Jawahar General Stores, Nidubrolu and Others vs The Union of India and Others

Ramachandra Rao, J.—In this batch of Writ Petitions, the petitioners herein challenge the vires of Sections 2(ia), 7, 10, 13, 16 and 19 of the Prevention of Food Adulteration Act 1954 (hereinafter called ''the Act'') and Rule 5 of Appendix-B to the Rules of the Prevention of Food Adulteration Rules, 1955, as infringing the rights of the petitioners under Articles 14 and 19(1)(g) of the Constitution.

The petitioners are retail dealers in the State of Andhra Pradesh who trade in foodgrains, edible oils, tea, coffee, biscuits, atta, ravva, maida, chilli power and other articles of food. They purchase some of the items from the wholesale dealers, who in their turn purchase them from producer and Manufacturers. Some of the items like cereals such as rice, wheat, maize, etc., and pulses like redgram, black-gram, green-gram, horse-gram etc., are purchased from Agriculturists and wholesale dealers.

Before adverting to the contentions urged by the petitioners, it is necessary to notice the scheme and object and relevant provisions of the Act and the Rules framed thereunder. The object of the Act is to make provision for prevention of adulteration of food. Section 2(ia) defines "adulterated" as follows :

"2(ia) ''adulterated'' an article of food shall be 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 the nature, substance or quality which it purports or is represented to be;

(b) if the article contains any other substance which affects, or if the article is so processed as to affect injuriously the nature substance or quality thereof;

(c) if any inferior or cheaper substance has been substituted wholly injuriously the nature, substance or quality thereof;

(d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof;

(e) if the article had been prepared, packed or kept under insanitary conditions whereby is has become contaminated or injurious to health;

(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infected or is otherwise unfit for human consumption;

(g) if the article is obtained from a diseased animal;

(h) if the article is contains any poisonous or other ingredient which renders it injurious to health;

(i) if the container of the article is composed, whether wholly or in inpart, of any poisonous or deleterious substance which renders its contents injurious to health;

(j) if any colouring matter other than that prescribed in respect thereof is present in the article, or if the amounts of prescribed colouring matter which is present in the article are not within the prescribed limits of variability;

(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;

(l) 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, which renders it injurious to health;

(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 in 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.

Explanation. - Where two or more articles of primary food are mixed together and the resultant article of food :-

(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and (b) is not injurious to health,

Then such resultant article shall not be deemed to be adulterated within the meaning of this clause."

''Food'' is defined in Section 2(v) as meaning :-

"''food'' means any article used as food or drink for human consumption other than drugs and water and includes;

(a) any article which ordinarily enters into; or is use in the composition or preparation of human food,

(b) any flavouring matter or condiments, and

(c) any other article which the Central Government may having regard to its use, nature, substance or quality, declare, by notification in the official Gazette, as food for the purposes of this Act."

"Primary Food" is defined, in section 2(xii-a) as meaning :-

''Primary food'' means any article of food being a produce of agriculture or horticulture in its natural form."

Sections 3 and 4 provide of constitution of a Central Committee for food standards and for establishment of Central Food Laboratory. Section 5 prohibits important in India adulterated or misbranded food and also other articles of food except in accordance with conditions of a licence granted under the Act and the Rules made thereunder. Section 6 confers powers on the Customs Officers to take action under the Sea Customs Act in respect of any Article, the import of which is prohibited u/s 5, Section 7 prohibits the manufacture for sale, storage, sale or distribution of adulterated and misbranded food and other articles of food, and reads as follows :

"7. Prohibition of manufacture, sale etc., of certain articles of Food :- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute :

(i) any adulterated food;

(ii) any misbranded food;

(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;

(iv) any article of food the sale of which is for the time being prohibited by the (Food Health) Authority in the interest of public health;

(v) any article of food contravention of any other provisions of this Act or of any rule made thereunder; or

(vi) any adulterant.

Explanation :- For the purposes of this Section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any article of food for sale."

Section 8 and 9 provide for appointment of Public Analysts and Food Inspector respectively and the powers conferred on Food Inspector and the procedure to be followed by them are enumerated in Sections 10 and 11 respectively. The analysis of the articles of food is provided for in Section 12 and 13. Section 14 which provides for giving a warranty by the manufacturers, distributors and dealers, and which is relevant for the purpose of the case, reads as follows :

"14. Manufacturers, distributors and dealers to give warranty. No manufacturer or distributor of or dealer in, any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor :

Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.

