S.K. Kapur, J.
(1) This judgment will dispose of Civil Writ Petition Nos. 144 of 1968, 139/1967,64/1968, 105/1968, 347/1968. 356/1968, 33/1969 and 1543/1967. I will first take up Civil Writ No. 144 of 1968 and deal also with the common points that arise in all the petitions.
CIVILWrit 144 of 1968,
(2) The four petitioners stand indicted in the trial Court for offences against Prevention of Food Adulteration Act (hereafter referred to as the said Act.). Two complaints under section 7 read with section 16 of the said Act have been filed against them, one against petitioner Narendra Kurnar and Jiwan Lal and other against petitioners Messrs Rameshwar Das Chhotey Lal 'through partner Shyam Sunder' and Shyam Sunder petitioners. In the first of the aforementioned two complaints, the petitioners have been charged with storing adulterated Aniseed (Saunf) for sale. The adulteration according to the public analyst's report was due to 0 -47 per cent excess in total ash per cent 1 -5 def. in volatile oil per cent and also due to infested seeds to the extent of 01 -62. per cent.' The second complaint is for storing adulterated pepper (white) for sale. The public annalyst in his report describes the sample of pepper as adulterated ''due to 1 -87 excess in light berries per cent.' The prayer in the petition is, inter alia, for quashing the proceedings pending before the Magistrate. Mr. K. L. Gosain, the learned counsel for the petitioners raised the following contentions:
1.In defining the standards of quality of various articles of food and fixing their limits of permissible variability under section 23(1)(b) of the said Act the rule making authority has outstepped the limits of article 19(1)(g) of of the Constitution because
(A)standards have been fixed arbitrarily and in disregards of the standards attainable in the country.
(B)In case of some articles different standards have been fixed for different States arbitrarily and without attending to the relevant factors necessary for the purpose.
2.Under Entry 18 of the Concurrent List, the Legislature could make law only with respect to 'adulteration of food stuffs and other goods.' The expression 'adulteration' in the said entry must be confined to its dictionary meaning or taken in its ordinary commercial sense and the Legislature in extending the amplitude of the expression has travelled beyond its competence.
3.One of the complaints is for storing adulterated white pepper for sale. No standards for white pepper having been prescribed, the complaint deserves to be quashed.
4.Under section 16 Courts are obliged in all cases to inflict punishment of imprisonment and consequently an aritificial person like a firm cannto be indicted as has been done in the second complaint. The complaint against .the firm is thereforee, nto valid,
5.The appointment of the Public Analyst which forms the basis of the complaint is had in law. He did nto fulfill the prescribed qualifications inasmuch as (i) he has only one eye and (ii) his left eye is below the prescribed standards for eye-sight.
6.The appointment of the Food Inspectors is nto in accordance with section 9. and
7.In the first complaint no allegations having been made against Jiwan Lal, the complaint against him should be quashed.
I will first deal with the question regarding appointment of Public Analysts and Food Inspectors. This point arises in all the Writ petitions.
(3) As to the Public Analyst, the alleged disqualifications have been set out in paragraphs 20 and 21 of the petition. Mr. Gosain, the learned counsel for the petitioner argued that Shri Sudhamoy Roy was appointed as a Public Analyst by Notification dated July 30, 1966; that Fundamental Rule 10 provides that 'except as as provided by this rule no person may be appointed in India to a post in Government service without a medical certificate of health which must be affixed to his first pay bill. A Local Government may make rules prescribing the form in which medical certificates should be prepared and the particular medical or other officers by whom they should be signed. It may, in individual cases, dispense with the production of certificate and may by general order exempt any specified class of Government servants from the operation of this rule,' that medical certificate of health was, thereforee, a pre-requisite to his appointment which could nto have been granted in the case of the Public Analyst, he being medically disqualified; and that even if the Public Analyst be treated as an employee of the Municipal Corporation, Fundamental Rule 10 will still apply because the employees of Delhi Municipal Corporation are governed by Fundamental Rules including the rules of recruitjent by virtue of the provisions of the Delhi Municipal Corporation Service Regulations, 1959 framed by the Government of India in exercise of of the powers conferred by clauses (a) and (e) of sub-section (a) of section 98 read with sub-section (1) of section 480 of the Delhi Municipal Corporation Act. To show that the Public Analyst was nto medically fit, Mr. Gosain relied on a Government of India publication, 1960 Edition ''A Hand Book on Medical Examination'. Appendix I to the said book contains regulations as to the physical examination of candidates for addmission into the technical and Non-technical services Class I and Class Ii (Gazetted) under the Government of India except posts of Assistant Aerodrome Officers in the Civil Axiation Department and defense services personnel. Mote 7(d) at page 52 reads :
'FORregular Class 1/11 posts one-eyed persons are to be regarded as unfit. However, one-eyed individuals should nto be altogether excluded from employment in Class I and Class Ii Services on a contract basis provided the visual acuity in the functioning eye is 6/6 for distant vision and 0 -6 for near vision and the refractive error is nto more than - or - 4 -00 D.'
