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Judgment
S.K. Kapur, J. (Concurring)
(1) This judgment will dispose of Civil Writ Petition Nos. 144 of 1968, 139/1967,64/1968, 105/1968, 347/1968. 356/1968, 33/1969 and
1543/1967. I will first take up Civil Writ No. 144 of 1968 and deal also with the common points that arise in all the petitions.
Civil writ 144 of 1968,
(2) The four petitioners stand indicted in the trial Court for offences against Prevention of Food Adulteration Act (hereafter referred to as the said
Act.). Two complaints u/s 7 read with section 16 of the said Act have been filed against them, one against petitioner Narendra Kurnar and Jiwan
Lal and other against petitioners Messrs Rameshwar Das Chhotey Lal ""through partner Shyam Sunder"" and Shyam Sunder petitioners. In the first
of the aforementioned two complaints, the petitioners have been charged with storing adulterated Aniseed (Saunf) for sale. The adulteration
according to the public analyst''s report was due to 0 -47 per cent excess in total ash per cent 1 -5 def. in volatile oil per cent and also due to
infested seeds to the extent of 01 -62. per cent."" The second complaint is for storing adulterated pepper (white) for sale. The public analyst in his
report describes the sample of pepper as adulterated ""''due to 1 -87 excess in light berries per cent."" The prayer in the petition is, inter alia, for
quashing the proceedings pending before the Magistrate. Mr. K. L. Gosain, the learned counsel for the petitioners raised the following contentions:
1.In defining the standards of quality of various articles of food and fixing their limits of permissible variability u/s 23(1)(b) of the said Act the rule
making authority has out stepped the limits of article 19(1)(g) of of the Constitution because
(A)standards have been fixed arbitrarily and in disregards of the standards attainable in the country.
(B)In case of some articles different standards have been fixed for different States arbitrarily and without attending to the relevant factors necessary
for the purpose.
2.Under Entry 18 of the Concurrent List, the Legislature could make law only with respect to ""adulteration of food stuffs and other goods."" The
expression ""adulteration"" in the said entry must be confined to its dictionary meaning or taken in its ordinary commercial sense and the Legislature
in extending the amplitude of the expression has travelled beyond its competence.
3.One of the complaints is for storing adulterated white pepper for sale. No standards for white pepper having been prescribed, the complaint
deserves to be quashed.
4.Under section 16 Courts are obliged in all cases to inflict punishment of imprisonment and consequently an artificial person like a firm cannot be
indicted as has been done in the second complaint. The complaint against .the firm is Therefore, not valid,
5.The appointment of the Public Analyst which forms the basis of the complaint is had in law. He did not fulfill the prescribed qualifications
inasmuch as (i) he has only one eye and (ii) his left eye is below the prescribed standards for eye-sight.
6.The appointment of the Food Inspectors is not in accordance with section 9. and
7.In the first complaint no allegations having been made against Jiwan Lal, the complaint against him should be quashed.
I will first deal with the question regarding appointment of Public Analysts and Food Inspectors. This point arises in all the Writ petitions.
(3) As to the Public Analyst, the alleged disqualifications have been set out in paragraphs 20 and 21 of the petition. Mr. Gosain, the learned
counsel for the petitioner argued that Shri Sudhamoy Roy was appointed as a Public Analyst by Notification dated July 30, 1966; that
Fundamental Rule 10 provides that ""except as as provided by this rule no person may be appointed in India to a post in Government service
without a medical certificate of health which must be affixed to his first pay bill. A Local Government may make rules prescribing the form in which
medical certificates should be prepared and the particular medical or other officers by whom they should be signed. It may, in individual cases,
dispense with the production of certificate and may by general order exempt any specified class of Government servants from the operation of this
rule,"" that medical certificate of health was, Therefore, a pre-requisite to his appointment which could not have been granted in the case of the
Public Analyst, he being medically disqualified; and that even if the Public Analyst be treated as an employee of the Municipal Corporation,
Fundamental Rule 10 will still apply because the employees of Delhi Municipal Corporation are governed by Fundamental Rules including the rules
of recruitment by virtue of the provisions of the Delhi Municipal Corporation Service Regulations, 1959 framed by the Government of India in
exercise of of the powers conferred by clauses (a) and (e) of sub-section (a) of section 98 read with sub-section (1) of section 480 of the Delhi
Municipal Corporation Act. To show that the Public Analyst was not medically fit, Mr. Gosain relied on a Government of India publication, 1960
Edition ''''A Hand Book on Medical Examination"". Appendix I to the said book contains regulations as to the physical examination of candidates
for admission into the technical and Non-technical services Class I and Class Ii (Gazetted) under the Government of India except posts of
Assistant Aerodrome Officers in the Civil Aviation Department and defense services personnel. Mote 7(d) at page 52 reads :
For regular Class 1/11 posts one-eyed persons are to be regarded as unfit. However, one-eyed individuals should not be altogether excluded from
employment in Class I and Class Ii Services on a contract basis provided the visual acuity in the functioning eye is 6/6 for distant vision and 0 -6
for near vision and the refractive error is not more than - or - 4 -00 D.