Explanation :- In this section, in sub-section (2) of Section 19 and in S. 20-A the expression ''distributor'' shall include a commission agent."

Section 14-A requires every vendor of an article of food, is so required, to disclose to the Food Inspector the name, address and other particulars of the person from whom he purchased the article of food. Section 16 provides for penalties for contravention of the provisions of the Act and the Rules and Section 16-A confers power on the Court to try the cases summarily.

The defences which may or may not be allowed in prosecutions under the Act are mentioned in Section 19, which reads as follows :

Defences which may or may not be allowed in prosecutions under this Act :- (1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.

(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves :-

"(a) that he purchased the article of food;

(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacture, distributor or dealer :

(ii) in any other case, from any manufacturer, distributor or dealer with a written warranty in the prescribed form; and

(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.

(3) Any person by whom a warranty as is referred to in Section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence.

Sections 23 and 24 empower the Central Government and the State Government to make rules after consultation with the Committee. In exercise of the powers conferred by Section 23, the Government of India made the rules which are called the Prevention of Food Adulteration Rules, 1955 providing for giving effect to the various provisions of the Act. Rule 5 provides that :-

"Standards of quality of various articles of food specified in Appendix-B to those rules are as defined in the appendix."

In 1976, another Rule, Rule 65 was made imposing restrictions on the use of insecticides, which provides that;

"The amount of insecticide mentioned in Column 2, on the foods mentioned in Col. 3, shall not exceed the tolerance limit prescribed in Col. 4 of the Table given below that rule."

The table sets out in Column 4 of the tolerance limits mg/kg/(ppm) of the several insecticides mentioned in column 2 in respect of articles of food mentioned in Column 3.

The main contention of the petitioners is, that the Government encouraged the ryots under the Grow More Food Campaign to use fertilizers to increase production, and that the Act does not lay down any restrictions on the agriculturists regarding the use of chemicals and pesticides, and that no machinery is provided under the Act to control the agriculturists with regard to production of substandard articles. On the other hand the wholesale dealer and small retailer are penalised u/s 2 (ia), (1) and (m) if the article falls below the prescribed standard. It is also contended that the standards prescribed under the Act in Appendix-B read with Rule 5 by the Central Government in consultation of the Committee for Food Standards, are based mostly on international code, and that the international standards fixed by the developed countries, were high standards of purity (which) can be ensured by the use of sophisticated machinery and sale of food articles mostly in sealed containers, cannot be applied to our country, where most of the food articles are sold in loose packets. It is further averred that the standards depend on use of good seeds, and that there is no check on agriculturists to use good seeds to raise food crops, and that though the Seeds Act came into force in the year 1956, that Act is not being enforced, and that no machinery is also provided for enforcement of the said Act, and if the seeds are not good, the articles of food will also be substandard and will not conform to the standard fixed in Appendix-B of the Rules. Another averment is that storage facilities are lacking in this country and, therefore, there will be deterioration of standards due to lack of storage facilities. Further, individual standards cannot be fixed, as the quality of the articles of food vary with the nature of the soil, climatic conditions, water facilities and environment prevailing in the areas and, therefore, fixing of uniform standards throughout the country without taking into account the above factors is unreasonable. The petitioners state that while the wholesale dealers, manufacturers and agriculturists are not taken to task, small traders, from whom samples are normally taken, are being made liable for penalties whether they committed any criminal act or not. The petitioners, therefore, state that the standards fixed by the Central Government in Appendix-B to the rules are arbitrary. The petitioners state that u/s 2(ia)(h), any food article containing poisonous or other ingredient which renders it injurious to health is also treated as adulterated and made punishable under the Act. But, the Government is allowing the agriculturists to use various types of pesticides and insecticides which are dangerous and injurious to health, and that though the tolerance limits of the insecticides in the food articles are prescribed in the table appended to Rule 65, still when they are excessively use, and that too, in products other than those mentioned in the table, no action is being taken against the person responsible for the same. Thus, the Government without employing any machinery to control the agriculturists from using the dangerous pesticides, allows them to use the same, but punishes the person who sells them in the market.

