Hariram vs State of M.P.

T.N. Singh, J.—For selling adulterated goat-milk, the petitioner suffered conviction u/s 7(1) read with Section 16(1)(a)(i) of Prevention of Food Adulteration Act, 1954, for short, the ''Act'', and a sentence of six months'' rigorous imprisonment besides fine of Rs. 1,000/-. He appealed unsuccessfully and is now in this Court challenging the verdict in this revision.

Prosecution''s case, shortly put, is that on 20-10-1983, at about 7-00 a.m., the petitioner was found carrying on a bicycle in a can, about 8 litres of goat-milk which he had brought for sale in Guna town. He was accosted by the Food Inspector, P.W. 1 at Choudhari Mohalla near Jain temple in Guna town and sample was taken of the milk in presence of witnesses, P.W. 2, Bhanupratap-singh and P.W. 3, Shivram. A Panchanama was prepared, proved as Ex. P/6, but other contemporaneous documents executed and proved as Exs. P/4 and P/5 are the statutory notice contemplated under form VI and the receipt of the sale-price paid to the accused/ petitioner for the milk purchased from him for sample. On receipt of report from the Public Analyst, Ex. P/12 (dated 2-12-1983), prosecution was launched vide complaint dated 12-1-1984, lodged by the Food Inspector, Tripathi (P.W. 1). With regard to his competence to take sample and launch prosecution, P.W. 1 proved State Government orders dated 14-8-1972 (Ex. P1) and 31-12-1959 (Ex. P/3) as also an order of the Local (Health) Authority, Guna (Ex. P/2) dated 16-9-1983.

During the course of trial, as earlier alluded, prosecution examined three witnesses and also proved several documents including those specified above. The accused/ petitioner pleaded not guilty to the charge and put up his specific defence that the milk of which sample was taken from him forcibly was not meant for sale and he had not sold any milk to the Food Inspector. He had come on a visit to in-laws where his mother-in-law gave him in a Lota 2 Kgs. of milk, to be given to her other son-in-law, Lalaram, for use in purpose of Mundan cetemony.

Two legal contentions, Shri Shrivastava has forcefully pressed before me to which I have given my earnest consideration. According to him, the defence pleaded is not barred by Section 19(1) of the Act and that the plea is rather relatable to the proviso to Sub-section (2) of Section 10. In other words, according to learned counsel, milk was a "Primary Food" and if that was not intended for sale, the Food Inspector had no jurisdiction to take sample of that milk and to launch prosecution on the basis thereof. Counsel cited Narayan Ch. Saha v. State of Assam 1986 Cri LJ 1169, in support of that contention. The other contention similarly impinges in another way on the jurisdiction of the Food Inspector, Tripathi, to launch the prosecution. By referring to Ex.P/2, he submitted that Local (Health) Authority had no legal competence to make appointment contemplated of the Food Inspector Tripathi along with others as members of a Flying Squad and fixing their joint jurisdiction thereunder. Counsel relied on A.K. Roy and Another Vs. State of Punjab and Others, in support of that contention.

In so far as counsel''s first contention is concerned, let the relevant provisions of the Act and the rules framed thereunder, extracted below be noticed:--

Definitions.-- In this Act unless the context otherwise requires,--

** ** ** (ia) "adulterated"-- an article of food shall be deemed to be adulterated--

** ** ** (m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health :

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.

(xii-a) "primary food" means any article of food, being a produce of agriculture or horticulture in its natural form"

Powers of food inspectors.-- ***

(2) Any food inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis:

Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food.

A. 11.01.01-- MILK is the normal mammary secretion derived from complete milking of healthy milch animal without either addition thereto or extraction therefrom. It shall be free from colostrum. Milk of different classes and of different designations shall conform to the standards laid down in the Table below Item A.11.01.11."

(Extracted from Appendix B of Prevention of Food Adulteration Rules, 1955).

