S. Arunachalam and Others vs State

Arunachalam, J.—All these revisions are disposed of together by a common order since the question raised for consideration is identical.

It will be necessary to briefly state the facts in each one of these revision cases before narrating the grounds urged.

In Crl.R.C. No. 517 of 1992 revision Petitioner Arunachalam is the sole accused. He is being prosecuted in S.T.C. No. 14 of 1992 on the file

of the Special District and Sessions Judge under the Essential Commodities Act, Madurai. He is alleged to have contravened Clause 3 of the Tamil

Nadu Scheduled Articles (Prescription of Standard Order, 1977 read with Section 7(1)(a)(ii) of Essential Commodities Act, 1955. Revision

Petitioner is a dealer in edible oil, carrying on trade at Door No. 146, M.N. Road, Thisiyanvilai under the name and style of ""Suyambu Oil Store"".

On 26.10.1991 at or about 2 p.m. Inspector of Police, C.S.C.I.D. Tirunelveli, along with his party, inspected the said oil store and obtained

samples of gingili oil, ground-nut oil and coconut oil. The report of the Public Analyst dated 25.11.1992 indicates that samples of gingili oil and

coconut oil were found to be adulterated. On 31.1.1992, final report was filed by the investigating agency. On 1.10.1992, Petitioner preferred an

application under Sections 10,11 and 13(2) of the prevention of Food Adulteration Act read with Section 7(3)(b) of the Tamilnadu Scheduled

Articles (Prescription of Standard) Order, 1977, pleading for forwarding another portion of the sample seized to the Director of Central Food

Laboratory for analysis. On 9.10.1992 State filed an objection petition stating that the plea of the Petitioner cannot be acceded to. The Special

Court passed the following Order, which seem to be identical in almost all these revisions.

Heard both sides. Under Clause 7(3)(b) of Tamil Nadu Scheduled Articles (Prescription of Standard) Order, 1977, Sections 10 and 11 of the

Prevention of Food Adulteration Act is applicable. A perusal of that clause will show that Section 13(2) is not stated in it. Hence, I hold Section

13(2) is not applicable and this petition is dismissed.

It is the Correctness of this order of dismissal, negativing the plea of the Petitioner that is challenged in this revision.

Crl.R.C. No. l of 1993: This revision relates to S.T.C. No. 3 of 1992 pending on the file of the same Special Court. Assistant Technical

Commissioner of Supply and Consumer Protection took sample of ground nut oil and double refined ground nut oil from the shop of the Petitioner

on 16.2.1991. From each food article, three bottles of sample were taken. Sale consideration was also paid to the Petitioner from whose premises

(Sheik Dawood Sait Oil Stores) samples were seized. On 20.3.1991 one bottle from each of the sample seized were forwarded for analysis, while

two remaining bottles were despatched to the Revenue Office. The report of the Analyst disclosed that the sample of double ground-nut oil was

adulterated. On the basis of the report of the Analyst on 25.11.1991 the seizing office gave a complaint to the Respondent, who registered Cr.

No. 313/91 and after completion of investigation laid final report before the Special Court on 19.12.1991. In between, on 27.11.1991 one sample

bottle from each of the seizures was sent to court on 5.5.1992, learned Special Judge took cognizance, on 28.10.1992 Petitioner appeared before

the Special Judge and preferred an application pleading for forwarding of another sample taken, for analysis to the Director of Central Food

Laboratory, Pune. On 4.11.1992, as in the earlier case, petition was dismissed on the same parity of reasoning, though the order has a little more

detail. Needless to add that the violation alleged is similar as in the earlier revision.

Crl.R.C. No. 2 of 1993: This revision gets correlated to S.T.C. No. 4 of 1992 on the file of the same Special Court. On 27.12.1992, Inspector

of Police, C.S.C.I.D. Madurai took sample of tea dust from the shop of the Petitioner. One sample bottle was handed over to the Petitioner. The

report of the Public Analyst dated 7.2.1992 revealed that the sample was adulterated. Final report was laid on 13.2.1991. On 16.6.1992, one

other sample bottle was sent to court to facilitate disposal of the prosecution. On 8.7.1992 cognizance was taken and on 10.8.1992 Petitioner

appeared before the trial Judge. On 11.8.1992 Petitioner preferred an application to forward the other portion of the sample to the Director of

Central Food Laboratory, Pune for analysis. Plea of the Petitioner was negatived. Hence this revision.

Crl.R.C. No. 5 of 1993 arises out of S.T.C. No. 9 of 1992, pending on the file of the same Special Court against Petitioner Sasikumar on

10.1.1992, Sub Inspector C.S.C.I.D. obtained sample of tea dust from the shop of the Petitioner, run under the name and style of ""Meenakshi

Tea Traders"". Sample obtained was divided into three equal portions. On 21.1.1992 one sample was forwarded for chemical analysis, on

21.2.92, on receipt of the Report of the Analyst, it was found that the sample was adulterated, on 24.2.1992 final report was laid. Cognizance was

taken on 16.6.1992, on which date one other bottle of the sample was deposited in court. On 12.8.1992 Petitioner preferred an application to

forward another portion of the sample for chemical analysis to the Central Food Laboratory. Since the plea of the Petitioner was not accepted, the

instant revision has been filed.

