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The Prevention of Food Adulteration Act, 1954
Section 2 in The Prevention of Food Adulteration Act, 1954
The Indian Penal Code
Section 7 in The Prevention of Food Adulteration Act, 1954
Section 16 in The Prevention of Food Adulteration Act, 1954

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Delhi High Court
Dhan Raj vs Municipal Corporation Of Delhi ... on 3 April, 1972
Equivalent citations: 1973 CriLJ 433, 8 (1972) DLT 180
Author: J Singh
Bench: T Tatachari, J Singh

JUDGMENT

Jagjit Singh, J.

(1) Five petitions (Nos. 33, 35, 51, 62 and 110 of 1969), under section 561-A of the Code of Criminal Procedure were referred to a larger Bench by P. S. Safeer, J. and were placed before us for hearing. All the five petitions relate to the sale of Kaju (cashewnuts) by certain shopkeepers to Food Inspectors of the Municipal Corporation of Delhi for analysis. On the samples sent to the Public Analysts these were found to be insect-infested to varying extents. Petition No. 33 relates to the case against Shri Dhan Raj from whom Shri B. R. Kochhar, Food Inspector, purchased a quantity of Kaju pieces on October 14, 1968. On one of the samples being sent to Shri Sudhamoy Roy Public Analyst was analysed on October 26, 1968 and according to the report of the Public Analyst dated November 8, 1968, was insect-infested to the extent of 16.2% and was, therefore, stated to be adulterated. Petition No. 35 is in respect of the case against Shri Pradhan Singh from whom Shri Sohan Lal Mehra, Food Inspector, Purchased a quantity of Kaju for analysis on July 10, 1968. On one of the samples being sent to the Public Analyst it was analysed on July 11, 1968. According to the report of Shri Sudhamoy Roy Public Analyst, the sample of the Kaju was insect-infested to the extent of 5.62% and was, therefore, adulterated. Petition No. 51 pertains to the case against Shri Jagan Nath from whom Shri B. R. Kochhar, Food Inspector, had purchased a quantity of pieces of Kaju on October 9, 1968. On one of the samples being sent to the Public Analyst was analysed on October 14, 1968. According to the report dated October 19, 1968 of Shri Prem Parkash Bhatnagar, Public Analyst, the sample of Kaju was insect-infested to the extent of 32.3% and was, therefore, adulterated. Petition No. 62 is on behalf of Shri Paramjit Singh who on being required by Shri B. R. Kochhar, Food Inspector, sold to the latter on November 13, 1968 a quantity of pieces of Kaju for analysis. The sample sent to the Public Analyst was analysed on November 16, 1968. According to the report of Shri Sudhamoy Roy, Public Analyst, dated November 21, 1968, the sample of Kaju was insect-infested to the extent of 6.93 % and living and dead white insects were present in it. Due to insect-infestation the sample was stated to be adulterated. Petition No. 110 is for quashing the proceedings against Shri Kundan Lal who sold for analysis a quantity of Kaju pieces to Shri Anand, Food Inspector, on December 28, 1968. The sample sent for analysis was analysed on January Ii, 1969. According to the report of Shri Sudhamoy Roy dated January 14, 1969 it was insect-infested to the extent of 5.33% and was stated to be adulterated. (2) The petitioners in petition Nos. 33, 51, 62 and 110 were represented by Bawa Gurcharan Singh while Mr. Frank Anthony appeared for the petitioner in petition No. 35. All the petitioners asked for quashing the proceedings against them which are pending in the courts of Judicial Magistrates on complaints instituted on behalf of the Municipal Corporation of Delhi, under section 7 read with section 16 of the Prevention of Food Adulteration Act,.1954.

