N Criminal Appeal No 539 of 1984 From the judgment and order dated 171182 of the High Court of Delhi in Criminal Appeal No 26882
466 D K Sen GD Gupta and RN Poddar for the Appellant
DB Vohra for the Respondent
The following Judgments were delivered VARADARAJAN J
This appeal by special leave is by the Delhi Administration and directed against the judgment of a learned Single Judge of the Delhi High Court dismissing Criminal Revision No 268 of 1982 in limine
That criminal revision was filed against the acquittal of the respondent by the learned Metropolitan Magistrate Delhi in Case No 11 of 1982 in which the respondent was tried for an offence under section 7 read with section 16 of the hereinafter referred to as the Act 
The Food Inspector PW 4 took a sample of lal mirchi powder from the grocery shop of the respondent
On analysis by the Public Analyst it was found in exhibit PW 1C that the sample contained nine living meal worms
There was no other evidence in support of the case of the prosecution that the lal mirchi powder was adulterated
It was contended before the learned Magistrate that the evidence by way of the Public Analyst s report does not satisfy the requirement of the definition of adulterated article  of food contained in section 2 1 f of the Act
The learned Magistrate accepted this contention and found that the prosecution has failed to prove that the lal mirchi powder was adulterated and he accordingly acquitted the respondent
The Calcutta High Court in Ms Narkeklange Roller Flour Mills and another vs The Corporation of Calcutta1 has observed 
Clause f of Section 2 defines the word adulterated  and an article of food is said to be adulterated if it is insect infested
By physical examination the Public Analyst found blackish worms and the sample there is at best worm infested
Is the word worm synonymous with insect   Did the legislature intend to condemn wheat products due to presence of seasonal worms  The word insect  is defined in the Oxford Dictionary as small invertebrate segmented animal having head thorax abdomen and three pairs of thoracic legs usually with one or two pairs of thoracic 1 1973 Prevention of Food Adulteration Cases 257 467 wings
The word worm in the same dictionary is defined as kinds of invertebrate limbless or apparently limbless creeping animal such as are segmented in rings or are parasite in the intestines or tissues
 There is therefore a good deal of difference between worms and insects and a sample of food becomes adulterated only when it is insect infested
In the present sample however worms were found to be present and that in our view does not satisfy the requirements of the definition adulterated under Section 2 of the Act
 According to the Webster s New World Dictionary 1962 edition worm  means any of many long slender soft bodied creeping animals some segmented that live by burrowing underground or as parasites as the earth worm tapeworm
According to Webster s New World Dictionary infest  means to overrun or inhabit in large numbers usually so as to be harmful or bother some swarm in or about According to that dictionary an insect  means any of a large group of small invertebrate animals characterized in the adult state by division of the body into head thorax and abdomen three pairs of membranous wings beetles bees flies wasps mosquitoes etc
are insects
 According to the Shorter Oxford English Dictionary worm means a slender creeping naked limbless animal usually brown or reddish with a soft body divided into a series of segments an earthworm According to that dictionary an insect  means a small invertebrate animal usually having a body divided into segments and several pairs of legs and often winged Therefore it is not possible to hold that a worm and an insect are the same
Even if worms and insects are the same the appellant is not out of difficulty in this case
As already stated the Public Analyst has found in the sample only nine living meal worms and he has neither stated that it is insect infested nor that it is unfit for human consumption on account of the presence of the meal worms nor that it is otherwise unfit for human consumption
According to Webster s Illustrated Contemporary Dictionary Encyclopedic Edition infest  means to overrun or spread in large numbers so as to be unpleasant or unsafe
468 In Municipal Corporation of Delhi vs Kacheroo Mal 1 the Public Analyst had reported  Date of Analysis 10 1 1969 Insect infested pieces of Kajus 219 and I am of the opinion that the same is adulterated due to insect infested pieces of Kajus to the extent of 219 Sarkaria J speaking for himself and Gupta J has observed in that case  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 article to be adulterated  within the meaning of sub clause f of clause I of section 2 of the Act 
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 unfit for human consumption it could not constitute a valid basis for holding the article to be adulterated within the meaning of sec
21f
As against the above Mr FS Nariman the learned Counsel for the appellant Corporation submits that in the case of food articles for which no minimum standard or purity is prescribed the moment it is proved that a proportion of 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 section 21f
In any case proceeds the argument it is implicit in the report of the Public Analyst that the article in question was found unfit for human consumption
This implication according to the learned Counsel flows  from the Analyst s conclusion that the article was adulterated