Obviously, the first question to be decided is if milk is a "primary food"; and that is not free from difficulty. Judicial opinion is divided and divergent. In Budh Ram''s case 1984 (II) FAC 179 : (1985 Cri LJ 311), a Full Bench of Punjab and Haryana High Court has held that milk is not a primary food because it is not an "agricultural produce". It is also noted that the Legislature intended to use the expression "agriculture" not in the wider sense and that intention is expressed by its use also of the word "horticulture" side by-side to make a clear distinction between the two obviously embracing both in the same expression "agriculture" is prohibited and the definition is exhaustive. The question of live stock, poultry, fishery, silk worms, reared on the land or fed on the produce of land as forming part of ''agricultural produce'' they held, does not arise. A contrary view is, however, expressed by some other High Courts. Kerala High Court appears to have held consistently that milk was a primary food. See, in this connection, State of Kerala Vs. A.P. Abdul Khader, and H.V. Bavenna Vs. State of Kerala, In Abdul Khader, the Court held that the term "produce of agriculture" would take within its ambit not only that which grows on the land but also that which lives on the land by sustenance from that which grows on the land such as cattle. In Nawal Singh v. State of U.P. 1985 (II) FAC 51 : 1985 All LJ 1032, a learned Single Judge of Allahabad High Court has observed, albeit without giving any reason, that milk is a primary food.

However, a learned Single Judge of Bombay High Court in the case of The Administrator of the City of Nagpur Vs. Laxman and Another, has given reasons for taking the view that the milk was primary food, observing that the term "agriculture" should be construed widely, supporting the Kerala view. Resort was also had to meaning of the term "agriculture" given in the dictionary besides relying on Apex Court''s decision in Commissioner of Income Tax, West Bengal, Calcutta Vs. Raja Benoy Kumar Sahas Roy, A Division Bench of the Gujarat High Court in Natvarlal v. Prabhatbhai 1980 (1) FAC 489, also considered the dictionary meaning of the word "agriculture", but the Bench reached a different conclusion holding that only such cases in which it could be shown that the cattle was reared on the soil and got its sustenance therefrom, the milk of such cattle could be treated as a primary food and in that case, they held, the particular cow''s milk (for adulteration of which the revision petitioner was convicted) was not primary food because it was not proved that the cow was grass fed. In taking that view, they referred to the dictionary meaning and also to Benoy Kumar (supra) besides relying on Producers Co-operative v. C.I.T. AIR 1948 PC 74, mainly, however, on a Rangoon decision in re C.I.T., Burma v. Kokine Dairy AIR 1938 Ran 280.

In my view, High Courts of Gujarat and Bombay have overlooked the fact that in the three decisions -- Benoy Kumar, Producers Co-operative and C.I.T., Burma (all supra) -- the common statute was Income tax Act, 1922 of which Section 2(1) and in particular, the word "agricultural income", occurring therein was required to be construed and in that context, it was noted that the term "agricultural purposes" had not been defined in the Act. Indeed, Producers Cooperative Societies'' case was from Australia. Therein, the term "agricultural products" in the relevant provision of Income Tax Act, 1941 of New South Wales was considered in its own context and setting. It is only in Benoy Kumar, that their Lordships referred immediately to meaning of the relevant term in the dictionary, but they yet observed, "whether the narrower or the wider sense of the term "agriculture" should be adopted in a particular case depends not only upon the provisions of the various statutes in which the same occurs but also upon the facts and circumstances of each case."

Two points, I would like to make in this connection. Law is well settled that when there is no statutory definition, the words and expressions used in fiscal measures and taxing statutes are to be construed in a manner that agrees with the meaning understood in the particular trade at a particular time and that the dictionary meaning is always held unsafe for implicit reliance. See, in this connection State of U.P. and Others Vs. Renusagar Power Co. and Others, Aditya Mills v. Union of India AIR 1988 SC 2237; Collector of Customs, Bombay Vs. Swastic Woollens (P) Ltd. and Others, AIR 1988 SC 2176; Collector of Central Excise v. Krishna Carbon Paper Co. : AIR 1988 SC 2223. Evidently, different rules of construction are applied for determination of meanings of words and phrases used in different kinds of statutes and the norm applied in case of fiscal and taxing statutes are not of universal application.