The retail dealers never produce the food articles which are injurious to health and they have no means of verifying at the time of purchase whether dangerous pesticides have been used or not. But, when they sell the goods, they are being penalised under the Act for selling food articles which are injurious to health on the grounds that they are adulterated articles of food. Thus, the law operates harshly against small tradesmen for selling food stuffs which they have not adulterated, but adulterated by others, and of which they have no means of verifying at the time of purchase, and that the standards fixed are arbitrary, and that the provisions of the Act and the Rules and the standards fixed constitute unreasonable restrictions on the retail traders to carry on business and are violative of the provisions of Articles 14 and 19(1)(g) of the Constitution. In the affidavit, various methods of adulteration of edible oils, turmeric, coffee powder, tea leaves, chilli power atta, ravva and food grains and dhalls are mentioned. It is also contended that the method of drawing up of sample of foods articles and their analysis are defective and give rise to incorrect results, and that no qualifications are prescribed for the food Inspectors and that they are harassing the retail traders, and very often this is leading to corruption and that the real culprits and unscrupulous persons are escaping liability, whereas the financially weak traders are put to great harassment and hardship. The petitioners, therefore, pray for the issue of a writ of mandamus or any other appropriate direction or order declaring that Sections 2(ia), 7, 10, 13, 16 and 19 of the Prevention of Food Adulteration Act, 1954 and Rule 5 and Appendix-B of the Rules are illegal and void as constituting unreasonable restrictions on the petitioners'' right to carry on business and trade, and are violative of the provisions of Article 14 and 19(1) of the Constitution.

To this writ petition, the Government of India and the Director of Institute of Preventive Medicine. Public Health Laboratories & Food (Health) Authority, and the concerned Food Inspectors of the Districts, and concerned Municipal Commissioner, have been impleaded as respondents.

The Assistant Director General (PFA) Delhi filed a counter affidavit on behalf of the Government of India traversing the several allegations in the affidavit and stating as follows : The Act has been enacted to eradicate the widespread and rampant evil of manufacturer, distribution and sale of adulterated articles of food which is a menace to public health and welfare, and the provisions of the Act are directed for the purpose of securing purity of the articles of food and to preserve the heath of the community. The Act has been passed to give effect to the directive principles in Article 47 of the Constitution that the State shall regard the raising of the level of nutrition and the standard of the living of its people and improvement of public health as among its primary duties, and also to the directive principles in Articles 39(e) that the health of men and women are not abused. The provisions of the Act or the Rules and the standards fixed do not violate the provisions of Article 14 or Article 19(1)(g) of the Constitution. The restrictions imposed are in the interests of the general public and are reasonable and are saved by Article 19(6) of the Constitution. The validity of the Act and the rules has been upheld by the judgment of Supreme Court in Andhra Pradesh Grain and Seed Merchants Association Vs. Union of India (UOI) and Another, . It is further stated that Section 16(1) of the Act makes a provision for imposing penalties in cases where storage distribution and sale of food articles are not in conformity with the statutory provisions of the Act and the Rules made thereunder, and the traders cannot evade the responsibility for ensuring the supply of safe food to the consumers. Section 12 of the Act provides an opportunity to the traders to get the articles of food analysed by Public Analyst on satisfying the conditions laid down in the said provision. Even in cases where there is no means to get the food examined by technical expert, provisions of S. 19(2) read with Section 14 provides ample safeguards if a warranty is obtained. The provisions of the Act prevent adulteration at all levels whether the trader is a wholesaler or a manufacturer or a retailer. The interest of retailers is protected by the enactment of Section 20(a) of the Act, the where a manufacturer, distributor or dealer can also be impleaded if the court is convinced on the basis of evidence adduced before it.