(3) It was urged by Bawa Gurcharan Singh that mere insect-infestation does not make an article of food adulterated in terms of sub-clause (f) of clause (i) of section 2 of the Prevention of Food Adulteration Act unless the article is also unfit for human consumption. As in the reports of the Public Analysts, on the basis of which complaints were instituted, it was not mentioned that the article of food besides being insect-infested was also unfit for human consumption it was submitted that even if the allegations contained in the complaints were taken at their face value and accepted in their entirety no offence under section 7 of the Prevention of Food Adulteration Act was made out. Another contention raised by Bawa Gurcharan Singh was that in order to be insectinfested an article of food must have living insects in it and that with the exception of the report in the case against Shri Paramjit Singh the reports of the Public Analysts did not mention the presence of living insects in the samples which were analysed. From that fact it was tried to be inferred that if living insects had been found in the samples their presence would have been specifically mentioned. It was as well urged that in the absence of any mention of the existence of living insects it has to be taken that there were no living insects and, therefore, the reports about the samples being insect-infested were on the face of them incorrect. A further contention was raised by the learned counsel that as no standard for quality or purity had been prescribed for Kaju by the Prevention of Food Adulteration Rules, 1955, it was arbitrary on the part of the Public Analysts to regard insect-infestation beyond certain limits to constitute adulteration. (4) The main argument of Mr. Frank Anthony was that in the absence of any rule laying down the standards of quality or purity for Kaja, insect-infestation to the extent of 5.62% could not constitute adulteration when for certain articles of food infestation below a certain percentage was permitted. He also adopted the reasoning of Bawa Gurcharan Singh that unless on account of insect-infestation an article is unfit for human consumption it cannot be regarded to be adulterated under sub-clause (f) of clause (i) of section 2 of the Prevention of Food Adulteration Act. It was as well urged that infestation involves presence of swarms of living insects. In other words presence of dead insects in an article of food was contended to be contrary to the notion of insect-infestation.

(5) At this stage clause (i) of section 2 of the Prevention of Food Adulteration Act, which gives the definition of "adulterated" may be read. The definition is as follows : "(I)"Adulterated":-An article of food shall be deemed to be adulterated- "(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be; (b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof; (c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof; (d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof; (e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health; (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; (g) if the article is obtained from a diseased animal; (h) if the article contains any poisonous or other ingredient which renders it injurious to health; (i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health; (j) if any coloring matter other than that prescribed in respect thereof and it amounts not within the prescribed limits of variability is present in the article; (k) it the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits; (1) 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." Admittedly so far as Kaju or cashewnuts are concerned no standard of quality or purity has been prescribed with reference to sub-clause (1).

(6) It will be noticed that the definition of the word "adulterated" is rather wide. Even if an article of food does not fall under one particular sub-clause it may still be adulterated if any other subclause of the definition is applicable. So far as sub-clause (f) is concerned an article of food is to be deemed to be adulterated 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.

(7) The learned counsel appearing for the Municipal Corporation of Delhi and State submitted that the words "or is otherwise unfit for human consumption", as appearing in sub-clause (f) of clause (i) of section 2 of the Prevention of Food Adulteration Act have been used disjunctively and, therefore, an article of food which is insect-infested to some extent even though not unfit for human consumption has still to be regarded as adulterated under this sub-clause. For the same reason it was urged that an article of food which consists wholly or .in part of any animal or vegetable substance which may be filthy, putrid, disgusting, rotten, decomposed or diseased is also to be deemed to be adulterated irrespective of the fact whether the article is fit or unfit for human consumption.

(8) The word "otherwise" used in the last portion of sub-clause (f) of clause (i) of section 2 of the Prevention of Food Adulteration Act appears to us to be very significant. The ordinary dictionary meaning of the word "otherwise" is "by other causes or means". If for the word "otherwise" the words "by other causes or means" are substituted, the sub-clause would read as under :- 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 by other causes or means unfit for human consumption. Giving the words their plain meaning sub-clause (f) means that if an article of food consists of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested and for any of those causes or for any other cause is unfit for human consumption, it shall be deemed to be adulterated. The sub-clause specifically mentions some of the well-known causes on account of which an article of food may become unfit for human consumption but as it is not possible to exhaustively enumerate all such causes the latter portion of the sub-clause brings within its ambit any other cause or means which may make such article of food also unfit for human consumption. (9) In Rameshwarlal Harlalka v. Union of India one of the contentions raised was that the portion of the definition of "adulterated" covered by sub-clause (f) of clause (i) of section 2 was vague and uncertain and that it would bedifficult, if not impossible, to avoid the mischief of the definition because there would hardly be found any sample of certain food articles, like cereals or other crops, which would be absolutely free from insects and the expression "filthy, putrid, disgusting, rotten etc." also does not give any definite standard for adjudging the quality of the thing. While repelling the contention D. Basu, J., observed as under :__ "THEREare, however, two .answers to such a contention, namely, that the vice of the particular article will be governed not only by the definition but by the standards of purity which have been prescribed by the rules made under the Act, under Section 23. So the definition must be read together with the rules. Secondly, the adjectives which precede in the said definition must be read with the concluding words or is otherwise unfit for human consumption'. The word 'otherwise' suggests that all the adjectives refer to the quality of the article being unfit for human consumption, which condition may be due either because the article is filthy or infested or rotten and the like. If that is so, the vagueness of the adjectives standing by themselves is eliminated." With respect we are in agreement with the view that the word "otherwise" in sub-clause (f) of clause (i) of section 2 does suggest that all the adjectives used earlier do 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 either because it consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or deceased animal vegetable substance or because, it is insect-infested or on account of any other cause.

