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Somisetti Narasimharao and ors. Vs. State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution;Food Adulteration
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. Nos. 471 and 1111 of 1961 and C.M.P. No. 9683 of 1962
Reported inAIR1964AP501
ActsConstitution of India - Articles 14, 19 and 226; Prevention of Food Adulteration Act, 1954 - Sections 10 and 10(9)
AppellantSomisetti Narasimharao and ors.
RespondentState of Andhra Pradesh and ors.
Appellant AdvocateP. Babulu Reddy, ;S.V. Kondapi and ;I. Koti Reddy, Advs.
Respondent Advocate3rd Government Pleader and ;P. Ramachandra Reddy, Adv.
DispositionPetition dismissed
.....- high courts discretion - article 226 of constitution of india and section 10 of prevention of food adulteration act, 1954 - writ petition challenging constitutional validity of act filed in apprehension that machinery devised under act would be put in motion to infringe fundamental rights of petitioners - mere probability of threat of fundamental rights being invaded not a ground for exercising discretion under article 226 - petition moved in high court to decide upon questions of law - no facts recorded forming basis of attacking act - high court not to undertake enquiries on matters not actually arising for decision. (ii) constitutional validity - section 10 of prevention of food adulteration act, 1954 ( various safeguards provided in act serving as deterrent and guidelines in..........of an association known, as vijayawada coffee, retail kirana and general merchants association. food inspectors appointed, under the act obtained samples of food exposed to sale by these petitioners to send them to the public analyst appointed under the act. before anything was done in that behalf, this petition was filed impugning the legality of the act apprehending that the machinery devised under the act would bo put in motion if the samples were found, to contain adulterated food. they did not wait to see what the reports of the public analyst would be and whether any action was going to be taken against them. it is the taking of the samples of the commodities in which they deal that has driven the petitioners to this court for the relief of striking down the act as ultra vires.....

Chandra Reddy, C. J.

1. The constitutional validity of the Prevention of Food Adulteration Act, 1954 (37 of 1954), which will be referred to as the Act for the sake of brevity, is challenged in these two writ petitions.

2. W. P. No. 471 of 1961 is presented by 161 members of an association known, as Vijayawada Coffee, Retail Kirana and General Merchants Association. Food Inspectors appointed, under the Act obtained samples of food exposed to sale by these petitioners to send them to the public analyst appointed under the Act. Before anything was done in that behalf, this petition was filed impugning the legality of the Act apprehending that the machinery devised under the Act would bo put in motion if the samples were found, to contain adulterated food. They did not wait to see what the reports of the Public Analyst would be and whether any action was going to be taken against them. It is the taking of the samples of the commodities in which they deal that has driven the petitioners to this Court for the relief of striking down the Act as ultra vires and void.

3. The sections of the Act, which have come in for special criticism, are Sections 2, 10, and 19. What is urged in respect of Section 2 is that it was widely defined as to take in matters which are beyond the scope and ambit of the object of the enactment and the intention of the legislature namely, the prevention of adulteration, of food which is injurious to public health. As regards Section 10, what is stated is that arbitrary powers have been conferred upon Food Inspectors which are more often being abused and that it is impeding their trade and business. Section 19 is attacked as containing a principle of discrimination and also a restriction on their freedom of trade and that as such it is obnoxious to Articles 14 and 19(i)(g) of the Constitution.

4. A preliminary objection is taken with regard to the maintainability of the petition on behalf of the Government Pleader. It is urged that thepetition is not sustainable for the reason that beyond taking samples under Section 10 of theAct, no action has been taken against the petitioners which could form the subject-matter of judicial review in this writ petition and that, if at all, it is only that section that calls for decision as to its legality. It is not disputed that except taking samples from these merchants for the purpose of sending them to the Public Analyst to find out whether any of the samples contained any adulterated food or misbranded food, nothing has been dons against them which could form the basis of complaint. It is only Section 10 that could legitimately be attacked as being void and of no effect since it is in exercise of the powers vested nnder that Section in the food inspectors that samples of articles of food were obtained from the petitioners.

We are, therefore, called upon here only to decide the constitutionality of that section and none else because no action is initiated against their, under any of the other sections and as such there could be no ascertainment of facts which would enable us to see whether the impugned statutory provisions are attracted to the case or not. In the absence of any such material, it is difficult fro test the validity of those provisions. What is maintained on behalf of the petitioners in regard to the other provisions of the Act is that there is likelihood of their being proceeded against in the event of the samples being found to contain adulterated or misbranded food and it is only for the purpose of invoking the other provisions of the Act that the food inspectors have obtained samples from the petitioners and unless the validity of these provisions of law is determined and the concerned officers are restrained from pursuing further the petitioners would be harassed and put to great hardship. We cannot accede to the request of the petitioners. A mere possibility of threat of the fundamental rights of any of the petitioners being invaded would not be a ground to invite this Court to pronounce upon the legality of any of the statutory provisions.