The allegation that because of the use of chemical fertilisers and pesticides beyond the permissible limits by the agriculturists, substandard agricultural produce is produced which in turn makes the food articles substandard, is denied. It is stated that there is no reason to believe that the agriculturists will not use chemical fertilisers and pesticides in proper proportion. The normal presumption is that agriculturists in order to safeguard their own interests will take all measures to see that the agricultural produce does not become substandard on any account. It is stated that the conditions prevailing in the country, use of fertilisers and pesticides and the seasonal changes are taken into consideration while finalising the standards of food articles under the Rules. The standards are considered by a statutory advisory committee known as Central Committee for Food Standards and each standard is considered by the Central Committee for Food Standards and the comments of traders, consumers and others concerned will be taken into consideration before finalising the same. Regional standards have been prescribed wherever considered necessary. The Act provides enough safeguards to sellers of food articles as they can always protect themselves by obtaining a written warranty in the prescribed form in a case where a licence is prescribed for the sale of any article of food from the duly licensed manufacturer, distributor or dealer and in any other case from any manufacturer, distributor or dealer and also by showing that the article of food while in his possession was properly stored and was sold in the same state in which he purchased It. These safeguards amply protect an innocent dealer in adulterated or misbranded food articles.

It is further averred that while dealing with checking or curbing food adulteration, the legislature need not concern itself with the anterior stages fertilisers or pesticides and enforce sanction upon the ryots who produce the agricultural produce for not using good quality of seeds, fertilisers or pesticides. The agriculturists in the normal course are expected to use good quality seeds and other accessories for the production of agricultural produce. That is for the ryot to use good quality seeds, fertilisers and pesticides and there is no reason to presume that he will not do so. The petitioners have not shown that the adulteration of food articles is the direct result of shortcomings of agriculturists in the matter of production of agricultural produce. With regard to storage facilities, it is stated that it is for the dealers who deal in food articles to see that suitable storage facilities are devised. Further, the use of insecticides and pesticides is governed by the Insecticides Act, 1968. The department of plant protection, quarantine and storage in the Ministry of Agriculture regulates the mode of use of insecticides at the agricultural level so that finished products coming into market do not pose any health hazard. Rule 65 of the Rules gives residual tolerance limits of insecticides likely to be present in food articles. These tolerance limits of insecticides have been worked out after taking into account mode of use of insecticides dietary pattern and nutritional status of people of the country. Use of D.D.T. in foodgrains is not allowed under the Rules. The dealer in food articles has to take care to see that food articles which are not adulterated are purchased. The purchaser can always get the food articles analysed by a public analyst under S. 12 of the Act, and also obtain warranty under sections 14 and 19(2) of the Act. There is thus enough protection to innocent dealers in food articles. The big traders as well as the small traders are equally liable under the Act. The Rules framed and the standards fixed are not arbitrary and do not violate the provisions of Arts. 14 and 19(1)(g) of the Constitution. The counter-affidavit also traverses the several of allegations made in the affidavit with regard to various methods adopted by the dealers for adulterating the said food articles. It is also stated that proper technical qualifications have been prescribed for Food Inspector and Public Analysts, and that the provisions prescribed by the Act and the Rules for taking samples of food articles and for their analysis, are valid and proper and sufficiently safeguard the rights of the dealers, both big and small. It is, therefore stated that the provisions of the Act or the Rules and the standards fixed are not arbitrary and are reasonable restrictions and do not violate the provisions of Arts. 14 and 19(1)(g) of the Constitution.

The 3rd respondent has also filed a separate counter-affidavit more or less on the same lines as the counter-affidavits filed on behalf of the Government of India.

The Municipal Commissioner, Tadepalligudem has filed a separate counter-affidavit denying the several allegations made in the affidavit stating that the Act and the Rules and the standards fixed under the rules are not arbitrary or unreasonable and do not violate the provisions of Arts. 14 and 19(1)(g) of the Constitution.

In the writ petitions, the constitutional validity of the provisions of Ss. 2(ia), 7, 10, 13, 16 and 19 of the Act and R. 5 and Appendix B of the Rules are challenged. Before adverting to the contentions urged on behalf of the petitioners, it is necessary to refer to the decisions of the Supreme Court, where the constitutional validity of several provisions of the Act and the Rules and the standards fixed thereunder, has been upheld. The earliest case is that reported in State of Uttar Pradesh Vs. Kartar Singh, , wherein it was observed as follows :-

"The standards of quality of the various articles of food specified in appendix B to the Prevention of Food Adulteration Rules have been prescribed by the Central Government on the advice of a Committee which included in its composition persons considered experts in the field of food technology and food analysis. In the circumstances, if a rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any a priori reasoning but only as a result of materials placed before the court by way of scientific analysis."