THEsaid note relates to the ocular acuity of Indian Administrative Service ., Indian Forest Service , Chemists and some other categories of employees and according lo Mr. Gosain, Public Analyst falls under the category 'Chemists'.
(4) Section 8 of the said Act provides that the Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local areas as may be assigned to them by the Central Government or the State, Government, as the case may be. The public analyst in question was appointed for the Delhi Municipal Corporation area with effect from July 20. 1966. Rule 6 framed under the said Act prescribes qualifications of a public analyst and it was nto disputed that the public analyst did satisfy those qualifications, the controversy being limited to his medical fitness and the impact of Fundamental Rule 10 on his appointment. In my opinion, there is no merit in this contention. Appointment of public analyst is a special staturory appointment. The said Act provides for the mode of appointment and the qualifications necessary for the post. He fulfills all the qualifications prescribed by the Rule. Even if Fundamental Rule 10 is applied either by its own force or by reason of its extension to Municipal Employees, the petitioners' position will nto improve. Nto even a suggestion was made that the matters provided in the handbook are regulations framed by local Government under rule 10 and there is no indication to that effect in the hand book. Regulation 4 framed by the Municipal Corporation merely adopts mutates-mutants the fundamental rules as regulating the conditions of service of Municipal officers and employees. It also provides that the fundamental rules shall apply 'subject to the modifications that any reference in the Rules to a Government servant, the Consolidated Fund of India, the Civil Surgeon and the medical committee shall be construed as a reference respectively to a municipal officer or other municipal employee, the Municipal Fund, the Municipal Health Officer and any medical board constituted by the Commissioner.' It is a possible view to take that the adoption of Fundamental Rules did nto take in the regulations framed under the said rule 10. No arguments were addressed to us on this aspect and it is nto necessary to resolve the point. The matter can be decided on the petitioners' failure to show that any rule framed under fundamental rule 10 was nto satisfied. In the Compilation of Fundamental Rules issued by the Accountant General, Posts and Telegraphs (Third Edition) there is a note under Rule 10 'For rules made by the Governor General in Council, under Fundamental Rule 10 see Supplementary Rules 3, 4 and 4A'. The said Supplementary Rules do nto lay down any suggested standards of medical fitness. In 'Swamy's Compilation of Fundamental Rules and the Supplementary Rules 1966 Edition' at page 234 certain decisions taken by the Government of India have been mentioned and Item 4 thereof reads 'In cases where the rules for recruitment to new appointments prescribe a fresh medical examination in respect of all candidates, all directly recruited/ selected candidates, irrespective of whether they are already in permanent or quasi-permanent Government service in the same or in other Departments or are fresh appointees should undergo a medical examination by the prescribed standard and by the prescribed medical authority, provided that a fresh medical examination will nto be necessary in the case of. . . .'