5. This proposition cannot be seriously contested. In Qasim Razvl v. State of Hyderabad, : 1953CriLJ862 Mukherjea J. (as he then was) observed thus :

'In the second place, it has got to consider whether the procedure actually followed did or did not proceed upon the basis of the discriminatory provisions. In our opinion, a. mere threat or possibility of unequal treatment is not sufficient. If actually the accused has been discriminated against, then and then only he can complain, not otherwise.'

((i) In similar terms is the rule stated in Dwarka Prasad Lasmi Narain v. State of Uttar Pradesb, : [1954]1SCR803 . It was remarked there: 'We agree, however, with Mr. Umrigar that this portion of the Control Order, even though bad, is severable from the rest and we are not really concerned with the validity or otherwise of this provision in the present case as no action taken under it is the subject-matter of any complaint beforeus..............'

7. The position has been tersely put if we may say so with respect, by Gajendragadkar, J.who spoke for the Court in State of Bihar v. Hurdur Roy Moti Lall Jute Mills, : [1960]2SCR331 . Said His Lordship at page 22 of the report (STC): (at p. 380 of AIR) :

'In cases where the vires of statutory provisions are challenged on constitutional grounds, it is essential that the material facts should first be clarified and ascertained with a view to determine whether the impugned statutory provisions are attracted; if they are, toe constitutional challenge to their validity must be examined and decided. If, however, the facts admitted or proved do not attract the impugned provisions, there is no occasion to decide the issue about the vires ot the said provisions. Any decision oa the said question would in such a case be purely academic. Courts are and should be reluctant to decide constitutional points merely as matters of academic importance.'

8. The principle underlying this passage governs the instant case. We are invited here to determine abstract questions of law. There are no facts which could form the basis of attack against any of the statutory provisions. To borrow the words of His Lordship Courts should not undertake enquiries on matters which do not actually arise for decision and on hypothetical considerations.

9. We are not pursuaded that the petitioners can derive any assistance from Himmatlal Harilal Mehta v. State of Madbya Pradesh, : [1954]1SCR1122 on this aspect of the matter. Thai has no parallel hero. There is nothing in that pronouncement to warrant the view that although there is no occasion to deal with the constitutional validity of an enactment, still the Courts would be advised to enquire into its validity. The only passage, which could be called in aid in that judgment, occurs at page 405 of the report.

'It is plain that the State evinced an intention that it could certainly proceed to apply the penal provisions of the Act against the appellant if it failed to make the return or to meet the demand and in order to escape from such serious consequences threatened without authority of law, and infringing Fundamental Rights, relief by way of a writ of mandamus was clearly the appropriate relief.'

One of the problems that posed itself there was whether a writ of mandamus could issue against the concerned authorities when there was no enforcement of the provision' of the C. P. and Berai Sales Tax Act (2 of 1947) but some of which were likely to be enforced under that Act. That was a case where Explanation IT to Section 2(g) of the Act was declared ultra vires and the imposition of sales tax on the appellant in Madhya Pradesh was without the authority of law. In such a situation, it was held that a threat by the State by using the coercive machinery of the impugned Act to realise the tax from the appellant was a sufficient infringement of his fundamental rights under Article 19(1)(g) of the Constitution and as such the appellant therein was clearly entitled to relief under Article 226. That is not the situation here. Here, the situation is altogether different and that decision does not hold any analogy in the present context.

10. We shall, therefore, confine ourselves to Section 10 of the Act. The argument raised in regard to this section is that it vesta enormous powers in the food inspectors, that in Vijayawada there are a number of food inspectors and that these inspectors visit the shops of the retail merchants and purchase the consumer commodities for the purpose of sending them to the Public Analyst and thus they unduly interfere with their trade 'to hold and dispose of their property in carrying on their trade'. We do not see how the petitioners could have any valid grievance against Section to. This section occupies only a preliminary stage in the scheme of legislation which was designed to meet the situation created by the widespread adulteration of food in the country. It is to check the growing evil of adulteration of food that the Act entitled 'The Prevention of Food Adulteration Act, 1954' was passed. The scheme of the Act gives an indication as to its purpose and as to the steps to be taken to put an end to this evil. We may now refer to the main provisions of the Act.

Section 2, inter alia, defines adulteration of food. Section 3 provides for the appointment of a Central Committee for prescribing food standards. A Central Food Laboratory was created by Section 4 to carry out the functions assigned to it under the Act and the rules made thereunder. Section 5 prohibits the import of certain articles of food into India while Section 6 extends the provisions of the Sea Customs Act, 1878 (VIII of 1878) and confers certain powers on the customs officers in relation to goods that are prohibited from being imported under Section 5, Section 7 prohibits the manufacture, sale etc of certain articles of food. Sections 8 and 9 contemplate the appointment of Public Analysis and Food Inspectors. It is Section 10 which deals with powers of food inspectors and which is specifically brought under challenge in this writ petition. We need not refer to Sections 11 - 15 which are concerned with the procedure to be followed in the matter of taking samples of food and sending them for anaysis etc. Section 16 concerns itself with penalties for offences under the Act, while Section 19 prescribes rules as to the defence available to persons charged under the Act.

