State of Punjab vs Kesar Singh

S.S. Rathor, J.

Vide this judgment, two Criminal Appeals No. 221 of DBA of 1987 (State of Punjab v. Kesar Singh) and Criminal Appeal No. 252/DBA of 1987 (State of Punjab v. Chiranji Lal), shall stand disposed of. These two criminal appeals have been filed by the State of Punjab against the orders of acquittal dated 20.10.1986 and 21 10.1986 respectively passed by the trial Magistrate for an''offence punishable under Section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act'')

Brief facts of these two appeals are as follow :

In Criminal Appeal No. 221/DBA of 1987. the Food Inspector took sample of `Suji'' from the shop of Kesar Singh on 28.5.1985. In due course, the sample collected in accordance with the required formalities was sent to the public Analyst who analysed the contents of the sample received on 29.5.1985 and gave his report Ext. PD signed on 27.6.1985 The Public Analyst found that the food in question. contained 17 (seventeen) living Sundies, four fragments of dead sundies, four living Sursies and one dead sursi and accordingly opined that the contents of the sample contained twentytwo living and dead insects and four insect fragements. On the basis of the report of the Public Analyst, Food Inspector, Rakesh Kumar (PW11) filed a criminal complaint dated 7.8.1985 in the ''Court of Chief Judicial Magistrate, Patiala. In paragraph one of the complaint Ext. PF, it was averred by the Food Inspector, Dr. Rakesh Kumar (PW I) that he had been authorised to launch prosecution vide the Punjab'' Government Notification No. FD (4)Pb 82/25769 dated 29th November, 1982 under Section 9 of the Prevention of Food Adulteration Act. 1954. It is not disputed by the State counsel that this Notification had been issued by the Food (Health) authority of the State of Punjab. Keeping in view the result of the Public Analyst vide report Ext. PD, the trial '',Magistrate acquitted Kesar Chand, respondent of the charge precisely on the ground that the food in question could not be termed as adulterated one as the presence of the dead or alive insects had not rendered the food unfit for human consumption and was not opined so by the Public Analyst.

In Criminal Appeal No 252/DBA of 1987. PW2 Dr Harbir Singh took a sample of Maida from the shop premises of respondent Chiranji Lal on 26.2.1984 The same day it was despatched and received by. the Public Analyst who, analysed the food sample on 27.9.1984 and gave his report Ext. PE signed on 29.10.1984. On analysis the sample was found to contain eighteen living and ten dead sundies (Larvae), twelve living and three dead sursies adult insects) and accordingly opined That "the sample contained forty three living and dead insects. Complaint Ext. PF was filed on 5.12.1984 by Food Inspector, Dr. Harbir Singh (PW.2) and in this complaint it was also mentioned that the Food Inspector had been authorised to launch prosecution vide Punjab Government Gazette Notification No. Food IPb80/1920 dated July 4, 1980. In this case it is not disputed by the State counsel that this Notification was issued by the Food (Health) Authority of Punjab State. In this case also, the trial Magistrate acquitted Chiranji Lalrespondent on the same reasoning that the food could not be termed as adulterated as the same has not been found unfit for human consumption by the Public Analyst.

In fact, both the impugned judgments of the trial Magistrate have been passed by the same Presiding Officer namely Shri H.P. Handa, Chief Judicial Magistrate Patiala. The Trial Magistrate has adopted his consistent view in both the cases before him. Now before this Court, Criminal liability in the case of insect infested articles of food and in variance with the standard of purity prescribed under the Act, falls. for determination. The analysis done by the Public Analyst has not been challenged by the counsel for the respondents in these two criminal appeals. Still for facility of reference the relevant rules are reproduced below :

"A. 18.02Maida (wheat Flour) means the fine product made by milling or grinding wheat and bolting or dressing the resulting wheat meal. It shall conform to the following standards :

(a) Moisture not more than 14.0 per cent. (when determined by heating at 130133 degree centigrade for 2. hours).

(b)'' Total ash (on dry weight basis) Not more than 1.0 per cent.

(c) Ash insoluble in dilute HCL (on dry weight basic) Not more than 0. 1 per cent.

(d) Gluten (on dry weight basis) Not less than 7.5. per cent.

(e) Alcoholic acidity (with 90 per cent. alcohol expressed as H2 SO 4 (on dry weight basis) Not more than (0. 12) per cent. Rodent hair and excreta shall not exceed 5 pieces per kg)

(If the product is to be Used for bakery purposes, the following flour treatment agents in the quantities mentioned against each may be used, namely :

"(i) Benzoyl peroxide ''max.) . 40 ppm.

