PETITIONER:
MUNICIPAL CORPORATION OF DELHI
Vs.
RESPONDENT:
KACHEROO MAL
DATE OF JUDGMENT29/09/1975
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
GUPTA, A.C.
CITATION:
1976 AIR 394 1976 SCR (2) 1
1976 SCC (1) 412
CITATOR INFO :
RF 1976 SC 621 (22)
RF 1980 SC 360 (8,9,10,14,15)
RF 1982 SC1095 (2)
RF 1983 SC 506 (2)
OPN 1985 SC 741 (9,10,11)
E&F 1989 SC1011 (7)
ACT:
Interpretation of stature Suppress the mischief and
advance the remedy-Prevention of Food Adulteration Act-S.
2(i)(f)-Proof of sample being insect infested enough or
whether further proof of being unfit for human consumption-
Meaning of insect infested-Wheher insects must be living.
HEADNOTE:
The Food Inspector purchased cashewnut pieces as
sample-for analysis from the grocery shop of the respondent.
The sample was sent to the Public Analyst who reported that
the cashewnuts were insect infested. After receiving - the
report from the Public Analyst the Food Inspector prosecuted
the respondent in- respect of an offence under s. 7 read
with s. 16 of the Prevention of Food Adulteration Act, 1954.
The trial Magistrate convicted and sentenced the respondent
to 6 months rigorous imprisonment with a fine of Rs. 1000/-.
Res. pondent's appeal before the Sessions Judge failed.
A revision filed by the respondent before the High
Court succeeded. The High Court held that since it was not
proved that the sample contained living insects, the same
could not be called 'insect infested' within the meaning of
s. 2(i)(f) of the Act. The High Court held that the presence
of living insect 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 present. The High
Court further observed that if only dead insects were
present the sample could be called insect damaged and not
insect infested. Since the report of the Public Analyst did
not show the presence of living insects it was concluded
that the same could not be said to be adulterated. The High
Court, thus, set aside the conviction of the respondent.
S. 2(i)(f) reads as under.:
"If the article consists wholly or in part of any
filthy, putrid, disgusting, rotten, decomposed or
diseased animal or vegetable substance or is insect
infested or is otherwise unfit for human consumption."
On appeal by special leave the appellant contended: (i)
the construction of the expression insect infested given by
the High Court was wrong and that it was contrary to a
Division Bench judgment of the same 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
proportion or percentage of the article is putrid filthy,
disgusting, decomposed or insect-infested, it would be
deemed 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 the
article in question was found unfit for human consumption.
The respondent on tho contrary contened that mere proof
of the fact that a sample sent to the Public Analyst was
found to be insect infested could not make the article
'adulterated' unless it was further proved that the article
was unfit for human consumption. In the present case there
is no proof of that essential fact. The Public Analyst in
his report did not slate that the insect infestation found
by him had rendered the article unfit for human consumption.
^
HELD: (1) The construction put by the High Court on s.
2(i)(f) is manifestly erroneous. It has been disapproved by
a Division Bench of the same High Court in Dhanraj's case.
The Act has been enacted to curb the widespread evil of food
adulteration and to ensure the sale of wholesome foot to
`the people. The language of such statute should be
construed in a manner which
2
would suppress the mischief, advance the remedy, promote its
object, prevent its subtle evasion and foil its artful
circumvention. The construction adopted by the High Court is
repugnant to this cardinal rule of interpretation. It would
be straining one's commonsense to say that are 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 infestation by dead insects. [4B-Dl
(2) The expression 'insect infestation' takes its hue
from the phrase 'unfit for human consumption' occurring at
the end of sub-clause. The decision of Delhi High Court in
Dhanraj's case approved.
The words 'or is otherwise unfit for human
consummation' can be read con junctively as well as
disjunctively. The court preferred to construe it
conjunctively 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 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 the eaten of The vice afflicting it. There are some
articles of food in respect of which the rules framed under
the Act lay down the minimum proportion of insect-
infestation, which is not deemed to make the article unfit
for human consumption. This clearly shows that the more fact
that any part of tho 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 would 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 for 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 pee evidence
by virtue of s. 13 of the Act. But 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 countenanced 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 adtives 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 quality or Purity has
been prescribed or no limits have been prescribed for the
variability of its constituents, then subclause (f) of
clause (i) of 6. 2 will not apply The governing ingredient
of sub-clause (f) is the quality of the article being unfit
for human consumption. In the instant case the report of the
Public Analyst is silent as to whether on account of the
insect infestation found in the sample the article was unfit
for human consumption. Therefore, it became necessary to
call the Public Analysts, as witnesses, to enable them to
elucidate their opinion and amplify the report and to allow
the parties to test it by cross-examination. The court was
inclined to remand the case to the High Court but the court
was informed that the Public Analyst who gave the report is
no longer in the appellant's service, and is not residing at
Delhi and that his attendance in court could not be procured
without undue delay and inconvenience. The Court considered
it unreasonable in the circumstances of the case to remand
the case particularly because it would cause undue hardship
to the respondent who has had more than his normal share of
the mental suffering. harassment and expenses which go with
3
protracted criminal proceedings extending in the present
case over 81 months. No useful purpose, therefore, would be
served by remanding the case. The Court did not disturb the
acquittal of the respondent. [6D-E &, 7 C-E, & H, 8 B. 9G H,
l0A-D].