Crl.R.C. No. 7 of 1993 concerns: the case before the same Special Judge against the Petitioner, in S.T.C. No. 6 of 1992. On 4.1.1992 sample

of tea dust was taken from the shop of the Petitioner. On 6.1.1992 Analyst received one portion of the sample. On 13.2.1992 Analyst offered his

opinion that the sample forwarded to him was found adulterated. On 24.2.1992 final report was filed. On 12.8.1992 a similar plea was made, as

in the earlier case to forward the sample for second analysis to the Central Food Laboratory. Dismissal of that plea has resulted in entertaining of

this revision.

Crl.R.C. No. 8 of 1993: This revision correlates to S.T.C. No. 8 of 1992 on the file of the same special Court. From United Trades Company

(Petitioner Farook) on 10.1.1992 tea dust sample was taken in three bottles. One bottle was handed over to the Petitioner. The Analyst Report

dated 21.2.1992, in respect of the sample received by him on 21.1.1992, disclosed that the tea dust was found adulterated, on 24.2.1992 final

report was laid. Cognizance was taken on 16.6.1992. On 12.8.1992 Petitioner pleaded for forwarding of the second sample to the Central Food

Laboratory for analysis. That plea was not acceded to and the result is the instant revision against the impugned order.

Crl.R.C. No. 15 of 1993: This revision arises out of S.T.C. No. 2 of 1992 on the file of the same Special Court. Violation, as in the other case,

is of the provisions of the Tamilnadu Scheduled Articles (Prescription of Standard) order read with the relevant provisions of the Essential

Commodities Act. On 24.10.1991 Inspector of Police, C.S. C.I.D. inspected the tea stores of the Petitioner situated at Door No. 52

Bunglowmedu 1st Street, Theni, and seized samples of tea-dust weighing approximately 500 gms each. One packet of sample was handed over to

the Petitioner; yet another forwarded to the Court, while the third was despatched for analysis, on 3.12.1991 Public Analyst offered his opinion

that the tea dust analysed by him was found to be adulterated. On 24.12.1991 final report was filed. On 2.4.1992 cognizance was taken. On

9.10.1992 Petitioner made a plea for forwarding another sample for analysis to the Central Food Laboratory, which was negatived, leading to this

revision.

Crl R.C. No. 17 of 1993 corresponds to S.T.C. No. 10 of 1992 on the file of the same Special Judge. Violation alleged is also identical. On

21.1.1992, Inspector of Police, C.S. C.I.D. went over to Srinivasa Trading Co. a company belonging to the Petitioner, situated at Chithiraivasal

Street, Madurai and obtained three samples of dhall. As in the earlier case one sample was handed over to the Petitioner, while the second was

sent to court. The third sample was despatched for analysis. The report of the Analyst dated 20.2.1992 disclosed that dhall seized was sub-

standard, on 24.2.1992 final report was filed, leading to cognizance being taken on 8.7.1992. on 12.8.1992 petition to forward another sample to

the Central Food Laboratory was filed and rejected in the same pattern as in the earlier cases. Such negation is questioned in this revision.

Crl.R.C. No. 20 of 1993: This revision arises out of S.T.C. No. 7 of 1992 pending on the file of the same Special Court. On 4.1.1992 sample

of tea dust was obtained from the shop of the Petitioner. Analyst, who received the sample on 6.1.1992, offered his opinion in his report dated

13.2.1992, that the sample was found adulterated. Charge sheet was laid on 15.2.1992 leading to cognizance being taken on 16.6.1992. On

12.8.1992 Petitioner requested for forwarding of another sample to the Central Food Laboratory for second analysis. Plea of the Petitioner was

rejected, leading to presentation of this revision.

Mr. M. Karpagavinayagam, learned Counsel appearing on behalf of the respective Petitioners in Crl.R.C. Nos. 1,2,5,7,8 and 20 of 1993 and

Mr. A. Packiaraj, learned Counsel representing the Petitioners in Crl.R.C. Nos. 15 and 17 of 1993 addressed arguments in extenso, while Mr.