(10) It has next to be seen as to what are the implications of the expression "insect-infested" as used in sub-clause (f) of clause (i) of section 2 of the Prevention of Food Adulteration Act. Is the presence of living insects in an article of food necessary before it can be termed insect-infested? On behalf of the petitioners reliance was placed on two judgments of V. D. Misra, J., of this Court reported as Wazir Chand Wadhwa v. State (1971 Delhi Law Times 197)0 and Khacheroo Mall v. The State (1971 Delhi Law Times 138)0. In addition to that an unreported judgment of the same learned Judge in Criminal Revision No. 102 of 1970 (Shiv Charan Gupta v. State decided on January 29, 1971) was referred to.

(11) The case of Wazir Chand Wadhawa related to sale of white grams (Channas), a sample of which on being analysed was reported by Shri Sudhamoy Roy, Public Analyst, to be adulterated on account of insect-infestation to the extent of 6.9%. The Public Analyst also reported presence of living insects in the specimen, The trial Magistrate convicted Wadhwa under section 7 read with section 16 of the Prevention of Food Adulteration Act. The appeal filed by him remained unsuccessful and he then filed a revision. At that stage V. D. Misra, J. examined Shri Prem Prakash Bhatnagar, who had succeeded Shri Sudhamoy Roy as Public Analyst. In his statement Shri Bhatnagar deposed that food-grains: found insect-infested up to 5 % were not being declared adulterated by him and it was only when the percentage was higher that these were reported to be adulterated. The learned Judge took the view that the presence of "6.9% of the Ghana grains containing insects will not make the sample in question to be insect infested". Obviously that case is no authority for the proposition that presence of dead insects in an article of food is inconsistent with the notion. of the article being insect-infested. (12) Khacheroo Mat's case which was decided a few days after the case of Wazir Chand Wadhwa, related to sale of pieces of Kaju, a sample of which on being analysed was found to be insect-infested to the extent of 21.9%. The learned Judge in accepting the revision of Khacheroo Mal against his conviction and sentence mainly relied upon the statement of Shri Prem Prakash Bhatnagar, Public Analyst, recorded in the case of Wazir Chand Wadhwa v. State ('). It appears that Shri Bhatnagar without giving any reasons had also mentioned in his statement that if no living insects were found present but the foodgrains were found to be damaged then his report would be that the foodgrains were insect-damaged but if living insects were present and the foodgrains were also found to be damaged his report would show the article to be insect-infested. Relying upon this statement of the Public Analyst the learned Judge held that the presence of living insects was necessary before an article of food could be called insectinfested. (13) In the case of Shiv Charan GuptaC) the same learned Judge followed the cases of Wazir Chand WadhwaC) and Khacheroo MalC). It, however, seems that in none of those cases a specific question had been raised whether an article of food which had been attacked by insects in large numbers ceased to be insectinfested if for any reason the insects had died and only deadinsects were found in the article of food. In the case of Pearey Mohan v. State (Revision No. 133 of 1970 decided on 29-6-1971) another learned Judge of this Court B. C. Misra, J., expressed a different view by observing that it would not make any difference whether dead or living insects were present in an article of food.

(14) The expression "insect-infested" was not defined in the Prevention of Food Adulteration Act and has, therefore, to be given its ordinary dictionary meanings. The word "infest" appears to have been derived from the latin word "infestare" which meant to assail or molest. According to the Oxford English Dictionary (Volume V at page 259) the word "infest" means "To attack, assail, annoy, or trouble (a person or thing) in a persistent manner;" "to visit persistently or in large number for purposes of destruction or plunder;" "to swam in or about, so as to be troublesome". In the same Dictionary the word "infestation" is stated to mean: "The action of infesting, assailing, harassing, or persistently molesting". It is also mentioned that the word is now used especially for "insects which attack plants, grain, etc. in large swarms". Thus an article of food would be "insect-infested", if it has been attacked by insects in swarms or numbers. It however, seems to us that there is no justification for the view that insectinfestation 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 reason those insects die, the mere fact that the article of food has no longer living insects but las dead insects will not change its character of being insect-infested. (15) 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 insectinfested above 5% to be adulterated. There can hardly be any doubt that if for an 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 (1) of clause (i) of section 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 percentage of insect-infestation to make the article adulterated. In the case of Jagdish Prasad alias Jagdish Prasad Gupta v. State of West Bengal (1972-1 Supreme Court Case 326)0 it was held by their Lordships of the Supreme Court that the standards of quality and limits of variability fixed by Government are not even subject to alteration or variation by Courts. (16) It has next to be seen whether in the cases or in any of the cases to which the petitions relate the inherent powers of this court under section 561-A of the Code of Criminal Procedure should be exercised. In R. P. Kapur v. State of Punjab it was laid down by the Supreme Court that the inherent powers cannot be exercised in regard to matters specifically covered by the other provisions of the Code of Criminal Procedure and that it was well settled that the inherent jurisdiction of a High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. It was further observed that ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code of Criminal Procedure and a High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. Some of the categories of cases where inherent jurisdiction can and should be exercised for quashing the proceedings were indicated as under:- "If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained." (17) In the cases against Dhan Raj, Jagan Nath, Paramjit Singh &nd Kundan Lal the prosecution evidence has yet to be recorded. In the case against Pradhan Singh it was, however, stated by Mr. Frank Anthony that the evidence, prosecution as well as defense, is complete.