. Whatever the position be of the rules framed under Fundamental Rule 10, I have no doubt that executive orders issued in this behalf will nto apply to Municipal employees. As I have said earlier no effort was made at the bar to place any material before us on which I can hold that any rule framed under Fundamental Rule 10 was violated. I may point out here that the parties did nto dispute that the Public Analyst was a Municipal employee. That will leave only Fundamental Rule 10 in the field which requires that no person may be appointed without a medical certificate of health. It is nto even alleged that medical certificate was nto produced by the Public Analyst at the time of his appointment or that he suffered from any disability at that time. Reference to Supplementary Rule 3 shows that it is for the medical officer issuing the certificate to say whether any infirmity disqualifies the person concerned for the particular office. That would also be the position under Fundamental Rule 10 when read in isolation. A medical officer may legitimately say that a person with one eye can properly perform the functions of a Public Analyst-prescription by rules to the contrary apart. The Public Analyst has in his counter-affidavit denied the contents of paragraphs 19 and 20 of the petition. He further says that 'I am a qualified and experienced person having an experience of 30 years in food analysis. In any case the accused can if they so desire challenge my report under section 13(2) of the P.F.A. Act. The rules quoted by the petitioners in regard to the qualifications of the public analyst are only when a public analyst is recruited and these standards are nto expected to be maintained throughout the term of service by a public analyst. In any case only one eye is used while using Microscope. The deponent also has a sample analysed by a Chemist who works under him....'. Regarding the divergence in his reports and the reports of Central Food Laboratory alleged in the petition, he explains that 'the difference in some cases is likely to occur when tested by two different persons at different time and it is for this reason that the Legislature in its wisdom provided for a right of re-check under section 13(2) of the Act.' Rule 7 of the Prevention of Food Adulteration Rules, 1955, prescribes duties of a public analyst. It runs as under:
'DUTIESof a public analyst:-(1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person, the. Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the conditions of the seals thereon.
(2)The public analyst shall cause to be analysed such samples of articles of food as may be sent to him by food inspector or by any other person under the Act.
(3)After the analysis has been completed, he shall send to the person concerned two copies of the report of the result of such analysis in Form Iii within a period of sixty days of the receipt of the sample.'
THEperusal of the said rule shows that the public analyst 'shall cause to be analysed such samples of articles of food as may be sent to him. . - .'. The most that may be said in favor of the petitioners is that the analysis of the food may be carried out either by the public analyst himself or by any other person authorised by him. That may be one of the reasons for the appointing authority nto attaching much importance to absence of one eye or weakness of the other eye. Even in the Hand Book on Medical Examination referred to by Mr, Gosain, one finds various medical disabilities mentioned that do nto disqualify a person from appointment. For instance, at page 8 under the heading 'Standards of Fitness' it is stated: 'Deaf muteness or deafness by itself is nto to be considered a physical defect requiring disqualification of a candidate for appointment to a Class Iii or Class Iv post of the artisan class or to a post involving manual or skilled labour. Again in certain cases a person already an employee of the Government of India or of a State need nto produce a medical certificate on appointment to a new post without break in service (page 2 of the Hand Book). A person with one eye may effectively carry out the duties of a public analyst was nto challenged, the challenge being only on the ground of technical requirements of certain instructions or regulations. In my opinion, the regulations contained in the said Hand Book cannto be of any avail to the petitioners. I, thereforee, hold that the appointment of the Public Analyst was valid.