Counsel has criticised the view taken by the Bench in Dhanraj s case that if for an article of food no 1  469 standard of quality or purity has been prescribed or no limits have been prescribed for the validity or its constituents then sub clause I 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 1 adulterated an article of food shall be deemed to be adulterated a to e    f 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
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 sub stance or being insect infested 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
F If the phrase is to be read disjunctively the mere proof of whole or any part of the article being filthy putrid disgusting rotten  or insect infested would be conclusive to bring the case within the mischief of this sub clause and it would not be necessary in such a case to prove further that the article was unfit for human consumption
We would prefer the first construction as it comports best with reason common sense realities the tenor of this provision and the main purpose and scheme of the Act
The adjectives filthy putrid  disgusting decomposed 470 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 a cases irrespective of the character of the article and the nature and extent of the vice afflicting it  In Dhanraj s case ILR 1970 Delhi 681 the High Court construed this sub clause f 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 sub clause an article of food must be unfit for human consumption because it consists wholly or in part of any filthy putrid disgusting rotten decomposed or diseased animal or vegetable substance or because it is insect infested or on account of any other cause
On the basis of that decision it is stated as follows in the  published by the Eastern Book Company seventh edition with reference to section 2 1 f of that Act thus  The phrase or otherwise unfit for human consumption should be read conjunctively and not disjunctively that is in association with what precedes it
This sub clause would read like this If the article is unfit for human consumption on account of a its consisting wholly or in part of any filthy putrid disgusting rotten decomposed or diseased animal or vegetable substance or being insect infested b or on account of any other cause
In this view of the sub clause proof of the unfitness of the article for human consumption is a must for bringing the case within its purview
Municipal Corporation Delhi vs Kacheroo Mall 1 1976 2 SCR I 471 All the adjectives used in this sub clause are presumptive and not an absolute test of the quality of the article being unfit for human consumption
To be more precise in the case of an article in respect of which the Rules do not prescribe any minimum standard of purity or any minimum proportion of insect infestation that would exclude in from the definition of adulterated article it 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 would constitute legal evidence
As an expert in the science he is competent to opine and testify about this fact
Municipal Corporation Delhi vs Kacheroo Mal1976 2 SCR 1
An equally strong  Bench of this Court l has taken a different view in regard to section 21f of the Act in Municipal Corporation of Delhi vs Tek Chand Bhatial where AP Sen J speaking for himself and Murtaza Fazal Ali J has observed  In Dhanraj s case supra the High Court construed sub cl
f thus The word otherwise  in sub clause f of cl
l of sec
2 does suggest that all the adjectives used earlier refer to the quality of the article being unfit for human consumption
To fall under that sub clause an article of food must be unfit for human consumption because it consists wholly or in part of any filthy putrid disgusting rotten decomposed or diseased animal or vegetable substance or because it is insect infested or on account of any other cause We are of the opinion that the High Court was clearly wrong in its inter pretation of section 21f
On the plain language of the definition section it is quite apparent that the words or is otherwise unfit for human consumption  are disjunctive of the rest of the words preceding them
It relates to a distinct and separate cclass altogether It seems to us 1 1980 I SCR 910 472 that the last clause or is otherwise unfit for human consumption  is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it
If the phrase is to be read disjunctively the mere proof of the article of food being filthy putrid rotten decomposed 
Or insect infested  would be per se sufficient to bring the case within the purview of the word adulterated  as defined in sub cl
f and it would not be necessary in such a case to prove further that the article of food was unfit for human consumption
It is however pointed out that the construction placed by the High Court in Dhanraj s case upon section 21f of the Act has been received with approval by this Court in Municipal Corporation of Delhi vs Kacheroo Mal 1976 2 SCR1 where it is observed that the construction placed by the High Court in Dhanraj s case is the correct exposition of the law embodied in section 21f 
It is added for the sake of elucidation that the adjectives which precede the phrase or is otherwise unfit for human consumption  indicate presumptive but not absolute criteria as to the quality of the article of food
If we may say so with respect we have reservations about the correctness of this decision but it is not necessary to refer the case to a larger Bench
In Kacheroo Mal s case it is observed The phrase or is otherwise unfit for human consumption can be read conjunctively as well as disjunctively