The other point, equally important and well settled, indeed of general import, is also that dictionary meaning of any term used in any statute may be looked into only in the absence of definition thereof in relevant statutes. It is also held that the Court must choose that meaning which is most apt in the context, colour and diction in which the word is used and the Court must analyse the provisions of the Act, its purport and intent and shun as far as possible use of a dictionary. (See, Bolani Ores Ltd., In K. T. Kosalram, AIR 1971 SC 1283, the Court held : "Dictionary meanings, however helpful in understanding the general sense of the words, cannot control where the scheme of the statute or the instrument considered as a whole clearly conveys a somewhat different shade of meaning". In Commissioner of Sales Tax, U.P. Vs. S.R. Brothers, Kanpur, their Lordships discarded the use of the dictionary in dividing the meaning of the words "dyes and colours" as also "scents and perfumes" to hold that they have to be construed in their own context and in the sense, as ordinarily understood and attributed to those words by people usually conversant with and dealing in such goods. In the same manner, in Karbhari Bhimaji Rohamare Vs. Shanker Rao Genuji Kolhe and Others, their Lordships observed that dictionary meaning was not of much help in construing the term "honorarium" which was paid to the Member of a Wage Board constituted under Bombay Industrial Relations Act, 1946, deciding an issue raised under Bombay Legislature Members (Removal of Disqualifications) Act, 1956. They found it legitimate and appropriate rather to refer to a provision in the Schedule of the said 1956 Act itself and guidance was derived therefrom. In The Tata Engineering and Locomotive Company Ltd. Vs. Gram Panchayat, Pimpri Waghere, their Lordships held that rules framed under the statute provided as "legitimate aid" to construe the meaning of any undefined word in the statute.

The principle recognised in The Chief Inspector of Mines and Another Vs. Lala Karam Chand Thapar etc., that though rules framed under an Act are subordinate to the latter, they are to be treated as if contained in the Act, is also worthy of note. Indeed, that imperative follows from the well-known and universal canon of construction of harmonious interpretation. (See, The S.T.O., Moradabad and Another Vs. H. Farid Ahmed and Sons, Rules made in exercise of powers conferred in that regard under the Act cannot obviously override provisions of the Act; but those are to be read yet as supplementing the enacted law within the limits of the delegated authority of provisions made for carrying out purposes of the Act. So long as there is no inconsistency between the Rules and the Act, they shall have the same force as the Statute itself as they become part of the Statute having been framed under authority conferred by the Statute. See, in this connection, The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, ; State of Kerala Vs. K.M. Charia Abdullah and Co., and Arnold Rodricks and Another Vs. State of Maharashtra and Others,

On a careful consideration of authorities and the diverse principles bearing on the interpretative crises confronting me in this case, I have reached the conclusion that the view expressed by Punjab and Haryana Full Bench in Budh Ram (supra) is more reasonable, plausible and acceptable though I would give my own reason for the conclusion reached. Too much reliance on dictionary meaning of the term "agriculture" in the decisions taking the contrary view is one of the reasons which has compelled me to differ respectfully from that view. Secondly, the context and setting principle of interpretation and also the norm of purposive interpretation, in my view, have not received the attention they deserved. Thirdly, and importantly, a prohibited exercise cannot be resorted to in enlarging the scope of statutory definition of the term "primary food", overlooking that Clause (xii-a) used the word "means" and not "includes" and Legislature thereby intended to express its intention to similarly limit the connotation of the expression "produce of agriculture" by juxtaposing that with the work "or horticulture", the expression "in its natural form" qualified separately each of them.

What has been overlooked, importantly, is that the key to the interpretation of the expression "produce of agriculture or horticulture in its natural form" is provided by Sub-clause (m) and its proviso of Section 2(ia). By referring to "prescribed standard" that key has laid bare the legislative intent underlying Clause (xii-a) of Section 2 that the meaning whereof is to be culled out from the relevant entry (A.11.01.01) of Appendix B of the Rules. My considered view is that in so far as "milk" is concerned, there is no scope left for the Court to treat that article of food in any other manner than indicated in the said entry itself; that is to be treated as supplementing Clause (xii-a) and the two are to be read together. In other words, the said "prescribed standard" shall be treated as a special definition which shall prevail against the general definition embraced by Clause (xii-a) of an article of "primary food" because the two are mutually exclusive. If "milk" is such an article of food which is "mammary secretion derived from complete milking of healthy milch animal", it is impossible to regard it as a "produce of agriculture or horticulture". It is unfortunate that this important aspect of the matter did not attract the notice even of the Full Bench, but in my view, this hidden dimension of the interpretative technology is most relevant to the instant controversy and in a sense, decisive. Special definition of "milk" being statutorily provided, scope for use of dictionary is excluded and also excluded expressly is play of imagination to expound meaning of the term "produce of agriculture" and to include therein "milk". Obviously, Clause (xii-a) of Section 2(ia) is required to be read with the "prescribed standard" A.11.01.01 as mandated by the principle of harmonious construction. At the peril of repetition, it has to be pointed out that "milk" being not defined in the Act and the term "primary food" being only defined in Section 2, Clause (xii-a), there can be no question of the Rules controlling the Act and the construction proposed being vitiated on that count, authority for special "definition" of milk is provided by Section 23(1-A)(b) read with Rule 5 framed thereunder.