(5) That takes me to the appointment of Food Inspectors. The petitioners allege that by notification dated April, 6, 1961 (Annexure P to the petition) the Central Government appointed all Sanitory Inspectors employed under the Municipal Corporation as Food Inspectors without applying their mind as to whether or nto the said persons fulfillled the qualifications prescribed for the Food inspectors. It was nto dispuuted that the the particular Food Inspector, namely, Shri Rani Gopal, did fulfill the qualifications and the attack was confined only to the non-application of mind in making en bloc appointments. Relevant part of the notification reads: '....The Chief Commissioner of Delhi is pleased to appoint the following persons to be Food Inspectors for the purposes of the said Act who shall exercise their powers within the local areas shown against each'. Then follows the list of persons appointed as Food Inspectors. The said list mentions nto the names of the persons but the offices held by them such as 'All Deputy Health Officers of Municipal Corporation of Delhi' (2) 'All Zonal Health Officers. Municipal Corporation of Delhi' (3) , Chief Sanitary Inspectors, Municipal Corporationn of Delhi' and (4) 'All Sanitary Inspectors of Municipal Corporation of Delhi'. Section 9 of the said Act provides that the Central Government or the State Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed quilications to be food inspectors for such local areas as may be assignned to them by the Central Government or the State Government, as the case may be. Rule 8 prescribes the qualifications. Mr. Gosain, the learned counsel for the petitioners said that, in view of the provisions of section 9 and rule 8, it was incumbent on the Central Government to examine the qualifications of each appointee before making the appointments and en bloc appointments without attending to their qualification was indicative of lack of application of mind. A Division Bench of this Court in Municipal Corporation of Delhi, v. Chaman Das( 1)- decided that Sanitary Inspectors could under section 9 be appointed as Food Inspectors by virtue of their office. Mr. Gosain attempted to show by reference to civil list that some of the Sanitary Inspectors appointed did nto fulfill the requisite qualifications. That would not, in my opinion, vitiate the appointment of such Food Inspectors as fulfillled the qualifications prescribed by rule 8. lam nto in agreement with the contention of the learned counsel that appointment by virtue of their office shows that the appointing authority did nto apply its mind. In fact no attack on this ground has been made on the appointments in the petition. The contentions in this behalf are contained in paragraphs 22 and 23 of the petition, which have been denied in the counter-affidavits. Paragraph 22 is confined to (1) disqualification on the ground of the interest of Shri Ram Gopal in production and sale of articles of food a contention nto pressed before us and (2) a general allegation that the appointment was in contravention of section 9 of the said Act. In paragraph 23 the contention is that since the qualification and number of Sanitary Inspectors had to be determined by the Corporation and they were, by virtue of their office, to automatically become Food Inspectors the Central Government divested itself of all control in the matter of appointment of Food Inspectors and that constituted illegal delegation of powers in this behalf to the Corporation. The arguments presented to us and the proposition laid at the bar were thereforee quite different. Lack of application of mind being a question of fact required a firm averment. Even as to delegation there is no merit. The appointments had been made by the Central Government. No power to appoint has been delegated and if appointments could be made nto by names of the appointees, but by offices held by them, as, in my opinion it could be, no question delegation arises. May be, though in the absence of arguments on the point I do nto express any final opinion, persons appointed as sanitary inspectors after the notification do nto automatically become Food Inspectors. In any case the invalidity of the Food Inspectors' appointment will nto entitle the petitioners to the relief asked for. As held in Criminal appeal 125 of 1967 'A purchaser of any article of food, other than a Food Inspector. can also, as provided by section 12 of the Prevention of Food Adulteration Act, have the article analysed by the Public Analyst. He is, of course, to inform the vendor at the time of purchase .of his intention to have such article so analysed. So even irthere was any defect in the appointment of Shri Jamna Pershad as a Food Inspector, due to his having financial interest in manufacture and sale of articles of food, still there was nothing to prevent him from purchasing the Boondi sweets From the respondent. Shri Jamna Pershad had duly informed the vendor that the article purchased by him would be gto analysed....'. Even if I were to hold in favor of the petitioners that the appointment of Food Inspectors was nto valid, there is no material on the record to show that the Food Inspector could nto act as a private purchaser under section 12 of the said Act. This contention of Mr. Gosain also fails.