The said note relates to the ocular acuity of Indian Administrative Service ., Indian Forest Service , Chemists and some other categories of
employees and according lo Mr. Gosain, Public Analyst falls under the category ""Chemists"".
(4) Section 8 of the said Act provides that the Central Government or the State Government may, by notification in the Official Gazette, appoint
such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local areas as may be assigned to them by the
Central Government or the State, Government, as the case may be. The public analyst in question was appointed for the Delhi Municipal
Corporation area with effect from July 20. 1966. Rule 6 framed under the said Act prescribes qualifications of a public analyst and it was not
disputed that the public analyst did satisfy those qualifications, the controversy being limited to his medical fitness and the impact of Fundamental
Rule 10 on his appointment. In my opinion, there is no merit in this contention. Appointment of public analyst is a special statutory appointment.
The said Act provides for the mode of appointment and the qualifications necessary for the post. He fulfills all the qualifications prescribed by the
Rule. Even if Fundamental Rule 10 is applied either by its own force or by reason of its extension to Municipal Employees, the petitioners'' position
will not improve. not even a suggestion was made that the matters provided in the handbook are regulations framed by local Government under
rule 10 and there is no indication to that effect in the hand book. Regulation 4 framed by the Municipal Corporation merely adopts mutates-
mutants the fundamental rules as regulating the conditions of service of Municipal officers and employees. It also provides that the fundamental
rules shall apply ""subject to the modifications that any reference in the Rules to a Government servant, the Consolidated Fund of India, the Civil
Surgeon and the medical committee shall be construed as a reference respectively to a municipal officer or other municipal employee, the
Municipal Fund, the Municipal Health Officer and any medical board constituted by the Commissioner."" It is a possible view to take that the
adoption of Fundamental Rules did not take in the regulations framed under the said rule 10. No arguments were addressed to us on this aspect
and it is not necessary to resolve the point. The matter can be decided on the petitioners'' failure to show that any rule framed under fundamental
rule 10 was not satisfied. In the Compilation of Fundamental Rules issued by the Accountant General, Posts and Telegraphs (Third Edition) there is
a note under Rule 10 ""For rules made by the Governor General in Council, under Fundamental Rule 10 see Supplementary Rules 3, 4 and 4A"".