(18) In none of the reports of the Public Analysts it was stated that the sample of Kaju was unfit for human consumption The reports merely mentioned the extent of insect-infestation found as a result of analysis. Except in the case of sale of Kaju pieces by Paramjit Singh the reports of the Public Analysts also did not make it clear whether any insects, dead or alive, were present.

(19) According to the view which we have taken an article of food which is insect-infested should on account of that infestation be unfit for human consumption if the article is to be deemed to be adulterated under sub-clause (f) of clause (i) of section 2 of the Prevention of Food Adulteration Act. Such an article of food even if not unfit for human consumption may still be an adulterated article if it falls under any other sub-clause of the definition of adulterated.

(20) In the reports of the Public Analysts the particular sub-clause or sub-clauses of the definition-of "adulterated" were not referred to. In the complaints as well the offence alleged to have been committed by the petitioners was stated to be under section 7 which is punishable under section 16 of the Prevention of Food Adulteration Act. At this stage, therefore, in the cases against Dhan Raj, Jagan Nath, Paramjit Singh and Kundan Lal it cannot be said whether or not from the evidence to be produced a charge under section 7 read with section 16 of the Prevention of Food Adulteration Act would be made out. If the allegations in the complaints against the said petitioners, as based on the reports of the Public Analysts, are taken at their face value and accepted in their entirety it is not possible to say that these do not constitute the alleged offence. The evidence to be produced may show that due to insect-infestation the articles of food were unfit for human consumption or that these could be deemed to be adulterated with reference to the definition of "adultrated" other than sub-clauses (f) and (1) of clause (i) of section 2 of the Prevention of Food Adulteration Act. The case of Sohan Lal and others v. State, Criminal Misc. (Main) No. 203 of 1967, decided on October 9, 1969 by Hardayal Hardy, J. (as his Lordship then was), is distinguishable. In that case the reports of the Public Analyst showed the articles to be "infested" and not "insect-infested". The proceedings were quashed as it was considered that no charge could be framed regarding mere infestation. (21) In the case against Pradhan Singh the charge framed is under section 7 read with section 16 for sale of adulterated Kaju but without reference to any sub-clause or sub-clauses of clause (i) of section 2 of the Prevention of Food Adulteration Act. We were only referred to the statement of Shri Sudhamoy Roy, Public Analyst, recorded as a defense witness, in which he stated that in another case where the insect-infestation was to the extent of 3.8% his report was to the effect that the sample was "not of objectionable nature" and that if in a sample insect-infestation may be found to be less than 5% he gives an opinion that it is not adulterated or bad. From that statement alone it cannot be said that no legal evidence was adduced in support of the charge or that the evidence adduced clearly or manifestly fails to prove the charge. The proceedings cannot, therefore, be quashed in exercise of the inherent jurisdiction of this Court. It will be for the trial Magistrate to appreciate the evidence that has been produced and to decide, keeping in view what we have stated about the scope of sub-clause (f) of clause (i) of section 2 of the Prevention of Food Adulteration Act, whether the charge against the said petitioner has been proved or not. (22) In our opinion in none of the cases to which the petitions relate the proceedings can appropriately be quashed under the inherent powers of this court under section 561-A of the Code of Criminal Procedure. The petitions are, therefore, dismissed. The petitioners should appear in the court of the Chief Judicial Magistrate, Delhi, on April 24, 1972. The Chief Judicial Magistrate shall then direct the petitioners to appear in the courts of Judicial Magistrates, to whom the cases may be made over for trial, on such dates as may be fixed by him. The trial Magistrates shall try to expedite the disposal of the cases as these have already been considerably delayed.