(ii) Potassium. bromate (max.) . 20 ppm.

(iii) Ascosbic acid (max.) . 200 ppm.

A. 18.03.Semcilina "suji Or rawa" means the product prepared from wheat by process of grinding and bolting. It shall be free from musty smell and offodour and shall be creamy yellow in colour It shall conform to the following standards :

(a) MoistureNot more than 14.5 per cent (when determined by beating at 1301130C for 2 hours).

(b) Total ash (on dry weight basis) Not more than 1.0 per cent.

(c) Ash insoluble in dilute HCl (on dry weight basis) Not more I than 0 1 per cent.

(d) Gluten con dry weight basis) Not less than 6.0 per cent.

(e) Alcoholic acidity (with 90 per cent alcohol) expressed as H2 SO4 (on dry weight basis) Not more than 0.18 percent. Rodent. hair and excreta shall not exceed 5 pieces per kg.)

"A perusal of Rule A. 18.03 quoted above shows that presence of living and dead sundies and sursies is prohibited. And if this extraneous matter is found in the food, it would be deemed to be not permissible under this rule prescribing standard of purity of food. Similarly, under Rule A. 18.02, presence of living and dead sundies (Larvae) and Sursies is not permissible. If such extraneous matter is found in the food it would be deemed to be not permissible under the rule prescribing specific standard of purity of food.

Mr. S.S. Kang, Deputy Advocate General, Punjab has vehemently argued that in view. of the report of the Public Analyst in both the cases, the trial Magistrate has committed an error of law while holding that the food in question is not adulterated as the presence of the insects or "insect. infestation" of the food has not rendered the food unfit for human consumption and the Public Analyst has not specically opined so. The observations of the trial Magistrate that in the absence of the opinion of the Public Analyst that food is unfit for human consumption, the Court cannot form its opinion to the effect as to whether the food is fit for human consumption or not. The counsel for the respondents in both the appeals while endorsing the reasoning adopted by the trial Magistrate have argued that the food in question having not been opined to be unfit for human consumption by the Public Analyst cannot be termed as adulterated and the order of acquittal need not be interfered with.

Keeping in view the reports of the Public Analyst in both the cases it is apparent that the foods in question were found to be insect infested". As to what is the import of the concept "insect infestation", a Division Bench of Delhi High Court had the occasion to express its view in a judgment reported as Dhanraj v. Municipal Corporation of Delhi, 1972 FAC 335. The view taken was as follows :

"The expression, "insect infested" 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 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 swarm 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, grains, 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 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 reason those insects die, the mere fact that the article of food has tie longer living insects but has dead insects will not change its character of being insectinfested."

In view of the construction that the expression `insectinfested'' includes infestation even by dead insects, the further point to be considered is. whether mere insectinfestation, without more, would ''be sufficient to hold the article to "adulterated'' within the meaning of subclause (f) of clause (ii) of sec. 2 of the Act."

This view got approval in a judgment of the Supreme Court in M.C.D. v. Kachero Mal, 1975(II) F.A.C. 225. Keeping in view the aforesaid meaning of insectinfested'', and the contents of the reports of the Public Analyst in question, undoubtedly, the food sample analysed would be termed to as insectinfested.

Now the only question which survives for determination is that since the Public Analyst has not said in the report that even if the Sample of food was insect infested or was otherwise unfit for human consumption and the mere fact that it contains living and deed insects (quite large in number) would necessarily lead to an inference that the same was Insectinfested and unfit for human consumption or not? A chain of judgment have been delivered by the Supreme Court from time to time dealing with such a matter : Noticeably among them are : M.C.D v. Kacharoo Mal, 1975 (11) F.A.C. 225, M.C.D. v. Tek Chand Bhatia, 1979(2) FAC 218 and Delhi Administration v. Puran Mal, 1985 (1) F.A.C 161.

Cases of Kacheroo Mal and Puran Mal (supra) are not applicable to the facts in hand. The view of the Supreme Court in Tek Chand Bhatia''s case (supra) is fully applicable to the facts of the present cases, wherein the Supreme Court expressed its opinion as under :

"We are of the opinion that the High Court was clearly wrong in its interpretation of S. 2 (1)(if) On the plain language of the definition, 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 provisions which would apply to a case not covered by falling as a fly within the clauses preceding it. If the phrase is to he read disjunctively the mere proof of the article of food being filthy, putrid, rotten decomposed . or insect infested'' would be per se sufficient to being the case within the purview of the word ''adulterated'' as defined in sub cl (f) and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption."