The said Supplementary Rules do not lay down any suggested standards of medical fitness. In ""Swamy''s Compilation of Fundamental Rules and
the Supplementary Rules 1966 Edition"" at page 234 certain decisions taken by the Government of India have been mentioned and Item 4 thereof
reads ""In cases where the rules for recruitment to new appointments prescribe a fresh medical examination in respect of all candidates, all directly
recruited/ selected candidates, irrespective of whether they are already in permanent or quasi-permanent Government service in the same or in
other Departments or are fresh appointees should undergo a medical examination by the prescribed standard and by the prescribed medical
authority, provided that a fresh medical examination will not be necessary in the case of. . . ."". Whatever the position be of the rules framed under
Fundamental Rule 10, I have no doubt that executive orders issued in this behalf will not apply to Municipal employees. As I have said earlier no
effort was made at the bar to place any material before us on which I can hold that any rule framed under Fundamental Rule 10 was violated. I
may point out here that the parties did not dispute that the Public Analyst was a Municipal employee. That will leave only Fundamental Rule 10 in
the field which requires that no person may be appointed without a medical certificate of health. It is not even alleged that medical certificate was
not produced by the Public Analyst at the time of his appointment or that he suffered from any disability at that time. Reference to Supplementary
Rule 3 shows that it is for the medical officer issuing the certificate to say whether any infirmity disqualifies the person concerned for the particular
office. That would also be the position under Fundamental Rule 10 when read in isolation. A medical officer may legitimately say that a person with
one eye can properly perform the functions of a Public Analyst-prescription by rules to the contrary apart. The Public Analyst has in his counter-
affidavit denied the contents of paragraphs 19 and 20 of the petition. He further says that ""I am a qualified and experienced person having an
experience of 30 years in food analysis. In any case the accused can if they so desire challenge my report u/s 13(2) of the P.F.A. Act. The rules
quoted by the petitioners in regard to the qualifications of the public analyst are only when a public analyst is recruited and these standards are not
expected to be maintained throughout the term of service by a public analyst. In any case only one eye is used while using Microscope. The
deponent also has a sample analysed by a Chemist who works under him...."". Regarding the divergence in his reports and the reports of Central
Food Laboratory alleged in the petition, he explains that ""the difference in some cases is likely to occur when tested by two different persons at
different time and it is for this reason that the Legislature in its wisdom provided for a right of re-check u/s 13(2) of the Act."" Rule 7 of the
Prevention of Food Adulteration Rules, 1955, prescribes duties of a public analyst. It runs as under:
Duties of a public analyst:-(1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person, the. Public
Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately
and shall note the conditions of the seals thereon.
(2)The public analyst shall cause to be analysed such samples of articles of food as may be sent to him by food inspector or by any other person
under the Act.
(3)After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in Form Iii
within a period of sixty days of the receipt of the sample.
The persual of the said rule shows that the public analyst ""shall cause to be analysed such samples of articles of food as may be sent to him. . - ."".
The most that may be said in favor of the petitioners is that the analysis of the food may be carried out either by the public analyst himself or by any
other person authorised by him. That may be one of the reasons for the appointing authority not attaching much importance to absence of one eye
or weakness of the other eye. Even in the Hand Book on Medical Examination referred to by Mr, Gosain, one finds various medical disabilities
mentioned that do not disqualify a person from appointment. For instance, at page 8 under the heading ""Standards of Fitness"" it is stated: ""Deaf
muteness or deafness by itself is not to be considered a physical defect requiring disqualification of a candidate for appointment to a Class Iii or
Class Iv post of the artisan class or to a post involving manual or skilled labour. Again in certain cases a person already an employee of the
Government of India or of a State need not produce a medical certificate on appointment to a new post without break in service (page 2 of the
Hand Book). A person with one eye may effectively carry out the duties of a public analyst was not challenged, the challenge being only on the
ground of technical requirements of certain instructions or regulations. In my opinion, the regulations contained in the said Hand Book cannot be of
any avail to the petitioners. I, Therefore, hold that the appointment of the Public Analyst was valid.