Viewing the matter from another angle, applying the norm of purposive interpretation, I find additional support for the conclusion reached. The Act is a penal measure enacted to effectuate the Constitutional Directive Principles embodied in Article 47 to safeguard and improve public health and standard of living of citizens. In its wisdom, the Legislature devised ways and means to achieve that objective in the manner contemplated under different provisions of the Act by balancing on the one hand requirements of public health and on the other hand, of due process for trial of offenders indulging in activities prejudicial to public health. This position is noted in Puranmal, 1985 Cri LJ 46. In what manner any article of food can suffer adulteration and is to be treated as an adulterated food of which sale is prohibited and punished are provided in the Act. Section 2(1a) prescribes why and how an article of food is to be "deemed adulterated" of which Sub-clause (m), in particular, the proviso deals with the case of a "primary food". When there is any fall below the standard prescribed in the quality or purity of an article of food, such food is deemed adulterated under Sub-clause (m), but in respect of a "primary food", a sort of a safeguard against penalty is contemplated by providing that when that occurs "solely due to natural causes and beyond the control of human agency", the primary food in question shall not be deemed adulterated. That position, according to me, must be kept in view also while construing the definition of the term "primary food" contemplated under Clause (xii-a).

14-A. u/s 23(1-A)(b), power is given to the State Government to make rules for the purpose of "defining the standards of quality for, and fixing the limits of variability permissible in respect of any article of food". Pursuant thereto, under Rule 5, framed thereunder, "definitions and standards of quality" are contemplated in Appendix B to the Rules. Besides entry No. A.11.01.01, provisions as respects "milk" are made in the Table appended to entry No. A.11.01.11 prescribing standard for different classes and designations of milk. For goat or sheep milk, the minimum standard contemplated is fat 3%; solids non-fat 9%. By empowering the State Government to prescribe "standards" on one and also "definitions" on the other hand, the Legislature evidence did not mean to curtail or impair seriously that power in terms of the proviso to Sub-clause (m); the operation of the proviso is to be limited ex hypothesi to the restricted definition of the term "primary food" and by enlarging the scope of that definition, it is impermissible to defeat legislative intent. A word or two may also be said about the Gujarat case, Natvarlal (supra) which makes one type of milk "primary food" and not the other type. In that case, it has been held that when the milk is drawn from a cow which is stall-fed and is not reared on the soil, that will not be primary food. It is difficult to visualise how such a view can be constitutionally sustained because of complications arising in selecting milk-vendors for punishment on the sole ground of their selling stall-fed milk in a manner to which the proviso to Clause (m) is not attracted.

For all the foregoing reasons, according primacy to the statutory "definition" of milk, embraced by entry No. A.11.01.01 of Appendix B, I hold that "milk" obtained from any cattle, whether grass-fed or stall-fed of all descriptions is to be excluded from the definition of the term "primary food" contained in Clause (xii-a) of Section 2(1a) of the Act. In so far as reliance of Shri Srivastava on Narayan Ch. Saha (supra) is concerned, the article of food in that case was ''Jira'' (cumin) which, evidently was "produce of agriculture". It is true, therein, it is held that the Food Inspector would have no jurisdiction to take sample of such food which was not "intended for sale". However, in that case, while construing the proviso to Sub-clause (m), it was held that accused''s burden it was to bring his case within the proviso to claim exemption thereunder because it was his duty to make a complaint of breach of the safeguard provided to him thereunder. Municipal Corporation of Delhi Vs. Laxmi Narain Tandon and Others, which Shri Shrivastava cited before me was also considered in that case and it was held that the question answered by their Lordships in that case was that "storing for sale" (and not "storing" simpliciter) was offensive and punishable. I still entertain that view which I had taken in Narayan Ch. Saha and I find, therefore, reliance on Tandon''s case of Shri Shrivastava to be misconceived and futile.

