a number of single Bench decisions of this Court, in which the aforesaid view was taken. These are Jeet Kumar Anand v. State of Punjab (1990) 2 R C 418 (P&H) Devinder Raj v. State of Punjab (1989) 2 R CR 137 (P & H) and Amrit Lal v. State of Punjab (1986) 2 P&H 29 (sic). The basic reliance as stated earlier is on State (Delhi Admn.) v. Puran Mal MANU/SC/0110/1985 (SC).
9. Shri Thiara, learned AAG, Punjab on the other hand contended that the various conditions laid down in Sub-clause (f) have to be read disjunctively and where an article of food is found to be insect-infested, it is not further necessary to show that it was otherwise unfit for human consumption. He placed reliance on Food Inspector v. Gopinathan. MANU/KE/0161/1981 which in turn followed Delhi Municipality v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316). The same view was taken in Jagdish Parkash v. State of Delhi MANU/SC/0151/1981 : AIR 1982 SC 57 : (1982 Cri LJ 197.
10. On a careful consideration of the respective contentions, we are clearly of the view that where an article of food is found to be insect-infested, it is not further necessary to prove that it was otherwise unfit for human consumption. This is clear from a plain reading of the language used in Sub-clause (f). I The basic Authority on the subject is Delhi Municipality v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316). The Sub-clause (f) was analysed and it was held as under (at page 318) :--
On the plain language of the definition section, it is apparent that the words 'or is otherwise unfit for human consumption' are disjunctive of the rest of the words preceding them. It relates to a distinct and separate class altogether. The last clause 'or is otherwise unfit for human consumption' is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it. If the phrase is to be read disjunctively the mere proof of the article of food being 'filthy, putrid, rotten, decomposed...or insect-infested' would be per se sufficient to bring the case within the purview of the word 'adulterated' as defined in Sub-clause (1) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption.
11. The above decision was followed by Division Bench of Kerala High Court in Food Inspector v. Gopinathan MANU/KE/0161/1981(Kerala).
12. Coming to the State (Delhi Admn.) v. Puran Mal MANU/SC/0110/1985 the authority relied on by learned counsel for accused, it may be pointed out that according to the facts of that case, the sample contained 9 living mealworms. Their Lordships pointed out the distinction between a worm and an insect observing that they were not the same thing. It was in these facts observed by Varadarajan, J. (as his lordship then was) who wrote the main judgment that the public analyst had neither stated that the food article was insect-infested nor that it was unfit for human consumption on account of the presence of mealworms nor that it was otherwise unfit for human consumption (vide para 7 of the report). No doubt, reference was made to Delhi Municipality v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316) and some reservations expressed about the correctness of the decision but the judgment was not based on that ground. In a note of concurrence. Hon'ble Mr. Justice Ranganath Mishra observed as follows :--
In my opinion, the true meaning of Section 2(ia)(f) has been brought out in Municipal Corporation of Delhi v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316) (supra) and the conclusion that 'it would not be necessary in such a case to prove further that the article of food was unfit for human consumption is a correct statement of the law.
It will thus be seen that the law laid down in Delhi Municipality v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316) was expressly affirmed by Ranganath Mishra, J. (as his lordship then was) and that view was not overruled in the main judgment. In our view, I therefore, the law laid down in Municipal Corporation of Delhi v. Tek Chand Bhatia MANU/SC/0187/1979 : AIR 1980 SC 360 : (1980 Cri LJ 316) holds the field and various decisions of this Court rendered by learned single Judge as referred to above holding to the contrary, are, hereby, overruled. Where an article of food is shown to be insect-infested, it is not duty of the prosecution to further prove that the article was otherwise unfit for human consumption. Entry A.05.11 to Appendix B of the rules reads as under : --
A.05.11 -- Fennel (Saunf) Whole means the dried ripe fruits of Foehiculum vulgare Mills. The proportion of extraneous matter including dust, dirt, stone, lumps of earth, chaff, stem or straw shall not exceed 5.0 per cent by weight. The proportion of edible seeds other than fennel shall not exceed 5.0 per cent by wight.
The amount of insect damaged matter shall not exceed 5 per cent by weight. It shall be free from added colouring matter.
Explanation -- The term 'insect damaged matter' means spices that are partially or wholly bored by insects.
A plain reading of the above provision shows that extraneous matter refers to such matter like dust, dirt, stone, lumps of earth, chaff, stem or straw. The provision cannot be taken to include what has been expressly mentioned in Sub-clause (f) of Section 2(ia) of the Principal Act in the context of the article being adulterated. It is an ordinary rule of construction that the rules are subservient to the provisions of the Act. This interpretation accords with common sense as well. With regard to the term 'insect damaged matter', the explanation itself makes it clear that such matter as is partially or wholly bored by insects. There is a clear distinction between spices being partially or wholly bored by insects and article containing living or dead insects.
13. Mr. Goyal next contended that the prosecution failed to prove that Sham Lal and Inder Mohan were responsible to the firm for the conduct of the business. He submitted that admittedly, the said partners were not present at the time of taking of the sample. He relied on Municipal Corporation of Delhi v. S.K. Jain 1985 (1) Delhi, Rec CR 403. Undoubtedly, the burden of proof is on the prosecution that partners who were not found present were responsible to the firm for the conduct of the business. This having not been done, the acquittal of Sham Lal and Inder Mohan calls for no interference.
14. Lastly, Shri Goyal contended that the Punjab Government Notification No. Drugs-3-Pb./77/17857 dated 16-8-1977 could not be considered to be a valid written consent of the State Government Under Section 20 of the Act. We have perused the aforesaid notification which is referred to in the complaint Exhibit PD. The above notification relates to appointment of the Food Inspector Under Section 9 of the Act. Admittedly, no separate notification was issued by the State Government Under Section 20. When the matter was probed, further Shri P.S. Thaira, learned AAG Punjab produced the relevant files maintained in the concerned department of the Government and submitted that after decision of the question by the Supreme Court in A.K. Roy v. State of Punjab MANU/SC/0156/1986 (SC) in which a similar notification like the one relied on by the prosecution in the present case had been held to be not valid consent for purposes of Section 20 of the Act. The State Government had issued a proper notification No. 10(10) 87-4 HPIV/23496 dated the 12th October, 1987. It follows that the Food Inspector did not have the requisite consent of the State Government Under Section 20 of the Act and, therefore, the appeal must fail on this ground.
15. For the foregoing reasons, we dismiss the appeal.
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