(5) That takes me to the appointment of Food Inspectors. The petitioners allege that by notification dated April, 6, 1961 (Annexure P to the
petition) the Central Government appointed all Sanitory Inspectors employed under the Municipal Corporation as Food Inspectors without
applying their mind as to whether or not the said persons fulfilled the qualifications prescribed for the Food inspectors. It was not disputed that the
the particular Food Inspector, namely, Shri Rani Gopal, did fulfill the qualifications and the attack was confined only to the non-application of mind
in making en bloc appointments. Relevant part of the notification reads: ""....The Chief Commissioner of Delhi is pleased to appoint the following
persons to be Food Inspectors for the purposes of the said Act who shall exercise their powers within the local areas shown against each"". Then
follows the list of persons appointed as Food Inspectors. The said list mentions not the names of the persons but the offices held by them such as
All Deputy Health Officers of Municipal Corporation of Delhi"" (2) ""All Zonal Health Officers. Municipal Corporation of Delhi"" (3) , Chief Sanitary
Inspectors, Municipal Corporationn of Delhi"" and (4) ""All Sanitary Inspectors of Municipal Corporation of Delhi"". Section 9 of the said Act
provides that the Central Government or the State Government may, by notification in the official Gazette, appoint such persons as it thinks fit,
having the prescribed qualification to be food inspectors for such local areas as may be assigned to them by the Central Government or the State
Government, as the case may be. Rule 8 prescribes the qualifications. Mr. Gosain, the learned counsel for the petitioners said that, in view of the
provisions of section 9 and rule 8, it was incumbent on the Central Government to examine the qualifications of each appointee before making the
appointments and en bloc appointments without attending to their qualification was indicative of lack of application of mind. A Division Bench of
this Court in Municipal Corporation of Delhi, v. Chaman Das( 1)- decided that Sanitary Inspectors could u/s 9 be appointed as Food Inspectors
by virtue of their office. Mr. Gosain attempted to show by reference to civil list that some of the Sanitary Inspectors appointed did not fulfill the
requisite qualifications. That would not, in my opinion, vitiate the appointment of such Food Inspectors as fulfilled the qualifications prescribed by
rule 8. lam not in agreement with the contention of the learned counsel that appointment by virtue of their office shows that the appointing authority
did not apply its mind. In fact no attack on this ground has been made on the appointments in the petition. The contentions in this behalf are
contained in paragraphs 22 and 23 of the petition, which have been denied in the counter-affidavits. Paragraph 22 is confined to (1) disqualification
on the ground of the interest of Shri Ram Gopal in production and sale of articles of food a contention not pressed before us and (2) a general
allegation that the appointment was in contravention of section 9 of the said Act. In paragraph 23 the contention is that since the qualification and
number of Sanitary Inspectors had to be determined by the Corporation and they were, by virtue of their office, to automatically become Food
Inspectors the Central Government divested itself of all control in the matter of appointment of Food Inspectors and that constituted illegal
delegation of powers in this behalf to the Corporation. The arguments presented to us and the proposition laid at the bar were Therefore quite
different. Lack of application of mind being a question of fact required a firm averment. Even as to delegation there is no merit. The appointments
had been made by the Central Government. No power to appoint has been delegated and if appointments could be made not by names of the
appointees, but by offices held by them, as, in my opinion it could be, no question delegation arises. May be, though in the absence of arguments
on the point I do not express any final opinion, persons appointed as sanitary inspectors after the notification do not automatically become Food
Inspectors. In any case the invalidity of the Food Inspectors'' appointment will not entitle the petitioners to the relief asked for. As held in Criminal
appeal 125 of 1967 ""A purchaser of any article of food, other than a Food Inspector. can also, as provided by section 12 of the Prevention of
Food Adulteration Act, have the article analysed by the Public Analyst. He is, of course, to inform the vendor at the time of purchase .of his
intention to have such article so analysed. So even in there was any defect in the appointment of Shri Jamna Pershad as a Food Inspector, due to
his having financial interest in manufacture and sale of articles of food, still there was nothing to prevent him from purchasing the Boondi sweets
From the respondent. Shri Jamna Pershad had duly informed the vendor that the article purchased by him would be got analysed...."". Even if I
were to hold in favor of the petitioners that the appointment of Food Inspectors was not valid, there is no material on the record to show that the
Food Inspector could not act as a private purchaser u/s 12 of the said Act. This contention of Mr. Gosain also fails.
(6) Regarding the legislative competence, Mr. Gosain referred to the definition of the expression ""adulterated"" in section 2(1) of the said Act which
is as under;
Adulterated""an article of food shall he deemed to be adulterated-
(A)if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of 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 or in part for the article so as to effect 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 it has become contaminated or injurious to health;
(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;
(G)if the article is obtained from a diseased animal;
(H)if the article 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 part, of any poisonous or deleterious substance which renders its contents
injurious to health;
(j) if any coloring matter other than that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the
article;(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 which are in excess of the prescribed limits of variability"".
