STA TE (DELHI ADMINIS'tRA tJON)

PURANMAL

March 26, I 985

(A. VARADAl\A.IAN AND l'lANGANATH MISRA, JJ.]

., Prtvt•lion of Food Adulteration Act_, 1954-S.2( J) (/)-Living worms found in the s•mplt-Distinction between, a worm and an 'ins-ect'-Pub/ic

Analyst's report silent-Whether the food mmple was WOTln-Infesttd or insect -Infested or adulterated or unifit for human consumption-Sample-If could be termed "adulterated."

Words and Phrases-"Or is otherwise unfit for human consumption" appearifllf i• s. 2(1) (!)-Meaning of.

Section 2(1) (f) of the Prevention of Food Adulteration Act, 1954 Provides that an article of food shall be deemed to be adulterated if the article E consists wholly or ia part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-infested Qr 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 lat mirchi powder wai taken from the aroccry shop of the respondent.

On an analysis by the Public Analyst it was found that the sample contained nine livine meal worms.

Tber11 was no other evidence in support of the case of the prosecution . ·.that the tat m.1;:: chi powder w~ aduiterated.

The learned Magistrate found that tho prosecution bad failed to prove that the Jal mirchi powder was adulte rated and acquitted the respondent.

The High Court dismissed the Crimillal Revision Petitioa filed by the appellant State in limine.

Dismissin& the appeal by the State,

HELD.: (1) The words 'worm', 'infest' and 'insect' are defined in Webster's New World Dictionary (1962 Edition). 'Worm• means "any of many IODI slender soft-bodied crccpina animals, some SCKfllCntcd, that live by burro-

• I

,. 'I , ' win& underaround or as parasites, as the earth-worm, tapeworm, n1est means "to overrun or inhabit in large numbers, usually so as to be harmful or

~.

blii.Hl Ai>Mt. v. t>liRAN MAt.

bothetsorile, swarm in or about. 'Insect' means "My of a 1arge groUp

1of small invertebrate animals characterized, in the adult state, by division of the body into head, thorax, and abdomen, three pairs of membranous winas: beetles, bees, :flies, wasps, mosquitoes, etc. are insects.'' The same meanin& is ai, ven of the above three words in the Shorter Oxford Dictionary. Therefore, it is not possible to bold that a worm and an insect are the same.

[467C-E] ,

'A

M/• Narbklallf' Roller Flour Mills and ancther v. The Corporatioo of c)l Ca/cul/a, 1973 (Prevention of Food Adultetation Cases) 257, referred to: .

I o

(2) Even if the nine worms found by the Pblic Analyst in the sample are cOnsidered to be insects, the certificate of the Public Analyst doesnot support the case of the prosecution that the lat mirchi powder was adulterated, for the Public Analyst has not expressed his opinion that the Jal mirchi powder was either worm-infested or insect-infested or that on account of the pfesence of the meal worms the sample was unfit for buman ..consumption.

TherefOte, the prosecution has not established by any satisfactory evidence the requirement of Section 2(1) (f) of the Act.

Consequently no interference is called for with the Judgment of th .. High Court.

[473G-H) ·-

Municipal Corporation of Delhi v. Kacheroo Mal, [1976] 2 SCR 1., Municipal Corporation a/Delhi v. Tek Chand Bhatia, [1980) 1 SCR 910, held inapplicable.

Per Varadarajan J.

No opinion is expressed as to which of the two views expressed in Municipal Corporation of Delhi v. Kacheroo Mal, [1976] 2 $.C.R. l, .and Municipal Corporation of Delhi v. Tek Chand Bhatia, [1980) 1 S.C.R,910 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 J. (concurring in the conclUsion)

Tlie true meaning of section 2(1) (f) has been brouaht out in. µunicipa/ Corporal/on of Delhi v. Tek Chand 8hatia, [1980) 1 .SCR 910 and the concl .. ion that. 'it would not be necessary in such a case to prove further thai ·the article of food was unfit for human consumption' is a correct staiement of th• law .

In the instant case, the prosecution evidence is inadequate to warrant interference.

[474B-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appe~I No. 539 of 1984

From the judament and order date4 17.11.82 of the High Court of Delhi in Criminal Appeal No. 268/82. · ·

466 sliPREME eo\JRt RliroR ts h9s5l 3 s.c.lt

D.K Sen, G.D~ Gupta and R.N; Poddar for the Appellant. . ' '/J.B. Vohra for the Respondent.

