1. In C. C. No. 57 of 1968 on the file of the Judicial First Class Magistrate, Mdanapali, the Food Inspector (Sanitary Inspector) of Madanapalli Municipality filed a complaint against S. Govindappa Chetty, alleging that the later exposed for sale Mysorepak and sold samples of it to the Food Inspector and that on analysis it was found to be adulterated because it was found to be adulterated because it was found to contain metanil yellow coaltar-dye and also to contain Kesari Dhall flour which was prohibited under the Prevention of Food Adulteration Act (Act XXXVII of 1954) and the Prevention of Food Adulteration Rules 1955. After full trial the learned Magistrate found that the Mysorepak was adulterated and it was containing metanil coaltar -dye and accordingly convicted him under S. 16(1)(a) (i) read with Ss. 7 and 2 (i) (j) of the Prevention of Food Adulteration Act (hereinafter called the Act). He found that the case of adulteration was not proved on the basis of Kesari Dhall flour. He also held that the case did not fall under Section 2(i)(1) of the Act, and awarded a sentence of six months' simple imprisonment and a fine of Rs. 100/- and in default to suffer simple imprisonment for two months.
2. The accused filed Crl. A. No. 95/63 before the learned Sessions Judge, Chittor, and the latter agreed with the finding of the trial Judge that the accused had used the prohibited coaltar-dye and confirmed the conviction and sentence. The accused filed this Revision Petition.
3. There is a concurrent finding of the two lower courts based on convincing evidence that the accused said Mysorepak to the Food Inspector (P. W. 11 on 30-9-67 at 7-oo P.M. and that it contained metanil yellow coal-tar dye, as per the report of the Public Analyst (Ex P. 4). The correctness of that finding of a fact, is not challenged before me by the learned advocate for the accused. I see no reason to disagree with that concurrent finding of fact.
4. The two points urged by the learned advocate for the accused Sri Chennakesava Reddy, are:
(1) That no offence of adulteration contemplated in Section 2(i)(j) of the Act has been proved and
(2) If at all there is any offence, it is only under Section 2(I)(1) of the Act.
(3) that this is a fit case for action under Section 4 of the Probation of Offenders Act.
Contention (1):---The relevant portion of Section 2 of the Prevention of Food Adulteration act runs as follows:
'2. In this Act, unless the context otherwise requires:
(i) 'Adulterated' -- an article of Food shall be deemed to be adulterated:
XX XX XX (j) if any colouring matter other than that prescribed in respect thereof and in amounts not within the prescribed limits of variability is present in the article:
XX XX XX (1) 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.'
5. Part VI of the Rules framed under the Act bears the heading 'Coloruing Matter' and comprises Rules 23 to 31. The relevant rules run as follows:
'23 Unauthorised Addition of colouring matter prohibited ;-- The addition of colouring matter to any article of Food except as specifically permitted by those rules, is prohibited. XX XX XX
26. Natural coloruing matters which may be used;
(Except as otherwise provided in the rules) the following natural colouring principles whether isolated from natural colours or produced synthetically may be used in or upon any article of food.
XX XX XX
27. Addition of inorganic matters and pigments prohibited:---Inorganic colouring matters and pigment shall not be added to any article of food.
28. Coaltar dyes which may be used:--- No coaltar dyes or a mixture thereof expect the following shall be used in food;
XX XX XX
Mentanil yellow is not one of the coaltar dyes mentioned under this rule.
'29 Use of permitted Coaltar dyes prohibited:
Use of permitted coaltar dyes in or on any food other than those enumerated below is prohibited: XX XX XX
30. Maximum limit of permitted colours: The maximum limit of permitted coaltar colours or mixture of permitted coaltar colours which may be added to any food shall not exceed (o.2 gram per kilogram) of the final food or beverage for assumption.'
As per S. 2(xii) of the Act , 'prescribed' means prescribed by rules made under this Act Part VI of the rules framed there under contain prohibition regarding colouring matters, as follows;
(a) Coloruing matter which is not specifically permitted by the rules.
(b) Inorganic colouring matters and pigment
(c) Coaltar dyes other than those mentioned in Rule 28, and which are permitted only in the articles of food mentioned in Rule 29 and to the extent mentioned in Rule 30.
6-7. Rules specifically permitting addition of coloruing matter run as follows;
Natural coloruing matters which are specified in Rule 26. Coaltar dyes are specified in Rule 28 and are restricted to the articles of foods mentioned in rule 29 whose maximum limit is fixed in Rule 30 and whose purity is fixed by Rule 31.
