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State Vs. Narsing Lingo Deshpande - Court Judgment

LegalCrystal Citation
SubjectFood adulteration
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 114 of 1956
Judge
Reported in(1957)59BOMLR141
AppellantState
RespondentNarsing Lingo Deshpande
DispositionAppeal allowed
Excerpt:
.....is whether the quantity of the matter or ingredient which is added to or mixed with an article of food is injurious to health, when the said article of food is consumed in its normal quantity.; the proviso to section 4(2) of the bombay prevention of adulteration act, 1925, will not be attracted where there is no addition of a matter or ingredient to, or no mixture of a matter or ingredient with, or no abstraction of a matter or ingredient from, an article of food. therefore if the alcohol extract in asafoetida, in a solvent containing 90 per cent, alcohol is less than 25 per cent., that circumstance alone would be sufficient to give rise to a presumption under rule 6(b)(ix) of the bombay prevention of adulteration of articles of food rules, that the asafoetida concerned was not of the..........is whether the quantity of the matter or ingredient which is added to or mixed with an article of food is injurious to health, when the said article of food is consumed in its normal quantity. there is nothing in the evidence of the public analyst, nor in the certificate given by him, which would indicate as to what quantity of metanil yellow dye would be injurious to health whenasafoetida to which it was found added was consumed in normal quantity, and what quantity of this dye was found in the asafoetida which was sold by the respondent to the food inspector. unless we are in a position to know what quantity of the dye metanil yellow would be injurious to health when asafoetida to which it was added was used for normal consumption and what quantity of the said dye was added to the.....
Judgment:

Vyas, J.

1. This is an appeal from a judgment of the Judicial Magistrate, First Class, Belgaum City, acquitting the respondent who was charged with having committed offences under Clauses (a) and (b) of Sub-section (1) of Section 4 of the Bombay Prevention of Adulteration Act, 1925.

2. The facts of the case which led to the prosecution of the respondent under Clauses (a) and (b) of Sub-section (1) of Section 4 of the Bombay Prevention of Adulteration Act, 1925, were stated by me in the interlocutory judgment which this Court delivered on April 10, 1956. A sample of asafoetida, which was sold by the respondent to the Food Inspector on November 26, 1954, was sent to the Public Analyst for examination. It was found to contain alcohol extract which was 13.95 per cent. and foreign matters, namely, gum and woody fibres. One of its contents was also a dye called 'Metanil Yellow'. The Public Analyst issued a certificate accordingly.

3. So far as the discovery of gum and woody fibres in the asafoetida was concerned, the contention of the respondent was that the asafoetida, which was sold by him, was a compound asafoetida and that the presence of gum and woody fibres in the compound asafoetida would not by itself make the sale of such asafoetida amount to an offence under Sub-section (1) of Section 4 of the Bombay Prevention of Adulteration Act. For the purpose of this appeal, the Court assumed that this contention of the respondent might be a true contention. So, the points upon which the decision of this appeal turned were:

(1) the alcohol extract in the article sold by the respondent to the Food Inspector was 13.95 per cent. instead of the minimum 25 per cent;

(2) the article sold by the respondent contained a dye called 'Metanil Yellow' the contention of the proseeution being that this dye is injurious to health;

and accordingly we sent down the following issues for determination by the learned Magistrate :

(1) What was the strength of the solvent in which the alcohol extract discovered was 13.95 per cent.?

(2) What was the percentage of the dye known as Metanil Yellow which was added to the asafoetida which was sold by the respondent to the Food Inspector?

(3) What quantity of the abovementioned ingredient, namely Metanil Yellow, would be injurious to health when found in the quantity of asafoetida which is used for normal consumption?

4. The provisions of law material to the decision of this appeal are to be found in Rule 6(B)(ix) of the rules framed under the Bombay Prevention of Adulteration Act, 1925, Clauses (a) and (ft) of Sub-section (1) of Section 4 of the Bombay Prevention of Adulteration Act, 1925, and Clauses (a) and (6) of the proviso contained in Sub-section (2) of Section 4 of the Act. Rule 6(B)(ix) of the rules framed under the Act lays down :

Asafoetida, in which the ash exceeds 20 per cent. the extract soluble in 90 per cent. alcohol is less than 25 per cent. and in which there is the presence of colophony resin, galbanum resin, ammoniacum resin or any other foreign resin detected, shall be presumed, until the contrary is proved, to be not of the nature, substance or quality which it purports to be.

