{"id":71033,"date":"1975-09-29T00:00:00","date_gmt":"1975-09-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-delhi-vs-kacheroo-mal-on-29-september-1975"},"modified":"2015-12-23T09:13:58","modified_gmt":"2015-12-23T03:43:58","slug":"municipal-corporation-of-delhi-vs-kacheroo-mal-on-29-september-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-delhi-vs-kacheroo-mal-on-29-september-1975","title":{"rendered":"Municipal Corporation Of Delhi vs Kacheroo Mal on 29 September, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Municipal Corporation Of Delhi vs Kacheroo Mal on 29 September, 1975<\/div>\n
Equivalent citations: 1976 AIR 394, \t\t 1976 SCR (2)\t 1<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nMUNICIPAL CORPORATION OF DELHI\n\n\tVs.\n\nRESPONDENT:\nKACHEROO MAL\n\nDATE OF JUDGMENT29\/09\/1975\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nGUPTA, A.C.\n\nCITATION:\n 1976 AIR  394\t\t  1976 SCR  (2)\t  1\n 1976 SCC  (1) 412\n CITATOR INFO :\n RF\t    1976 SC 621\t (22)\n RF\t    1980 SC 360\t (8,9,10,14,15)\n RF\t    1982 SC1095\t (2)\n RF\t    1983 SC 506\t (2)\n OPN\t    1985 SC 741\t (9,10,11)\n E&F\t    1989 SC1011\t (7)\n\n\nACT:\n     Interpretation of\tstature Suppress  the  mischief\t and\nadvance the  remedy-Prevention of  Food Adulteration  Act-S.\n2(i)(f)-Proof of  sample being\tinsect\tinfested  enough  or\nwhether further proof of being unfit  for human consumption-\nMeaning of  insect infested-Wheher  insects must be living.\n\n\n\nHEADNOTE:\n     The  Food\t Inspector  purchased  cashewnut  pieces  as\nsample-for analysis from the grocery shop of the respondent.\nThe sample  was sent to the Public Analyst who reported that\nthe cashewnuts\twere insect  infested. After receiving - the\nreport from the Public Analyst the Food Inspector prosecuted\nthe respondent\tin- respect  of an  offence under  s. 7 read\nwith s. 16 of the Prevention of Food Adulteration Act, 1954.\nThe trial  Magistrate convicted and sentenced the respondent\nto 6 months rigorous imprisonment with a fine of Rs. 1000\/-.\nRes. pondent's appeal before the Sessions Judge failed.\n     A revision\t filed by  the respondent  before  the\tHigh\nCourt succeeded.  The High  Court held that since it was not\nproved that  the sample\t contained living  insects, the same\ncould not  be called 'insect infested' within the meaning of\ns. 2(i)(f) of the Act. The High Court held that the presence\nof living  insect is  necessary before\tan article  could be\ncalled insect  infested. According  to the  High  Court\t the\nintention of  the  Legislature\twas  that  at  the  time  of\nanalysis infestation  by insects should be present. The High\nCourt further  observed\t that  if  only\t dead  insects\twere\npresent the  sample could  be called  insect damaged and not\ninsect infested.  Since the report of the Public Analyst did\nnot show  the presence\tof living  insects it  was concluded\nthat the  same could not be said to be adulterated. The High\nCourt, thus, set aside the conviction of the respondent.\n     S. 2(i)(f) reads as under.:\n\t  \"If the  article consists wholly or in part of any\n     filthy,  putrid,\tdisgusting,  rotten,  decomposed  or\n     diseased animal  or vegetable  substance or  is  insect\n     infested or is otherwise unfit for human consumption.\"\n     On appeal by special leave the appellant contended: (i)\nthe construction  of the expression insect infested given by\nthe High  Court was  wrong and\tthat it\t was contrary  to  a\nDivision Bench\tjudgment of  the same High Court in the case\nof Dhanraj;  (ii) in  the case of food articles for which no\nminimum standard  of purity is prescribed, as in the present\ncase  for  cashewnuts,\tthe  moment  it\t is  proved  that  a\nproportion or  percentage of  the article  is putrid filthy,\ndisgusting,  decomposed\t or  insect-infested,  it  would  be\ndeemed to  be unfit  for human\tconsumption and,  therefore,\n'adulterated' within  the contemplation\t of s  2(i)(f).\t and\n(iii), in  the alternative,  it was  contended\tthat  it  is\nimplicit in  the report\t of  the  Public  Analyst  that\t the\narticle in question was found unfit for human consumption.\n     The respondent on tho contrary contened that mere proof\nof the\tfact that  a sample  sent to  the Public Analyst was\nfound to  be insect  infested could  not  make\tthe  article\n'adulterated' unless  it was further proved that the article\nwas unfit  for human  consumption. In the present case there\nis no  proof of\t that essential\t fact. The Public Analyst in\nhis report  did not  slate that the insect infestation found\nby him had rendered the article unfit for human consumption.\n^\n     HELD: (1)\tThe construction put by the High Court on s.\n2(i)(f) is  manifestly erroneous. It has been disapproved by\na Division  Bench of  the same High Court in Dhanraj's case.\nThe Act has been enacted to curb the widespread evil of food\nadulteration and  to ensure  the sale  of wholesome  foot to\n`the  people.