CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 195 of 1973.
From the Judgment 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.
O. P. Soni, S. N. Mehta, Miss Kamlesh and V. D. Chopra for the 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 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-infested’ 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’.
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 is 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 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 ’insect-infested’. Of these, two were insect-infested to the extent Fr of 20.6 and 20.7 per cent and the third to the extent of 5.63 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 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 harmful effect it would have upon the health of a person consuming them, 4-743 SCI/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 Corporation of Delhi.(l) In that view, it did not touch upon the other question namely, whether the invoice Ext. DW 3/A was sufficient warranty in law as to the purity of the article of food sold.
The term ’adulterated’ as defined in s. 2(i) (f) 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 (supra) the High Court construed subcl. (f) thus:
"The word ’otherwise’ in sub-clause (f) 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 fifty,
putrid, disgusting, rotten, decomposed or diseased
animal or vegetable substance or because it is 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) (f). 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 being ’filthy, putrid, rotten, decomposed....or insect-infested’ would be per se sufficient to bring the case within the purview of the word ‘adulterated’ as defined in sub-cl. (f) and it would not be necessary A ’ in such a case to prove further that the article of food was unfit for human consumption.
It is, however, pointed out that the construction placed by the High Court in Dhanraj’s case upon s. 2(i)(f) of the Act has been received with approval by this Court in Municipal Corporation of Delhi v. Kacheroo Mal.(l) where it is observed that ’the construction placed by the High Court in Dhanraj’s case is the correct exposition of the law embodied in s. 2(i) (f). It is added for the sake of elucidation that the adjectives which precede the phrase ’or is otherwise unfit for human consumption’ indicate presumptive but not absolute criteria as to the quality of the article of food. If we may say so with respect, we have reservations about the correctness of this decision, but it is not necessary to refer the case to a larger Bench.
In Kacheroo Mal’s case it is observed:
"The phrase "or is otherwise 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 insect-infested, (b) or oh 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 pharse is to be read disjunctively, the
mere proof of the whole or any part of the article
being "filthy, putrid, disgusting, rotten.... 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 prefer 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-in-
fested’’ refer to the quality of the
article 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 extent of the vice afflicting it. This is
particularly so, where an article is found to be
’insect-infested’." With utmost respect, we are not able to share this view and would hold that the observations made in the judgment should be confined to the particular facts of that case.
The decision in Kacheroo Mal’s case (supra) was largely based on the circumstances that the standard of quality and purity was not prescribed in respect of cashew nuts. Now that r. 48-B of the Prevention of Food Adulteration Rules, 1955 has been framed, the decision in Kacheroo Mal’s case (supra) is rendered inapplicable.
In the definition clause, the collocation of words ’filthy, putrid, rotten, decomposed and insect-infested’ which are adjectives qualifying the term ’an article of food’, show that it is not of the nature, substance and quality fit for human consumption. It will be noticed that there is a comma after each of the first three words. It should also be noted that these qualifying adjectives cannot be read into the last portion of the definition i.e., the words ’or is otherwise unfit for human consumption’, which is quite separate and distinct from others. The word ’otherwise’ signifies unfitness for human consumption due to other causes. If the last portion is meant to mean something different, it becomes difficult to understand how the word ’or’ as used in the definition of ’adulterated’ in s. 2(i) (f) between ’filthy, putrid, rotten etc.’ and ’otherwise unfit for human consumption’ could have been intended to be used conjunctively. It would be more appropriate in the context to read it disjunctively. In Stroud’s Judicial Dictionary, 3rd Edn., vol. 1, it is stated st p. 135:
"And" has generally a cumulative sense, requiring
the fulfillment of all the conditions that it joins
together, and herein it is the antithesis of OR.
Sometimes, however, even in such a connection, it is,
by force of a context, read as "or"."
While dealing with the topic ’OR is read as AND, and vice versa’ Stroud says in vol. 3, at p. 2009:
"You will find it said in some cases that ’or’
means ’and’; but ’or’ never does mean ’and’." Similarly, in Maxwell on Interpretation of Statutes, 11th Edn., p. 229- A 30, it has been accepted that ’to carry out the intention of the legislature, it is occasionally found necessary to read the conjunctions "or" and "and" one for the other’. The word ’or’ is normally disjunctive and ’and’ is normally conjunctive, but at times they are read as Vice versa. As Scrutton L.J. said in Green v. Premier Glynrhonwy Slate Co.(’). ’you do sometimes read ’or’ as ’and’ in a statute. .. But you do not do it unless you are obliged, because ’or’ does not generally mean ’and’ and ’and’ does not generally mean ’or’. As Lord Halsbury L.C. Observed in Marsey Docks & Harbour Board v. Henderson(’) the reading of ’or’ as ’and’ is not to be resorted to "unless some other part of the same statute or the clear intention of it requires that to be done". The substitution of conjunctions, however, has been sometimes made without sufficient reasons, and it has been doubted whether some of cases of turning ’or’ into ’and’ and vice versa have not gone to the extreme limit of interpretation.