If it is read conjunctively that is in association with what precedes it sub clause f with slight consequent rearrangement and parenthesis would read like this If the article is unfit for human consumption on account of a its consisting wholly or in part of any filthy putrid disgusting rotten decomposed or diseased animal or vegetable substance or being insect infested b or 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 more proof of the whole or any part of the article being filthy putrid disgusting rotten  or insect infested would be conclu 473 sive 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 common sense 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 extent of the vice afflicting it
This is particularly so where an article is found to be insect infested
 With utmost respect we are not able to share this view and would hold that the observations made in the Judgment should be confined to the particular facts of that case
The decision in Kacheroo Mal s case supra was largely based on the circumstances that the standard of quality and purity was not prescribed in respect of cashew nuts
Now that r 48 B of the Prevention of Food Adulteration Rules 1955 has been framed the decision in Kacheroo Mal s case Supra is rendered inapplicable
 We also constitute a Bench of equal strength
Therefore I refrain from expressing any opinion as to which of the two aforesaid views is correct
Nor is it necessary for me to do so having regard to the facts of this case
Even if the nine worms found by the Public Analyst in the sample are considered to be insects the certificate of the Public Analyst does not support the case of the prosecution that the lal mirchi powder was adulterated for the Public Analyst ha not expressed his opinion that the lal mirchi powder was either worm
infested or insect infested or that on account of the presence of the meal worms the sample was unfit for human consumption Therefore I am of the opinion that the prosecution has not established by any satisfactory evidence the requirement of section 21f of the Act
Consequently no interference is called for with the judgment of the 474 High Court which as stated above has dismissed the criminal revision in limine
The appeal is accordingly dismissed
In my opinion the true meaning of Section 2ia f has been brought out in Municipal Corporation of Delhi vs Tek Chand Bhatia supra and the conclusion that it would not be necessary in such a case to prove further that the article of food was unfit for human consumption  is a correct statement of the law
I agree with my learned brother that the evidence led by the prosecution is inadequate to warrant interference with the judgment of acquittal passed by the trying Magistrate and upheld by the High Court
I therefore agree that the appeal has to be dismissed


Summary:
Section 21 f of the Provides that an article of food shall be deemed to be adulterated 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
The respondent was prosecuted for an offence under section 7 read with section 16 of the Act
The prosecution case was that a sample of lal mirchi powder was taken from the grocery shop of the respondent
On an analysis by the Public Analyst it was found that the sample contained nine living meal worms
Thor was no other evidence in support of the case of the prosecution that the lal mirch powder was adulterated
The learned Magistrate found that the prosecution had failed to prove that the lal mirchi powder was adulterated and acquitted the respondent
The High Court dismissed the Criminal Revision Petition filed by the appellant State in limine
Dismissing the appeal by the State  HELD I The words worm  infest  and insect  are defined in Webster s New World Dictionary 1962 Edition Worm  means any of many long slender soft bodied Creeping animals some segmented that live by burrowing underground or as parasites as the earth worm tapeworm Infest  means to overrun or inhabit in large numbers usually so as to be harmful or 465 bothersome swarm in or about Insect  means any of a large group of small invertebrate animals characterized in the adult state by division of the body into head thorax and abdomen three pairs of membranes wings beetles bees flies wasps mosquitoes etc
are insects
 The same meaning is given of the above three words in the Shorter Oxford Dictionary
Therefore it is not possible to hold that a worm and an insect are the same
467C E MS Narkeklange Roller Flour Mills and another vs The Corporation of Calcutta 1973 Prevention of Food Adulteration Cases 257 referred to
2 Even if the nine worms found by the Public Analyst in the sample are considered to be insects the certificate of the Public Analyst does not support the case of the prosecution that the lal mirchi powder was adulterated for the Public Analyst has not expressed his opinion that the lal mirchi powder was either worm infested or insect infested or that on account of the presence of the meal worms the sample was unfit for human consumption
Therefore the prosecution has not established by any satisfactory evidence the requirement of Section 21 f of the Act
Consequently no interference is called for with the Judgement of the High Court
473G H Municipal Corporation of Delhi vs Kacheroo Mal   Municipal Corporation of Delhi vs Tek Chand Bhatia   held inapplicable
Per Varadarajan J
No opinion is expressed as to which of the two views expressed in Municipal Corporation of Delhi vs Kacheroo Mal   and Municipal Corporation of Delhi vs Tek Chand Bhatia 1980 I SCR910 is correct Since this Bench also is of equal strength
Moreover it is not necessary to do so having regard to the facts of the present case
473F  Per Ranganath Misra 1
concurring in the conclusion The true meaning of section 21 f has been brought out in Municipal Corporation of Delhi vs Tek Chand Bhatia 11980 I SCR 910 and the conclusion that it would not be necessary in such a case to prove further that the article of food was unfit for human consumption  is a correct statement of the law
In the instant case the prosecution evidence is inadequate to warrant interference
474B C