\tThe  language  of  such\t statute  should  be\nconstrued in a manner which\n2\nwould suppress the mischief, advance the remedy, promote its\nobject, prevent\t its subtle  evasion  and  foil\t its  artful\ncircumvention. The construction adopted by the High Court is\nrepugnant to  this cardinal rule of interpretation. It would\nbe straining  one's commonsense\t to say\t that are article of\nfood  which   is  infested   with  living   insects  and  is\nconsequently unwholesome  for human consumption ceases to be\nso and\tbecomes wholesome when these insects die out and the\ninfestation turns into infestation by dead insects. [4B-Dl\n     (2) The  expression 'insect  infestation' takes its hue\nfrom the  phrase 'unfit\t for human consumption' occurring at\nthe end\t of sub-clause.\t The decision of Delhi High Court in\nDhanraj's case approved.\n     The  words\t  'or\tis   otherwise\t unfit\t for   human\nconsummation'  can   be\t read  con  junctively\tas  well  as\ndisjunctively.\tThe   court   preferred\t  to   construe\t  it\nconjunctively as  it comports best with reason, commonsense,\nrealities, the\ttenor of this provision and the main purpose\nand scheme  of the  Act. The  adjectives 'filthy', 'putrid',\n'disgusting', 'decomposed 'rotten', 'insect-infested', refer\nto the\tquality of  the article\t and furnish the indicia for\npresuming the  article to  be unfit  for human\tconsumption.\nBut, the  presumption may  not be  conclusive in  all  cases\nirrespective of\t the character of the article and the nature\nand the\t eaten of  The vice  afflicting it.  There are\tsome\narticles of  food in respect of which the rules framed under\nthe  Act   lay\tdown   the  minimum  proportion\t of  insect-\ninfestation, which  is not  deemed to make the article unfit\nfor human consumption. This clearly shows that the more fact\nthat any  part of  tho article was 'insect infested' may not\nbe conclusive  proof of\t his being  adulterated\t under\tsub-\nclause (f). In the case of an article for which the rules do\nnot prescribe  any minimum standard of purity or any minimum\nproportion of insect infestation, what would exclude it from\nthe definition\tof  adulterated\t article  will\tbe  a  mixed\nquestion of law and fact depending on the nature, degree and\nextent of  the insect  infestation which  would\t render\t the\narticle unfit  for human  consumption. The  opinion  of\t the\nPublic Analyst\twho examines  and analysis  the sample as to\nthe fitness or otherwise of the sample for human consumption\nwould constitute  legal evidence.  The report  of the Public\nAnalyst including  his opinion on this point is pee evidence\nby virtue  of s.  13 of the Act. But this does not mean that\nhis ipsi dixit would be conclusive and binding on the court.\nTo treat  it so\t would be  to leave the determination of the\nguilt of  the accused to the whims and fancies of the Public\nAnalyst. In each case it must be proved that the article was\nunfit for  human consumption.  In the  case of\tarticles for\nwhich the rules lay down any minimum standard of purity with\nreference to  any of  the vices specified in sub-clause (f),\nmere proof  of the  fact that  the impurity was in excess of\nthat countenanced  by  the  prescribed\tstandard,  would  be\nconclusive to  show that  the article  was unfit  for  human\nconsumption. There  is\tno  statutory  minimum\tstandard  of\npurity with  reference to  the vice of insect-infestation or\nother  adtives\tused  in  this\tsub-clause  as\tfar  as\t the\ncashewnuts are\tconcerned. It  will, therefore,\t be for\t the\nJudge of  fact to  decide upon\tthe evidence  in  the  case,\nwhether the  insect infestation\t found was  of such a nature\nand extent  as to  make\t it  unfit  for\t human\tconsumption.\nDhanraj's case\tover-ruled in so far as it lays down that if\nfor any\t article of  food no  standard quality or Purity has\nbeen prescribed\t or no\tlimits have  been prescribed for the\nvariability of\tits  constituents,  then  subclause  (f)  of\nclause (i)  of 6.  2 will not apply The governing ingredient\nof sub-clause  (f) is the quality of the article being unfit\nfor human consumption. In the instant case the report of the\nPublic Analyst\tis silent  as to  whether on  account of the\ninsect infestation found in the sample the article was unfit\nfor human  consumption. Therefore,  it became  necessary  to\ncall the  Public Analysts,  as witnesses,  to enable them to\nelucidate their\t opinion and amplify the report and to allow\nthe parties  to test  it by cross-examination. The court was\ninclined to  remand the case to the High Court but the court\nwas informed  that the Public Analyst who gave the report is\nno longer in the appellant's service, and is not residing at\nDelhi and that his attendance in court could not be procured\nwithout undue  delay and inconvenience. The Court considered\nit unreasonable\t in the\t circumstances of the case to remand\nthe case  particularly because it would cause undue hardship\nto the\trespondent who has had more than his normal share of\nthe mental suffering. harassment and expenses which go with\n3\nprotracted criminal  proceedings extending  in\tthe  present\ncase over  81 months. No useful purpose, therefore, would be\nserved by remanding the case. The  Court did not disturb the\nacquittal of the respondent. [6D-E &, 7 C-E, & H, 8 B. 9G H,\nl0A-D].\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE\t JURISDSCTION: Civil  Appeal No. 174
\nof 1971.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  order
\ndated the  24th December,  1970 of  Delhi High Court in Crl.