It was further observed that the respondent therein, who was a dealer in ghee, could not;

"assert any fundamental right under Article 19(1) to carry on business in adulterated food stuffs."

In that case, the standards fixed under the Rules in Appendix B on the basis of several zones was challenged as arbitrary and discriminatory. But, that contention was rejected observing that the Central Committee for Food Standards conducted extensive survey and collected samples and analysed the same during various seasons and then divided the country into zones as mentioned in Appendix B to the Rules and prescribed the standards for each zone and, therefore, it would not be possible to pronounce upon the reasonableness or correctness of the classification of area and prescription of standards to each of them without appreciating the several factors which bear upon the Reichert value of the ghee produced in a locality and the value attributed to each of the relevant factors.

In Andhra Pradesh Grain and Seed Merchants Association Vs. Union of India (UOI) and Another, (supra), the validity of Section 7 read with Sections 2(v), 2(ix) and 19(2)(i) and, S. 10 read with Section 13 of the Act and the Rules framed thereunder were challenged as infringing the fundamental rights guaranteed under Arts. 14, 19(1) and 20(3) of the Constitution. His Lordship Shah, J. (as he then was) speaking for the court held that :

"In our judgment, the restrictions imposed upon the conduct of business by traders in foodstuffs cannot be deemed unreasonable. By S. 16(1) provision is made for imposing penalties, among other acts, for storage, sale or distribution of articles of food which are adulterated or misbranded, or sale of which is prohibited by the Food (Health) Authority in the interest of public health, or is in contravention of the Act or the Rules. The Act, it is true, does not make some blameworthy mental condition constituted by knowledge or intention relating to the nature of the article stored sold or distributed, an ingredient of the offence. Unless the case falls within sub-section (2) of S. 19, if sale, storage or distribution is established, intention to sell articles or knowledge that the articles are adulterated, misbranded, or prohibited need not be proved by the prosecutor to bring home the charge. Sub-section (1) of S. 19 provides that it is no defence in a charge for the offence pertaining to the sale of any adulterated or misbranded articles of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him, or that the purchaser having purchased any articles for analysis was not prejudiced by the sale. By that clause a bare plea of ignorance by a trader about the nature, substance or quality of the food sold by him is not a defence in a prosecution for the offence pertaining to the sale of any adulterated food, nor that the article was purchased for analysis."

Again, it was observed that :

"But, in considering whether creation of absolute liability amounts to imposing unreasonable restrictions, the court has to strike a balance between the individual right and public weal. The courts will not strike down an Act as imposing unreasonable restrictions merely because it creates an absolute liability for infringement of the law which involves grave danger to public health. The courts, will undoubtedly consider whether without imposing absolute liability the object of the statute could be reasonably secured. For the purpose the court will consider the object of the Act, apprehended danger to the public interest, arising out of the activity if not controlled and the possibility of achieving the intended results by less stringent provisions. The nature of the trade in foodstuffs, the channels of supply and the movement of goods from trader to trader and fertile sources, of adulteration and misbranding make it extremely difficult in a large majority of cases to establish affirmatively that storage or sale of adulterated or misbranded food stuffs was with a guilty mind."

The argument that a retail seller who opens a container of a branded article of food loses even the limited protection u/s 19(2) was rejected holding that :

"If the vendor has obtained the article form a licensed manufacturer, distributed or dealer or from a manufacturer, distributor or dealer with a warranty, he is protected provided he has properly stored the article and sells in the same state as he purchased the articles, even if it turns out that the article was adulterated, or misbranded. The Act does not dispense with proof that the article of food is adulterated, misbranded or that its sale is prohibited. It enacts that a vendor selling articles of food adulterated or misbranded cannot plead merely that he was ignorant of the nature, substance or quality of the goods. A statute enacted by the Parliament in the interest of public health (which is generally made in similar statutes elsewhere) imposing liability for an offence without proof of a guilty mind does not per se impose restrictions on the freedom to carry on trade which are unreasonable."

