M.M. Punchhi, J.
1. The Chief Judicial Magistrate, Gurgaon acquitted the accused-respondent Rama Nand of the charge Under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act relying on the judgment of the Supreme Court in Municipal Corporation of Delhi v. Kacheroo Mai, (1975) 2 FAC 223:1976 Cri LJ 336). The sample of 'Sabat Haldi' taken from the respondent on 2-12-1977 was found by the Public Analyst to contain insect damaged ringers 7.7 per cent against the maximum prescribed standard of 5.0 per cent, besides one living weevil and one dead meal worm. The report of the Public Analyst was silent whether the article was unfit for human consumption or otherwise injurious or non-injurious to health. The State of Haryana appealed and relied at the admission stage on a later decision of the Supreme Court in Municipal Corporation of Delhi v. Tek Chand Bhatia, (1979) 2 FAC 218:1980 Cri L.T 316, to contend that Kacheroo Mai's case supra) was no longer a binding precedent in view of the later judgment in Tek Chand Bhatia's case supra). It is in these circumstances that the appeal was admitted and has been placed before us.
2. The facts are straight and simple The accused-respondent aged about 70 years is a shopkeeper at Retail Market, Hali Mandi, Gurgaon. On 2-12-1977, the Food Inspector visited his shop and found him to be in possession of 18 kgs. of 'Sabat Haldi' (turmeric fingers) for sale contained in a gunny bag. The Food Inspector served the requisite notice in accordance with the Food Adulteration Rules and purchased 600 grammes of 'Sabat Haldi1 for analysis. The same was divided into three equal parts and bottled in three dry and clean bottles which were duly labelled and stoppered and securely fastened. The Public Analyst, to whom one such sample was sent, received the sample on 6-12-1977 and caused it to be analysed on 12-1-1978, after a period of one month and six days. The result of his analysis has been noticed earlier. The respondent on that score was prosecuted on complaint filed by the Food Inspector who supported it, by his own evidence as P.W. 1, by Dr. S. P. Ghai P.W. 3 accompanying him, and the report of the Public Analyst. As said before, the accused was acquitted on the strength of Kacheroo Mai's case 1976 Cri LJ 336)(SC)(supra) as also on a judgment rendered by a single Judge of this Court in Vijay Kumar and Hassan Lal v. State of Punjab, (1977) 2 FAC 117. The appellant State of Haryana prays for the reversal of the judgment and conviction of the accused-respondent in view of Tek Chand Bhatia's case 1980 Cri LJ 316)(SC)(supra). The charge against the respondent was that he had contravened the provisions contained in Section 7 of the Act and the Rules framed thereunder and committed an offence Under Section 16(1)(a)(i) of the Act. It would now be apt to examine the alleged contravention as also the provisions which make his act culpable.
3. To begin with, Under Section 2(ia)(f), an article of food was deemed to be adulterated if the article consists wholly or in part any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption. In Kacheroo Mai's case 1976 Cri LJ 336)(supra, the Supreme Court held that the phrase 'or otherwise unfit for human consumption' should be read conjunctively and not disjunctively in association with what precedes it. it was held that proof of the unfitness of the article for human consumption is a must for bringing the case within its purview. Later, by Parliament Act No. 34 of 1976, changes were brought about in Section 2 of the Act inasmuch as Clause (i) was renumbered as Clause (ia) and Sub-clause (f) was remodelled so as lo exclude therefrom the words 'disgusting'. In addition thereto, underlined qualifications were added to Sub-clause (1) and a new Sub-clause (m) was added, along with a proviso, which may be noted herein:
2(i)(1) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it in-jurious to health:
(m) If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this sub-clause;' Additionally, the definition of 'primary food' was given in Clause (xii-a) which too may be noted:(xii-a) 'primary food means any article of food, being a produce of agriculture or horticulture in its natural form:
These changes have been brought about by the Parliament seemingly on the report of the Joint Committee on the Prevention of Food Adulteration (Amendment) Bill, 1974 published at page 10 of the Gazette of India Extraordinary, Part-II, of Jan. 5, 1976. Cl. 12 thereof, which is relevant for the purpose, would be worthy of being taken note of:
The Committee has given very careful thought on the provisions suggested in the clause relating to the penalties to be awarded for various types of offences under the Act. The Committee is of the Opinion that while persons who indulge in deliberate acts of adulteration should be punished severely, it should, at the same time, be ensured that innocent people are not unnecessarily harassed. The Committee has, accordingly, categorised the offences under the Act and the punishments to be provided for them with reference to the nature and extent of the injuries suffered by Ihe 'person consuming an adulterated food or adulterant as follows:
(i) Primary food which is non-injurious to health, but sub-standard due to natural causes and beyond the control of human agency, has been totally exempted. Such articles of food have been excluded from the definition of the term 'adulterated' also (vide proviso to Sub-clause (b)(iii)(m) of Clause 2 of the Bill).