\nRevsn No. 120 of h l 970.\n<\/p>\n
     S. N.  Andley, F.\tS. Nariman,  B. P. Maheshwari, N. K.
\nJain and Suresh Sethi for the Appellant.\n<\/p>\n
     D. Mukherjee and U. P. Singh for the Respondent.
\n     The Judgment of the Court was delivered by
\n     SARKARIA, J.  This appeal\tby special leave is directed
\nagainst a  judgment of\ta learned  single Judge\t of the High
\nCourt of Delhi. It arises out of these circumstances:\n<\/p>\n
     On January\t 8, 1969,  B.. R.  Kochhar, Food  Inspector,
\npurchases 600  grams  of  Kaju-Tukra  (cashewnut  pieces)-as
\nsample for  analysis from  the grocery shop of Kacheroo Mal,
\nRespondent in  Khari Baoli,  Delhi. The\t sample was  divided
\ninto three  equal parts\t and sealed  into three\t bottles. An
\ninventory was  prepared which was read over and explained to
\nthe respondent,\t who thereafter\t signed\t it.  One  of  these
\nbottles was given to the respondent, one was retained by the
\nInspector, while  the third  was handed\t over to  the Public
\nAnalyst on  the following  day for  examination. The  Public
\nAnalyst has reported:\n<\/p>\n
\t  “Date\t of   Analysis:\t 10-1-1969.  Insect-infested
\n     pieces of Kajus: 21.9% and I am of the opinion that the
\n     same is  adulterated due  to insect  infested pieces of
\n     Kajus to the extent of 21.9%.”<\/p><\/blockquote>\n
     On the  preceding facts,  the Food\t Inspector  filed  a
\ncomplaint for prosecution of the respondent in respect of an
\noffence under s. 7 read with s. 16 of the Prevention of Food
\nAdulteration Act,  1954 (herein\t after called  the Act). The
\ntrial Magistrate  convicted and sentenced him for six months
\nrigorous  imprisonment\t with  a   fine\t  of   Rs;   1000\/-.
\nKacheroomal’s appeal  before  the  Additional  District\t and
\nSessions Judge,\t failed. Against the order of the Additional
\nSessions Judge,\t he preferred  a revision to the High Court.
\nThe revision  was heard\t by a  learned Judge  who held\tthat
\nsince no  living insect\t was  found  in\t the  sample  pieces
\nexamined by  the analyst,  the\tsame  could  not  be  called
\n“insect-infested” within the contemplation of s. 2(i) (f) of
\nthe Act.  The learned  Judge was  of the  opinion “that\t the
\npresence of  living insects  is necessary  before an article
\ncould be  called ‘insect  infested”. According\tto him, “the
\nintention of  the legislature  by  using  this\tword  in  s.
\n2(i)(f) in  the sentence ‘if the article is insect infested’
\nclearly is  that at  the time  of  analysis  infestation  by
\ninsects .  should be  present”. It was further observed that
\nif only dead insects
\n4<\/span>
\nwere-present, the  sample could\t be called  ‘insect-damaged’
\nand not\t in sect-infested’.  Since the\treport of the Public
\nAnalyst did not show r the presence of living insects in the
\nKaju sample pieces, it was concluded that the same could not
\nbe  said   to  be  ‘adulterated’.  On  this  reasoning,\t the
\nrevision-petition was allowed and the conviction of Kacheroo
\nMal was\t set aside.  Hence this\t appeal,  by  the  Municipal
\nCorporation of Delhi.\n<\/p>\n
     Having heard  the learned Counsel on both sides, we are
\nof opinion that the construction put by the learned Judge of
\nthe  High  Court  is  manifestly  erroneous..  It  has\tbeen
\ndisapproved by\ta-Division Bench  of the  same High Court in
\nDhanraj v. Municipal Corporation of Delhi.(1) Indeed, Mr. D.
