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TMI Blog1969 (10) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... toring adulterated Aniseed (Saunf) for sale. The adulteration according to the public analyst's report was due to 0 -47 per cent excess in total ash per cent 1 -5 def. in volatile oil per cent and also due to infested seeds to the extent of 01 -62. per cent. The second complaint is for storing adulterated pepper (white) for sale. The public analyst in his report describes the sample of pepper as adulterated 'due to 1 -87 excess in light berries per cent. The prayer in the petition is, inter alia, for quashing the proceedings pending before the Magistrate. Mr. K. L. Gosain, the learned counsel for the petitioners raised the following contentions: 1. In defining the standards of quality of various articles of food and fixing their limits of permissible variability under section 23(1)(b) of the said Act the rule making authority has out stepped the limits of article 19(1)(g) of the Constitution because (A)standards have been fixed arbitrarily and in disregards of the standards attainable in the country. (B)In case of some articles different standards have been fixed for different States arbitrarily and without attending to the relevant factors necessary for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not have been granted in the case of the Public Analyst, he being medically disqualified; and that even if the Public Analyst be treated as an employee of the Municipal Corporation, Fundamental Rule 10 will still apply because the employees of Delhi Municipal Corporation are governed by Fundamental Rules including the rules of recruitment by virtue of the provisions of the Delhi Municipal Corporation Service Regulations, 1959 framed by the Government of India in exercise of the powers conferred by clauses (a) and (e) of sub-section (a) of section 98 read with sub-section (1) of section 480 of the Delhi Municipal Corporation Act. To show that the Public Analyst was not medically fit, Mr. Gosain relied on a Government of India publication, 1960 Edition ''A Hand Book on Medical Examination . Appendix I to the said book contains regulations as to the physical examination of candidates for admission into the technical and Non-technical services Class I and Class Ii (Gazetted) under the Government of India except posts of Assistant Aerodrome Officers in the Civil Aviation Department and defense services personnel. Mote 7(d) at page 52 reads : For regular Class 1/11 post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o a municipal officer or other municipal employee, the Municipal Fund, the Municipal Health Officer and any medical board constituted by the Commissioner. It is a possible view to take that the adoption of Fundamental Rules did not take in the regulations framed under the said rule 10. No arguments were addressed to us on this aspect and it is not necessary to resolve the point. The matter can be decided on the petitioners' failure to show that any rule framed under fundamental rule 10 was not satisfied. In the Compilation of Fundamental Rules issued by the Accountant General, Posts and Telegraphs (Third Edition) there is a note under Rule 10 For rules made by the Governor General in Council, under Fundamental Rule 10 see Supplementary Rules 3, 4 and 4A . The said Supplementary Rules do not lay down any suggested standards of medical fitness. In Swamy's Compilation of Fundamental Rules and the Supplementary Rules 1966 Edition at page 234 certain decisions taken by the Government of India have been mentioned and Item 4 thereof reads In cases where the rules for recruitment to new appointments prescribe a fresh medical examination in respect of all candidates, all direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the difference in some cases is likely to occur when tested by two different persons at different time and it is for this reason that the Legislature in its wisdom provided for a right of re-check under section 13(2) of the Act. Rule 7 of the Prevention of Food Adulteration Rules, 1955, prescribes duties of a public analyst. It runs as under: Duties of a public analyst:-(1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person, the. Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the conditions of the seals thereon. (2)The public analyst shall cause to be analysed such samples of articles of food as may be sent to him by food inspector or by any other person under the Act. (3)After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in Form Iii within a period of sixty days of the receipt of the sample. The perusal of the said rule shows that the public analyst shall cause to be analysed such samples of articles of food as m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the persons but the offices held by them such as All Deputy Health Officers of Municipal Corporation of Delhi (2) All Zonal Health Officers. Municipal Corporation of Delhi (3) , Chief Sanitary Inspectors, Municipal Corporation of Delhi and (4) All Sanitary Inspectors of Municipal Corporation of Delhi . Section 9 of the said Act provides that the Central Government or the State Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualification to be food inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be. Rule 8 prescribes the qualifications. Mr. Gosain, the learned counsel for the petitioners said that, in view of the provisions of section 9 and rule 8, it was incumbent on the Central Government to examine the qualifications of each appointee before making the appointments and en bloc appointments without attending to their qualification was indicative of lack of application of mind. A Division Bench of this Court in Municipal Corporation of Delhi, v. Chaman Das( 1)- decided that Sanitary Inspectors could under section 9 be appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e analysed by the Public Analyst. He is, of course, to inform the vendor at the time of purchase .of his intention to have such article so analysed. So even in there was any defect in the appointment of Shri Jamna Pershad as a Food Inspector, due to his having financial interest in manufacture and sale of articles of food, still there was nothing to prevent him from purchasing the Boondi sweets From the respondent. Shri Jamna Pershad had duly informed the vendor that the article purchased by him would be got analysed.... . Even if I were to hold in favor of the petitioners that the appointment of Food Inspectors was not valid, there is no material on the record to show that the Food Inspector could not act as a private purchaser under section 12 of the said Act. This contention of Mr. Gosain also fails. (6) Regarding the legislative competence, Mr. Gosain referred to the definition of the expression adulterated in section 2(1) of the said Act which is as under; Adulterated an article of food shall he deemed to be adulterated- (A)if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey like, with the result that an article of food not adulterated in