The following )udgments 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 ltigh Court dismissing Criminal Revision No. 268 of 1982 in //mine.

That criminal revision was filed against the acquittal of the respondent by the learned Metropolitan Magistrate, Delhi in Case No. l_ 1 of 19~2. in which the respondent was tried for an offence under s. 7 read with s. 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act').

The Food Inspector, P.W. 4 took a: sample of Jal mirchi powder from the grocery shop of the respondent. Oh analysis by the Public Analyst it was found in Ex. PW l/C that the sample contained nine living meal worms. There was no other evidence in support of the case of the prosecution that the Jal mirchi powder was adul terated. 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 s. 2 (I) (f) of the Act.

The learned Magistrate accepted this contention and found that the prosecution. has failed to prove that the lal mrichi powder was adulterated and he accordingly

acquitte~ the respondent.

-· The Calcutta High Court. in M/s Narkeklange Roi/er Flour Mills and another v.

The Corporation of Ca_lcutta(l) has observed :

" ...... Clause (f) of Section 2 defines the word 'adulterated'

ad an article of food is said to b_e adulterated ff it is insect

infestd. By physical examination the Public Ana_lyst, 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 seasoa~ worms ? } he w?rd 'insect' is_ defined in the.Oxford Dictionary as small mvertebrate segmented animal having head, thorax, abdomen, and three pairs of thoracic legs, usually with one or two pairs of thoracic ------------------·----

(I) 1973 (Prevention of Food Adulteration Cases) 257.

bliui! ADM!. v. pui{AN MAL (Vardara}a, n, f.) {7' 6

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 t[le intestines or tissues." There is, th.erefore, a good deal of difference between worms and insects and a sample of food becomes adulterated only when' it is insectinfested. 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 . under- . ground or as parasites, as the earth-worm, tapeworm''. According to Webster's New World Dictionary 'illfest' 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 : beetless; bees, flies,

wasps~ mosquitoes1 etc. are insects."

 According to the Shorter Oxford English Dictionary, 'worm'

B ,, ..

means "a slender, creeping, naked, limbless animal usually brown E or reddish with a soft body divided into a series of segments; an earthworm." According to that dictionary an 'inseci' means "a

small invertebrate animal, usually having a body divided Into seg-. ments, and several pairs of legs, and often winged." . . . Therefore it is not possible to hold that a worm and an insect F

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 Aalyst has found in the sample only nine living meal worms and he bas neither ~~~~cl \ht it js insect-infested nor that it is nfit for h.uman

 G consl\mPtion o~.account of the presence of the meal worms nciithat it is 'otherwise unfit for human consumption.

I , . ' • '

'I ·

According to Webster's Illustrated Contemporary Dictionary (Encyclopedic Edition), 'infest' means "to overrun or spread in large ff numbers so as to be unpleasant or unsafe".

't .• 468 , [i9ssl 3 s.c.it.

In Municipal Corporation of Delhi v. Kacheroo Mal, .(1) the Public Analyst had reported : . u. " Date of Analysis: 10-1-1969, Insect-infested pieces of Kajus : 21.9% and I am o( the opinion that the same is adulterated due to insect infested pieces of Kajus to'the " extent of 21.9%".

• Sarkaria, J. speaking for himself and Gupta, 1: 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 s. 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, an~ 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. 2(1)(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 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 s. 2(1 )(f). 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 ---------------

(I)

[1976] 2 S.C.R I.

 'DELHI AbMN. v. i>URAN MAL (Vardarajan, Ji 46~

standard of quality or purity has been prescribed Or no limits have been prescribed for the validity or its constituents, then sub-clause OJ of clause (fl of sec. 2 will not apply and that the Public Analyst is not competent to. sayas " to what extent of insect-infestation would make the article

"adulterated".

The relevant part of Section 2 reads as under : , "(!) "adulterated" - an article of food J shall be .deemed to be adulterated-

(a) to (e)

(f) ifthe article consists wholly or in part of ariy 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, aisgusting 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.