The challenge based on Art. 14 was also rejected on the following grounds;

"The Act deals with the regulation of a class of traders, and in view of the widespread malpractices, and the practical difficulties of controlling those malpractices, stringent provisions have been made by the Act. The classification is founded on an intelligible differentia and the differentia has a rational relation to the object sought to be achieved. The provisions of the Act again do not invest arbitrary authority upon those who are to administer the Act, nor can it be said that the standards prescribed are arbitrary."

Again, in Jagdish Prasad alias Jagdish Prasad Gupta Vs. State of West Bengal, , it was observed after referring to the earlier decision of the Supreme Court in A.P.G. and S. M. Assoen. v. Union of India (supra) as follows :

"It appears to us, therefore, that standards having been fixed as aforesaid, any person who deals in articles of food which do not conform to them contravenes the provisions of the Act and is liable to punishment thereunder."

In view of the aforesaid decisions of the Supreme Court, Sri N. Rajeswara Rao, the learned counsel for the petitioners submitted that he is not challenging the validity of the provisions of Sections 7, 10, 13, 16 and 19 of the Act and R. 5 and Appendix-B of the Rules. He submitted that he is confining his challenge only to the provisions of Cls. (l), (h) and (m) of S. 2(ia) of the Act.

Clauses (l) and (m) deem an article of food adulterated if the quality or the purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability. But, as already mentioned, the constitutional validity of the standards fixed under R. 5 read with Appendix-B for the various articles of food; has been upheld as being reasonable restrictions on the right to carry on business, and that they are not arbitrary or discriminatory, and that the standards of quality and limits of variability fixed by the Government in the said appendix are no subject to alteration or variation by the Court. Further, in the case of ''Primary food'', which is a produce of agriculture or horticulture in its natural form, if it falls below the standards prescribed, the said article of food shall not be deemed to be adulterated within the meaning of sub-clause (m) if it is shown that it is solely due to natural causes and beyond the control of human agency. Therefore, we do not think that the challenge to the constitutional validity of sub-clauses (1) and (m) of Clause (ia) of S. 2 can be upheld.

The main argument of Sri Rajeswara Rao, the learned counsel for the petitioners is, that by use of excessive pesticides by the growers at the time of agricultural operations or at the time of storage either by the growers or by the wholesale dealers or the manufacturers, for preservation of the articles of food, the articles of food are getting adulterated and renders the said articles of food injurious to health and it is only the retailers that are made punishable for selling the articles as adulterated under sub-clause (h) of S. 2(ia) of the Act. He has invited our attention to several articles in the journals ''Cardamom'' of November and December 1981 issues; and in Science Today of November, 1973 and the papers headed "Seminar on Prevention of Food Adulteration" held by the Federation of Karnataka Chambers of Commerce and Industry on 24th July, 1982 and also an article in the Reader''s Digest of November, 1981 by Dr. S. Ravanad Karkal on "Food Poisoning and how to avoid it."

Rule 65 of the Rules which was inserted in 1976 imposes a restriction on the use of insecticides by providing that the amount of insecticide mentioned in Col. 2 of the food mentioned in Col. 3 shall not exceed the tolerance limit prescribed in Col. 4 of the table given below that rule.

In the instance case, the petitioners did not challenge the constitutional validity of R. 65 or the tolerance limits fixed in the table given below that rule. Moreover, except the vague and general allegation that by user of excessive pesticides, the articles of food produced by the agriculturists are getting adulterated, no specific incident where a retail dealer is sought to be proceeded against under the Act for selling the adulterated article of food on the ground that it contained insecticides beyond the tolerance limits prescribed by R. 65 read with the table therein, has been mentioned. The contention of the petitioners that excessive user of pesticides by the agriculturists is resulting in production of substandard food or food injurious to the health, is based on surmises and assumptions without any material to support the same.

The use of insecticides and pesticides is governed by the Insecticides Act, 1968 under which the mode of use of insecticides at the agricultural level is regulated so that the finished products coming into the market do not constitute a health hazard. Excess user of insecticides or pesticides will not (no doubt ?) result in damaging or destroying the agricultural produced and, therefore, the agriculturist will normally use only fertilisers and pesticides of such quality and quantity in his own interest to see that a good quality of agricultural produce is produced. Even for purposes of storage, insecticides and pesticides are used only to the extent necessary to preserve the article of food from getting damaged or spoiled by the insects or pests.