the ordinarily commercial sense as envisaged in Entry 18 may become adulterated under the said Act. It should be remembered that Constitution is not a mere piece of casual legislation. It is a charter or an instrument framed with the intention that it will last for all time to come without being altered except through a complicated process. The Courts while interpreting legislative entries must bear that aspect in mind and not interpret them in a pedantic or wooden manner. Entries defining the ambit of legislative powers should be given large and broad interpretation because the allocation of subjects in the Lists is not by way of scientific definition. The amplitude of a particular entry must be determined by reference to the purpose behind the conferment of the power on the Legislature and only such interpretation should be given as would best effectuate that purpose rather than defeat it. Each general word in the Entry must necessarily Therefore extend to all ancillary or subsidiary matters fairly and reasonably comprehended in the general word. Entry 18 confers power on the Legislature to legislate with respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f clause (a) and and is with respect to an article of food which is adulterated under sub-clause (1) of clause (i) of section 2 or misbranded under sub-clause (k) of clause (ix) of that section : or (II)if the offence is under sub-clause (ii) of clause (a), the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees. (IA)If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, tempers or in any other manner interferes with such article, he shall be punishable with imprisonment for a term which may extend to two years and with fine which shall not be less than one thousand rupees. (IB)If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article and such article is found by the magistrate before whom it is produced, to be adulterated with any poisonous or other ingredient under sub-clause (h) of clause (i) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne alone. He relied on the decision of the Kerala High Court reported in City Corporation of Trivendrum v. K.J. Mathew (3). It was there held that the sentence awardable under the proviso was conjunctive and cumulative and the discretion of Courts was limited to the reduction of sentence only. With great respect, I am unable to hold that the Court cannot under the provision completely dispense with the sentence of imprisonment in cases falling under the proviso. Departure from the cumulative punishment prescribed under the substantive provision has of course to be made for adequate and special reasons. Their Lordships of the Kerala High Court were influenced considerably by two factors: (1) the history of the legislation, and (2) the proviso must be construed in such a way as not to swallow up the enactment itself. As to the history of the legislation it is equally probable that having regard to the amplitude of the definition of adulterated food and/or misbranded food and to the category of persons on whom responsibilities have been cast. the Legislature may have, in its wisdom, thought proper to leave a discretion with the Court in special cases to award a lesser sentence. Wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Gosain will entail clear violence to the plain language. We are interpreting a statute which is not only penal but also represents high watermark of the invasion on the liberty of the subjects. It has extensive dimensions. It makes person vicariously liable. T would resolve ambiguity if any, in favor of lesser sentence. The net effect, Therefore, is that under the main provision the Court is bound to award sentence of imprisonment while in cases falling under the proviso the Court may award only a sentence of fine. (9) The learned council for the petitioners argued that since an artificial person cannot be imprisoned and punishment by way of imprisonment cannot be dispensed with, artificial persons do not fall within section 16 at all. He relied on State of Maharashtra v. Messrs, Syndicate Transport Co. (P) Ltd. wherein it was held that a company cannot be indicted for offences which by their very nature are capable of being committed only by human individuals or for offences compulsorily punishable with imprisonment. The principle may broadly be stated thus: A limited company like any other entity be indicted for criminal acts which by reason of the very necessity must be per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 and award fine only, and (2) a firm may be prosecuted but not punished. As to the point raised by the first contention, the argument does not sound plausible. Under the substantive provision of section 16, punishment by way of imprisonment is mandatory and I do not think the Courts are competent to perform a surgical operation on the section and say that though punishment prescribed is cumulative yet in case of a company it may be punished with fine only. As to the second argument I do not think that the Court can stultify themselves by permitting indictment if it cannot ultimately result in conviction. To my mind, Therefore, the proper approach should be that a company or a firm can be indicted and punished only for the offence for which imprisonment is not mandatory. On behalf of the petitioners it was suggested that on this process of reasoning a company cannot even be prosecuted for offences falling under the proviso to section 16(1). I regret I cannot agree. In case of such offences punishment by way of imprisonment not being mandatory a company or a firm can, in my opinion, be prosecuted and punished. That is so because as a general rule an artificial person can commit offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od and said that even in cases where the matter is beyond the reach of human agency due to the standards prescribed being incapable of attainment in the country a seller may be punished. He gave examples of various articles for which according to him the standards prescribed in the Rules are beyond the standards that can be reached in this country. It is not necessary to enumerate all of them and the case of Fennel alone may be mentioned as illustrative of his argument. Under rule A.05.11.01 the standard prescribed for Fennel Powder is Volatile Oil not less than 4 -0 per cent and total ash not more than 9 -0 per cent by weight, whereas in the publication The Wealth of India 1956 Edition, published by the Council of Scientific and Industrial Research at page 54 it is stated that the percentage of oil (volatile oil) varies considerably, being lowest in fruits of Indian origin (0.7-1.2) and highest in fruits from Eastern Europe (4-6) . Again it is stated the percentage of ash does not exceed 12 per cent. Mr. Chari gave various other instances from other authoritative books in his effort to make good his contention. While it is true that if any such standards are prescribed it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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