Clause (a) of Sub-section (1) of Section 4 of the Bombay Prevention of Adulteration Act, 1925, provides:

Any person who sells or causes to be sold or offers for sale to the prejudice of the purchaser any article of food which is not of the nature, substance or quality demanded by or on behalf of the purchaser, shall on conviction be punished' with imprisonment according as the offence is a first or a second offence.

Clause (6) of Sub-section (1) of Section 4 says:

Any person who manufactures or offers, keeps or exposes for sale any article of food which is not of the nature, substance or quality which it purports to be' shall be similarly punished.

The proviso contained in Sub-section (2) of Section 4 of the Act reads as follows:

Provided that no offence shall be deemed to have been committed under this section (section 4) in the following cases, that is to say-

(a) where any matter or ingredient not injurious to health has been added to the article of food because such matter or ingredient is required for the production or preparation thereof as an article of commerce in a state fit for carriage or consumption and not fraudulently to increase the bulk, weight or measure of the food or conceal the inferior quality thereof;

(b) where any matter or ingredient not injurious to health has been added to or mixed with or abstracted from any article of food, before the sale thereof, the seller has brought to the notice of the purchaser, by means of a label conforming to such conditions as may be prescribed by rules in this behalf, etc.

5. Now, it is clear that Clauses (a) and (b) of the proviso, which is contained in Sub-section (2) of Section 4, speak of an addition of a matter or ingredient to, or mixture of a matter or ingredient with, or abstraction of a matter or ingredient from, an article of food. It is clear, therefore, that the proviso will not be attracted where there is no addition of a matter or ingredient to, or no mixture of a matter or ingredient with, or no abstraction of a matter or ingredient from, an article of food. The proviso will not be attracted where the gist of the offence lies only in the presence of an alcohol extract less than 25 per cent. in a solvent whose strength is 90 per cent. alcohol. Therefore, if the alcohol extract, in a solvent containing 90 per cent. alcohol, is Jess than 25 per cent., that circumstance alone would be sufficient to give rise to a presumption that theasafoetida concerned was not of the nature, substance or quality which it purported to he [vide Rule 6(B)(ix)] and the sale of such asafoetida or the exposure of it for sale would be an offence under Clause (a) or Clause (b), as the case may be, of Sub-section (1) of Section 4.

6. The proviso contained in Sub-section (2) of Section 4, to which I have just referred, speaks of certain conditions under which a matter or ingredient may be added to or mixed with an article of food without the said addition or mixture amounting to an offence under Section 4; and one of the conditions is that the matter or the ingredient to be added to an article of food or mixed with an article of food must not be injurious to health. Now, therefore, the question is, what is meant by the words 'injurious to health' which occur in Clauses (a) and (b) of the proviso. In our view, in order that an offence under Section 4 of the Act may be committed, it is not sufficient that the matter or ingredient which is added to or mixed with an article of food should be injurious to health merely in the abstract. A drug which is labelled 'poison' may not be injurious to health if taken in prescribed quantity. On the other hand, it would be difficult to conceive of any matter which would not be injurious to health if taken in excessive quantity. In the abstract, almost every substance or matter or ingredient would be injurious to health. Whether a matter or ingredient is injurious to health or not must be construed in the context of the quantity thereof, which may be found added to or mixed with an article of food, when the said article of food is used for its normal consumption. Therefore, the reasonable construction, in our opinion, which should be put upon the words 'injurious to health' in Clauses (a) and (b) of the proviso which is contained in Sub-section (2) of Section 4, is whether the quantity of the matter or ingredient which is added to or mixed with an article of food is injurious to health, when the said article of food is consumed in its normal quantity. There is nothing in the evidence of the Public Analyst, nor in the certificate given by him, which would indicate as to what quantity of Metanil Yellow dye would be injurious to health whenasafoetida to which it was found added was consumed in normal quantity, and what quantity of this dye was found in the asafoetida which was sold by the respondent to the Food Inspector. Unless we are in a position to know what quantity of the dye Metanil Yellow would be injurious to health when asafoetida to which it was added was used for normal consumption and what quantity of the said dye was added to the asafoetida which was sold by the respondent to the Food Inspector, it would not be possible to say in this case whether any offence under Clause (a) or Clause (b) of Sub-section (1) of Section 4 was committed by the respondent by the sale of the asafoetida to the Food Inspector or by the exposure thereof for sale. It was, therefore, that we framed the issues Nos. 2 and 3, namely:

