# • • : MUNICIPAL.CORPORATION.OF DELHI v. KACHEROO MAL

- **Citation:** [1976] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1975-09-29
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/municipal-corporation-of-delhi-v-kacheroo-mal-6707
- **Pages:** 10

## Headnote

•
..
•
: MUNICIPAL.CORPORATION.OF DELHI
v.
KACHEROO MAL
September 29, 1975
. fR. s. SARKARL\ AND A. c. GUPTA, JJ.]
l
Interpretation o( statute-:Suppress the mischief and advance the remedyPrevention of Food Adulteration Act-S. 2 (i)(f)-Proof of sample being
insect infested enough or whet.her f11rd1er proof of
bein.~ 1111/it for human
consumption-Mealling of insecr infesied-Whet/ier insecri must be living.
The Food Inspector purchased cashewnui pieces as sample for analysis from
the grocery shop of the respondent. The sample was sent to the Public Analyst
who reported that the cashewmits _were insect infested.
After receiving
the
report from the Public Analyst the Food Inspector prosecuted th(l respondent
in. respect of an offence under s. 7 read with s. 16 of the -Prevention of Food
A
R
Adulteration Act, 1954.
The trial Magistrate convicted
and
sentenced the
c·
respondent to 6 months rigorous imprisonment with a fine of Rs. 1000/-. Respondent's appeal before the Sessions Jndge failed.
,
. A revision filed by the respondent before the High Court succeeded.
The·
High Court held that since it was BO! proved that the sample contained living
insects, the same could not be called 'insect infested' within the meaning of
~·- 2(i) (f) of the Act.
The High Court held that the presence of living inse~t
is· necessary before an article could .be called insect infested. According. to the
High Court the intention of the Legislature was that at the time of analysis
infestation by insects should be p1'esent. The High Court further observed thatif
only dead insects were present the sample cou]d, be called insect damaged and
not insect infested.
Since the report of ~he Public Analyst did not show the
!Dresence of living insects it was conchided that the same could not be said to
be a_dulterated.· The High_ Court, thus, set aside the conviqion .. of the respondent.
S. 2(i) (f) reads· as under :
"If the article. consists who!Ly or ip part of any· filthy, putrid, disv:
gusting, rotten, qecomposed. or diseased animal or vegetable substance
""
or is insect infested or is. otherwise unfit for human consumption."
On appeal by special leave, the appellant contended :
(i) the constmction
of the expression insect infested given liy the High Court was wrong and .. that
it was contrary to a Division Bench judgment of the ~ame High Court in the
case of Dhanraj; (ii) in
the case of food
articles for which no
minimum
standard of purity is prescribed, as in the present case for cashewnuts,
the
moment it is proved that a propor!ion or percentage of the article is putrid,
filthy, disgusting, decomposed or insect-infested, it would be d_eemed to be unfit
for human consumption and, therefore, 'adulterated' within the contemplation
of s. 2(i)(f); and (iii), in the alternative, it was contended that it is implicit
in the report of the Public Analyst that. tl).e article in question was found unfit
for human consumption .
· The respondent on the contrary cont~nqed that mere proof . of the fact that
a sample sent to the Public Analyst was found to be insect infested could not
make the ariicle 'adnlterated' unless it was further proved that the article was
unfit for human consumption~ i:n the present case there is no proof of that
essential fact.
The Public Analyst in . his report did not siate that the insect
irifestation found by him had rendered _the article unfit for human consumption.
: HELD·: ( 1) The. constructfon pμt by tllt: High ~ip:t on s. 2(i)(f) is ma~
fe_;>tly erroneous. . It has . been disapproved. bl'.' a D_1v1S1on Bench of, ~he same
High Court in,Dlw.111:ai's case, The Act has be.en enacnea to Cljrb tpe widespread
evil of food adulteration ai:ld. to ensure.· tlie, sale of wholesome food· to the
pe9ple. ·. J'n~ iangμage ;of such statμte' stjc/i,ilcf b.e : co~stfued' lp.1 __ fl Iij~ilner which
"
~, IJ
r''
~ r
GH
A
B
c
D
E
F
·G
H
2
SUPREME COURT REPORTS
[1976] 2 S.C.R.
-:vould suppress. Uhe mischi.ef._ advance the remedy, promote its object, prevmt
its subt

