Municipal Corporation of Delhi v. Kacheroo Mal

Judgment

The Judgment of the Court was delivered by SARKARIA, J. This appeal l?Y special leave is directed against a judgment of a learned single Judge of the High Court of Delhi. It · arises out of these circumstances : . On January 8, 1969, B. R. Kochhar, Food. Inspector, purchases 600 grams of Kaju-Tukra (cashewnut pieces) as sample for analysis from the grocery shop of Kacheroo Mal, Respondent in Khari Baoli, Delhi. The sample was divided into three equal parts and sealed into three bottles. An inventory was prepared which was read over and explained to the respondent, who thereafter signed it. One of these bottles was given to the respondent, one was retained by the Inspector, t whi!e the third was handed over to the Public Analyst on the following day for examination. The Public Analyst has reported : . "Date of Analysis : 10-1-1969. Insect-infested pieces of Kajus: 21.9% and I am of the opinion that the same is adulterated due to insect infested pieces of Kajus to the extent of 21.9% ."

On the preceding facts, the Food Inspector 'filed a ·complaint for prosecution of the respondent in respect of an offence under s. 7 read with s. 16 of the Prevention of Fooo Adulteration Act, 1954 (hereinafter called the Act). The trial Magistrate convicted and sentenced him for six months rigorous imprisonment with a fine of Rs. 1000/-. Kacheroomal's appeal before the . Additional District and Sessions Judge, failed .. Against the order of the Additional Sessions Judge, he preferred a revision to the High Court. The revision was heard by a learned Judge who held that since no living .insect was found in the sample pieces examined by the analyst, the same could not be called "insect-infested" within the contemplation of s. 2 (i) (f) of the Act. The learned Judge was of the opinion "that the presence of living insects is necessary before an article could be called 'insectinfested". According to him, ''the intention of the legislature by using this word in s. 2(i)

(f) in the sentence 'if the article is insectinfested' clearly is that at the time of analysis infestation by insects should be present". It was further observed that if only dead insects 4 1197 6] 2 S.C.R. were present, the sample could be called 'insect-damaged' and not in: sect-infested'. Since the report of the Public Analyst did not show the presence of Jiving insects in the Ka ju sample pieces, it \\as concluded that the same could not be said to be 'adulterated'. On thi,< reasoning, the revision-petition· was allowed and the conviction of . Kacheroo Mal was set aside. Hence this appeal, by the Municipal Corporation of_ Delhi. . • ... Havi~g hea~d the learned Cou;,,el on both sides, we are of opinion that the construction put by the learned Judge of the High Court is manifestly erroneous:_ It has been· disapproved by a Division Bench of the· ·same' High ·Court in· Dlzanraj v: Municipal Corporation of Delhi.( 1) Indeed, Mr. D. Mukherji, the learned Counsel for Kacheroo Mal has not tried to support it..

The Act has been _enacted to curb and remedy the widespread evil of food-adulteration, and to ensure the sale of wholesome food to the people.· It is well-settled that wherever possible, without unreasonable . stretchiilg or straining the language of such a statute, should be construed in a manner which would suppress the mischief, advance the remedy,•· promote its object, prevent its subtle evasion and foil its artful circumvention. The construction adopted by the learned Judge is repugnant to this cardinal rule of interpretation. With respect, it is less rational, but too literal, narrow and pedantic. It would be straining one's co=onsense to say -that an ·article of food which is infested with living insects· and ·is consequently unwholesome for human consumption, ceases;to be so and becomes wholesome, when these insects die out _and _the. 'infestation' turns into an. infestation by dead insects.

The expression 'insect-infested' is to be construed in the context of an article of food nieant for human consumption. It takes its hue ·from the phrase 'unfit for human consumption' occurring at the end of the· sub-clause. Thus· construed, . it. meaus that the article so abounds in insects, dead or living,. that it is rendered unfit for human consump- · tion.· We need not' labour the point fnrther. · It ·has been - lucidly brought out by Jagjit Singh J. who spoke for the Bench of the High Courtin Dhanraj's case (supra) at page 688 of the report. We fully . approve. that reasoning and would extract it here : "The expression· 'insect-iiifested'. was not defined in the ., ·'Prevention-of Food Adulteration Act and has, therefore, to ; be given its. ordinary meaning. . The word 'infest' appears to have been derived from the .latin word 'infestate' which ·;'meant to. assail· or molest. ·According to the Oxford Eng- :