He argued that the definition extends the meaning of the expression beyond its ordinary meaning as commonly understood in the commercial sense
and is, Therefore, outside Entry 18 of the Concurrent list in the Seventh Schedule of the Constitution. Mr. Gosain''s main attack was on the basis
of clause (1) of section 2(i). He said that if the quality or purity of the article falls below the prescribed standard or its constituents are present in
quantities which are in excess of prescribed limits of variability the article of food becomes adulterated. It has, Therefore, been left entirely to the
rule making authorities u/s 23 to prescribe any standards they like, with the result that an article of food not adulterated in the ordinarily commercial
sense as envisaged in Entry 18 may become adulterated under the said Act. It should be remembered that Constitution is not a mere piece of
casual legislation. It is a charter or an instrument framed with the intention that it will last for all time to come without being altered except through a
complicated process. The Courts while interpreting legislative entries must bear that aspect in mind and not interpret them in a pedantic or wooden
manner. Entries defining the ambit of legislative powers should be given large and broad interpretation because the allocation of subjects in the Lists
is not by way of scientific definition. The amplitude of a particular entry must be determined by reference to the purpose behind the conferment of
the power on the Legislature and only such interpretation should be given as would best effectuate that purpose rather than defeat it. Each general
word in the Entry must necessarily Therefore extend to all ancillary or subsidiary matters fairly and reasonably comprehended in the general word.
Entry 18 confers power on the Legislature to legislate with respect to ""adulteration of food stuffs and other goods"". A law treating an article of food
which falls below prescribed standards as adulterated would in my opinion be covered by the said entry. If the Legislature while legislating on the
subject leaves it to the unguided or arbitrary discretion of the rule making authorities to prescribe any standards, the legislation may be open to
attack on other grounds such as violation of Article 19 of the Constitution or delegation of legislative power. But such legislation per se cannot be
said to suffer from the vice of legislative in-competence. Entry 18 is, in my opinion, ample enough to authorise the impugned legislation. Even with
respect to the prescription of standards ample safeguards have been provided. u/s 23, the Central Government can frame rules only after
consultation with the Central Committee for Food Standards constituted u/s 3 of the Act and subject to the condition of previous publication. u/s 3
the Committee has to consist of the Director- General, Health Services, the Director of the Central Food Laboratory, two experts nominated by
the Central Government, one representative each of the Departments of Food and Agriculture and various other specified experts. Under sub
section (2) of section 23, the rules have to be laid before each House of Parliament. Provision has been made for modification or nullification of
rules at the instance of the Parliament. It cannot, Therefore, be suggested that any unguided or arbitrary power for prescribing standards has been
conferred on the rule making authority. This argument of Mr. Gosain must also, Therefore, be repelled.
(7) That takes me to the question regarding the possibility of indictment of a company or a firm in view of the punishment prescribed by section 16
of the said Act. Before dealing with the contention, it is necessary to analyze sections 16 and 17. Section 16 after setting out the punishable acts
proceeds to prescribe the punishment and the relevant part reads :
.. . .he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term
which shall not be less than six months but which may extend to six years and with fine which shall not be less than one thousand rupees :
PROVIDED that-
(I)if the offence is under sub-clause (i) of clause (a) and and is with respect to an article of food which is adulterated under sub-clause (1) of clause
(i) of section 2 or misbranded under sub-clause (k) of clause (ix) of that section : or
(II)if the offence is under sub-clause (ii) of clause (a), the court may for any adequate and special reasons to be mentioned in the judgment, impose
a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less
than six months and fine of less than one thousand rupees.
(IA)If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, tempers or in any other manner
interferes with such article, he shall be punishable with imprisonment for a term which may extend to two years and with fine which shall not be less
than one thousand rupees.
(IB)If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article and
such article is found by the magistrate before whom it is produced, to be adulterated with any poisonous or other ingredient under sub-clause (h) of
clause (i) of section 2, then, notwithstanding anything contained in sub-section (IA), he shall be punishable with imprisonment for a term of six years
and with fine which shall not be less than one thousand rupees.
(IC)If any person contravenes the provisions of section 14 or section 14A, he shall be punishable with imprisonment for a term which may extend
to six months and -with fine which shall not be less than five hundred rupees.
(ID)If any person convicted of an offence under this Act commits a like offence afterwards, then, without prejudice to the provisions of sub-section
(2), the court, before which the second or subsequent conviction takes place, may order the cancellation of the license, if any, granted to him under
this Act and thereupon such license shall, notwithstanding anything contained in this Act, or in the rules made there under, stand cancelled.