11. It is apparent from the scheme of the Act that its purpose is to prevent adulteration of food and to bring the offenders to book. As we have already stared, before any action could be taken under the Act, samples of food have to be obtained by tie food inspectors without which it is not possible to detect adulteration of food. It is for this purpose that Section 10 was enacted. That section, in so far as it is relevant for the present enquiry, reads thus :

'10 (i) 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;

(c) with the previous approval of the health officer having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food with a view to preventing the outbreak or spread of any infectious disease.'

12. The other provisions of the section lay down the procedure to be adopted by the food inspectors in taking the samples and in forwarding them to the Public Analyst.

13. It is pertinent to note in this behalf that there is an important provision contained in subsection (9) obviously conceived in the interest of merchants. It recites:

'Any food inspector exercising powers under this Act or under the rules made thereunder who-

(a) vexatiously and without any reasonable grounds of suspicion seizes any article of food; or

(b) commits any other act to the injury of any person without having reason to believe that such act is necessary for the execution of his duty shall be guilty of an offence under this Act and shall be punishable for such offence with fine which may extend to five hundred rupees.'

14. In the fare of the various safeguards and especially the one contained in this sub-section which serves as a deterrent to the inspectors in that behalf and several rules enacted in regard to the procedure to be followed by the food inspectors in the matter of obtaining samples, it is idle to contend that the food inspectors are conferred with large powers which are likely to be abused and which will result in the harassment of the petitioners. It is seen that the food inspectors are subject to various restrictions and they could act only in accordance with the rules framed under the enactment and not arbitrarily. If they act high-handedly they do so at the risk of being prosecuted and punished under the Act. In fact, no instance of such abuse of power by the food inspectors has been brought to our notice beyond the averment that there is a chance or a possibility of the food inspectors absuing their powers. It is not possible for them to carry out the duties and functions assigned to them without being able to obtain samples of food which have to be tested by the Public Analyst for the purpose of determining the contents of the articles obtained by them and whether there is any adulteration or not.

This is a preliminary step in the direction ol rooting out or eradicating the evil of adulteration in food-stuffs. Even assuming for the sake of argument that this amounts to a restriction on trade or business, it is certainly a reasonable restriction. Within the contemplation of Article 19(6) of the Constitution and it is within the domain of the Parliament to impose such restriction if it is in the public interest and for public good. Surely, it cannot be denied that the prevention of adulteration of food is in the public interests and for the public good. Without Section 10, the food inspectors could not discharge the functions entrusted to them under this section and that being a pivotal section and not being repugnant to any of the provisions of the Constitution, its validity cannot be attacked. We therefore uphold the constitutionality of Section 10 and reject the argument that it is opposed to the principles enshrined in (Article 19 or Article 14 of the Constitution. There could be no scope for the argument baaed upon Article 14 of the Constitution because all merchants are subject to the same treatment, namely, that samples could be collected from every one of them and Section 10 does not seel! to make any discrimination in this behalf.

15. For these reasons, we are of opinion that no relief could be granted to the petitioners in this writ petition and it deserves to be dismissed with costs. Advocate's fee is fixed at Rs. 250/- (two hundred and fifty).

16. W. P. No. IIII of 1961. This petition is filed by the Andhra Pradesh Milk and Curd Suppliers Association by its President. This petition is not directed against any particular action taken against any member of the association. The main grievance of the association is that standards have been fixed for testing the contents of milk without taking into consideration the climate, the kind of food that is given to the cows and buffaloes and the constitution of the cows and buffaloes which yield milk. It is stated that there could be no uniform standard for testing the quality of milk in any particular instance. Thus, the complaint is against the standards prescribed in regard to the quality of the milk and not against any particular action taken against any of the members. It is not even alleged that prosecution has been launched against any individual for the commission of any offence under the Act or any kind of action taken against any member. There are only vague allegations of harassments. Even the particulars of harassments are not furnished. Further, the standards are not fixed in the Act but under the rule. So it is only the rules that can be impeached. But no attempt is made to impugn the rules. Moreover, as already mentioned, the validity of the rules can be tested in the light of the particular facts of a case; how any rule has affected any individual.

17. Apart from the preliminary objection it was argued on behalf of the Government Pleader that standards have been prescribed after taking into consideration the recommendation of the Central Committee for Food Standards, consisting of experts, which fixed the standards after conducting researches and testing hundreds of samples and that the standards laid down are the minimum ones. Further more, standards vary from State to State and from Region to legion we are not disposed to enter into the merits' of the relative contentions having regard to the fact that there is no specific action taken against any member of the association based upon any particular section which could be challenged as being null and void. Suffice it to say that the petitioner is crying before he is hurt.

18. There is also another obstacle in the way of entertaining this petition because the association as such is not in any way imperilled by this Act and consequently the association can have no grievance. However, we need not be detained here any further as we have said that the validity or otherwise of any provision is not called for decision for the reason that the present petition does not deal with any particular action taken against any member of the association.

19. In the circumstances, we have no option but to dismiss the writ petition with, costs. Advocate's fee Rs. 150!- (one hundred and fifty).

30. This does not preclude the petitioners from raising these questions as and when appropriate occasion arises. C. M. P. No. 9683 of 1962: Not pressed. Dismissed.

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