1lish ·Dictionary (Volume Vat page 259) ,the word 'infest' ' ---- nieans·'To attack, assail, annoy, ·or trouble. (a person or . ·f - thing)""in a 'persistent manner," "to visit persistently or in · -"large number for purposes of destruction or plunder", "to · ·swarm· ill" or ·about, so as to b" troublesome". In the same Dictionary the word 'infestation' is stated to mean.: "The action of. infesting, assailing,. harassing,. or persistently mo!- ; :csting". · It is also mentioned _that .the word is _ now used • • r .. .,, 'r·1 .'· ',' -:·orr.i:R'.:c1910)rrrieiti6sc·:"'0 .,,,::-,'1~' ., 11 -:c·,,. . . , ,.• 5 especially for "insects which attack plants, grain, etc, · in large swarms". Thus an article. of food would be. ':insect- . infest~"' if it has been attacked by insects in swarms' oi: numbers. It however· seems to us that there is no justification for the view that insect-infestation would only continue so long as the insects continue to be alive.

If an article of . food is attacked by insects in large swarms or numbers and · for some reas9n those ·insects tlie, the niere fact· tliat the· article of food .h<1s no longer, living insects but has dead ,.insects Will ri.Ot change its character of being insect~infested." 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 ihe article to be-'adulterated' within the meaning '€ of sub-clause (f) of \:lause (i) of sec. 2 of the Act. Mr. D. Mukherji, learned Counsel for the Respondent subip.its that mere proof of the fact that a certain number of pieces of the sample sent to the Public Analyst .wei;e found to be insect-infested, could not make the article "adulteratec!" in: ierrns of the aforesaid sub-dause (f) unless it was proved fuitlietthatthe article was unfit for human coµ- sumption ..

It is stressed fl1eie is no proof of Chat essential fact on tl:ie record. It is pointed out; .tliat in his report, the Public Analyst has n.ot said that the insect"lnfes!ation found by him had rendered the article unfit for h_ull).an consumption. In this connedion, Counsel .has invited our attention to an applipa(ioii which was. made by Kacheroomal in the first appellate Court, praying that the Public Analyst · be summoned and. ex~mined as .a witness. _He has .further drawn our attention to an order, dated 17-12-70 of.the.High Court whic.h shows that. on the request of. Mr. Bashamber Dayal, Counsel for the Municipal Corporation, the Court summoned Mr. Sudama Roy and Mr. '.P. P . .!3hatna,gar, Ptjblic AnaJysts for 21-12-1970.

The point sought to be made out is that_ in this case, the prosecution, the defence and , ·the High Court all felt that Che report of the Public Analyst was v·ague, inadequate and deficient, -and in, the absence, of Clear . proof of the .sample, being unit for human. consumption, it could not constitute a . valid basis for holding the ·article to be adulterated wifhin the mean- . ing of sec. 2 (i)(O . As against the above, Mr. F. S. Nariman, the learned Counsel for the appellant Corporation submits that in the case of food articles for ;9 which no minimum standard of purity is prescribed, the moment it is proved that a proportion, or percentage of the ar.ticle~not ·beiitg 11 proportion or percentage as would be covered by the rule, de minimis rum curat lex-is putrid, filthy, disgusting, decomposed or insectinfested, it would be deemed to b!l unfit for humart consumption and t.~eref~fC''~dulter!lted- Witqin-the ;COntempJi:1tion Of S. 2(i)'{f<):::·tlnrany case, proceeds tlie argument, it is implicit in the report of. the Public Analyst that the article in question was found unfit· for human consumption..

This implication accordingto Che learned Coiirtsel, flows .fr.om. th,e Analyst's conclusion that the· .articlewas' "adulterated';. 6 Counsel has criticised the view taken by the Bench in Dhanraj's case that if for an article of food, no standard of quality or purity has bee11 prescribed or no limi':s have b:en prescribed for the validity of its constituents, then sub-clause (l) of clause (f) of sec. 2 will no·t apply, and that the Pub ic Analyst is not compe•ent to say as to what exlent of insect-infestation would make the article "adulterated". The relevant part of Section 2 reads as under : "(i) "adultera~ed"-an article of food shall be deemed to be adulterated- ( a) to (e) (f) if the article consists wholly or in part of any 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 otherw~e 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 insectinfested, (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 the whole or any .part of the article being "ff thy, putrid, disgus:ing, r9tten · : ... or insect-infested'' would be conclusive to bring the case within the mischief of this sub clause, and it would not be necessary in such a case to prove further that the article was unfit for human consumption. We. would prcfor 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 adjectives "filthy", "putrid", "disgusting", "decomposed" "rotten" ...... "insect-infested" refer to the quality of th;: article and furnish th~ indicia for presuming the article to b.: unfit for hum:m consumption. But the presumption may not b<: conc'.usive in all cases, irrespective of the character of .the article,.and the n.ature and extent of.the vice afflicting it. This is particularly so, where an article is found to be 'insect-infested'.

