MUNICIPAL CORPORATION OF DELH v. TEK CHAND BHATIA (2)

Citation: [1980] 1 S.C.R. 910

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, A.P. SEN

Case summary

In this appeal, on certificate, from a judgment of the Delhi High Court, by which it acquitted the respondent of an offence B· punishable under s.

Judgment text

MUNICIPAL CORPORATION OF DELHI v. TEK CHAND BHATIA October 11, 1979 [S. MURTAZA FAZAL ALI AND A. P. SEN, JJ. ] • Pre;,ention of Food Adulteration Act, 1954, Section 2(i)(f). interpreiation ~ of-The words "or is otherwise unfit for human consumption" are disjunctive of ~~ the rest of the words preceding them-Warranty, whether the mere description of the words in the sealed container as "SW Best Born1a" entitles protection under S. 19(2) of the Act, I· The respondent is a partner of the Firm M/s. Narain Dass Tek Chand, Khari Baoli, Delhi. The firm is engaged in wholesale business in dry fruits including cashew nuts which it gets from different manufacturers, On August 1, 1968, these samples of cashew nuts were taken from its shop by the Food Inspectors PWs I and 3, ftom three sealed tins supplied by Sri Venkateswara Cashews, Panruti and were for\varded to the Public Analyst, Delhi who by his three reports dated August 3, 1968 in Form III Ex! $. 'PE, PE/I and PE/2.

found ti::tat all the three samples taken were "insect infested". Of these, two were insect-infested to the extent of 20. 6 and 20. 7 per cent and the third to the extent of 5. 63 per cent. Both the trial Magistrate and the Delhi High Court 1J. cquitted the Respondent. The High Court relying on its earlier decision in Dha11raj"s case ILR (197()) 2 Delhi 681, held th~t merely because an article of food is insect-infested it cannot be treated as "adulterated" within the meaning of section 2(i) (f) of th~ Act, unless it is further proved to be 'otherwise unfit • for huma.. '"! consumption' within the meaning of that section. In that view, it did not touch upon the question whether the invoice Ext. ow· 3/A was sufficient warranty in law as to the purity of the article sold. Allowing the appeal on certificate, the Court, HELD : L The interpretation of Section 2(i) (f) by the High Court was clearly wrong.

On the plain language of the definition section, it is quite apparent that the words "or is otherwise unfit for human consumption" are disjunctive of the rest of the words preceding them. (b) 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. (c) 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 b:. ;! per se sufficient to bring the case within the purview of the word "adulterated" as defined ill sub-clause (f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consmuption. [914 F-H, 915A] (c) The decision of this Court in Municipal Corporation of Delhi v.

Kacheroo Mal, [1976] 2 SCR I approving the decision in Dhanraj's case ILR (1970) 2 Delhi 681 should be confined to the particular facts of that case. The decision in tllat case was largely based on the circumstance that the standard of quality MUNICIPAL CORPORATION V. T. C. BHATIA 911 :and purity '. Vas . not prescribed in respect of oashe,vnuts. Now that Rule 48-B of :the Preventi•)n of Faod Adulteration Rules in 1955 has been framed, the decision in Kacheroo Mal's case is rendered inapplicable. [916 B-C] (d) In the definition clause, the collocation of words filthy, rotten, decom- 1 posed a. n be in. sectwinfested to the extent of 20. 6 per cent and 20. 7 per cent are "adulterated" within the meaning of section 2'(i) (f). [918 A·D] (e) Part IX of the Prevention of Food Adultemtion Rules, 1955 deals with th'e conditions of sale and licence.

Rule 50 states that no person shall manufacture, sell, stock, distribute or exhibit for sale the article of food mentioned therein except under a licence. "Nuts" is one of the articles mentioned there-in. It is wide and enough to include cashew nuts. Originally the Rules did not prescribe the standards of quality or purity in relation- to dry-fruits. That lacuna has, however, now been removed by the insertion of Rule 48B. [920A·B} 3. In the instant case (a) there is no proof that the samples were taken from tins bearing the manufacturer's label guaranteeing purity of goods, nor is there any such warranty in the invoice Ext DE3/A. There is nothing to substantiate this fact, and even if it were so, it is of little consequence. [921 D-E]i (b) The word "good" merely contains a description of the goods. The weird "good'' is not warranty as to the quality. The respondent is, therefore, not protected under section 19(2) of the Prevention of Food Adulteration Act, 1954 read with r.

12A of the rules framed under the Act. [921E-F] Ranganatha Reddiar v. The State of 'Kera/a [1970] 1 SCR 864; Andhra Pradesh Grain & Se~d Merchants' Association v. Union of India [1971] 1 SCR 166, distinguished. R•. G. Pamanani v. The State df Maharashtra [1975] 2 SCR 886, applied. 4. The provisions of Section 20AA inserted by Act 34 of 1976 interdicts the Court from applying the provisions of section 4 of the Probation of Offenders Act, 1958 to a prosecution under the Prevention of Food Adulteration Act, 1954. [921GJ [Keeping in view of the provisions of Section 16 of POPA, 1954 giving the Court the discretion for special and adequate re360ns under proviso to subsection (1) not to pass a sentence of imprisonment and considering the agf' of respondent the Court sentenced the respondent to the period already undergone and to pay a fine of Rs. 2000/. ] CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 195 of 1973.