S.S. Kumar, learned Counsel for the Petitioner in Crl.R.C. No. 517 of 1992 adopted their arguments. The contentions advanced by the counsel,

harp on Clause 6 of the Order, which reads that the competent officer or any officer authorised by him in this behalf, shall exercise the same

powers and discharge the same duties, as those of a Food Inspector under Sections 10 and 11 of the Prevention of Food Adulteration Act, 1954

(Central Act XXXVII of 1954). In expatiation of the provisions of Clause 6 of the order it was contended that Section 10 of the Prevention of

Food Adulteration Act stipulated powers of the Food Inspector, while Section 11 of the Act prescribed procedure to be followed by the Food

Inspector, in obtaining samples. It was specifically pointed out, that under the provisions of the Prevention of Food Adulteration Act, three samples

will have to be obtained, out of which one bottle should be forwarded to the Public Analyst, while the other two bottles should be despatched to

the Local Health Authority for the purpose of Section 13 of the Act. The corollary sought to be drawn was that the other two samples, which have

been forwarded either to the Revenue Office or in some cases to the Court, were only intended for the purpose of Section 13 of the Act. Learned

Counsel laid emphasis on the procedure prescribed u/s 13 of the Act, which had to be followed by the concerned court for sending the second

sample for analysis to the Central Food Laboratory.

Detailing further on the scope of the provisions of the Order and the Act, definition of ""competent officer"" under Clause 2(b) was pointed out.

It is those officers contemplated under Clause 2(b) of the Order who are permitted either by themselves or on their authorisation, to exercise the

powers and discharge the duties as those of the Food Inspector under the Act. It was reiterated that the competent officers, were bound to

exercise the same powers and discharge the same duties as those of the Food Inspector under the Act. Violation alleged in all these cases falls

under Clause 3 of the Order, which reads that no dealer or any person employed by him shall, (produce, supply or sell) any scheduled article

which is not according to the standard prescribed in Schedule II to this order. Both Mr. M. Karpa gavinayagam and Mr. A. Packiaraj contended,

that Clause 6 of the order, does include Sect. 11(c) which is an integral part of Section 11 of the Act. If that be so the court cannot allow it to be

excluded, as done by the Special Court. Arguments were advanced, that Section 11 of the Act was interlinked with Section 13(2A) and if the

provisions u/s 13(2A) of the Act are not extended, it would not only be arbitrary but would also result in serious prejudice to the case of the

Petitioners. Mr. A. Packiaraj specifically brought to my notice Clause 7(3)(b) of the Order, which reads as follows:

The provisions of Sections 10 and 11 of the Prevention of Food Adulteration Act, 1954 (Central Act XXXVII of 1954) and the rules there under

relating to the analysis of food sample...

The purpose was that the provisions of the Prevention of Food Adulteration Act were not only applicable for sampling by the competent officer as

ordained under Sections 10 and 11 of the Act, but will also extend the Act and the Rules in respect of analysis of the food sample.

Mr. B. Sriramulu, learned Public Prosecutor, who appeared on behalf of the Respondents in all these revisions, submitted that this Court will

have to scrutinise if legislation relatable to the order was by reference or by incorporation. If that question is answered, then there will be no

difficulty in disposing of all these revisions, on a pure question of law. He was fair enough in stating, that if three samples were to be taken and that

is the mandate of law, it would obviously be incongruous, if the respective Petitioners do not have an opportunity to have the second sample tested

by the Central Food Laboratory. Counsel on either side have placed for my consideration, certain decided cases, which I will refer to in the

relevant context.

Before doing so, let me briefly narrate the object underlying the Prevention of Food Adulteration Act, 1954 and the purpose for which the

Tamil Nadu Schedule Articles (Prescription of Standards) Order, 1977 was brought into the statute book. The prevention of Food Adulteration

Act was enacted with the aim of eradicating the anti-social evil and for ensuring purity in the articles of food. In view of the above object of the

Act, the intention of the legislature is revealed, by the fact that a minimum sentence of imprisonment and fine have been prescribed. The purpose is

that the courts cannot lightly sentence the food offenders, for the welfare of the Society was the background of this legislation. The further purpose

was to obtain uniform standard of food stuffs all over the country, let alone as stated earlier prevention of adulteration of food. Grievous danger to

the health of the nation was sought to be minimised by this Act. Tamil Nadu Order was issued by reason of the powers conferred by Section 3 of

the Essential Commodities Act, to control production supply and distribution of essential commodities. The object is clear, as the order itself

makes it apparent, that in the opinion of the Government, it was necessary to maintain the increase of supplies and services of certain articles

essential to the life of the community. It was also deemed necessary to prevent any corrupt practice or abuse of authority in respect of supply of

such articles. On that foundation, it was found necessary to prescribe standards of such articles, for securing supply or sale according to the

prescribed standards.

Even at this stage, it must be stated that the prescription of standards is found not only in the order, but also in the Prevention of Food

Adulteration Rules.

Before scrutinising the contentions advanced by either counsel, it will be necessary to extract the relevant clauses of the Order and the Sections

of Act, consideration of which will be necessary for the disposal of these revisions.