Having disposed of Shri Shrivastava''s first contention, I may deal now with the only other contention pertaining to Food Inspector''s jurisdictional incompetence to launch the prosecution. It is true, as per Section 9, persons having the prescribed qualifications can be appointed by Notification in the Official Gazette "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". It is also true that only Food Inspector, as per Section 10, has the power to take samples of any article of food from any person selling such an article. As per Section 20, prosecution for an offence under the Act can be instituted only "by, or with the written consent of, the Central Government or the State Government or a person authorised in this behalf, by general or special order, by the Central Government or the State Government". In the instant case, in the Offence Report itself, particulars of the relevant Notifications dated 31-12-1959 and 14-8-1972 were mentioned and copies of those proved also during course of trial as Ex. P/3 and P/1 respectively. The only contention which Shri Shrivastava vigorously pressed is founded on Ex. P/2 which is issued under the signature of Local (Health) Authority and appears to be an Office Order dated 16-9-1983. However, in my view, the mere fact that Shri R. S. Tripathi who is named therein as Food Inspector, is made thereunder a Member of the Flying Squad would not impinge on his statutory competence otherwise acquired to take sample or to lodge prosecution. In the Offence Report, he did not describe himself as a Member of the Flying Squad and even in any other document relating to taking of sample, such as Exs. P/4 and P/5 also, he described himself simply as Food Inspector. His appointment as a Food Inspector was not made under the Office Order, Ex. P/2, but he was holding that Office in terms of Gazette Notification (Ex. P/1) in virtue of his being a "Sanitary Inspector" and in his evidence in Court, he deposed that on the date of occurrence, he was posted as a Sanitary Inspector in the District Hospital at Guna.

It is true, as per Section 9, the Food Inspector must possess the "prescribed qualifications" and in Rule 8, the qualifications are laid out. Relevant part of amended Rule 8 is, in this connection, extracted :

Provided further that a person who is a qualified Sanitary Inspector having experience as such for a minimum period of one year and has received at least three months training in whole or in parts in food inspection and sampling work, may be eligible for appointment as food Inspector, up to the period ending on the 31st March, 1985 and may continue as such if so appointed even though he does not fulfil the qualifications laid down in Clauses (a) to (c):

Provided also that nothing in this rule shall be construed to disqualify any person who is a food inspector on the commencement of these prevention of Food Adulteration (Amendment) Rules, 1980 from continuing as such after such commencement.

Admittedly, in his evidence, P.W. 1, the Food Inspector, has not deposed that he had experience as Sanitary Inspector for a minimum period of one year and has also received the requisite training for three months contemplated in first proviso. Admittedly also, it has not come on record if he was acting as a "Food Inspector" on the date of commencement of Prevention of Food Adulteration (Amendment) Rules, 1980, in terms of the second proviso. However, it is also equally true that on those points, he had not been questioned in the Court below. For the first time, therefore, in revision, or nonexistent evidence, the plea cannot be raised to challenge the prosecution as void for want of "prescribed qualifications" of the Food Inspector concerned. See, in this connection, Kerala High Court''s Full Bench decision in the case of State of Kerala Vs. V.P. Enadeen, wherein the view taken is that proof of Gazette Notification, rather prima facie supported appointment of the person concerned as Food Inspector, when that was not challenged in specific terms in evidence, was sufficient to repeal any contention in that regard raised event in appeal. In Manka Hari Vs. The State of Gujarat, (1968 Cri LJ 746) it is held that the question whether Food Inspector was duly appointed and qualified was one of fact and has no connection with the ingredients of the offence and further that the question cannot be considered in appeal unless it is taken in trial Court. I am in complete agreement with that view. In A. K. Roy''s case (supra), their Lordships of the Supreme Court were dealing with an entirely different question and indeed, on facts, the ratio thereof is not attracted to the instant case. They held that prosecution was illegal because there was no written consent by the State Government or Central Government and the prosecution by the Food Inspector was launched under unauthorised delegation of authority in that behalf by Food (Health) Authority. Because, in their Lordships'' view, Section 20 did not envisage further delegation of power by any person authorised by the Central or State Government.

Having dealt with both contentions of Shri Shrivastava and on facts having found, as per Public Analyst''s report, Ex. P/12, that the supply of milk contained fat 2% and Solid non-fat 8.81%, which did not conform to the prescribed standard, there is little scope for my interference with the verdict rendered. Defence case, in my view, has been rightly disbelieved by two courts below. The two defence witnesses, close relatives of the accused were not only interested persons, the case they sought to prove was an improved version of the case which was put to P. Ws. in their cross-examination. Indeed, both witnesses to the sample-taking process were independent witnesses and P.W. 3, Shivram stated categorically that accused used to sell milk in their locality and on the date of occurrence, the witness had come to the place of occurrence for purchasing milk. On the question of sentence also, no relief can be granted because minimum sentence prescribed u/s 16(1) of the Act has been imposed.

In the result, the petition fails and is dismissed. The accused, who is on bail, must surrender to serve out the sentence.