What was the percentage of the dye known as Metanil Yellow which was added to the asafoetida which was sold by the respondent to the Food Inspector?

AND

What quantity of the abovementioned ingredient, namely Metanil Yellow dye, would be injurious to health when found in the quantity of asafoetida which is used for normal consumption? and sent them down to the learned Magistrate for the findings.

7. The finding of the learned Magistrate on the first of the abovementioned issues is that the percentage of the dye 'Metanil Yellow' in the asafoetida, which was sold by the respondent to the Food Inspector, could not be ascertained for want of analysis. The finding on the second of the abovementioned issues is that the quantity of Metanil Yellow, which would be injurious to health when present in the quantity of asafoetida which is used for normal consumption, could also not be ascertained. Dr. Rodd, an expert in public health and a medical graduate of the Bombay University, had carried out the analysis of the sample of asafoetida which was sent to him. It may be noted that after the case was remanded by this Court for findings on the issues framed by us, Dr. Eodd did not carry out any further or fresh analysis of the article. His opinion in the further evidence which he gave was based on the original analysis, as made by him, of the sample of asafoetida which was sent to him. It is true that Dr. Eodd has stated in his evidence that even the smallest quantity of Metanil Yellow would be injurious as it would 'have an effect upon blood forming system and would cause anaemia'. According to Dr. Eodd, Metanil Yellow is also an irritant and may cause gastritis and inflammation of the stomach. It is to be remembered, however, that Dr. Rodd is unable to support his opinion by reference to any standard authority on the subject. The first authority referred to by Dr. Rodd in support of the opinion given by him is a book called 'Commercial Organic Analysis, 5th edition, Vol. VI,' by Aliens. In this book, the author merely says that one of the constituents of the dye Metanil Yellow is sodium salt and that sodium salt is a poisonous substance; but the learned author does not say what quantity of sodium salt would be injurious to health. An ingredient may be injurious to health in the abstract; but what is material for the application of Section 4 of the Act is whether the presence of an ingredient, in an article of food, is injurious when the said article is consumed in a quantity which is a normal quantity for its consumption. The second authority upon which Dr. Rodd has relied in support of his opinion is a book called 'Food Inspection and Analysis, IV edition', by Albert B. Leach. All that the learned author of this book says in the context of this subject is that the dye Metanil Yellow is one of the Azodyes and that the Azodyes are derivatives of Analine. Then the author says that this dye (Metanil Yellow) is 'suspected to be' harmful, to the animate world. Thus, on the opinion expressed by the learned author of this book, it cannot be said that Metanil Yellow is positively harmful to the animate world. The third authority referred to by Dr. Rodd in support of his opinion is 'A series of publications on health, and occupation, 1930 publications of Geneva.' According to the learned author of these publications, Analine dyes may prove harmful to human body if constantly used and used for a long time. It is to be noted however that in these publications no mention is made of Azodyes and much less of the dye called Metanil Yellow. Dr. Rodd has next referred to Rule 7 of the Belgaum Prevention of Adulteration of Articles of Food Rules. Rule 7 merely speaks of a presumption that substances mentioned in Schedule A are injurious to health, but the significant point is that the dye Metanil Yellow does not find a place amongst the articles mentioned in Sen. A. These are all the authorities to which Dr. Rodd has referred in support of his opinion that even the smallest quantity of the dye (Metanil Yellow) may prove injurious to health-In our opinion, none of these authorities shows conclusively that Metanil Yellow is injurious to health. Even if it be assumed on the evidence of Dr. Rodd, unsupported as it is by any standard authority on the subject, that Metanil Yellow is injurious to health, even so the proviso contained in Sub-section (2) of Section 4 will not be attracted unless the presence of this dye, in the quantity of asafoetida which is used for normal consumption, is proved to be injurious to health. The prosecution has failed to prove this important point in the present case. The result, therefore, is that on the evidence before us we are unable to hold that the dye Metanil Yellow is injurious to health within the meaning of the proviso contained in Sub-section (2) of Section 4 of the Act.