(6) Regarding the legislative competence, Mr. Gosain referred to the definition of the expression 'adulterated' in section 2(1) of the said Act which is as under;
'ADULTERATED'-ANarticle of food shall he deemed to be adulterated-
(A)if the article sold by a vendor is nto of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is nto of the nature, substance or quality which it purports or is represented to be:
(B)if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof;
(C)if any inferior or cheaper substance has been substituted wholly or in part for the article so as to effect injuriously the nature, substance or quality thereof;
(D)if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature. substance or quality thereof;
(E)if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(F)if the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption;
(G)if the article is obtained from a diseased animal;
(H)if the article contains any poisonous or other ingredient which renders it injurious to health;
(i) if the container of the article is composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;
(j) if any coloring matter other than that prescribed in respect thereof and in amounts nto within the prescribed limits of variability is present in the article;(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;(l) 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'.He argued that the definition extends the meaning of the expression beyond its oridnary meaning as commonly understood in the commercial sense and is, thereforee, outside Entry 18 of the Concurrent list in the Seventh Schedule of the Constitution. Mr. Gosain's main attack was on the basis of clause (1) of section 2(i). He said that 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 prescribed limits of variability the article of food becomes adulterated. It has, thereforee, been left entirely to the rule making authorities under section 23 to prescribe any standards they like, with the result that an article of food nto adulterated in the ordinarly commercial sense as envisaged in Entry 18 may become adulterated under the said Act. It should be remembered that Constitution is nto a mere piece of casual legislation. It is a charter or an instrument framed with the intention that it will last for all time to come without being altered except through a complicated process. The Courts while interpreting legislative entries must bear that aspect in mind and nto interpret them in a pedantic or wooden manner. Entries defining the ambit of legislative powers should be given large and broad interpretation because the allocation of subjects in the Lists is nto by way of scientific definition. The amplitude of a particular entry must be determined by reference to the purpose behind the conferment of the power on the Legislature and only such interpretation should be given as would best effectuate that purpose rather than defeat it. Each general word in the Entry must necessarily thereforee extend to all ancillary or subsidiary matters fairly and reasonably comprehended in the general word. Entry 18 confers power on the Legislature to legislate with respect to 'adulteration of food stuffs and other goods'. A law treating an article of food which falls below prescribed standards as adulterated would in my opinion be covered by the said entry. If the Legislature while legislating on the subject leaves it to the unguided or arbitrary discretion of the rule making authorities to prescribe any standards, the legislation may be open to attack on other grounds such as violation of Article 19 of the Constitution or delegation of legislative power. But such legislation per se cannto be said to suffer from the vice of legislative in-competence. Entry 18 is, in my opinion, ample enough to authorise the impugned legislation. Even with respect to the prescription of standards ample safeguards have been provided. Under section 23, the Central Government can frame rules only after consultation with the Central Committee for Food Standards constituted under section 3 of the Act and subject to the condition of previous publication. Under section 3 the Committee has to consist of the Director- General, Health Services, the Director of the Central Food Laboratory, two experts nominated by the Central Government, one representative each of the Departments of Food and Agriculture and various other specified experts. Under sub-setion (2) of section 23, the rules have to be laid before each House of Parliament. Provision has been made for modification or nullification of rules at the instance of the Parliament. It cannot, thereforee, be suggested that any unguided or arbitrary power for prescribing standards has been conferred on the rule making authority. This argument of Mr. Gosain must also, thereforee, be repelled.
(7) That takes me to the question regarding the possibility of indictment of a company or a firm in view of the punishment prescibed by section 16 of the said Act. Before dealing with the contention, it is necessary to analyze sections 16 and 17. Section 16 after setting out the punishable acts proceeds to prescribe the punishment and the relevant part reads :
'.. . .he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishbale with imprisonment for a term which shall nto be less than six months but which may extend to six years and with fine which shall nto be less than one thousand rupees :
(I)if the offence is under sub-clause (i) of clause (a) and and is with respect to an article of food which is adulterated under sub-clause (1) of clause (i) of section 2 or misbranded under sub-clause (k) of clause (ix) of that section : or
(II)if the offence is under sub-clause (ii) of clause (a), the court may for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.
(IA)If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, tempers or in any other manner interferes with such article, he shall be punishable with impprisonment for a term which may extend to two years and with fine which shall nto be less than one thousand rupees.
(IB)If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article and such article is found by the magistrate before whom it is produced, to be adulterated with any poisonous or other ingredient under sub-clause (h) of clause (i) of section 2, then, notwithstanding anything contained in sub-section (IA), he shall be punishable with imprisonment for a term of six years and with fine which shall nto be less than one thousand rupees.