JUDGMENT:
CRIMINAL APPELLATE JURISDSCTION: Civil Appeal No. 174
of 1971.
Appeal by Special Leave from the Judgment and order
dated the 24th December, 1970 of Delhi High Court in Crl.
Revsn No. 120 of h l 970.
S. N. Andley, F. S. Nariman, B. P. Maheshwari, N. K.
Jain and Suresh Sethi for the Appellant.
D. Mukherjee and U. P. Singh for the Respondent.
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by 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 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, while the third was handed over to the Public
Analyst on the following 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 Food
Adulteration Act, 1954 (herein after 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 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 ‘insect infested”. According to him, “the
intention of the legislature by using this word in s.
2(i)(f) in the sentence ‘if the article is insect infested’
clearly is that at the time of analysis infestation by
insects . should be present”. It was further observed that
if only dead insects
4
were-present, the sample could be called ‘insect-damaged’
and not in sect-infested’. Since the report of the Public
Analyst did not show r the presence of living insects in the
Kaju sample pieces, it was concluded that the same could not
be said to be ‘adulterated’. On this reasoning, the
revision-petition was allowed and the conviction of Kacheroo
Mal was set aside. Hence this appeal, by the Municipal
Corporation of Delhi.
Having heard the learned Counsel 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
Dhanraj 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
af wholesome food to the people. It is well-settled that
wherever possible, without unreasonable stretching 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 commonsense to say that an article of food which is
infested with f 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 meant for human consumption.
It takes its hue from the phrase ‘unfit for human
consumption’ occurring at the end of the subclause. Thus
construed, it means that the article so abounds in insects,
dead or living, that it is rendered unfit for human
consumption. We need not labour the point further. It has
been lucidly brought out by Jagjit Singh J. who spoke for
the Bench of the High Court in Dhanraj’s case (supra) at
page 688 of the report. We fully approve that reasoning and
would extract it here:
“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 mol resting”. It is also mentioned that
the word is now used
(1) I. L. R. [1970] II Delhi 681.
5
especially for-“insects which attack plants, grain,
etc. in large swarms”. Thus-an article of food would be
“insectinfested”, 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; no longer living insects but has dead insects will
not change its character of being insect-infested.”
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 the articIe to be ‘adulterated’ within the meaning of
sub-clause (f) of clause (i) of sec. 2 of the Act.
Mr. D. Mukherji, learned Counsel for the Respondent
submits that mere proof of the fact that a certain number of
pieces of the sample sent to the Public Analyst were found
to be insect-infested, could not make the article
“adulterated” in terms of the aforesaid sub-clause (f) r
unless it was proved further. that the article was unfit for
human con sumption. It is stressed there is no proof of that
essential fact on the record. It is pointed out, that in his
report, the Public Analyst has not said that the insect-
infestation found by him had rendered the article unfit for
human consumption. In this connection, Counsel has invited
our attention to an application which was made by Kacheroo
mal in the first appellate Court, praying that the Public
Analyst be summoned and examined as a witness He` has
further drawn our attention to an order, dated 17-12-70 of
the High Court which shows that on the request of Mr.
Bashamber Dayal, Counsel for the Municipal Corporation, the
court summoned Mr. Sudama Roy and Mr. P. P. Bhatnagar,
Public Analysts 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 the report of the Public
Analyst was vague, inadequate and deficient, and in the
absence of clear proof of the sample, being unit for human
consumption, it could not constitute basis for holding the
article to be adulterated within the in of sec. 2(i) (f).
As against the above, Mr. F. S. Nariman, the learned
Counsel for the appellant Corporation submits that in the
case of food articles for which no minimum standard of
purity is prescribed, the moment it is proved that a
proportion on percentage of the article-not being a
proportion or percentage as would be covered by the rule, de
minimis non curat lex-is putrid, filthy, disgusting,
decomposed or insect infested, it would be deemed to be
unfit for human consumption and therefore adulterated within
the contemplation of s. 2(i)(f) . In any ` case, proceeds
the argument, it is implicit in the report of the Public t
Analyst that the article in question was found unfit for
human consumption. This implication`according to the Iearned
Counsel, flows from the Analyst’s conclusion that the
article was “adulterated”.
6
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 been prescribed or no limits have
been prescribed for the validity of its constituents, then
sub-clause (1) of clause (f) of sec. 2 will not apply, and
that the Public Analyst is not competent to say as to what
extent of insect-infestation would make the article
“adulterated”.