\nMukherji, the learned Counsel for Kacheroo Mal has not tried
\nto support it.\n<\/p>\n
     The Act  has  been\t enacted  to  curb  and\t remedy\t the
\nwidespread evil of food-adulteration, and to ensure the sale
\naf wholesome  food to  the people.  It is  well-settled that
\nwherever  possible,   without  unreasonable   stretching  or
\nstraining  the\t language  of  such  a\tstatute,  should  be
\nconstrued in  a manner\twhich would  suppress the  mischief,
\nadvance the  remedy, promote  its object, prevent its subtle
\nevasion and  foil its artful circumvention. The construction
\nadopted by  the learned\t Judge is repugnant to this cardinal
\nrule of\t interpretation. With  respect, it is less rational,
\nbut too\t literal narrow\t and pedantic. It would be straining
\none’s commonsense  to say  that an  article of food which is
\ninfested  with\t f  living   insects  and   is\tconsequently
\nunwholesome for\t human consumption,  ceases  to\t be  so\t and
\nbecomes wholesome,  when  these\t insects  die  out  and\t the
\n‘infestation’ turns into an infestation by dead insects. The
\nexpression ‘insect-infested’  is  to  be  construed  in\t the
\ncontext of  an article\tof food meant for human consumption.
\nIt  takes   its\t hue   from  the  phrase  ‘unfit  for  human
\nconsumption’ occurring\tat the\tend of\tthe subclause.\tThus
\nconstrued, it  means that the article so abounds in insects,
\ndead  or  living,  that\t it  is\t rendered  unfit  for  human
\nconsumption. We\t need not  labour the  point further. It has
\nbeen lucidly  brought out  by Jagjit  Singh J. who spoke for
\nthe Bench  of the  High Court  in Dhanraj’s  case (supra) at
\npage 688  of the report. We fully approve that reasoning and
\nwould extract it here:\n<\/p>\n
\t  “The expression  ‘insect-infested’ was not defined
\n     in the  Prevention of  Food Adulteration  Act and\thas,
\n     therefore, to  be given  its ordinary meaning. The word
\n     ‘infest’ appears  to have\tbeen derived  from the latin
\n     word ‘infestate’  which  meant  to\t assail\t or  molest.
\n     According to  the oxford  English Dictionary (Volume V-<\/p><\/blockquote>\n
     at page  259)  the\t word  ‘infest’\t means\t‘To  attack,
\n     assail, annoy,  or trouble\t (a person  or thing)  in  a
\n     persistent manner,”  “to visit persistently or in large
\n     number for\t purposes of  destruction or plunder”, “to ,
\n     swarm in  or about,  so as\t to be\ttroublesome”. In the
\n     same Dictionary  the word\t‘infestation’ is  stated  to
\n     mean: “The\t action of  infesting, assailing, harassing,
\n     or persistently mol resting”. It is also mentioned that
\n     the word is now used
\n(1) I. L. R. [1970] II Delhi 681.\n<\/p>\n
5<\/span><\/p>\n
     especially for-“insects  which  attack  plants,  grain,
\n     etc. in large swarms”. Thus-an article of food would be
\n     “insectinfested”, if it has been attacked by insects in
\n     swarms or numbers. It however seems to us that there is
\n     no justification  for the\tview that insect-infestation
\n     would only\t continue so long as the insects continue to
\n     be alive.\tIf an article of food is attacked by insects
\n     in large  swarms or  numbers and  for some reason those
\n     insects die,  the mere  fact that\tthe article  of-food
\n     has; no longer living insects but has dead insects will
\n     not change its character of being insect-infested.”
\n     In\t view\tof  the\t construction  that  the  expression
\n‘insect-infested’,  includes   infestation  even   by\tdead
\ninsects, the further point to be considered is, whether mere
\ninsect-infestation, without`more,  would –  be sufficient to
\nhold the  articIe to  be ‘adulterated’ within the meaning of
\nsub-clause (f) of clause (i) of sec. 2 of the Act.\n<\/p>\n
     Mr. D.  Mukherji, learned\tCounsel for  the  Respondent
\nsubmits that mere proof of the fact that a certain number of
\npieces of  the sample  sent to the Public Analyst were found
\nto  be\t insect-infested,  could   not\tmake   the   article
\n“adulterated” in  terms of  the aforesaid  sub-clause (f)  r
\nunless it was proved further. that the article was unfit for
\nhuman con sumption. It is stressed there is no proof of that
\nessential fact on the record. It is pointed out, that in his
\nreport, the  Public Analyst  has not  said that\t the insect-
\ninfestation found  by him had rendered the article unfit for
\nhuman consumption.  In this  connection, Counsel has invited
\nour attention  to an  application which was made by Kacheroo
\nmal in\tthe first  appellate Court,  praying that the Public
\nAnalyst be  summoned and  examined  as\ta  witness  He`\t has
\nfurther drawn  our attention  to an order, dated 17-12-70 of
\nthe High  Court which  shows that  on  the  request  of\t Mr.