There ·are some articles of food in respect of which the Rules fram~d under the Act, lay down the minimum proportion of insect-infestation· or in ·sect-damage which is not deemed to make the article unfit for hiiman consumption:' For instance, in the case of Nutmag (Jaiphal) the proportion of extraneous matter and irtfestatiOn shall not exceed 3 .0 per cent by weight. (Item A.05.16 of the Pi·eventii:m of Food Adultera~ion Rules; 1955). In the case of Coriander (Dhania) the proportion of extraneous matter including dirt and lnsect-damaged . seeds :Sliall not 7 exceed 8.0 per cent by weight (Item A.05.08). Similarly, in the case of foodgrains, the proportion of 20 miligrams of insect-damaged grain per 100 miligrams sample of the grain, and 5 per cent ~y weight of fnngl_ls-damaged . grain is not considered enough, to treat it as 'adulterated' eitl).er under sub-clause (f), or a11y of the other subclauses of sec. 2(i).

These illustrations unmisfakably show that the mere fact that any part of an article was insect-infested may not br conclusive proof of its being 'adulterated' under sub-clause (f). In other words, all the adjectives used in the sub-clause are a presumptive and not an absolute test of the quality of the article being unfit for human consumption. To be more particular, in the case of an article in respect of which the Rules do not prescribe any minimum standard of purity or any minimum proportion of insect-infestation that would exclude it from the definition of 'adulterated article'. it will be a mixed question of law and fact, whether the insect-infestation j~ 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, as to the fitness or otherwise-.of the sample for human consumption, would constitute legal evidence.

Public ,Analyst is supposed to be specially skilled in the science of dietetics. As an expert in the science, he is competent to opine and testify about this fact. The report of the Public Analyst, including his opinion on this point, is per se evidence by virtue of sec. 13 of the Act. But this does not mean that his ipse dixit would be conclusive and binding on the court. To treat it so would be to leave the determination of the guilt of the accused to the whims and fancies of the Public Analyst. The Act would not countenance such abdication of its judicial function by the court, leaving the case-:-as it were-to be tried by the Analyst. It is for the court· to weigh his opinion and reach its own finding. In Dhanraj's case (supra) the High Court construed this subclause 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, disgusting, rotten, decomposed or diseased animal or vegetable substance or because it is insect-infested or on account of any _other cause." 8 If we may say so with respect, this is a correct exposition of the law embodied in s. 2(i)(f). We need only add for the sake of elucidation, but these adjectives indicate presumptive but not absolute criteria as to the quality of the article. In each case it must be proved that the article was unfit for human consumption. In the case of ar?cles for which the Rules lay ~own anr mi~muil! standard of purity' with reference to any of the vices specified m this sub-clause; mere 2-Ll276SCI/75 8 proof of the fact that the impurity was in excess of that countenanced by the prescribed standard, would be conclusive to show that the article was unfit for human consumption.

In regard to cashewnuts there is no statutory provision prescribing any minimum standard of purity with reference. to the vice of insect-infestation or other adjectives used in this sub-clause. It will therefore, be for the Judge of fact to decide upon the evidence in the case, whether the insect-infestation found was of such a nature and extent as to make it unfit for human consumption. We have already pointed out that the Report of the Public Analyst, i> admissible in proof of this fact. In Dhanraj's case (supra), the High Court after holding that in order to bring a case within the purview of the said sub-clause ( c,), it must be proved that the article is unfit for human consumption, proceeded to say something-which in our opinion is not correct-as to the proof of this issue, as under :

"By referring to Appendix B to the Prevention of Food Adulteration Rules, 1955 the learned counsel for the petitioners also urged that as for purposes of sub-clause ( 1) of clause (i) of section 2 no standard of quality had been prescribed for Kaju the Public Analysts were not justified in treating the samples found insect-infested above 5 % to be adulterated. There can hardly be any doubt that if for an article of fopd no standard of quality or purity has been prescribed or no limits have been prescribed for the variability of its constituents then sub-clause (f) of clause (i) of 5ection 2 will not apply and for considering whether or not the article is adulterated it will have to be seen if any other portion of the definition of "adulterated" is applicable.

Of course as no standard of quality or purity was prescribed for Kaju it was not competent for any Public Analyst to himself fix any such standard and to say that he will not treat Kaju which is insect-infested to the extent of 5 % as not adulterated but will regard any higher pe.rcentage of insectinfestation to make the article adulterated. Jn the case of Jagdish Prasad alias Jagdish Prasad Gupta v. State of West Bengal (1972-1, SCC 326), it was held by their Lordships of the Supreme Court that the standards of quality and limit~ of variability fixed by Government are not even subject to alteration or variation by Courts." We are unable to agree with the proposition propounded by the High Court that if for any article of food no standard of quality or purity has been prescribed or no limits have been prescribed for the variability of its constituents, then sub-clause (f) of clause (i) ·of sec. 2 will not apply.