(ii) If the adulterated food is primary food which is non-injurious to health, but adulterated by human agency, the person committing the offence shall be liable to imprisonment for a term which shall not be less than three months but which may extend to two years and shall also be liable to a fine of not less than rupees five hundred.
(iii) If the adulterated food is not primary,food, and is non-injurious to health, the person committing the offence shall be liable to imprisonment for a term which shall not be less than six months but which may extend to three years and shall also be liable to a fine of not less than rupees one thousand.
(iv) If the adulterated food is injurious to health but which does not cause grievous hurt or death, the punishment shall vary from one year to six years with a minimum fine of rupees two thousand.
(v) If the adulterated food is injurious to health and is likely to cause death or grievous hurt, the punishment shall vary from three years to life imprisonment with a minimum fine of rupees five thousand.
The Committee has also brought within the ambit of the clause the import, manufacture, sale, storage, distribution of adulterants and has prescribed similar penalties for such offences.
The Committee has amended the clause accordingly.
4. Now there can be no manner of doubt that Sabat Haldi is a primary food, it being a produce of agriculture and in its natural form. In Appendix 'B1 prepared under Rule 5 of the Rules, Item A. 05.20 defines Sabat Haldi as under:
Turmeric (Haldi) whole means the dried rhizome or bulbous roots of the plant of curcuma longa L. It shall be free from lead chromate and other artificial colouring matter. The proportion of extraneous matter shall not exceed 2.0 per cent by weight.
The amount of insect damaged matter shall not exceed 5 per cent by weight.
Explanation. - The term 'insect damaged matter' means spices that are partially or wholly bored by insects.
5. There can be no manner of doubt that turmeric whole even in the dried state would be in its natural form and be 'primary food'. Now under Clause (f) of Section 2(ia), an article of food which is insect-infested would be deemed to be adulterated, and there has to be no further finding that it was unfit for human consumption as per the rule laid down by the Supreme Court in Tek Chand Bhatia's case 1980 Cri LJ 316)(supra). In other words, whatever the degree of insect infestation, the article of food would be adulterated. As heldinKache-roo Mai's case 1976 Cri LJ 336)(supra, the presence of dead or alive insects would not make any difference and the article would be all the same insect-infested. Thus the presence of a live weevil and a dead meal worm in the sample as also insect damaged turmeric fingers, as found, would render the article adulterated. But what is the effect of els. (1) and (m) of Section 2(ia) is to be seen.
6. Prior to 2-10-1976, there was no standard of quality or purity prescribed for whole turmeric. But vide Notification No. GSR-14-17 of 20th Sept., 1976, it was provided with effect from 2-10-1976 that the amount of insect damaged matter in turmeric whole shall not exceed 5 per cent by weight. And as per the explanation added thereto, the term 'insect damaged matter1 meant spices that are partially or wholly bored by insects. Thus for the purposes of els. (1) and (m) of Section 2(ia), the standard prescribed for turmeric whole permits the article to be partially Or wholly bored by insects but up to 5 per cent by weight. In other words, turmeric whole fingers which are partially Or wholly bored by insects, whether the insects therein be dead or alive, would be within the prescribed standards of quality or purity and would not visit any penal consequences on the seller. But conversely under Clause (f) of Section 2(ia), even the slightest insect infestation would make the seller's act culpable. Thus it appears to us, these two clauses are in conflict with each other. But in Prem Ballab v. Stale (Delhi Admn., : 1977CriLJ12 , the Supreme Court had observed that the different clauses of Section 2(ia) (as it then was) are not mutually exclusive and they overlap one another making it quite possible that an article of food may be found adulterated under two or more clauses of the said section. And here Section 2(ia)(f) makes the article adulterated but els. (1) and (m) thereof (subject to other conditions fulfilling) are capable of rendering it not so.
7. The Parliament in its wisdom by causing the amendment in 1976 considered it proper to place 'primary food' at a different level for purposes of the Act. As is plain from the report of the Joint Committee, extracted above, primary food, which is non-iniurious to health, but sub-standard due to natural causes and beyond the control of human agency, has totally been exempted from the purview of the Act. Such articles of food have been excluded from the definition of the term 'adulterated'. The proviso added after Clause (m) of Section 2(ia) makes that abundently clear. Primary food which is non-injurious to health, but adulterated by human agency, attracts on the person committing the offence a lesser punishment, as is plain from the language of Section 16(1)(a)(i) of the Ad. On the other hand, if primary food is adulterated but which is injurious to health, then the normal sentence as prescribed Under Section 16 is imposable. If adulterated food is not primary food, then other considerations apply with which we are not concerned in the present case.