\nBashamber Dayal,  Counsel for the Municipal Corporation, the
\ncourt summoned\tMr. Sudama  Roy and  Mr.  P.  P.  Bhatnagar,
\nPublic Analysts\t for 21-12-1970. The point sought to be made
\nout is that in this case, the prosecution, the defence and –
\nthe High  Court all  felt that\tthe  report  of\t the  Public
\nAnalyst was  vague, inadequate\tand deficient,\tand  in\t the
\nabsence of  clear proof\t of the sample, being unit for human
\nconsumption, it\t could not  constitute basis for holding the
\narticle to be adulterated within the in of sec. 2(i) (f).\n<\/p>\n
     As against\t the above,  Mr. F.  S. Nariman, the learned
\nCounsel for  the appellant  Corporation submits\t that in the
\ncase of\t food articles\tfor which  no  minimum\tstandard  of
\npurity is  prescribed,\tthe  moment  it\t is  proved  that  a
\nproportion  on\t percentage  of\t  the  article-not  being  a
\nproportion or percentage as would be covered by the rule, de
\nminimis\t non   curat  lex-is   putrid,\tfilthy,\t disgusting,
\ndecomposed or  insect infested,\t it would  be deemed  to  be
\nunfit for human consumption and therefore adulterated within
\nthe contemplation  of s.  2(i)(f) .  In any ` case, proceeds
\nthe argument,  it is  implicit in the report of the Public t
\nAnalyst that  the article  in question\twas found  unfit for
\nhuman consumption. This implication`according to the Iearned
\nCounsel,  flows\t from  the  Analyst’s  conclusion  that\t the
\narticle was “adulterated”.\n<\/p>\n
6<\/span><\/p>\n
Counsel has  criticised the  view  taken  by  the  Bench  in
\nDhanraj’s case\tthat if\t for an article of food, no standard
\nof quality  or purity  has been prescribed or no limits have
\nbeen prescribed\t for the  validity of its constituents, then
\nsub-clause (1)\tof clause  (f) of sec. 2 will not apply, and
\nthat the  Public Analyst  is not competent to say as to what
\nextent\tof   insect-infestation\t would\t make  the   article
\n“adulterated”.\n<\/p>\n
     The relevant part of Section 2 reads as under:
\n\t  “(i) “adulterated”-an article\t of  food  shall  be
\n\t       deemed to . be adulterated-\n<\/p>\n
\t  (a)  to (e) ..  ..  .. ..\n<\/p>\n
\t  (f)  if the  article consists wholly ar in part of
\n\t       any  filthy,   putrid,  disgusting,   rotten,
\n\t       decomposed or  diseased animal  or  vegetable
\n\t       substance  of   is  insect   infested  or  is
\n\t       otherwise unfit for human consumption”.\n<\/p>\n
     The  phrase   “or\tis   otherwise\t unfit\t for   human
\nconsumption”  can   be\tread   conjunctively  as   well\t  as
\ndisjunctively. If  it is  read conjunctively,  that  is,  in
\nassociation with  what\tprecedes  it,  sub-clause  (f)\twith
\nslight consequent  rearrangement and  parenthesis would read
\nlike this: ‘If the article is unfit for human consumption on
\naccount of  (a) its  consisting wholly\tor in  part  of\t any
\nfilthy, putrid,\t disgusting, rotten,  decomposed or diseased
\nanimal or  vegetable substance\tor being insectinfested, (b)
\nor on  account of any other cause”. In this view of the sub-
\nclause,\t proof\tof  ‘unfitness\tof  the\t article  for  human
\nconsumption’, is  a must  for bringing\tthe case  within its
\npurview.\n<\/p>\n
     If the  phrase is\tto be  read disjunctively,  the mere
\nproof of the whole or any part of the article being-“fifthy,
\nputrid, disgusting,  rotten ….or insect-infested” would be
\nconclusive to  bring the  case within  the mischief  of this
\nsub-clause, and\t it would not be necessary in such a case to
\nprove  further\t that  the   article  was  unfit  for  human
\nconsumption.\n<\/p>\n
     We would  prefer the  first construction as it comports
\nbest with reason,, commonsense, realities, the tenor of this
\nprovision and  the main\t purpose and  scheme of the Act. The
\nadjectives   “filthy”,\t  “put-\t  .    rid”,   “disgusting”,
\n“decomposed” “rotten”  ..  “insect-infested”  refer  to\t the
\nquality of the article and furnish the indicia for presuming
\nthe article  to be  unfit for  human  consumption.  But\t the
\npresumption  may   not\t be   conclusive   in\tall   cases,
\nirrespective-of the  character.\t of  the  article,  and\t the
\nnature and  extent  of\tthe  vice  afflicting  it.  This  is
\nparticularly so,  were an  article is  found to\t be ‘insect-
\ninfested’. There  are some  articles of\t food in  respect of
\nwhich the Rules framed under l the Act, lay down the minimum
\nproportion of  insect-infestation or in sect-damage which is
\nnot deemed  to make the article unfit for human consumption.