(IC)If any person contravenes the provisions of section 14 or section 14A, he shall be punishable with imprisonment for a term which may extend to six months and -with fine which shall nto be less than five hundred rupees.
(ID)If any person convicted of an offence under this Act commits a like offence afterwards, then, without prejudice to the provisions of sub-section (2), the court, before which the second or subsequent conviction takes place, may order the cancellation of the license, if any, granted to him under this Act and thereupon such license shall, notwithstanding anything contained in this Act, or in the rules made there under, stand cancelled.
(2)If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or subsequent convicviction takes place to cause the offenders' name and place of residence, the offence and the penalty imposed to publish at the offerder's expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to be part of the cost attending the conviction and a shall be recoverable in the same manner as a fine.'
(8) It was nto disputed at the bar that in view of the decision of the Supreme Court in State of Maharashtra v. Jagmander Lal(2) for offences falling under section 16(1) minus the proviso. the Court is bound to inflict punishment of imprisonment a.s well as fine. There was, however, a controversy as to the construction of the proviso. The learned counsel for the petitioners argued that even under the proviso, punishment by way of imprisorment was compulsory. The learned counsel for the respondents were nto in agreement with that view. Mr. Gosain said that under the substantive part of section 16(1) the punishment prescribed was imprisonment for a term nto less than six months but up-to six years and fine 'which shall nto be less than one thousand rupees' and the object of the proviso was to confer discretion on the Court to reduce imprisonment to a term of less than six months and fine to less than RS.1,000.00. But the Court could nto impose punishment of fine alone. He relied on the decision of the Kerala High Court reported in City Corporation of Trivendrum v. K.J. Mcthew (3). It was there held that the sentence awardable under the proviso was conjunctive and cumulative and the discretion of Courts was limited to the reduction of sentence only. With great respect, I am unable to hold that the Court cannto under the poviso completely dispense with the sentence of imprisonment in cases falling under the proviso. Departure from the cumulative punishment prescribed under the substantive provision has of course to be made for adequate and special reasons. Their Lordships of the Kerala High Court were influenced considerably by two factors: (1) the history of the legislation, and (2) the proviso must be comsirued in such a way as nto to swallow up the enactment itself. As to the history of the legislation it is equally probable that having regard to the amplitude of the definition of adulterated food and/or misbranded food and to the category of persons on whom responsibilities have been cast. the Legislature may have, in its wisdom, thought proper to leave a discretion with the Court in special cases to award a lesser sentence. Whereas it is true that the Court may take note of the history of a statute and of the various steps attending its enactment in its effort to ascertain the legislative intent, but the history does nto permit departure from the clear language of a statute. As to the legislative intent the best way in my opinion is to ascertain the same from the language of the statute itself. If the meaning of the language appears plain, there is really no need for construction, for the intention is the one represented by the apparent meaning. Only where a statute is ambiguous should the Court endeavor to go into the mind of the Legislature by taking aid from elements beyond the language of the statute for it is the language of the statute that constitutes the depository or reservoir of the legislative intent. Let me look at the language of the proviso now. It provides three things and they are that the Court may for adequate and special reasons to be mentioned impose:
(1)a sentence of imprisonment for a term of less than six months; or
(2)fine of less than one thousand rupees; or
(3)both imprisonment for a term of less than six months and fine of less than one thousand rupees.
THEuse of the word 'or' clearly makes the sentences disjunctive. If the Lagislature intended otherwise it should have said 'a sentence of imprisonment for a term of less than six months and of fine of less than one thousand rupees.' Again there was no necessity of the last part of the proviso, namely, 'or of both imprisonment for a term of less than six months and fine of less than one thousand rupees'. If the intention of the Lagislature was to retain the cumulative nature of sentence and confer discretion on the Court only to reduce the sentence of imprisonment and of fine it would have been ample for the Lagislature to provide that 'the Court may for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than six months and of fine of less than one thousand rupees'. On the construction suggested on behalf of the petitioners, the last sentence, i. e. 'or of both imprisonment ........ and fine of less than one thousand rupees' will be reduced to silence. I would say that even if the Lagislature intended to retain cumulative sentence it has misfired and the plain language overlies such intent. Reading the statute as suggested by Mr. Gosain will entail clear violence to the plain language. We are interpreting a statute which is nto only penal but also represents high watermark of the invasion on the liberty of the subjects. It has extensive dimensions. It makes person vicariously liable. T would resolve ambiguity if any, in favor of lesser sentence. The net effect, thereforee, is that under the main provision the Court is bound to award sentence of imprisonment while in cases falling under the proviso the Court may award only a sentence of fine.