8. In the present case, mentanil yellow is a coaltar dye. It is not mentioned in Rule 28 and therefore it is specifically prohibited by Rule 28. As it is not specifically permitted it is also prohibited under Rule 23. The word 'prescribed' as used in S. 2 of the Act, has not been further defined. In Chambers's Dictionary the meaning of the word 'prescribe' has been given as follows: 'To lay down as a rule or direction : to give as an order. . . .. To limit: set bounds to'. The first part of Section 2(i)(j) of the Act can be expanded as follows: 'If any colouring matter other than that prescribed in respect of which directions has been given or laid down by the rules made under this Act'. It will be observed that regarding mentanil yellow, direction is effectively found in Rules 23 and 28, prohibiting its use, as it is a coaltar dye other than what is enumerated in Rule 28. Obviously the words 'prescribed in respect thereof' in Section 2(i)(j) mean only colouring matter which is permitted and not prohibited by the rules, for only then, the words can refer to any adulteration. it is agreed by the learned advocate for the accused and the learned Public Prosecutor that the first part which comes before the word 'and' refers to colouring matter which is permitted by the rules. For convenience, I shall refer to the portion in Rule 2 (i) (j) as part (1) and the words coming after 'and' as part (2) of Rule 2 (i) (j) Sri Chennakesava Reddy, the learned counsel for the accused, contends as follows. The offence under section 2(i)(j) of the Act, can be committed only if the act concerned fulfills the requirement of part No. 1 and also fulfills the requirement of Part 2. in section 2(i)(j) of the Act. In the present case, the requirement of Part No. 1 is fulfilled, but the requirement of Part No 2 is not proved to have been fulfilled. The word 'and' has got to be given dictionary meaning and read conjunctively and not disconjunctively so as to give the meaning of 'or' . The same contention was urged before the leaned Sessions Judge. He rejected this contention holding that the word 'and' has the meaning of 'or'. The learned Judge relied on a decision in Food Inspector , Trichur Municipality v. Paul, : AIR1965Ker96 .
9. When Part (1) is fulfilled and the presence of coloruing matter (mentanil yellow) is not permitted at all and is positively prohibited, it means that its limit of variability is such that anything in excess of Zero, is not within the prescribed limit of variability. In other words, the permitted limit of the colouring matter in the first part is Zero and if the colouring matter is found in any quantify whatsoever positively it is in excess of the prescribed limit of variability. When any matter is completely prohibited by Part (1), there can be no need for any additional provision in the second part in Section 2(i)(j) of the Act for that same matter. But the second part of section 2(i)(J) would certainly be applicable to cases of items of colouring matters which are permitted by the rules and for which, rules prescribe limits of Variability in figures (e.g.) as in Rule 30 and in respect of coaltar dyes which are specifically permitted under Rule 28.
10. The learned Public Prosecutor contends that the word 'and' in section 2(i)(j) of the Act has to be read as 'or' as literal interpretation of the word 'and' as conjunctive would lead to an absurdity viz., that a totally prohibited colouring matter may be used than the prescribed limits. This contention of the learned Public Prosecutor is supported by the decision in : AIR1965Ker96 . In the case, some Jam Roll was found to contain a non-permitted coal-tar-dye , Rhodamine 'B' which is not one of the dyes specifically mentioned in Rule 28. The learned Judge extracted portions from the following decisions. Shamrao v. District Magistrate, Thana : 1952CriLJ1503 , Siraj-ul-Haq Khan v. S. C. Board of Waqf, U. P. : 1SCR1287 , State of Bombay v. R. M. D. Chamarbaughwala, : 1SCR874 , Bishan Singh V. State of Rajasthan, and Sukhanandan v. Surajbali, : AIR1951All119 (FB). The following is the extract made by the learned Judge from the decision in : 1952CriLJ1503 , while interpreting Section 3 of the Public Safety Measures Act.
'It is the duty of courts to give effect to the meaning of an Act when the meaning can be farily gathered from the words used, that is to say, if one construction will lead to an absurdity wile another will give effect to what common sense will hows was obviously intended, the construction which would defeat the ends of the Act must eb reject even if the same words used in the same section, and even the same sentence, have to be construed differently. Indeed, the law goes so far as to requre the Courts sometimes even to modify the grammatical and ordinalry sense of the words if by doing so absurdity and inconsistency can be avoided.'
Anna Chandy, J., has given vaious instances of reported decsion where the word 'and' had to be interpreted as 'or'
11. Shri Chennakesava Reddy relies upon a decsion in Tolaram v. State of Bombay, : 1SCR158 . In that case Section 18(1) of the Bombay Rents. Hotel and Lodging House Rates (Control) Act,. came up for interpretation. The Supreme Court observed as follows:
'It may be here observed that the provisions of section 18 (1) are penal in nature and it is a well-settled rule of consturction of pennal statues that if two possible and reasonable constuction can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. it is not completent to the Court to stretc the meaning of an expression used by the Legislature in order to carry out the intention of the Legislautre.'
12. This principle would be applciable to the present case if there are two possible and reasonable constructions which can be put upon the provision of S. 2(i)(j) of the Act. The principle would nt apply in the present case, if the word 'and' were read as conjucntive. There is not even one possible reasonable constuctlion, and there is only absurdiity as poined out by the learned Judge in : AIR1965Ker96 .
13. Another decison relied upon by Sri Chennakesava Reddy, is Seksada Cotton Mills Ltd. V. State of Bombay : 4SCR825 . Therein it was held as follwos;
'In a penal statute of the kind, it is our duty, to interpret words of ambiguous meaning I a broad and liberal sense so that they will not become traps for hones unlearned (in the law) and unwarymen.'