The contention of the learned counsel for the petitioners is that the retail dealers purchase the articles of food either from the growers or from the manufacturers or wholesalers, and that they will not be aware at the time of purchase whether the articles of food purchased are adulterated, and that they have no facilities to test whether the said articles were adulterated or not, and that while the retailers are being punished under the act and the rules for selling the adulterated food, no action is being taken against the growers, the manufacturers or the big wholesale dealers and, therefore, this is arbitrary and discriminatory. But, we are unable to agree with this submission. The retailers, who deal in articles of food, cannot be allowed to plead want of knowledge that the articles of food purchased by them were adulterated as knowledge and awareness of the purchaser are wholly immaterial as the object and policy of the Act is to protect the public by prohibiting the sale, in any circumstances, of adulterated articles of food, which do not come up to the prescribed standards of quality or purity. Similar contention was rejected by their Lordships of Supreme Court in A.P.G. and S. M. Assoen. v. Union of India (supra) holding that :

"The Act deals with the regulation of a class of traders, and in view of the wide spread malpractices, and the practical difficulties of controlling those malpractices, stringent provisions have been made by the Act."

and therefore, the retail dealer or small trader selling article of food cannot plead that he was ignorant of the nature, substance or quality of the goods. Therefore, the dealers in food articles whether big or small must take care to see that what is sold or exposed for sale by them is not adulterated or misbranded, and that the articles of food sold by them satisfies the requirements of the Act and the Rules. We do not therefore, find any merit in the submission of the learned counsel for the petitioners that the provisions of sub-clause (h) of S. 2(ia) are arbitrary or constitute any unreasonable restrictions and violate Arts. 14 and 19(1)(g) of the Constitution.

Further, S. 14 of the Act provides for giving of a warranty in writing in the prescribed form about the nature and quality of the article sold to a vendor by the manufacturer or distributor or a dealer in any article of food, and under the proviso to the said section, a bill or cash memorandum or invoice in respect of the sale of any article of food given by a distributor or manufacturer or dealer in such article to the vendor thereof shall be deemed to be a warranty, and such a warranty in the prescribed form would be a valid defence under S. 19(2) of the Act. Therefore, the retail dealers in articles of food have to safeguard their rights by taking a warranty in writing in the prescribed form from the manufacturer or distributor or dealer in such articles of food.

Sri Rajeswara Rao has invited our attention to the decision in Ganeshmal Jashraj Vs. Government of Gujarat and Another, where his Lordship Bhagwati, J. observed that action was being taken under the Act by the Food Inspection Department against small traders leaving out wholesalers and manufacturers who really adulterate the foodstuffs, and that the provision in the Act providing for a warranty in writing taken by the dealer from the wholesaler or manufacturer, would not afford any real protection to the small traders, and that there might be cases where the small traders might have to go to jail for the sins of wholesalers and manufacturers, and that the Food Department should not,

"remain in content with paying homage to anti-adulteration law by catching small tradesmen but direct the full fury of their investigative machinery against the wholesalers and manufacturers who are in a large majority of cases really responsible for adulteration of the food stuff which is being sold by the small retailers. Then only would the true purpose of the prevention of food adulteration law be fulfilled and the great gap between expectation and fulfilment in respect of welfare laws be bridged."

But, this passage relied on by the learned counsel for the petitioners, far from lending any support to the contention of the petitioners, shows that the learned Judge cautioned the Food Department to take action not only against small traders but also wholesalers and manufacturers who sell adulterated articles of food. Further, in that case, the provisions of the Act or the Rules or the standards fixed were not challenged, whereas in the earlier case of the Supreme Court, such a challenge was made, but it was repelled by the Supreme Court.

In the result, we do not find any merit in any of the contentions urged on behalf of the petitioners. The writ petitioners, therefore, fail and are dismissed with costs. Advocate''s fee Rs. 250/- in each.

Sri N. Rajeswara Rao, the learned counsel for the petitioners has made an oral application for grant of leave to the Supreme Court of India. But, we do not find any question of general or public importance, which requires in our opinion, to be decided by the Supreme Court of India, hence, leave refused.

Petitions dismissed.