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If the phrase is to be read disjunctively the mere proof of-whole or any part , of the article being "filihy, putrid, disgusting,.rotten ......... or insect infested" would. be conclnsive to bring the case 'within the mischief of this subclause, and it would not be necessary in such 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", "putrid'', "disgusting'~, 'decoillposf:dh~

47o t!98Sj j S.0.R.

"rotten" ......... "insect-infested" refer to the quality of the article and furnish the indicia for presuming the article to he unfit for human consumption. But the presumption may not he conclusive in all cases, irrespective of the charac ter of the article, and the nature and extent of the vice affiicting it" ......

In Dhanraj's case (I.L.R. 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 Pre vention of Food Adulteration Act, published by the Easter~ Book Company, seventh eddition, with reference to s. 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 >4' within its purview. Municipal Corporation, Delhi v. Kacheroo .....,.

Ma/(1) H ------------- (!)

(19761 2 S.C.R. I

' )..·

. ,

DELHI ADM! .. v. PURAN MAL (Vardarajan, J.)

All the adjectives used in thisZsub-clause arefpresumptive '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 wilt 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 con stitute legal evidence.

As an expert in the science he is competent to opine and testify about this fact.

Municipal Corporation, Delhi v. Kacheroo Mal [(1976) 2 SCR !]".

4?1

An equally strong Bench of this Court has taken a different view in regard to s. 2(I)(f) of the Act in Municipal Corpora1 ion of Delhlv. Tek Chand Bhatia(l), where A.P. Sen, J. speaking for himself and Murtaza Fazal Ali, J. has observed :

" In Dhanraj's case (supra) the High Court construed sub-i::J; (f) thus : '

"The word 'otherwise' in sub-clause (f) of cl.. (l) of

i(!C. i does suggest that all the adjectives used earlier fefer to he quality of the article being unfit for human . . cpnsmilptipn. To fall under that sub-clause an article

. ' !lf food must be unfit for human consumption because it i:pns.ists wholly or in part of any filthy, putrid, . !lisgusting, rotten, deomposed or diseased animal er

vegetable substance or because It ia inscctinfciteil or on . ~\lCQunt of any ot!wr ca11s~,"

We are of the opinion that the High Court was clearly wrong in its inter-pretation of s. 2(I)(f). On the plain language of the definitio.n section, it is quite apparent that the words 'or is otherwise unfit for human consumption' are disjunctive of the rest of the wortb-preceding them.

It relates to a distinct and separate.'class altoe\ef It seem~ t1> \l§

(I) [l980j 1 S.C.R, 9!0: . - , .. - .. -. ~

' a

. r

'472

SUPREME COURT REPORTS

(19851 3 S.C.R.

cA , 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 prece- . , ding it. If the phrase is to be read disjunctively the mere proof of the article of food being 'filthy, putrid, rotten, . , decortiposed .... : .. ., or insect-infested' would be per se suffi- B cient to bring the case within the purview of the wo.rd '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 s. 2(l)(f) of the Act has been received with approval by this Court in Municipal Corporation of Delhi v. Kacheroo Mal [(1976) 2 S.C.R. I] where it is observed that 'the construction placed by the High Court in Dhanraj' s case is the correct exposition of the law embodied ins. 2(1)(f)'. 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 neessary 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,. proo, f of 'unfitness of the artlde 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-,

.f--.

~--

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[ I I I I . '

! ' .! -' I ,.

• I DELHI ADM!, v, PURAN MAL (Varadarajan, J.) 473

1sive. to bringthe case within the mischief of this sub-clause, , A

; ' .·

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

adjetives "filthy", "putrid", "disgusting~', "decomposed",

"rotten" ...... "insect-infested" refer to the quality of the article arid 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 nnd 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 showld 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 F ?- 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 prosecutio~ th.at the Jal mirchi powder was adulterated, for the Public Analyst has not expressed his opinion that the !al mirchi powder was either worminfested 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 requirment of s. 2(I}(f) of the Act.

Consequently, no interference is called for with the judgment of the.

SUPREME COURT REPORTS ti 9851 3 s.c.R.

A High Court which, as stated above, has d, ismissed the criminal revision in limine. The appeal is accordingly dismissed.

In my opjnion, the true meaning of Section 2{ia) (f) has been brought out in Municipal Corporation of Delhi v: 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 unfii 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. , c I, therefore, agree that the appeal has to be dismissed.

ML.A Appea / dismissed.

' ,..,

...

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