(9) The learned council for the petitioners argued that since an artificial person cannto be imprisoned and punishment by way of imprisonment cannto be dispensed with, artificial persons do nto fall within section 16 at all. He relied on State of Maharashtra v. Messrs, Syndicate Transport Co. (P) Ltd. wherein it was held that a company cannto be indicted for offences which by their very nature are capable of being committed only by human individuals or for offences compulsorily punishable with imprisonment. The principle may broadly be stated thus: A limited company like any other entity be indicted for criminal acts which by reason of the very necessity must be performed by human agency and which in given circumstances become acts of the company. For this purpose there is no distinction between an intention or other function of the mind and any other activity. The exceptions to this rule are that a company cannto be indicted for offences which cannto from their very nature be committed by a corporation or where the only punishment the Court may impose is corporal. Reference may be made to Rex v. I.C.R. Haulage, Limited and Palmer's Company law, twentieth edition, pages 133 and 134. What is the position under the statue? Section 17(1) in express terms provides that where an offence under the said Act has been committed by a company, 'every person who at the time the offence was committed was in charge of and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly'. The proviso to sub-section (1) says that 'nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offences'. Sub-section (2) of section 17 imposes a liability on director, manager, secretary or other officer of the company, if it is proved, in case of an offence by a company, that the same has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, etc. The definition of the 'company' has been enlarged by the Explanationn to include a firm or other association of individuals and of 'director' to include in relation to a firm a partner in the firm. It thereforee clearly appears that firms and companies have been expressly brought within the purview of of the penal provisions of the statute. It cannot, thereforee, be said that firms and companies are completely outside section 16. A different question, however, arises where the punishment of imprisonment is compulsory. The learned counsel for the respondents suggested two alternatives: (1) in such cases a company or a firm may be prosecuted but since it is nto possible to imprison a company the Court may dispense with the punishment of imprisonment even under the substantive provision of section 16 and award fine only, and (2) a firm may be prosecuted but nto punished. As to the point raised by the first contention, the argument does nto sound plausible. Under the substantive provision of section 16, punishment by way of imprisonment is mandatory and I do nto think the Courts are competent to perform a surgical operation on the section and say that though punishment prescribed is cumulative yet in case of a company it may be punished with fine only. As to the second argument I do nto think that the Court can stultify themselves by permitting indictment if it cannto ultimately result in conviction. To my mind, thereforee, the proper approach should be that a company or a firm can be indicted and punished only for the offence for which imprisonment is nto mandatory. On behalf of the petitioners it was suggested that on this process of reasoning a company cannto even be prosecuted for offences falling under the proviso to section 16(1). I regret I cannto agree. In case of such offences punishment by way of improsonment nto being mandatory a company or a firm can, in my opinion, be prosecuted and punished. That is so because as a general rule an artificial person can commit offences under the said Act but it is by reason of the nature of penalty for certain offences that they enjoy immunity. For the offences for which imprisonment is nto compulsory I can see no reason why an artificial person cannto be prosecuted and punished. The learned counsel for the respondents said that a firm being merely a compendious name of the partners, its prosecution should be competent because in substance, the prosecution in such cases is of the partners. I do nto think that the principle of civil law can be extended to the Act under consideration, and to fluctuating body like a firm. The effect of section 17(1) is that if an offence has been committed by a firm and such offence is nto necessarily punishable with imprisonment a firm can be prosecuted and punished in its name. Where, however, the offence is punishable compulsorily with imprisonment the firm as such cannto beprosecuted. In this case it was nto disputed that the firm is being prosecuted for offences which fall under proviso to section 16(1) of the said Act. The prosecution is, thereforee, valid.