8. In these circumstances, the prosecution relies upon the fact that the alcohol extract in this particular case was loss than 25 per cent. (it was only 13.95 per cent.) in a solvent whose strength was 90 per cent. alcohol. As I have already stated, this circumstance by itself would render the asafoetida concerned an article not of the nature, substance or quality which it purported to be and the sale of such asafoetida or the exposure thereof for sale would amount to an offence under Clause (a) or Clause (b), as the case may be, of Sub-section (1) of Section 4.

9. Mr. Ganatra appearing for the respondent in this case has contended before us that Rule 6(B)(ix) is a rule which speaks only of presumptions and that in this case we should not presume that the alcohol extract found in the asafoetida was only 13.95 per cent. in a solvent whose strength was 90 per cent. alcohol, as Dr. Rodd's opinion is not supported by any notes of analysis. Now, it is true that Dr. Rodd, when he stepped into the witness-box, did not carry with him the notes of analysis made by him. It is to be remembered, however, that he is a responsible person, an expert in public health. He is an M.B.B.S. of the Bombay University. He has stated in his evidence that his practice in doing analysis in such cases is always to use a solvent whose strength is 90 per cent. alcohol and we have no reason to disbelieve him. There was no reason why in this particular case Dr. Rodd should have departed from his usual practice. Therefore, although Dr. Rodd did not take with him the notes of analysis made by him when he stepped into the witness-box, we do not doubt his evidence that the solvent used by him for determining the percentage of alcohol extract in the asafoetida, which was sent to him for analysis, was alcohol and that its strength was 90 per cent.

10. Mr. Ganatra. has next invited our attention to the evidence of Dr. Rodd in which Dr. Rodd has stated that 'when gum is added to king (asafoetida), its alcohol extract becomes less' and Mr. Ganatra's contention is that, since the lessening of the alcohol extract in asafoetida was a natural or inevitable result of the addition of gum to asafoetida and since it was not a circumstance which would have had an independent existence of its own apart from the addition of gum, this would be a case of an addition of a matter (gum) not injurious to health to asafoetida, an article of food, and, therefore, the proviso contained in Sub-section (2) of Section 4 would be attracted by the facts of this case and no offence under Sub-section (1) of Section 4 of the Bombay Prevention of Adulteration Act, 1925, could be said to have been committed by the respondent, because of the respondent having sold asafoetida to the Food Inspector, in which the alcohol extract was less than 25 per cent. Mr. Ganatra, however, overlooks the fact that the provisions of Clause (b) of the proviso cannot come into operation unless the seller'has brought to the notice of the purchaser, by means of a label conforming to such conditions as may be prescribed by rules in this behalf,' the fact that gum was added to or mixed with the asafoetida which was being sold or exposed for sale. There is no evidence in this case to show that the respondent had brought to the notice of the Food Inspector by means of any label that the asafoetida which he was selling to him had gum added to it. That being so, in our view, Mr. Ganatra's client cannot invoke the assistance ofClause (b) of the proviso contained in Sub-section (2) of Section 4 of the Act.

11. The result, therefore, is that as the alcohol extract in the asafoetida, which was sold by the respondent to the Food Inspector, was 13.95 per cent. only (that is, less than 25 per cent.) in a solvent whose strength was 90 per cent. alcohol, the asafoetida sold by the respondent to the Food Inspector was not of the nature, substance or quality which it purported to be. Therefore, by the sale of this article and by the exposure of it for sale, the respondent committed offences under Clauses (a) and (b) respectively of Sub-section (1) of Section 4 of the Act.

12. We accordingly allow the appeal filed by the State of Bombay against the respondent's acquittal, convict the respondent under Clauses (a) and (6) of Sub-section (1) of Section 4 and sentence him to pay a fine of Rs. 50 or in default to suffer rigorous imprisonment for a month.


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