Clause 6 of the Order reads as follows:

Competent Officer to exercise the powers of Food Inspector: The competent officer or any officer authorised by him in this behalf, shall exercise

the same powers and discharge the same duties as those of a Food Inspector u/s 10 and Section 11 of the Prevention of Food Adulteration Act,

1954 (Central Act XXXVII of 1954)

A reading of this clause indisputably indicates that the competent officer shall exercise the same powers and discharge the same duties as those of

the Food Inspector under Sections 10 and 11 of the Prevention of Food Adulteration Act. In other words, practically a Food Inspector can be

substituted in the place of a competent officer or any officer authorised by him in that be half. I have already referred to Clause 7(3)(b) of the

Order which states, that the provisions of Sections 10 and 11 of the Prevention of Food Adulteration Act, 1954 (Central Act XXXVII of 1954)

and the rules thereunder relating to the analysis of food sample shall, so far as may be, applied to search and seizure and to the analysis of

scheduled articles and adulterants etc. A combined reading of Clause 6 and Clause 7 of the Order, naturally makes it necessary to extract the

relevant portions of Sections 10 and 11 of the Prevention of Food Adulteration Act.

Section 10(1) of the Act, as far as we are concerned reads as follows:

(1) A food inspector shall have power --

(a) to take samples of any article of food from-

(i) any person selling such article:

(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee:

(iii) a consignee after delivery of any such article to him; and

(b) to send such sample for analysis to the public analyst for the local area within which such sample has been taken.

Sections 10(2) and 10(3) of the Act, which read as hereunder, are also relevant:

(2) Any food inspector may enter and inspect anyplace 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.

(3) Where any sample is taken under Clause (a) of Sub-section (1) or Sub-section (2), its cost calculated at the rate at which the article is usually

sold to the public shall be paid to the person from whom it is taken.

We are not concerned with the other Sub-sections of Section 10, except Sub-section (7), which reads as hereunder:

Where the food inspector takes any action under Clause (a) of Sub-section (1), Sub-section(2), Sub-section (4) or Sub-section (6) he shall call

one or more persons to be present at the time when such action is taken and take his or their signatures.

Section 11 of the Act refers to the procedure to be followed by the Food Inspector. Only Sub-sections (1) to (3) of Section 11 of the Act will

be relevant for the purpose of these revisions. They read as hereunder:

Procedure to be followed by Food Inspectors: (1) When a food inspector takes a sample of food for analysis, he shall-

(a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person,

if any, whose name, address and other particulars have been disclosed u/s 14.A;

(b) except in special cases provided by rules under the Act, divide the sample then and there into three parts and mark and seal or fasten up each

part in such a manner as its nature permits and take the signature or thumb-impression of the person from whom the sample has been taken in such

place and in such manner as may be prescribed:

Provided that where such person refuses to sign or put his thumb impression the food inspector shall call upon one or more witnesses and take his

or their signatures or thumb-impressions, as the case may be, in lieu of the signature or thumb-impression of such person:

(c) (i) send one of the parts for analysis to the public analyst under intimation to the Local (Health) Authority; and

(ii) send the remaining two parts to the Local(Health) Authority for the purposes of Sub-section (2) of this section and Sub-sections (2-A) and (2-

E) of Section 13.

(2) Where the pay of the sample sent to the Public analyst under Sub-clause (i) of Clause (c) of Sub-section (1) is lost or damaged, the Local

(Health) Authority shall, on a requisition made to it by the public analyst or the Food Inspector despatch one of the parts of the sample sent to it

under sub-Clause (ii) of the said Clause (c) to the public analyst for analysis.

(3) When a sample of any article of food (or adulterant) is taken under Sub-section (1) or Sub-section (2) of Section 10 the food inspector shall,

by the immediately succeeding working day send a sample of the article of food or adulterant or both, as the case may be, in accordance with the

rules prescribed for sampling to the public analyst for the local area concerned.

Emphasise will have to be laid on Section 11(1) (c)(i) and (ii), which relates to the need of the Food Inspector to send one of the parts for analysis

to the public analyst under intimation to the Local (Health) Authority and send remaining two parts to the Local (Health) Authority for the purposes

of Sub-section (2) of this section and Sub-sections (2-A) and (2-E) of Section 13 of the Act.

Before we proceed to extract Section 13 of the Act, it will be necessary to have a quick look at Section 11(2) of the Act, which has been

referred to in Section 11(c)(ii). Under this Sub-section where the part of the sample sent to the public analyst under sub-Clause (i) or Clause (c) of

Sub-section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the Food inspector,

despatch one of the parts of the sample sent to it under Sub-clause (ii) of the said Clause (c), to the public analyst for analysis. This Sub-section

only shows, that on the requisition of a public analyst or the food inspector, a second sample will have to be forwarded for analysis, if the sample

initially sent gets lost or damaged. This Sub-section provides a right for the prosecuting agency, to have yet another sample analysed on a particular

ground. While such a right has been given to the prosecution under Sub-Section 11(2) of the Act, we cannot overlook, that the prosecution has yet

another similar right u/s 13(2-E) of the Act. Section 13(2- E) reads as follows:

If, after considering the report, if any, of the food inspector or otherwise, the Local (Health) Authority is of the opinion that the report delivered by

the public analyst under Sub-section (1) is erroneous, the said Authority shall forward one of the parts of the sample kept by it to any other public

analyst for analysis and if the report of the result of the analysis of that part of the sample by that other public analyst is to the effect that the article

of food is adulterated, the provisions of Sub-sections (2) to (2D) shall, so far as may be, apply.