## Text

•
..
•
: MUNICIPAL.CORPORATION.OF DELHI
v.
KACHEROO MAL
September 29, 1975
. fR. s. SARKARL\ AND A. c. GUPTA, JJ.]
l
Interpretation o( statute-:Suppress the mischief and advance the remedyPrevention of Food Adulteration Act-S. 2 (i)(f)-Proof of sample being
insect infested enough or whet.her f11rd1er proof of
bein.~ 1111/it for human
consumption-Mealling of insecr infesied-Whet/ier insecri must be living.
The Food Inspector purchased cashewnui pieces as sample for analysis from
the grocery shop of the respondent. The sample was sent to the Public Analyst
who reported that the cashewmits _were insect infested.
After receiving
the
report from the Public Analyst the Food Inspector prosecuted th(l respondent
in. respect of an offence under s. 7 read with s. 16 of the -Prevention of Food
A
R
Adulteration Act, 1954.
The trial Magistrate convicted
and
sentenced the
c·
respondent to 6 months rigorous imprisonment with a fine of Rs. 1000/-. Respondent's appeal before the Sessions Jndge failed.
,
. A revision filed by the respondent before the High Court succeeded.
The·
High Court held that since it was BO! proved that the sample contained living
insects, the same could not be called 'insect infested' within the meaning of
~·- 2(i) (f) of the Act.
The High Court held that the presence of living inse~t
is· necessary before an article could .be called insect infested. According. to the
High Court the intention of the Legislature was that at the time of analysis
infestation by insects should be p1'esent. The High Court further observed thatif
only dead insects were present the sample cou]d, be called insect damaged and
not insect infested.
Since the report of ~he Public Analyst did not show the
!Dresence of living insects it was conchided that the same could not be said to
be a_dulterated.· The High_ Court, thus, set aside the conviqion .. of the respondent.
S. 2(i) (f) reads· as under :
"If the article. consists who!Ly or ip part of any· filthy, putrid, disv:
gusting, rotten, qecomposed. or diseased animal or vegetable substance
""
or is insect infested or is. otherwise unfit for human consumption."
On appeal by special leave, the appellant contended :
(i) the constmction
of the expression insect infested given liy the High Court was wrong and .. that
it was contrary to a Division Bench judgment of the ~ame High Court in the
case of Dhanraj; (ii) in
the case of food
articles for which no
minimum
standard of purity is prescribed, as in the present case for cashewnuts,
the
moment it is proved that a propor!ion or percentage of the article is putrid,
filthy, disgusting, decomposed or insect-infested, it would be d_eemed to be unfit
for human consumption and, therefore, 'adulterated' within the contemplation
of s. 2(i)(f); and (iii), in the alternative, it was contended that it is implicit
in the report of the Public Analyst that. tl).e article in question was found unfit
for human consumption .
· The respondent on the contrary cont~nqed that mere proof . of the fact that
a sample sent to the Public Analyst was found to be insect infested could not
make the ariicle 'adnlterated' unless it was further proved that the article was
unfit for human consumption~ i:n the present case there is no proof of that
essential fact.
The Public Analyst in . his report did not siate that the insect
irifestation found by him had rendered _the article unfit for human consumption.
: HELD·: ( 1) The. constructfon pμt by tllt: High ~ip:t on s. 2(i)(f) is ma~
fe_;>tly erroneous. . It has . been disapproved. bl'.' a D_1v1S1on Bench of, ~he same
High Court in,Dlw.111:ai's case, The Act has be.en enacnea to Cljrb tpe widespread
evil of food adulteration ai:ld. to ensure.· tlie, sale of wholesome food· to the
pe9ple. ·. J'n~ iangμage ;of such statμte' stjc/i,ilcf b.e : co~stfued' lp.1 __ fl Iij~ilner which
"
~, IJ
r''
~ r
GH
A
B
c
D
E
F
·G
H
2
SUPREME COURT REPORTS
[1976] 2 S.C.R.
-:vould suppress. Uhe mischi.ef._ advance the remedy, promote its object, prevmt
its subtle. evas10n and foil its artful .c1rcumvent10n.
The construction adopted
by the .High Co?rt is repugnant to this cardinal rule of interpretation. It would
be. stia.mmg .ones comm~nsense to sa" th3t an article of f9od which is infested
wnh hvmg msfrts and is consequently unwholesome f~r human consumption,
ceases .to be so . and. becom.es wholesome when these msects die out and the
mfestauon turns m:o mfestat1on bv dead insects. [4B-D]
( 2) The expression 'insect infestation' takes its hue from
for humQn consumption' occurring at the end of sub-clause.
Delhi High Court in Dhanraj's case approved.
the phrase 'unfit
The decision of
The words 'or is otherwise unfit for human cor,sumption' can be read conj"unctively. as wdl as disjunctively.
The court preferred to construe it copjunct1vely as 1t comports b~st with reason, commonsense
realities the tenor of
this provision and the main purpose and scheme of' the Act. ' The adjectives
'filthy', 'putrid', 'd!sgusting', 'decomposed', 'rotten', 'insect-infested', refer to the
quality of the arl!cle and 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 and the
extent of the vice afflicting it.
There are some arHcles of food in
respect of
which the rules framed under tbe Act !av down the mini.mum proportion of.