\nFor instance,  in the  case of\tNutmag (Jaiphal)  the  pro-r
\nportion of  extraneous\tmatter\tand  infestation  shall\t not
\nexceed\t3.0   per  cent\t by  weight  (Item  A.05.16  of\t the
\nPrevention of Food Adulteration Rules, 1955). In the case of
\nCoriander  (Dhania)  the  proportion  of  extraneous  matter
\nincluding dirt and insect-damaged seeds shall not
\n7<\/span>
\nexceed 8.0  per cent-by\t weight (Item A.05.08). Similarly in
\nthe case  of foodgrains,  the proportion of 2() miligrams of
\ninsect-damaged grain  per 100 miligrams sample of the grain,
\nand 5  per cent\t by weight  of fungus-damaged  grain is\t not
\nconsidered enough,  to treat  it as  – ‘adulterated’  either
\nunder sub-clause  (f ),\t or any\t of the other sub clauses of
\nsec. 2(i).  These illustrations\t unmistakably show  that the
\nmere fact  that any  part of  an article was insect-infested
\nmay not be conclusion proof of its being ‘adulterated’ under
\nsub-clause (f). In k other words, all the adjectives used in
\nthe subclause  are a presumptive and not an absolute test of
\nthe  quality   of  the\t article  being\t  unfit\t for   human
\nconsumption. To\t be more  particular,  in  the\tcase  of  an
\narticle in  respect of\twhich the Rules do not prescribe any
\nminimum r  standard of\tpurity or  any minimum proportion of
\ninsect-infestation  ,\tthat  would  exclude  it  from.\t the
\ndefinition of  ‘adulterated article’,  it r  will be a mixed
\nquestion of  law and fact, whether the insect-infestation is
\nof such\t a nature,  degree and extent as renders the article
\nunfit for  human consumption.  The  opinion  of\t the  Public
\nAnalyst who  examines and  analyses the\t sample, as  to\t the
\nfitness or  otherwise of  the sample  for human consumption,
\nwould  constitute   legal  evidence.  A\t Public\t Analyst  is
\nsupposed  to   be  specially   skilled\tin  the\t science  of
\ndietetics. . As an expert in the science, he is competent to
\nopine and testify about this fact.\n<\/p>\n
     The report of the Public Analyst, including his opinion
\non this\t point, is  per se  evidence by virtue of sec. 13 of
\nthe Act. But this does not mean that his ipse dexit would be
\nconclusive and binding on the court. To treat it so would be
\nto leave  the determination  of the  guilt of the accused to
\nthe whims  and fancies\tof the Public Analyst. The Act would
\nnot countenance\t such abdication of its judicial function by
\nthe court,  leaving the\t case-as it  were-to be tried by the
\nAnalyst. It  is for the court to weigh his opinion and reach
\nits own finding.\n<\/p>\n
     In Dhanraj’s case (supra) the High Court construed this
\nsub clause thus:\n<\/p>\n
\t  “The word ‘otherwise’ in sub-clause (f) of cl. (i)
\n     of sec.  2 does  suggest that  all the  adjectives used
\n     earlier refer to the quality of the article being unfit
\n     for human\tconsumption. To fall under that subclause an
\n     article of\t food must  be unfit  for human\t consumption
\n     because it\t consists wholly  or in\t part of  any fifthy
\n     putrid,  disgusting,  rotten,  decomposed\tor  diseased
\n     animal or\tvegetable substance  or because\t it  is\t in-
\n     sect-infested or on account of any other cause.”<\/p><\/blockquote>\n
     If we  may say  so with  respect,\tthis  is  a  correct
\nexposition of  the law embodied in s. 2(i) (f). We need only
\nadd for\t the  sake  of\telucidation,  but  these  adjectives
\nindicate presumptive  but not  absolute criteria  as to\t the
\nquality of  the article. In each case it must be proved that
\nthe article  was unfit for human consumption. In the case of
\narticles for  which the\t Rules lay down any minimum standard
\nof purity  with reference  to any  of the vices specified in
\nthis subclause; mere
\n     2-Ll276SCI\/75
\n8<\/span>
\nproof of  the fact  that the  impurity was in excess of that
\ncountenanced by the prescribed standard, would be conclusive
\nto show that the article was unfit for human consumption.\n<\/p>\n
     In regard to cashewnuts there is no statutory provision
\nprescribing any minimum standard of purity with reference to
\nthe vice  of in sect-infestation or other adjectives used in
\nthis sub-clause. It will therefore, be for the Judge of fact
\nto decide upon the evidence in the case, whether the insect-
\ninfestation found was of such a nature and extent as to make
\nit unfit  for human consumption. We have already pointed out
\nthat the  Report of  the Public\t Analyst, is  admissible  in
\nproof of this fact.\n<\/p>\n
     In Dhanraj’s case (supra), the High Court after holding
\nthat in order to bring a case within the purview of the said
\nsub-clause (c),\t it must be proved that the article is unfit
\nfor human  consumption, proceeded  to say something-which in
\nour opinion  is not  correct-as to  the proof this issue, as
\nunder:\n<\/p>\n