As already discussed, the governing ingredient of sub-ciausc (f) is the quality of the article being unfit for human consumption. If the I J 4 9 .(iuality of the article suffers from any of the vices, i.e. filthiness, putrefaction insect-infestation etc. this sub-clause would be inexorably attracted and on proof of the article being unfit for human consumption, the requirements of the clause would be completely satisfied. Such proof may consist of the report of the Public Analyst. The value of his report however would depend on its being self-contained, an<l comprising the necessary data and reasons for his opinion. It is desirable that the Public Analyst should express his opinion on all the relevant points with reference to the particulat sub-clause or sub- ,cJauses of sec. 2(i) of the Act.

This will not only enhance the value of his report but also facilitate the task of the Court. lf it is merely .dogmatic, that would be a circumstance detracting from its evid.:ntial value, though it may Ii.ot render it inadmissible. Ultimately the decision rests with the court which would take into account all the circumstances of the case including the character of the at'ticle, the nature .and the extent of the insect-infestation and other relevant factors. If the Public Analyst says 'that since the insect-infestation in the Kaju pieces is less than 5 per cent, the sample, in_ his opinion, is ad111lterated' then all that can be said about it is that the opinion i:, dogmatic. He should say with particularity as to how and why the pi:rcentage of insect-infestation found by him renders to sample unfit for human consumption.

The additional reasons which he might give, in addi- '!ion to the certain proportion of the sample being insect-infested, would enhance the value of his report, still further. It is not possible for us to speculate the reasons which the .Public Analyst as an expert in the science might advance in support of his opinion. By giving the opinion that if the insect-infestation is above 5 per cent, the ·sample of Kaju pieces would be unfit for human consumption, the ·expert would not be laying down any standard of quality or limits of variability which the Legislature in its wisdom has not prescribed. His -opinion would be just a piece of evidence which has to be evaluated by the Court in the circumstances of a particular case to reach a finding as' to the unfitness or otherwise of the sample for human consurnption.

The question of varying any standard of quality or limits of -variability in the case of Kaju pieces does not arise because no such standard has been fixed either in the Act or in the rules framed thereunder. Reference to what this Court said in Jagdish Prasad Gupta's ·case (ibid), made by the High Court was thus not in point. In the instant case the report of the Public Analyst is silent as to whether on account of the insect-infestation found by him in the sample of Ka ju pieces, the article was unfit for human consumption. The respondent, as already noticed, had made an application to the Additional Sessions Judge, in appeal, for summoning the Public Analysts. His request was however declined. When the case was in the High C0urt, -Counsel for the Municipal Corporation, also, felt that ihe i~­ port was vague, incomplete and deficient, and, on his request, the High Court actually summoned the Public Analysts, M/s. Sudm11a Roy and P. P. Bhatnagar, as witnesses, for 21-12-1970, for evidence_ Despite the adjournment irrani~d by us, the learned Couns'l for the narties have not been able to throw light as to what had happened in the High Court on 21-12-1970.

10 SUPREME COURT REPOns [1'.)76j 2 S.C.R. The Public Analysts, as is apparent from the judgment of thelearned single Judge of the High Court have been expressing different opinions on different occasions as to when an article can be said to be 'insect-~nfested'. 'rn the circumstances of this case therefore, it had become necessary to call the Public Analysts as witnesses to enable them to elucidate their opinion and amplify their report and to allow the parties to test it by cross-examination. For this purpose, on our first reaction, we were inclined to remit the case to the High Court for redecision. But the learned Counsel for the Municipal Corporation has brought to oµr notice that the Public Analyst, Mr. Sudama Roy --whose report is in question-is po longer in the service of the Corporation and is not residing at Delhi. It is obvious that it will not be possible to procure Mr. Roy's attendance in court without an amount of delay and inconvenience which will be unreasonable in the circumstances of the case and will cause undue hardship to the respondent who has h~d more than his normal share of !he mental suffering, harassment and expens·~ which go together with protracted criminal proceedings, extending in the present case over 81 months.

No useful purpose will therefore be served by remanding the case for a fresh decision. Taking into consideration all the circumstances of the case, we do not think it proper to disturb the acquittal of the respondent. Subject to the clarification of the points of law and the reversal of the view taken by the High Court as to the meaning and scope of s. 2(i)(f), the appeal is dismissed. P.H.P. Appeal dismissed.