insect-ir<festation, which is not deemed to make tbe article unfit for human
consumption. This clearly shows Uhat the mere fact that any part of the article
was 'insect infested'
may not be conclusive proof of his being adulterated
under sub-clause (f}.
In the case of an article for which the rules do not
prescribe any minimum standard of purity or any minimum proportion of insect
infestation, what wonld exclude it from the definition. of adulterated article
will be a mixed question of law and fact depending on the nature, degree and
extent of the insect-infestation which would render the article unfit fo[ human
consumption.
The opinion of the Public Analyst who examines and analysis
the sample as to the fitness or otherwise of the sample for human consumption
would constitute legal evidence. The report of the Public Analyst including
his opinion on this point is per se evidence by virtue of s. 13 of the Act. Dut,
this does not mean that his ipsi 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.
In each case it must
be proved that the article was unfit for human consumption.
In the case of
articles for which the rules lay down any minimum standard of purity with
reference to any of the vices specified in sub-clause (f), mere proof of the
fact that the impurity was in excess of that countenap.ced by the prescribed
standard, would be conclusive to show that the article was unfit for human
consumption. There is no statutory minimum standard of purity with reference
to the vice of insect-infestation or other adjectives
used in this
sub-clause as
far as the cashewnuts are concerned.
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.
Dhanraj's case over-ruled in so far as it lays down that .if for any
article of food no standard of quality or nurity bas been prescnbed or no
limits have been prescribed for. the variability of its
cons!itue1~ts, th~n subclause (f) of clause (i) of s. 2 w11J not apply.
The governmg J11?red1ent. of
sub-clause (f) is the quality of the article. being unfi~ fo.~ human consumption.
Jn the instant case the report of the Pubhc Analyst 1s SHent .as to whether on
account of the insect infestation found in the sample the article w'.is unfit for
human consumption. The.ref ore, it became nece'8ary. to call the P~bhc Analysts,
as witnesses, to enable them to elucidate their onilyon and amp!Ify the. report
and to allow the parties to test it bv cross-examination. The court was mclmed
to remand the case to the High C?urt but the .court was info;med ~at the
Public Analyst who gave the report 1s no longer. 111 the appellants service, and
is not residing at Delhi and that his attendance m court 7ould n.ot be procured
without undue delay and inconvenience. The Court cons1der.ed 1t unreasonabl.e
in the circumstances of the case to remand the case particularly because !t
would cause undue hardship to the respondent who has had m?re than ~IS
normal share of the mental suffering, harassment and expenses which go with
•
•"'
....
/
t -·
MUNICIPAL CORP. v. KACHEROO MAL (Sarkaria, I.)
3 --
.
·protracted criminal proceedings extending in the present case over 81 months. · A
No useful purpose, therefore, would be served bv remanding the case. The
Ccurt did not disturb the acquittal of the respondent. [60-E &. 7 ~E, & H, 8 B.
H 9G H, IOA-DJ.
CRIMINAL APPELLATE JURISDSCTION: Civil Appeal No. 174 of
1971.
.·
.
.
Appeal by Special Leave from the Judgment and Order dated· the
B
24th December, 1970 of Delhi High Court in Cr!. Revsn No. 120 of
1970 ..
S. N. Andley, F. S. Nariman, B. P. Maheshwari, N. K. lain and
Suresh Sethi for the Appellant.
D. Mukherjee and U. P. Singh for the Respondent.
c
'
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
D
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 followE
ing 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
F
• >
•
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
G
H
A
B
c
E
_F
H
4
SUPREME COURT REPORTS
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·,,. . . , ,.•
,
'< •
•
•
.)
•
MUNICIPAL CORP. v. KACHEROO MAL (Sarkaria, J.)
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."
•
¥
•
..;
A
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)
1>
unless it was proved fuitlietthatthe article was unfit for human coμsumption .. 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 according- to Che learned Coiirtsel, flows
.fr.om. th,e Analyst's conclusion that the· .articlewas' "adulterated';.
A
B
c
6
SUPREME COURT REPORTS
[1976] 2 S.C.R.
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
.D
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',
E
F
·G
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
)
..
•
MUNICIPAL CORP. v. KACHEROO MAL (Sarkaria, J.)
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.
A
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."
A
8
c
D
E
F
G
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
H
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
SUPREME COURT REPORTS
(1976] 2 S.C.R.
A
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.
B
c
D
E
F
G
H
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
.
,
-
I.,
J
4
..
MUNICIPAL CORP. v. KACHEROO MAL (Sarkaria, J.)
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.
A
B
c
D
E
F
G
H
A
B
c
D
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.
..