Before further proceeding with the matter, it has to be borne in mind that vide Act No. 14 of 1976 Section 2(1) (f) was amended and renumbered as 2 (ia) (f) Substantially, the definition remained the same except that the word disgusting'' has been omitted by the said amendment. Accordingly for the just decision of this case, amended definition of adulterated'' as given in Section 2 (ia) (f) would be having the came meaning and interpretation as in the aforesaid Supreme Court judgments.

Placing reliance on the view taken by the Supreme Court in Tek Chand''s case (supra), we are of the considered opinion that under Section 2 (1) (f) renumbered as Section 2 (ia) (f) if an article of food or part thereof is filthy putrid, rotten or decomposed, or diseased animal or vegetable substance or insect infested, no further proof for its being adulterated article and unfit for human consumption is required and if the opinion of the public analyst is covered by any of the aforesaid adjectives, he need not specifically say that it is unfit for human consumption. In other words the presence of alive or dead insects (large in number as in the present cases) per se is enough for the Court to hold the food to be adulterated and unfit for human consumption in view of the standard of purity of food down in the relevant rules. Neither rule A 18.03 of `Suji'' nor Rule A. 18.02 or `Maida'' permit presence of any amount of alive or dead insects. This view of ours gets full support from a Division Bench judgment of Delhi High Court reported as The State v. Dinesh Kumar, 1986(2) Recent Criminal Reports 476 : 1986(2) Crl. L. J. 1527 . In this case also food sample was of `Suji''. The Public Analyst in his report had found twentysix living and dead insects. The Court held that in view of Rule A. 18 03, `Suji'' containing such insect would be deemed to be adulterated one and the Public Analyst need not mention in his report that it was adulterated or unfit for human consumption. The matter does not rest here. A Full Beach judgment (of the strength of five Judges) of the Kerala High Court reported as Mathu Kuthy v. State of Haryana, 1987 (2) F A.C. 293 has also adopted the aforesaid view.

In view of the facts of the present cases and various judgments discussed above, there is no escape from. the conclusion that the food articles of `Suji'' as well as `Maida'' `Maida'' would be deemed to be adulterated. In terms of Rules A. 18.03 and A. 18.02 of the Act respectively. And due to presence of large number of insects in the sample food, the food in question from which samples were taken, would be deemed to be unfit for human consumption and adulterated as defined in Section 2 (ia) subclause (f) of the Act. Sale of such a food is punishable under Section (2) (ia) (f) of the Act. Hence the view of the trial Magistrate that the food was not adulterated, is not correct.

However, even if the impugned order of acquittal is had in law, yet it need not be set aside on purely legal ground, as argued by the counsel for the respondents that the Food Inspector had no jurisdiction to launch criminal prosecution. The contention raised is that the notification mentioned In each complaint (details of which have been given), was issued by the Food (Health) Authority and not by the State Government. Similarly issued notification by the Food (Health) Authority, authorising the Food Inspector under Section 9 of the Act to launch Prosecution, under Section 20(1) of the Act has been declared to be void. by the Supreme Court in a case reported as A.K. Roy & anr. v. State of Punjab & Ors., 1986(2) RCR(Crl.) 569 (SC) : F.A. Cases 66 . A perusal of the said judgment shows that white interpreting the provisions of Section 20 (i) 24 (ii) of the Act and Rule 3, dealing with the powers of the Food (Health) Authority, the Supreme Court was of the view that it is only the State Government which can authorise a person to launch prosecution. Of course such authorisation to launch prosecution had been given to the Food (Health) Authority.'' The Governor had not given such authorisation to the Food. Inspector. As the Government had not authorised the Food Inspector, the impugned notification issued by the Food. (Health) Authority, Punjab, authorising the Food Inspector to launch prosecution, would amount to subdelegation of powers to launch prosecution, which is not permissible in law. The details of the notifications involved in the present appeals, have been given in the beginning part of the judgment. These notifications. undauntedly were issued by the Food (Health) Authority of Punjab, authorising the Food. Inspector in both the cases to launch criminal prosecution against the respondents. As such, these notifications also suffer from same vice from which the notification suffered as in the aforesaid Supreme Court judgment.

Due to the fact that the impugned, notifications, authorising the Food Inspector to launch criminal prosecution, are void and Food Inspector Patiala (in both the cases) was not competent to lodge the complaints against the respondents for their having committed an offence punishable under Section 16 (a) (i) read with Section 9 of the Prevention of Food Adulteration Act, 1954. the order of acquittal earned by the respondents, need not be disturbed and the appeals filed by the State are hereby ordered to be dismissed.