From the Jndgment and Order dated 26·5-1972 of the Delhi High Court in Criminal Appeal No. 177/71. V. S. Desai, B. P. Maheshwari, Suresh Sethi and B. Bhaduraj for the Appellant. MUNICIPAL CORPORATION v. T. · c. BHATIA (Sen, J. ) 913 "°')- 0. P. Soni, S. N. Mehta, Miss Kamlesh and V. D. Chopra for the II. Respondent, The Judgment of the Court was delivered by SEN, J. In this appeal, on certificate, from a judgment of the Delhi High Court, by which it acquitted the respondent of an offence B· punishable under s. 16(1) (a) of the Prevention of Food Adulteration Act, 1954, for the alleged contravention of s. 7(1) thereof, two questions arise, namely (1) whether even though the Public Analyst found in one of the reports, Ext. PE that a particular sample of cashew nuts purchased from the respondent's shop was 'insect-infestc·, ed' to the extent of 20.

6 per cent and that it contained living insects, that circumstance by itself was not sufficient to warrant a conviction, and (2) whether the respondent was protected by sub-s. (2) of s. 19 of the Act inasmuch as he had purchased /the cashew nuts in scaled tins from a dealer in cashew nuts under the invoice Ext. DW 3/A, which contained a description of the goods as 'SW Best Bormia'. I The facts of the prosecution case are these. The respondent is a partner of the firm M/s. Narain Dass Tek Chand, Khari Baoli, Delhi. The firm i:; engaged in wholesale business in dry-fruits including cashew nuts which it gets from different manufacturers. On August 1, 1968 three samples of cashew nuts were taken from its shop by E the two Food Inspectors, S. L. Mehra, P. W. 1 and H. K. Bhanot, P. W. 3 from three sealed tins supplied by Sri Venkateswara Cashews, Panruti. These samples were duly forwarded to the Public Analyst, Delhi who by his three reports dated August 3, 1968 in Form III, . Exts.

PE, PE/1 and PE/2 found that all the three samples taken were 'inseclt-infested'. Of these, two were insect-infested to the extent P" of 20. 6 and 20. 7 per cent and the third to the extent of S. 63 per cent. The Magistrate 1st Class, Delhi acquitted the respondent holding (1) that the respondent was a sleeping partner residing at Kanpur,. and that there was nothing to show that he was incharge of and was. responsible for the conduct of the business which, was carried on at G, the shop of the firm at Khari Baoli, Delhi; (2) that alternatively, the invoice Ext.

DW 3/A produced by the respondent contained a warranty which absolved him from liability, and (3) that the ratio of living insects to dead insects not having been given in the Public Analyst's report, there being no evidence to show that the cashew nuts in question were deleterious to health, and if so, how much harm- ll ful effect it would have upon the health of a person consuming them, 4-743 SCl/79 { the mere fact of the cashew nuts being insect-infested was not sufficient to bring home the charge. The Delhi High Court without going into the question as to whether the respondent was protected under sub-s. (2) of s. 19, maintained the order of acquittal, holding that merely because an , article of food is insect-infested, it cannot be treated as 'adulterated' within the meaning of s. 2(i) (f) of the Act unless it is further proved to be 'otherwise unfit for human consumption' within the meaning of the section following its decision in Dhanraj v. Municipal Corpora· tion of Delhi.

(') In that view, it did not touch upon the other question namely, whether the invoice Ext. DW, 3/A was sufficient c, warranty in law as to the purity of the article of food sold. The term 'adulterated' as defined in s. 2(i) (! ) reads : "(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption. " In Dhanraj's case (snpra) the High Court construed sub-cl. (f) thus : "The word 'otherwise' in sub-clause (! ) of cl. (1) 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 fifthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or because it is ·F insect-infested or on account of any other cause.

" We are of the opinion that the High Court was clearly wrong in its interpretation of s. 2(i) (! ). On the plain language of the definition section, it is quite 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. It· seems to us that 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 I , former case, the cash memo contained the words 'quality is up to the mark' which meant that the quality of the article supplied· was up to the standard required by the Act and the vendee. It was observed : "It must be remembered that it is not a document drafted by a solicitor; it is a document nsing the language of a tradesman.

Any tradesman, when he is assured that the E. l qu. ality of the article is up to the mark will readily conclude that he is being assured that the article is not adulterated. " In the latter case, it was a branded article of food, and it was said : "If the article of food is sold in the same condition in p r which it was purchased from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will not lose the protection of sub-s. (2) of s. 19 merely because he opened the container. If the vendor has obtained the article from a licensed manufacturer, distributor or dealer or from a manufacturer, distributor or dealer with a· G warranty, he is protected, provided he has properly stored the article and sells it ii) the same state as he purchased the article, even if it turns out that the article was adulterated or misbranded. " In the absence of any evidence that the respondent had purchased the cashew nuts under warranty, these authorities are of no avail. B •• (!