Various categories of ’adulterated food’ mentioned in s. 2(i) (f) broadly fall into two kinds of adulteration; firstly, where the constituent elements make the food obnoxious to human health or the existence of the particular composition of it, itself makes the food ’adulterated’, and secondly, where the adulteration is constituted by the fact that the prescribed standard has not been observed in selling what purports to be a food of that standard or quality.
We really fail to comprehend why the mere proof of an article of food like decomposed or diseased meat or rotten fish or putrid fruits and vegetables by the condition of the article itself should not be sufficient to attract the definition of ’adulterated’ contained in s. 2(i)(f) and further proof of ’unfitness of the article for human consumption’ is still necessary for bringing home the guilt.
The decision in Kacheroo Mal’s case is, however, distinguishable inasmuch as there was in that case no evidence that the cashew nuts, which were insect-infested to the extent of 21.9 per cent, were unfit for human consumption.
In regard to casew nuts there was, at the material time, no statutory provision prescribing any minimum standards of purity. It is, therefore, for the Court to decide upon the evidence in the case, whether the insect infestation found was of such nature and extent as to make it unfit for human consumption. Assuming the test in Kacheroo Mal’s case to be correct, and the report of the Public Analyst to be just a piece of evidence which has to be evaluated by the Court in the facts and circumstances of each particular case to reach a finding as to the unfitness or otherwise of the sample for human y. consumption, there is in the present case such evidence. Dr. B. D. Narang, DW 1, examined by the respondent, is an expert on the subject, being a member of the Central Committee of Food Standards besides holding Ph. D. degree in Chemistry from the University of Texas. He unequivocally states that although in regard to cashew nuts, there was at that time no statutory provision prescribing any minimum standard of purity, the Committee had recommended to allow a 10 per cent insect infestation as it was of the view that this much infestation should not be taken as an act of adulteration since it was not harmful to human consumption. In view of this dear evidence, two of the samples of cashew nuts purchased from the respondent, which were found to be insect-infested to the extent of 20.6 and 20.7 per cent, must be held to be ’adulterated’ within the meaning of s. 2(i) (f). There is no reason for us not to act upon the testimony of Dr. Narang, who is the respondent’s own witness.
That takes us to the next ground namely whether the respondent having sold cashew nuts from sealed tins purchased from the supplier Sri Venkateswara Cashews, Panruti under the invoice Ext. DW 3/A bearing the description that they were ’SW Best Borma’ cashew nuts, was protected under s. 19(2) of the Act which reads:
"19. (2) 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-
(a) that he purchased the article of food-
(i) in a case where a licence is prescribed for
the sale thereof, from a duly licensed
manufacturer, distributor or dealer;
(ii) in any other case, from any manufacturer,
distributor or dealer, with a written warranty in the prescribed form; and
(a) that the article of food while in his possession
was properly stored and that he sold it in the
same state as he purchased it."
There can be no doubt that M/s. Narain Dass Tek Chand had purchased the cashew nuts in question from Sri Venkateswara Cashews. Ramesh Chand, DW 3, manager of the firm states that the goods are purchased and sold by the firm in wholesale at its shop at Khari Baoli, Delhi. According to this witness, all the three partners of the firm reside at Kanpur. They come to Delhi in a month or two for scrutinising the accounts. He states that the cashew nuts were purchased under the invoice Ext. DW 3/A and they were of ’SW’ mark. We are left to guess what the letters ’SW or ’SW Best Borma’ signify.
It is, however, strenuously urged that the invoice describes the cashew nuts to he ’SW Best Borma’ and this amounts to a warranty as to quality. Strong reliance is placed on the decision of this Court in Ranghanatha Reddiar v. The State of Kerala(1) and Andhra Pradesh Grain & Seed Merchants’ Association v. Union of India(2) for the contention that if an article of food is sold in the same condition in which it was purchased from the manufacturer or dealer, the vendor i.e., the retailer, like the respondent will not lose the protection of sub-s. (2) of s. 19, particularly when it is certified to be of good quality. We are afraid we cannot appreciate this line of reasoning. The two decisions in Ranganatha Raddiar’s case and in Andhra Pradesh Grain & Seed Merchants’ case are clearly distinguishable. In the 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 using the
language of a tradesman. Any tradesman, when he is
assured that the quality 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 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 warranty,
he is protected, provided he has properly stored the
article and sells it in 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.
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 licence ’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 removed 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 S per cent of 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:
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
wholesale 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.
In R. G. Pamanani v. The State of Maharashtra(1) this Court after distinguishing Andhra Pradesh Grain & Seed Merchants’ 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
statue and if a vendor would be permitted to have a
defence merely by stat-
ing that the vendor purchased the goods from a licensed
manufacturer, distributor or dealer adulterated or
misbranded articles would be marketed by manufacturers,
distributor, 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 (2) (a) of the Act will provide a
defence where a vendor purchases 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 e 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 respondent 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 convicted 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 intendicts the Court from applying the provisions 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 social offence which must be visited with exemplary punishment, 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 acquittal 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 default to undergo rigorous imprisonment for a period of three months. V.D.K. Appeal allowed.