(2)If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or
subsequent conviction takes place to cause the offenders'' name and place of residence, the offence and the penalty imposed to publish at the
offender''s expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to be
part of the cost attending the conviction and a shall be recoverable in the same manner as a fine.
(8) It was not disputed at the bar that in view of the decision of the Supreme Court in State of Maharashtra v. Jagmander Lal(2) for offences falling
u/s 16(1) minus the proviso. the Court is bound to inflict punishment of imprisonment a.s well as fine. There was, however, a controversy as to the
construction of the proviso. The learned counsel for the petitioners argued that even under the proviso, punishment by way of imprisonment was
compulsory. The learned counsel for the respondents were not in agreement with that view. Mr. Gosain said that under the substantive part of
section 16(1) the punishment prescribed was imprisonment for a term not less than six months but up-to six years and fine ""which shall not be less
than one thousand rupees"" and the object of the proviso was to confer discretion on the Court to reduce imprisonment to a term of less than six
months and fine to less than RS.1,000.00. But the Court could not impose punishment of fine alone. He relied on the decision of the Kerala High
Court reported in City Corporation of Trivendrum v. K.J. Mathew (3). It was there held that the sentence awardable under the proviso was
conjunctive and cumulative and the discretion of Courts was limited to the reduction of sentence only. With great respect, I am unable to hold that
the Court cannot under the provision completely dispense with the sentence of imprisonment in cases falling under the proviso. Departure from the
cumulative punishment prescribed under the substantive provision has of course to be made for adequate and special reasons. Their Lordships of
the Kerala High Court were influenced considerably by two factors: (1) the history of the legislation, and (2) the proviso must be construed in such
a way as not to swallow up the enactment itself. As to the history of the legislation it is equally probable that having regard to the amplitude of the
definition of adulterated food and/or misbranded food and to the category of persons on whom responsibilities have been cast. the Legislature may
have, in its wisdom, thought proper to leave a discretion with the Court in special cases to award a lesser sentence. Whereas it is true that the
Court may take note of the history of a statute and of the various steps attending its enactment in its effort to ascertain the legislative intent, but the
history does not permit departure from the clear language of a statute. As to the legislative intent the best way in my opinion is to ascertain the same
from the language of the statute itself. If the meaning of the language appears plain, there is really no need for construction, for the intention is the
one represented by the apparent meaning. Only where a statute is ambiguous should the Court endeavor to go into the mind of the Legislature by
taking aid from elements beyond the language of the statute for it is the language of the statute that constitutes the depository or reservoir of the
legislative intent. Let me look at the language of the proviso now. It provides three things and they are that the Court may for adequate and special
reasons to be mentioned impose:
(1)a sentence of imprisonment for a term of less than six months; or
(2)fine of less than one thousand rupees; or
(3)both imprisonment for a term of less than six months and fine of less than one thousand rupees.
The use of the word ""or"" clearly makes the sentences disjunctive. If the Legislature intended otherwise it should have said ""a sentence of
imprisonment for a term of less than six months and of fine of less than one thousand rupees."" Again there was no necessity of the last part of the
proviso, namely, ""or of both imprisonment for a term of less than six months and fine of less than one thousand rupees"". If the intention of the
Legislature was to retain the cumulative nature of sentence and confer discretion on the Court only to reduce the sentence of imprisonment and of
fine it would have been ample for the Legislature to provide that ""the Court may for adequate and special reasons to be mentioned in the judgment
impose a sentence of imprisonment for a term of less than six months and of fine of less than one thousand rupees"". On the construction suggested
on behalf of the petitioners, the last sentence, i. e. ""or of both imprisonment ........ and fine of less than one thousand rupees"" will be reduced to
silence. I would say that even if the Legislature intended to retain cumulative sentence it has misfired and the plain language overlies such intent.
Reading the statute as suggested by Mr. Gosain will entail clear violence to the plain language. We are interpreting a statute which is not only penal
but also represents high watermark of the invasion on the liberty of the subjects. It has extensive dimensions. It makes person vicariously liable. T
would resolve ambiguity if any, in favor of lesser sentence. The net effect, Therefore, is that under the main provision the Court is bound to award
sentence of imprisonment while in cases falling under the proviso the Court may award only a sentence of fine.