\t  “By referring\t to Appendix  to the  Prevention  of
\n     Food Adulteration\tRules, 1955  the learned counsel for
\n     the petitioners also urged that as for purposes of sub-
\n     clause (1)\t of clause  (i) of  section 2 no standard of
\n     quality  had   been  prescribed  for  Kaju\t the  Public
\n     Analysts were  not justified  i  treating\tthe  samples
\n     found insect-infested above 5% lo be adulterated. There
\n     can hardly\t be any doubt that if for an article of food
\n     no standard of quality or purity has been prescribed or
\n     no limits\thave been  prescribed for the variability of
\n     its constituents  then sub-clause\t(f) of clause (i) of
\n     section 2 will not apply and for considering whether or
\n     not the  article is adulterated it will have to be seen
\n     if any other portion of the definition of “adu1terated”
\n     is applicable.  Of course\tas no standard of quality or
\n     purity was prescribed for Kaju it was not competent for
\n     any Public\t Analyst to  him self  fix any such standard
\n     and to say that he will not treat Kaju which is insect-
\n     infested to  the extent  of 5%  as nat  adulterated but
\n     will regard any higher percentage of insect infestation
\n     to make the article adulterated. In the case of Jagdish
\n     Prasad alias  Jagdish Prasad  Gupta v.  State  of\tWest
\n     Bengal  (1972-1,\tSCC  326),  it\twas  held  by  their
\n     Lordships of  the Supreme\tCourt that  the standards of
\n     quality and  limits of  variability fixed by Government
\n     are not  even subject  to alteration  or  variation  by
\n     Courts.”<\/p><\/blockquote>\n
     We are  unable to agree with the proposition propounded
\nby the\tHigh Court  that if  for  any  article\tof  food  no
\nstandard of  quality or\t purity has  been prescribed  or  no
\nlimits have  been prescribed  for  the\tvariability  of\t its
\nconstituents, then  sub-clause (f)  af clause  (i) of sec. 2
\nwill not apply.\n<\/p>\n
     As already\t discussed, the governing ingredient of sub-
\nciause (f)  is the  quality of\tthe article  being unfit for
\nhuman consumption. If the
\n9<\/span>
\nquality of  the article\t suffers from any of the vices, i.e.
\nfilthiness, put-  A refection  insect-infestation etc.\tthis
\nsub-clause would be inexorably attracted and on proof of the
\narticle being  unfit for human consumption, the requirements
\nof the\tclause would be completely satisfied. Such proof may
\nconsist of  the report\tof the\tPublic Analyst. The value of
\nhis report  however would depend on its being selfcontained,
\nrand comprising\t the necessary\tdata  and  reasons  for\t his
\nopinion. It  is desirable  that the  Public  Analyst  should
\nexpress\t his   opinion\ton  all\t the  relevant\tpoints\twith
\nreference to  the particular  sub-clause or  sub-clauses  of
\nsec. 2(i)  of the  Act. This will not only enhance the value
\nof his\treport but also facilitate the task of the Court. If
\nit  is\t merely\t dogmatic,  that  would\t be  a\tcircumstance
\ndetracting from\t its evidential\t value, though\tit  may\t not
\nrender it  inadmissible. Ultimately  the decision rests with
\nthe  court   which  would   take  into\t account   all\t the
\ncircumstances of  the case  including the  character of\t the
\narticle, the nature and the extent of the insect-infestation
\nand other relevant factors. If the Public Analyst says ‘that
\nsince the insect-infestation in the Kaju pieces is less than
\n5 per cent, the sample, in his opinion, is adulterated’ then
\nall that  can be  said about  it  is  that  the\t opinion  is
\ndogmatic. He should say with particularity as to how and why
\nthe percentage of insect-infestation found by him lenders to
\nsample unfit  for human\t consumption. The additional reasons
\nwhich he  might give,  in addition to the certain proportion
\nof the sample being insect-infested, would enhance the value
\nof his\treport, still  further. It is not possible for us to
\nspeculate the  reasons which the Public Analyst as an expert
\nin the\tscience might  advance in support of his opinion. By
\ngiving the opinion that if the insect-infestation is above 5
\nper cent, the sample of Kaju pieces would be unfit for human
\nconsumption,  the  expert  would  not  be  laying  down\t any
\nstandard of  quality or\t Limits\t of  variability  which\t the
\nLegislature in\tits wisdom  has not  prescribed. His opinion
\nwould be just a piece of evidence which has to be` evaluated
\nby the\tCourt in  the circumstances  of a particular case to
\nreach a\t finding as  to the  unfitness or  otherwise of\t the
\nsample for  human consumption.\tThe question of varying. any
\nstandard of  quality or limits of variability in the case of
\nKaju pieces does not arise because no such standard has been
\nfixed either  in the Act or in the rules framed there-under.