In this particular, case if the word 'and' is read as 'or ' there is no reasonable interpretation, whereas on the other hand, if the word is read as 'or', the provision has meaning. Therefore this is not a case of interpreting words of ambiguous meaning such as existed in the aforesaid decison.
14. In Rosenbaum v. Burgoyane. (1964) 2 All E. R. 988 at p. 991 it has been stated as follows;
'It has been well settled by authority that the terms of a stature imposing penalties must be construed strictly act if the meaning of the words used is doubtful the doubt should eb resolved in favour of the subject.'
Sri Chenakesava Reddy relies on this decsion also. In that case, two possible interpretations were put forward and the learned judges treated one interpretation as correct by construing the terms of the statute strictly. In that case by strictly construing those terms, as intelligible interpretation resulted. In the present case, if the word 'and' as it stands if strictly read with its dictionary meaning there is absurdity, whereas on the otherhand, if it is read as 'or' there is meaning.
15. Sri Chennakesava Reddy has drawn my attention to some observation at pages 418 and 419 of the Principles of Statutory Interpretation by Sri G. p. Singh (19660 Edition)to the effect that the penal statute has to be strictly construed. The passage contains an extract from the decison reported in : 1SCR158 which I have already referred to above. The observations in that decsion as well as in the passages of the book referred to by Sri Chennakesava Reddy apply to the case where tow possible and reasonable constructions can be put upon the penal provision on the wording as it stands. They do not apply to the present case where no reasonable construction can be put upon the provision under S. 2 unless the word 'and' is interpreted as 'or' . At page 213 of the same book this matter is dealt with under the heading Conjunctive and disjunctive words 'or' and 'and' . At page 214 it is stated as follows;
'..............But if the literal reading of the words produces unintelligible or absurd result 'and' may be read for 'or' and 'or' for 'and' even though the result of so modifying the words is less favourable to the subject provided that the intention of the Legislature is otherwise quite clear.'
This principle has been adopted by the learned Judge in the decision reported in : AIR1965Ker96 . I respectfully follow the decison of the learned Judge in that case and hold that the word 'and' is to be interpreted as 'or' . In the result, I agree with the finding of the learned Sessions Judge that the action of the accused amounts to an offence under Section 2(i)(j) of the Prevention of Food Adulteration Act. Contention (1) is not tenable.
16. Contention (2): ---Sri Chenakesava Reddy contends that the facts of the case fall under section 2(i)(1) and not under Section 2(i)(j) of the Act. This is a case where a prohibited coloruing matter has been used. The presence of colouring matter in the article of food is specifically covered by Section 29i)9j)of the Act. As the article Mysorepak contains altogether, it cannot be said that it was a case where quality or purity of the article falls below the prescribed standard. I find that Section 2(i)(j)is more appropriate provision and that the accused was rightly convicted by the lower Court of an offence under S. 16 91) read with Section 7 and 2(i) (j) of the Act, I reject contention (2).
17. Contention (3) : ---- The sentence awarded by the lower Court is the minimum prescribed under the Act. The learned Sessions Judge states in the judgments as follows:
'It is stated that the accused is an old man and the sentence of imprisonment will be very heavy and even the sentence of fine would be heavy, considering his status, But unfortunately the section clearly provides for a minimum sentence of imprisonment and fine. I feel that there is no discretion left to the Court to show any lenience on any one of the grounds advanced in this case that is, his poverty and old age. I therefore confirm the conviction and the appeal is dismissed.'
The learned Session Judge felt that it was a hard case but also felt helpless to deal with the case in the manner other than confirming the sentence imposed against him. Sri China Kesava Reddy points out that, in addition the accused being an old man, he is a petty ship-keeper aged over 60 years and that the offence consists of using one coaltar dye. he points out that though Coaltar Dyes to be used. he contends that this is a fit case for action under Section 4 (1) of the Probation of Offenders Act. He also points out that there is no evidence as to the quantity of the colouring matter that was found in the article of food. He relies on the decisions of this High Court in Crl. R. C. No. 121 of 1968 and Crl . R. C. 521 of 1966 (Andh Pra ) by Mirza J. in which action under Section 4 of the Probation of Offenders Act, was taken in cases where minimum sentence of imprisonment of six months under Rule 126 (p) of the defence of India Rules was prescribed.
18. In view of the special circumstances of the case which are referred to above, I consider that this is a fit case for action under Section 4 (1) of the Probation of Offenders Act. Accordingly, I set aside the conviction and sentence already passed against the accused and instead of awarding any sentence straight way, direct the accused to be released under section 4 (1) of the Probation of Offender Act on his entering into a bond for Rs. 2,00/- with two sureties each for a like sum to the satisfaction of the Judicial First Class Magistrate, Madanapalle, to appear and receive sentence when called upon during a period of one year and in the meantime to keep the peach and be of good behavior. If fine is paid, it will be refunded.