) [1970] l S. C. R. 864. (2) [1971) 1 S. C. R. 166. Part IX of the Prevention of Food Adulteration Rules 1955 deals with the conditions of sale and licence. Rule 50 states that no person shall manufacture, sell, stock, distribute or exhibit for sale the articles of food mentioned therein except under a liD-'"11C'~. 'Nuts' is one of the articles mentioned therein. It is wide enough to include cashew nuts. Originally the rules did not prescribe the standards of quality or purity •• in relation to dry-fruits. That lacuna has, however, now been removad by the insertion of r. 48-B, which is in these terms : "48-B. Sale of insect-damaged dry fruits and nuts. -The dry fruits and nuts like raisins, currents, figs, cashewnuts, apricots, almonds may contain not more than 5 per cent of . -c insect-damaged fruits and nuts, by count. " Rule 12A which deals with warranty reads thus : "Rule 12-A.

Warranty-Every trader selling an article of food to a vendor shall, if the vendor so requires, deliver to the vendor a warranty in Form VI-A : ·o Provided that no warranty in such form shall be necessary if the label on the article of food or the cash memo delivered by the trader to the vendor in respect of that article contains a warranty certifying that the food contained in the package or container or mentioned in the cash memo is the same in nature, substance and quality as demanded by the vendor. • Explanation : The term 'trader' shall mean an importer, manufacturer, wholesale dealer or an authorised agent of such importer manufacturer or whoksale dealer. " Admittedly, there was no warranty in the prescribed form in the instant case. The testimony of the two Food Inspectors, S. L. Mehra, PW 1, and H. K.

Bhanot, PW 3, no doubt show that they bought the samples out of the sealed tins, but there is nothing to show that they were tins bearing the manufacturer's label guaranteeing purity. .. G Tu R. G. Pamanani v. The State of Maharashtra(') this Court after distinguishing Andh~a Pradesh Grain & Seed Mercha1Its' case observed: "The reason why a warranty is required in both the cases contemplated in section 19(2) (a) (i) and (ii) is that if warranty were not to be insisted upon by the statute and if If • vendor would be permitted to have a defence merely by stat- (1) [1975) 2 S. C. R. 886. MUNICIPAL CORPORATION v. T. c. BHATIA (Sen, !. ) 921 ,fng that the vendor purchased the goods from a licensed ·manufacturer, distributor or dealer adulterated or misbranded . articles would be marketed by manufacturers, distributors, . dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the cases in section 19(2)(a)(i) and (ii).

Section 19(2j(a) of the Act II will provide a defence where a vendor purchase; articles of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor 'shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article from any ·manufacturer, distributor or dealer with a written warranty in the prescribed form. These salutary provisions are designed for the health of the nation. Therefore, a warranty is ·enjoined. No laxity should be permitted. " (Emphasis supplied). That, in our opinion, really concludes the matter. In the instant ·case, there is no proof that the samples were taken from tins bearing the manufacturer's label guaranteeing purity of goods, nor is there any such warranty in the invoice Ext. DW 3/A. It is, however, urged that the tins bore the imprint "Good''.

There is nothing to substantiate this fact, and even if it were so, it is of little consequence. • The word 'Good' on which great emphasis is placed merely contains a description of the goods. At the most it amounts to 'puffing of ·goods'. The word 'Good' is not a warranty as to quality. The respon- ·dent is, therefore, not protected under s. 19(2) of the Prevention of Food Adulteration Act, 1954 read with r. 12A of the rules framed •under the Act. The result, therefore, is that the appeal succeeds and is allowed. The order of acquittal of the respondent is set aside, and he is con- ·victed for having committed an offence punishable under s. 16(1) (a) -read with s. 7(1) of the Prevention of Food Adulteration Act, 1954. \'. The contention that the respondent should be released on ·probation of good conduct under s, 4 of the Probation of Offenders Act, 1958 cannot be accepted. The provisions of s.

20 AA inserted 'by Act 34 of 1976 intenlicts the Court from applying the proyisions of that Act to a prosecution under the Prevention of Food Adulteration Act, 1954. While we agree that adulteration of an article of food is a serious anti-social offence which must be visited with exemplary puAfshment, A it will be rather harsh to pass a sentence of imprisonment in the facts and circumstances of this case. Under s. 16 of the Prevention of Food Adulteration Act, 1954, as in force at the material . time, the Court had the discretion for special and adequate reasons under proviso to sub-s. (1) not to pass a sentence of imprisonment. In the instant case, the respondent is a man aged 75 years. The offence was committed on August 1, 1968 i. e. , more than eleven years ago. The order of acquit- • tal was based on the decision of the Delhi High Court in DhanraJ's case. The samples were taken from sealed tins. These are all mitigating circumstances. We accordingly refrain .

from passing' a substantive sentence of imprisonment and instead sentence the respondent to the period already undergone and to pay a fine of Rs. 2000/- or in c default to undergo rigorous imprisonment for a period of three months. V. D. K. Appeal allowed.