The relevant part of Section 2 reads as under:
“(i) “adulterated”-an article of food shall be
deemed to . be adulterated-
(a) to (e) .. .. .. ..
(f) if the article consists wholly ar in part of
any filthy, putrid, disgusting, rotten,
decomposed or diseased animal or vegetable
substance of is insect infested or is
otherwise unfit for human consumption”.
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 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’, 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-“fifthy,
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”, “put- . rid”, “disgusting”,
“decomposed” “rotten” .. “insect-infested” 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, were an article is found to be ‘insect-
infested’. There are some articles of food in respect of
which the Rules framed under l the Act, lay down the minimum
proportion of insect-infestation or in sect-damage which is
not deemed to make the article unfit for human consumption.
For instance, in the case of Nutmag (Jaiphal) the pro-r
portion of extraneous matter and infestation shall not
exceed 3.0 per cent by weight (Item A.05.16 of the
Prevention of Food Adulteration Rules, 1955). In the case of
Coriander (Dhania) the proportion of extraneous matter
including dirt and insect-damaged seeds shall not
7
exceed 8.0 per cent-by weight (Item A.05.08). Similarly in
the case of foodgrains, the proportion of 2() miligrams of
insect-damaged grain per 100 miligrams sample of the grain,
and 5 per cent by weight of fungus-damaged grain is not
considered enough, to treat it as – ‘adulterated’ either
under sub-clause (f ), or any of the other sub clauses of
sec. 2(i). These illustrations unmistakably show that the
mere fact that any part of an article was insect-infested
may not be conclusion proof of its being ‘adulterated’ under
sub-clause (f). In k other words, all the adjectives used in
the subclause 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 r standard of purity or any minimum proportion of
insect-infestation , that would exclude it from. the
definition of ‘adulterated article’, it r will be a mixed
question of law and fact, whether the insect-infestation is
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 dexit 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
sub clause 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 subclause 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 in-
sect-infested or on account of any other cause.”
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
articles for which the Rules lay down any minimum standard
of purity with reference to any of the vices specified in
this subclause; mere
2-Ll276SCI/75
8
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.
In regard to cashewnuts there is no statutory provision
prescribing any minimum standard of purity with reference to
the vice of in sect-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, is 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 this issue, as
under:
“By referring to Appendix 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 i treating the samples
found insect-infested above 5% lo be adulterated. There
can hardly be any doubt that if for an article of food
no standard of quality or purity has been prescribed or
no limits have been prescribed for the variability of
its constituents then sub-clause (f) of clause (i) of
section 2 will not apply and for considering whether or
not the article is adulterated it will have to be seen
if any other portion of the definition of “adu1terated”
is applicable. Of course as no standard of quality or
purity was prescribed for Kaju it was not competent for
any Public Analyst to him self fix any such standard
and to say that he will not treat Kaju which is insect-
infested to the extent of 5% as nat adulterated but
will regard any higher percentage of insect infestation
to make the article adulterated. In the case of Jagdish
Prasad alias Jagdish Prasad Gupta v. State of West
Bengal (1972-1, SCC 326), it was held by their
Lordships of the Supreme Court that the standards of
quality and limits of variability fixed by Government
are not even subject to alteration or variation by
Courts.”
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) af clause (i) of sec. 2
will not apply.
As already discussed, the governing ingredient of sub-
ciause (f) is the quality of the article being unfit for
human consumption. If the
9
quality of the article suffers from any of the vices, i.e.
filthiness, put- A refection 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 selfcontained,
rand 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 particular sub-clause or sub-clauses 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. If
it is merely dogmatic, that would be a circumstance
detracting from its evidential value, though it may not
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
article, 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 adulterated’ then
all that can be said about it is that the opinion is
dogmatic. He should say with particularity as to how and why
the percentage of insect-infestation found by him lenders to
sample unfit for human consumption. The additional reasons
which he might give, in addition 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 consumption. 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 there-under.
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 Kaju 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
Court, Counsel for the Municipal Corporation, also, felt
that the report was vague, incomplete and deficient, and, on
his request the High Court actually summoned the Public
Analysts, M/s. Sudama Roy and P. P. Bhatnagar, as witnesses,
for 21-12-1970, for evidence. Despite the adjournment
granted by us, the learned Counsel for the parties have not
been able to throw light as to what had happened in the High
Court on 21-12-1970.
10
The Public Analysts, as is apparent from the judgment
of the learned 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-infested’. In the
circumstances of this case therefore, it had become
necessary to call the Public Analysts as witnesses to unable
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
our notice that the Public Analyst, Mr. Sudama Roy whose
report is in question-is no longer in the service of the Cor
poration 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 had more
than his normal share of the mental suffering. harassment
and expense 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.
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