(9) The learned council for the petitioners argued that since an artificial person cannot be imprisoned and punishment by way of imprisonment
cannot be dispensed with, artificial persons do not fall within section 16 at all. He relied on State of Maharashtra v. Messrs, Syndicate Transport
Co. (P) Ltd. wherein it was held that a company cannot be indicted for offences which by their very nature are capable of being committed only by
human individuals or for offences compulsorily punishable with imprisonment. The principle may broadly be stated thus: A limited company like any
other entity be indicted for criminal acts which by reason of the very necessity must be performed by human agency and which in given
circumstances become acts of the company. For this purpose there is no distinction between an intention or other function of the mind and any
other activity. The exceptions to this rule are that a company cannot be indicted for offences which cannot from their very nature be committed by
a corporation or where the only punishment the Court may impose is corporal. Reference may be made to Rex v. I.C.R. Haulage, Limited and
Palmer''s Company law, twentieth edition, pages 133 and 134. What is the position under the statue? Section 17(1) in express terms provides that
where an offence under the said Act has been committed by a company, ""every person who at the time the offence was committed was in charge
of and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of
the offence and shall be liable to be proceeded against and punished accordingly"". The proviso to sub-section (1) says that ""nothing contained in
this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his
knowledge or that he exercised all due diligence to prevent the commission of such offences"". Sub-section (2) of section 17 imposes a liability on
director, manager, secretary or other officer of the company, if it is proved, in case of an offence by a company, that the same has been committed
with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, etc. The definition of the ""company"" has
been enlarged by the Explanation to include a firm or other association of individuals and of ""director"" to include in relation to a firm a partner in the
firm. It Therefore clearly appears that firms and companies have been expressly brought within the purview of of the penal provisions of the statute.
It cannot, Therefore, be said that firms and companies are completely outside section 16. A different question, however, arises where the
punishment of imprisonment is compulsory. The learned counsel for the respondents suggested two alternatives: (1) in such cases a company or a
firm may be prosecuted but since it is not possible to imprison a company the Court may dispense with the punishment of imprisonment even under
the substantive provision of section 16 and award fine only, and (2) a firm may be prosecuted but not punished. As to the point raised by the first
contention, the argument does not sound plausible. Under the substantive provision of section 16, punishment by way of imprisonment is
mandatory and I do not think the Courts are competent to perform a surgical operation on the section and say that though punishment prescribed is
cumulative yet in case of a company it may be punished with fine only. As to the second argument I do not think that the Court can stultify
themselves by permitting indictment if it cannot ultimately result in conviction. To my mind, Therefore, the proper approach should be that a
company or a firm can be indicted and punished only for the offence for which imprisonment is not mandatory. On behalf of the petitioners it was
suggested that on this process of reasoning a company cannot even be prosecuted for offences falling under the proviso to section 16(1). I regret I
cannot agree. In case of such offences punishment by way of imprisonment not being mandatory a company or a firm can, in my opinion, be
prosecuted and punished. That is so because as a general rule an artificial person can commit offences under the said Act but it is by reason of the
nature of penalty for certain offences that they enjoy immunity. For the offences for which imprisonment is not compulsory I can see no reason why
an artificial person cannot be prosecuted and punished. The learned counsel for the respondents said that a firm being merely a compendious name
of the partners, its prosecution should be competent because in substance, the prosecution in such cases is of the partners. I do not think that the
principle of civil law can be extended to the Act under consideration, and to fluctuating body like a firm. The effect of section 17(1) is that if an
offence has been committed by a firm and such offence is not necessarily punishable with imprisonment a firm can be prosecuted and punished in
its name. Where, however, the offence is punishable compulsorily with imprisonment the firm as such cannot be prosecuted .In this case it was not
disputed that the firm is being prosecuted for offences which fall under proviso to section 16(1) of the said Act. The prosecution is, Therefore,
valid.
(10) It was then argued by Mr. Gosain that no allegation has been made in the complaint against Jiwan Lal. That is a matter which the Court trying
the offence will consider and determine .It will not be appropriate for me in these proceedings to do so.
(11) The last contention raised by Mr. Gosain is that no standards have been prescribed for white pepper and the prosecution is bad on that
account. That is again a point which can more appropriately be answered by the trial Court and T will express no opinion thereon.