8. Reverting to the facts of the present case, the Public Analyst has reported that turmeric fingers were insect damaged up to 7.7 per cent. Presumably what he meant by the percentage was by weight and not by count. Nowhere has he said whether the article with such percentage of damage was injurious to health or non-injurious to health, or that the presence of insects, or adulteration caused by insect damaging, was due to human agency. The article of food, if attacked by insectes, whether germinated from within the article or visited from without, would first get insect-infested and then insect-damaged. It would thus seem to us to be defeating the intention of the law-makers by employing Clause (f) of Section 2(ia) merely to insect infestation and not making the proviso applicable in relation to primary food. Rather, it(would promote the intention of the lawmakers to initially apply els. (1) and (m) read with the proviso to primary food, and then see if it is sub-standard due to natural causes and beyond the control of human agency, to be outside the purview of the Act and the Rules. But still, if the quality Or the purity of the article is below the prescribed standard, the report of the Public Analyst would serve no purpose unless it specifies whether the same renders it injurious or non-injurious to health. Thus, it appears to us that the amendment brought about in the Act by Parliament Act No. 34 of 1976 by bringing therein the concept of 'primary food' has rendered els. (l) and (m) the twin-siamese to oust Clause (f) in regard thereto, making the enunciation in Prem Ballab's case 1977 Cri LJ 12)(SC)(supra) with regard to overlapping of clauses inapplicable.
9. We must bring pointed attention to a curb put on the powers of the Food Inspectors by Parliament Act No. 34 of 1976. Section 10 gives powers of Food Inspectors. Sub-section (2) substituted by the amendment reads as follows:.-
Any food inspector may enter and inspect place 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.
It is thus obvious that a Food Inspector finding at a place any article of food being primary food, stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale, cannot take samples thereof unless such article was intended for sale as such food. The reason to put curbs on the powers of Food Inspector in (relation to primary food conveys a salutary principle that such article of food, being in its natural form, is avail-ble for inspection to the naked eye to the seller as also the buyer. The seller of primary food, at any time, finding or suspecting it to have become adulterated within the meaning of the Act, can give out his intention that it is not meant for sale and barricade the Food Inspector from taking sample thereof. Similarly, a buyer of primary food, finding r suspecting the article to be adulterated within the meaning of the Act and the Rules, is capable of rejecting it. or accepting it in the condition as it is and then standardise the article at his own expense to confirm it to the quality and purity of the standard prescribed. The object is to safeguard producers and keepers of primary food from the harassment of the Food Inspectors and give them a protective umbrella if the article, being primary food, was not intended by them for sale as food for human consumption.
10. Now here the possibility cannot be ruled out that the turmeric fingers found iWith the petitioner could be visited by insects from outside, lying as they were >in a gunny bag wherein such article is normally stored or the insects to have germinated within. They could come there from without due to natural causes and beyond the control of human agency, It is wholly chimerical and inconceivable that an adulterator would add insects of his own t0 an article for profit making. Also the report of the Public Analyst is deficient whether the article was injurious or non-injurious to health and thus does not carry out the purposes of either of els. (1) and (m) with the proviso in Section 2(ia) of the Act. Such deficient report alone warrants us to maintain the order of acquittal of the respondent, besides other reasons mentioned heretofore.
11. To be fair to the learned Counsel for the State-appellant, it must be noticed that in Tek Chand Bhatia's case 1980 Cri LJ 316)(supra, the Supreme Court had explained away Kacheroo Mai's case 1976 Cri LJ 336)(supra) to be kept confined to the particular facts of that case as it was largely based on the circumstance that the standard of quality and purity in respect to the article involved therein had not been prescribed. The Supreme Court also noticed in Tek Chand Bhatia's case that in view of Rule 48-B of the Rules having been framed on the subject of the said article, the decision in Kacheroo Mai's case supra) was rendered Inapplicable. As is by now clear, we have based our decision not on the basis of the afore-referred to two cases of the Supreme Court, but on reasoning of our own applying the requirements of els. (1) and (m) read with the proviso in prefer-rence to Clause (f) of Section 2 of the Act.
12. Thus for the foregoing reasons, this appeal fails and is hereby dismissed.