Section 13(2E) of the Act preserves the right of the prosecution to establish its case to the hilt if it entertained a doubt, that the initial report of the

public analyst was likely to be erroneous. Naturally the Court will have to visualise, that such a right should also be available to the accused to

establish that, in all probability, the report of the public Analyst obtained by the prosecuting agency was erroneous. Only recognising such a right,

Section 13 of the Act mandates the procedure to be followed by the Court, with regard to forwarding a second sample for analysis through it.

Section 13(2A) of the Act which has been referred to u/s 11(1)(c)(i) and (ii) reads as follows:

When an application is made to the court under Sub-section (2), the court shall require the Local (Health) Authority to forward the part or parts of

the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the

court within a period of five days from the date of receipt of such requisition.

Section 13(2-E) of the Act, which has been referred to u/s 11(1)(c)(i) and (ii) has already been taken note of by me, a little earlier. That Sub-

section (2-A) of Section 13 is dependant of Section 13(2) of the Act is so evident, for the opening words of Section 13(2-A) reads ""when an

application is made to the court under Sub-section (2), the court shall require the Local Health Authority..."". If Section 13(2-A) has to be applied

and the accused gets protection therefrom, as contemplated u/s 11(1)(c)(ii) of the Act, naturally Section 13(2) of the Act also comes into

operation. Section 13(2) of the Act reads as follows:

On receipt of the report of the result of the analysis under Sub-section (1) to the effect that the article of food is adulterated, the Local (Health)

Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any,

whose name, address and other particulars have been disclosed u/s 14-A, forward, in such manner as maybe prescribed, a copy of the report of

the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of

them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the

article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

We need not have to consider in detail Section 13(2-C) and (2-D) of the Act for the purposes of these revisions. However Section 13(3) of the

Act is very relevant, for the certificate issued by the Director of the Central Food Laboratory u/s 13(2-B) shall supersede the report given by the

public analyst under Sub-section (1). Section 13(5) of the Act will also be relevant, for any document purporting to be a report signed by a public

analyst, unless it has been superseded under Sub-section (3) or any document purporting to be a certificate signed by the Director of the Central

Food Laboratory, may be used as evidence of the facts stated therein, in any proceeding under the Act or under Sections 272 to 276 of the Indian

Penal Code. The proviso further affirms that the certificate signed by the Director of Central Food Laboratory, not being a certificate with respect

to the analysis of the part of the sample of any article of food referred to in the proviso to Sub-section (1-A) of Section 16, shall be final and

conclusive evidence of the facts stated therein. We are not concerned in these revisions with Sub-section (1-A) of Section 16 of the Act. Needless

to state, on the facts placed before me, that if a report is obtained from the Director of Central Food Laboratory it shall be final and conclusive of

the facts stated there in. We have already noticed that the sampling authority, be it under the Act or the Order, must obtain three samples, for u/s

11(c) of the Act one part had to be forwarded for analysis to the Public Analyst while the remaining two parts will have to be sent to the Local

Health Authority for the purposes of Section 11(2) or Section 13(2-!) and (2-E) of the Act.

Before amendments were introduced in the Prevention of Food Adulteration Act, one part of the sample seized used to be handed over to the

vendor who had an option to send either that portion handed over to him or the third portion with the authority, for second analysis. The very

object of obtaining three samples clearly indicates, that the right of the accused to have one of the samples analysed was sought to be preserved by

the Legislature and only in view of that salutary object, intimation to the accused u/s 13(2) of the Act, to facilitate yet another sample being

forwarded to Central Food Laboratory for analysis, was mandated. Merely because Clause 6 of the Order refers only to Sections 10 and 11 of

the Prevention of Food Adulteration Act, 1954 it cannot be held, that the other provisions of the Act, which may be relevant for the purpose of

co-ordination of the object behind the Act and the Order, cannot be looked into, for then the very purpose of the Order, will get defeated. That

such an object will have to be inferred is very clear, from Clause 7(3) for, the rules to be followed and the Act to be applied, relate not only to

obtaining of food sample, but also for analysis of the said sample. A narrow interpretation cannot be given, for u/s 13 of the Act, at every stage,

time has been sought to be made the essence. The accused, who gets intimated of his right to have the second sample analysed, will have to do so

within a period of ten days from the date of receipt of the Analyst report as well as intimation u/s 13(2) of the Act. Once an application is made to

the Court by the accused, the Court shall require the Local (Health) Authority to forward another part of the sample within a period of five days

from the date of such requisition. The Director of Central Food Laboratory is also bound to send his certificate to the Court in the prescribed

Form within one month from the date of receipt of the part of the sample, specifying the result of the analysis. The object behind these provisions,

which are time bound, is not far to seek, for the food articles are likely to undergo changes or get decomposed by efflux of time. The rights

contemplated under the Act, be it in favour of the prosecution or the accused, will have to be exercised before the food article gets decayed or

decomposed or get irrevocably changed or otherwise the very purpose of the act and the Order is bound to get defeated.