In the result, Civil Writ 144 of 1968 fails and is dismissed.
(12) That takes me to Civil Writ 139 of 1967. In this case no prosecution has been filed against any of the petitioners and they merely seek a
declaration that certain provisions of the Act and the Rules are vocative of Article 19(l)(g) as they impose unreasonable restrictions on their rights
to carry on trade or business. Mr. A.S.R. Chari the learned counsel for the petitioners argued that unlike English Act, Indian Act puts an honest
trader under a disability in the sense that certain standards for certain articles have been prescribed and if sub-standard goods are sold even by a
person having no hand in the adulteration, he is still punished. He drew our attention to the wide definition of a ""adulterated food"" and said that
even in cases where the matter is beyond the reach of human agency due to the standards prescribed being incapable of attainment in the country a
seller may be punished. He gave examples of various articles for which according to him the standards prescribed in the Rules are beyond the
standards that can be reached in this country. It is not necessary to enumerate all of them and the case of Fennel alone may be mentioned as
illustrative of his argument. Under rule A.05.11.01 the standard prescribed for Fennel Powder is Volatile Oil not less than 4 -0 per cent and total
ash not more than 9 -0 per cent by weight, whereas in the publication ""The Wealth of India"" 1956 Edition, published by the Council of Scientific
and Industrial Research at page 54 it is stated that ""the percentage of oil (volatile oil) varies considerably, being lowest in fruits of Indian origin
(0.7-1.2) and highest in fruits from Eastern Europe (4-6)"". Again it is stated ""the percentage of ash does not exceed 12 per cent."" Mr. Chari gave
various other instances from other authoritative books in his effort to make good his contention. While it is true that if any such standards are
prescribed it may violate Article 19, but it is not possible to come to that conclusion on the facts of this case. I have already mentioned the
procedure for prescribing standards. That is done in consultation with Committee of experts and then the matter is placed for consideration before
Parliament is to be presumed that before framing the Rules the Committee must have considered all the authoritative books referred to by Mr.
Chari. It would, however, be for the rule making authority to consider whether or not any such infirmity exists in the standards prescribed and to
rectify the same. This petition must Therefore also fail.
(13) I will now deal with Civil Writ 64 of 1968. The common points have already been discussed. The adulteration alleged is ""due to the presence
of unripened chillies to the extent of 12-1 per cent"". The learned counsel for the petitioner referred to Item A.05.10 in the unamended rules that
were in force at the the time the prosecution was launched which prescribes the standards for chillies and contended that presence of ""unripened
chillies"" cannot constitute adulteration and if it does the rule is vocative of Article 19. I have already discussed that the standards have been
prescribed with the aid of experts and proper guiding principles have been provided in the Act. The rule, Therefore, cannot be said to violate
Article 19. As to whether or not it constitutes adulteration will be for the trial Court to consider. This petition also fails.
(14) Now I will come to Civil Writ 165 of 1968. The first point taken by Mr.D.D. Chawla relates to the merits of the controversy, namely, that
having regard to the article said to be adulterated, Rules, and the statement of the Food Inspector dated September 1, 1967, there is no case of
adulteration made out. That again is a matter to be decided by the trial Court.
(15) He then contended that the complaint has been launched against a firm as well (Petitioner No. 2) for selling food adulterated ''due to 0 -78
excess in total ash per cent and also due to infestation"" and one part of the offence does not fall under proviso to section 16(1). If that be so, the
trial Court will necessarily consider it and pass appropriate order in accordance with the interpretation placed by me on the Act. It is not a case
where a firm cannot be prosecuted or convicted at all because admittedly one of the offences alleged falls under proviso to section 16(1).
(16) In other writ petitions besides the common points regarding the validity of the appointments of public analysts and the Food Inspectors,
liability of the firm to be prosecuted and punished, validity of the standards prescribed vis-a-vis Article 19, the other points relate only to the merits
of the controversy, which will again be a matter for the trial Court to decide.
(17) In this view, these petitions must fail and are dismissed, with no order as to costs. The parties to appear before the Chief Judicial Magistrate
on Nov. 15, 1969. October 10,1969.
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M.R.A. Ansari, J. (Concurring)
(18) I agree