\nReference to  what this Court said in Jagdish Prasad Gupta’s
\ncase (ibid), made by the High Court was thus not in point.\n<\/p>\n
     In the instant case the report of the Public Analyst is
\nsilent as  to whether  on account  of the insect-infestation
\nfound by  him in  the sample of Kaju pieces, the article was
\nunfit for-human\t consumption.  The  respondent,\t as  already
\nnoticed, had  made an application to the Additional Sessions
\nJudge, in  appeal, for\tsummoning the  Public Analysts.\t His
\nrequest was  however declined. When the case was in the High
\nCourt, Counsel\tfor the\t Municipal Corporation,\t also,\tfelt
\nthat the report was vague, incomplete and deficient, and, on
\nhis request  the High  Court actually  summoned\t the  Public
\nAnalysts, M\/s. Sudama Roy and P. P. Bhatnagar, as witnesses,
\nfor  21-12-1970,   for\tevidence.  Despite  the\t adjournment
\ngranted by  us, the learned Counsel for the parties have not
\nbeen able to throw light as to what had happened in the High
\nCourt on 21-12-1970.\n<\/p>\n
10<\/span><\/p>\n
     The Public\t Analysts, as  is apparent from the judgment
\nof the\tlearned single\tJudge of  the High  Court have\tbeen
\nexpressing different  opinions on  different occasions as to
\nwhen an\t article can be said to be ‘insect-infested’. In the
\ncircumstances  of   this  case\t therefore,  it\t had  become
\nnecessary to call the Public Analysts as witnesses to unable
\nthem to elucidate their opinion and amplify their report and
\nto allow  the parties  to test\tit by cross-examination. For
\nthis purpose,  on our  first reaction,\twe were\t inclined to
\nremit the  case to  the High  Court for\t redecision. But the
\nlearned Counsel for the Municipal Corporation has brought to
\nour notice  that the  Public Analyst,  Mr. Sudama  Roy whose
\nreport is in question-is no longer in the service of the Cor
\nporation and is not residing at Delhi. It is obvious that it
\nwill not  be possible  to procure  Mr. Roy’s  attendance  in
\ncourt without  an amount  of delay  and inconvenience  which
\nwill be\t unreasonable in  the circumstances  of the case and
\nwill cause undue hardship to the respondent who has had more
\nthan his  normal share\tof the\tmental suffering. harassment
\nand expense which go together with protracted
\ncriminal proceedings,  extending in the present case over 81
\nmonths. No  useful  purpose  will  therefore  be  served  by
\nremanding  the\tcase  for  a  fresh  decision.\tTaking\tinto
\nconsideration all  the circumstances  of the case, we do not
\nthink it proper to disturb the acquittal of the respondent.\n<\/p>\n
     Subject to\t the clarification  of the points of law and
\nthe reversal  of the  view taken by the High Court as to the
\nmeaning and scope of s. 2(i)(f), the appeal is dismissed.\n<\/p>\n
P.H.P.\t\t\t\t\t   Appeal dismissed.\n11<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Municipal Corporation Of Delhi vs Kacheroo Mal on 29 September, 1975 Equivalent citations: 1976 AIR 394, 1976 SCR (2) 1 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-71033","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMunicipal Corporation Of Delhi vs Kacheroo Mal on 29 September, 1975 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/municipal-corporation-of-delhi-vs-kacheroo-mal-on-29-september-1975\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Municipal Corporation Of Delhi vs Kacheroo Mal on 29 September, 1975 - 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