In other words, proper sampling and the report of the Public Analyst constitute the basic foundation for initiating prosecution, be it under the

Act or the Order. It there is a denial of the right conferred u/s 13(2) of the Act, it will be difficult, if not impossible, to sustain the prosecution There

cannot be a better example of prejudice to the case of the accused, if his request for forwarding a second sample to the Central Food Laboratory,

is not acceded to, though mandated by law. Proceeding a step further if the legislature thought it fit to usher in a right to the accused to have

another sample examined by the Central Food Laboratory, one could reasonably presume that the accused will also be entitled to intimation of the

existence of such a right. The right conferred on the accused is a valuable right and cannot be easily allowed to be thwarted. No doubt, the Apex

Court has consistently held that the right u/s 13(2) of the Act could only arise if the accused choose to exercise their right conferred u/s 13(2) of

the Act, but that aspect need not have to detain us in these revisions, for all the Petitioners have chosen to prefer applications before the special

court, to have another portion of the sample, forwarded to the Central Food Laboratory for analysis.

The right given to the accused is not only for his satisfaction and proper defence, but to serve a clinching purpose as well, which may benefit

even the prosecution, since the certificate of probably a greater expert is accepted by the Court as conclusive. Provisions of Food Adulteration

Act have vested such a right for getting the second sample analysed, not only to benefit the prosecution but to benefit the accused well. If, as held

by the learned Special judge, the accused has no right to have yet another sample forwarded to the Central Food Laboratory, there was no need

to have obtained three samples. When we consider the application of those provisions of the Prevention of Food Adulteration Act, referred to in

the Order, it cannot be taken as an isolation, for the Sections referred to therein, naturally, on a mere reading, extend to other provisions of those

sections, without which the purpose contemplated cannot be given effect to.

Learned Public Prosecutor, who was conscious of several infirmities in the Order, brought to my notice that the State, which has become

aware of the serious lacuna, is likely to introduce provisions in the Order, which fully correlate with the provisions of the Prevention of Food

Adulteration Act. That such effective legislation is necessary cannot be gain-said, for an offender in respect of a food article, can be prosecuted not

only under the provisions of the Order, but also under the provisions of the Food Adulteration Act. If any authority is required for this proposition,

the decision of the Apex Court in Delhi Municipality v. Shiv Shanker(A.l.R. 1971 S.C. 815) can be usefully referred to. The Supreme Court stated

thus:

The object and purpose of the Adulteration Act is to eliminate the danger to human life and health from the sale of unwholesome articles of food.

The Essential Commodities Act on the other hand has for its object, the control of the production, supply and distribution of, and trade and

commerce in, essential commodities. Inspite of this difference the two provisions may have coterminous fields of operation. The provisions of the

Adulteration Act and of the Fruit Order are supplementary and cumulative in their operation and they can stand together. If the Adulteration Act or

Rules impose some restrictions on the manufacturer, dealer and seller of vinegar then they have to comply with them irrespective of the fact that the

Fruit Order imposes lesser number of restrictions in respect of these matters. The Parliament did not intend by enacting the Essential Commodities

Act or the Fruit Order to impliedly repeal the provisions of the Adulteration Act and the Rules in respect of the vinegar. Both the statutes can

function with full vigour side by side in their own parallel channels. Even if they happen to some extent to overlap, Section 26 of the General

Clauses Act fully protects the guilty parties against double jeopardy or double penalty. Both the Adulteration Act and the Essential Commodities

Act have been amended from time to time after their enactment. The subsequent amendments of the Adulteration Act and of the Essential

Commodities Act by the Parliament and the amendment of the Adulteration rules would also tend to negative any legislative intendment of implied

repeal of the Adulteration Act by the Essential Commodities Act or the Fruit Order.

Of course, the question posed before the Supreme Court was the converse proposition, but that can make no difference as far as the principle of

law is concerned.

An argument was sought to be advanced by Mr. M. Karpagavinayagam that prescription of standards under the Order and the Act differ and

the Analyst reports in all these cases are based on the standards prescribed under the Act, overlooking the standard prescribed under the Order.

He further pointed out that under the provisions of Prevention of Food Adulteration Rules, Rule A-14, tea means and includes tea-dust as well, but

in item 6 of Schedule II to the order, tea-dust has not been mentioned. On a careful perusal of the standards prescribed under the Act and the

Order, I am unable to see any significant difference, except that there is no prescribed standard for double refined ground-nut oil in Schedule II of

the Order, though under the Act under A.17-15 separate standards have been prescribed for refined oil. This question, even if there are

differences in the standards, will not be material for the purpose of disposing of these revision cases, for we are now concentrating on the salient

question if the respective accused can be prevented from exercising their right to send a sample for analysis, to the Central Food Laboratory,

merely because Section 13(2) of the Act has not been stated either under Clause 6 or Clause 7(3)(b) of the Order.

If, as stated earlier, a vendor can be prosecuted either under the Prevention of Food Adulteration Act or under the Order or under both,

though the question of imposing sentence both under the Order as well as the Act will still become large, it is possible to visualise that if the

prosecuting agency chooses to prosecute the vendor under the Order the rights would get limited, while they get enlarged if the prosecutions were

to be initiated under the provisions of the Prevention of Food Adulteration Act. Such diversity in the right could not have been intended by the

legislature. Even if such negation of right is contemplated under the Order, naturally they have to be struck down as not in consonance with

accepted norms of justice.

I do not think it necessary to discuss in detail of the need to serve intimation on the accused, with the report of the Analyst to make him aware

of his right, for, all that is under the contemplation of the State Government, to get the order suitably amended.

Mr. B. Sriramulu, learned Public Prosecutor referred to the following passages in ""Principles of Statutory Interpretation"" by Justice G.P. Sing,

Fifth Edition 1992. These passages are found in pages 190 and 193 respectively.

Incorporation of an earlier Act into a later Act is a legislative device adopted for the sake of convenience in order to avoid verbatim reproduction

of the provisions of the earlier Act into the later. When an earlier Act or certain of its provisions are incorporated by reference into a later Act, the

provisions so incorporated become part and parcel of the later Act as if they had been ""bodily transposed into it""....... As observed by Brett, J.

Where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second. The effect

of incorporation is admirably stated by Lord Esher, M.R.. If a subsequent Act brings into itself by reference some of the clauses of a former Act,

the legal effect of that, as has often been held, is to write those sections into the new Act as if they had been actually written in it with the pen, or

printed in it. The result is to constitute the later Act along with the incorporated provisions of the earlier Act, an independent legislation which is not

modified or repealed by a modification or repeal of the earlier Act....""(Page 190)

In case of legislation by incorporation as the incorporated provisions become part and parcel of a fresh statute, the constitutional validity of such a

statute including the provisions so incorporated is judged with reference to the powers of the legislature enacting the fresh statute and not with

reference to its own source. This proposition, which is a necessary consequence of incorporation, is illustrated in the decision of the Supreme

Court (page 193)

In Mahindra & Mahindra Ltd. v. Union of India (A.I.R. 1979 S.C. 798), The Apex Court, after referring to Section 8(1) of General Clauses

Act and while negativing the contention that the substitution of new section amounted to repeal and re-enactment of the former section and that an

appeal can be maintained only on the grounds specified in the new section observed:

We do not think this contention is well founded. It ignores the distinction between a mere reference to or citation of one statute in another and an

incorporation which in effect means bodily lifting a provision of one enactment and making it a part of another. Where there is mere reference to or

citation of one enactment in another without incorporation, Section 8(1) applies and the repeal and reenactment of the provision referred to or

cited has the effect set out in that section and the reference to the provision repealed is required to be construed as reference to the provision as

re-enacted....... But where a provision of one statute is incorporated in another, the repeal or amendment of the former does not affect the latter.

The effect of incorporation is as if the provision incorporated were written out in the incorporating statute and were a part of it. Legislation by

incorporation is a common legislative vice employed by the legislature, where the legislature for convenience of drafting incorporates provisions

from an existing statute by reference to that statute instead of settling out for itself at length the provisions which it desires to adopt. Once the

incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed and thereafter there is no need to

refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute.

To the same effect is the observation of the Supreme Court in Mary Roy and Others Vs. State of Kerala and Others,

In M. Pentiah and Others Vs. Muddala Veeramallappa and Others, , Apex Court quoted with approval the observations of Sarjant, J. in

Attorney General v. Fulham Corporation (1921-I. Ch.D.440) . Following are the observations of Sarjent, J.

That recognises that in every case it is for a corporation of this kind to show that it has affirmatively an authority to do particular acts, but that in

applying that principle the rule is not to be applied too narrowly, and the corporation is entitled to do not only that which is expressly authorised but

that which is reasonably incidental to or consequential upon that which is in terms authorized.

The Supreme Court held, that the principle so stated is unobjectionable.

In J.K-C.S.W.M Ills v. State of U.P. (A.I.R. 1961 S.C. 1171) Das Gupta, J., speaking for the Bench, while noticing disharmony between the

two provisions, stated as follows: -

......undoubtedly we have to apply the rule of harmonious construction, in applying the rule, however, we have to remember that to harmonise is

not to destroy. In the interpretation of statutes the courts always presume that the legislature inserted every part thereof for a purpose and the

legislative intention is that every part of the statute should have effect. These presumptions will have to be made in the case of rule making authority

also.

The observations of the House of Lords in Mayor, &C., of Portsmouth v. Smith (X Appeal Cases 364) appear to be very apt for application

to the facts of the present group of revisions. These observations are extracted hereunder:

Where a single section of an Act of Parliament is introduced into another Act, I think it must be read in the sense which it bore in the original Act

from which it is taken, and that consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant,

though those other sections are not incorporated in the new Act. I do not mean that if there was in the original Act. a section not incorporated,

which came by way of a proviso or exception on that which is incorporated, that should be refereed to.

In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Others Vs. Union of India and Another, on interpretation of

statutes vis-a-vis provisions ensuring security of fundamental human rights, in the view of the Apex Court, liberal construction should be adopted.

The observations are as follows:

In an avowedly democratic policy, statutory provisions ensuring the security of fundamental human rights including the right to property will, unless

the contrary mandate be precise and unqualified, be construed liberally so as to uphold the right. These rules apply to the interpretation of

Constitution and statutory provisions alike.

These observations have a binding effect on the facts in the instant revisions. If the accused have a right under the provisions of the Act to forward

a second sample to the Central Food Laboratory for analysis, that right cannot be negatived, when certain portions of the Act have been sought to

be incorporated in the Order. The observations of the Supreme Court will rightly come into operation, for there is no contrary mandate in the

Order that the accused have no right to forward a second sample to the Central Food Laboratory and if that be so, liberal construction to uphold

the right of the accused will have to be adopted. Even otherwise, as stated earlier, the very introduction of Sections 10,11,13(2-A) and 13(2-E) of

the Prevention of Food Adulteration Act in the Order, automatically take in their fold the other parts of Section 13 of the Act, without which the

very purpose of the Order, will stand thwarted. If the prosecution alleges that the food articles sample was adulterated, the accused must be afford

an opportunity to show that the article was not adulterated by adopting a scientific interlude, which is guaranteed to him u/s 13 of the Act.

While narrating the facts I have stated that in some of these revisions one part of the sample had been handed over to the concerned accused,

while in other cases such a procedure had not been followed. There is also no provision in the Order as to the authority to whom the remaining two

samples may have to be for warded by the seizing officer, after despatching one sample to the public analyst. Further, there is no contemplation in

the Order of any intimation being served on the respective accused, making them aware of their right to have a second sample of the food stuff

forwarded for analysis to the Central Food Laboratory. It is fairly clear that beneficial provisions mandated in the Prevention of Food Adulteration

Act will naturally apply to prosecutions under the Order, since by incorporation certain sections of the Prevention of Food Adulteration Act, have

been referred to in the order. These Sections in part alone, cannot be considered in isolation, for then the logic behind the mentioning of those

sections, gets lost, for there is a connection between the Sub-sections mentioned in Section 11 of the Act and Section 13 of the Act. All the

relevant provisions extracted earlier under Sections 11 and 13 as well as Section 10 of the prevention of Food Adulteration Act will have to be

read together, for otherwise there is bound to be a discrimination between the persons sought to be prosecuted under the order and persons

sought to be prosecuted under the Act or under both. Learned Public Prosecutor, on becoming aware of several lacunae in the impugned

prosecutions, fairly stated that prejudice to the accused, is so apparent. It was only in that context, he brought to my notice the likelihood of the

order being reoriented completely, so that the intendment of including certain provisions of the Prevention of Food Adulteration Act in the order,

can be given full and logical effect, without which they could make no sense.

Though all these revisions have been preferred challenging the negativing of the plea made by each one of the Petitioners, before the learned

Special Judge, Madurai, to afford them an opportunity to send a second sample for analysis to the Central Food Laboratory, I am satisfied, that no

useful purpose could be served in allowing the prosecutions in each one of these summary Trial Cases to be proceeded with, for the lacunae

pointed out go to the root of the matter. The trials if followed, will only be mock trials, for the end result is so obvious, it cannot be overlooked that

the time lag between the seizure of the food articles and allowing now the Petitioners to exercise their right to forward another sample to the

Central Food Laboratory, is too long, that prejudice can be easily and readily inferred. The lacunae in the legislation (Tamil Nadu Order) may have

provided a scope for escape of offenders, who are social evils, but that cannot help for the accused, however grave the offence may be, must be

afforded a reasonable and purposeful opportunity to defend himself, for otherwise the object of due process of law would get thwarted. In that

view, while allowing all these revisions, I direct quashing of the entire proceedings in S.T.C. Nos. 14/92,3/92, 4/92, 9/92/, 6/92, 8/92, 2/92, 10/92

and 7/92 pending on the file of Special District and Sessions Judge, (Essential Commodities Act) Madurai. All these revisions are allowed, as

indicated above.