(10) It was then argued by Mr. Gosain that no allegation has been made in the complaint against Jiwan Lal. That is a matter wich the Court trying the offence will consider and determire. It will nto be appropriate for me in these proceedings to do so.
(11) The last contention raised by Mr. Gosain is that no standards have been prescribed for white pepper and the prosecution is bad on that account. That is again a point which can more appropriately be answered by the trial Court and T will express no opinion thereon.
INthe result, Civil Writ 144 of 1968 fails and is dismissed.
(12) That takes me to Civil Writ 139 of 1967. In this case no prosecution has been filed against any of the petitioners and they merely seek a declaration that certain provisions of the Act and the Rules are vocative of Article 19(l)(g) as they impose unreasonable restrictions on their rights to carry on trade or business. Mr. A.S.R. Chari the learned counsel for the petitioners argued that unlike English Act, Indian Act puts an honest trader under a disability in the sense that certain standards for certain articles have been prescribed and if sub-standard goods are sold even by a person having no hand in the adulteration, he is still punished. He drew our attention to the wide definition of a 'adulterated food' and said that even in cases where the matter is beyond the reach of human agency due to the standards prescribed being incapable of attainment in the country a seller may be punished. He gave examples of various articles for which according to him the standards prescribed in the Rules are beyond the standards that can be reached in this country. It is nto necessary to enumerate all of them and the case of Fennel alone may be mentioned as illustrative of his argument. Under rule A.05.11.01 the standard prescribed for Fennel Powder is Volatile Oil nto less than 4 -0 per cent and total ash nto more than 9 -0 per cent by weight, whereas in the publication 'The Wealth of India' 1956 Edition, published by the Council of Scientific and Industrial Research at page 54 it is stated that 'the percentage of oil (volatile oil) varies considerably, being lowest in fruits of Indian origin (0.7-1.2) and highest in fruits from Eastern Europe (4-6)'. Again it is stated 'the percentage of ash does nto exceed 12 per cent.' Mr. Chari gave various other instances from other authoritative books in his effort to make good his contention. While it is true that if any such standards are prescribed it may violate Article 19, but it is nto possible to come to that conclusion on the facts of this case. I have already mentioned the procedure for prescribing standards. That is done in consultation with Committee of experts and then the matter is placed for consideration before ParliamentIt is to be presumed that before framing the Rules the Committee must have considered all the authoritative books referred to by Mr. Chari. It would, however, be for the rule making authority to consider whether or nto any such infirmity exists in the standards prescribed and to rectify the same. This petition must thereforee also fail.
(13) I will now deal with Civil Writ 64 of 1968. The common points have already been discussed. The adulteration alleged is 'due to the presence of unripened chillies to the extent of 12-1 per cent'. The learned counsel for the petitioner referred to Item A.05.10 in the unamended rules that were in force at the the time the prosecution was launched which prescribes the standards for chillies and contended that presence of 'unripened chillies' cannto constitute adulteration and if it does the rule is vocative of Article 19. I have already discussed that the standards have been prescribed with the aid of experts and proper guiding principles have been provided in the Act. The rule, thereforee, cannto be said to violate Article 19. As to whether or nto it constitutes adulteration will be for the trial Court to consider. This petition also fails.
(14) Now I will come to Civil Writ 165 of 1968. The first point taken by Mr.D.D. Chawla relates to the merits of the controversy, namely, that having regard to the article said to be adulterated, Rules, and the statement of the Food Inspector dated September 1, 1967, there is no case of adulteration made out. That again is a matter to be decided by the trial Court.
(15) He then contended that the complaint has been launched against a firm as well (Petitioner No. 2) for selling food adulterated 'due to 0 -78 excess in total ash per cent and also due to infestation' and one part of the offence does nto fall under proviso to section 16(1). If that be so, the trial Court will necessarily consider it and pass appropriate order in accordance with the interpretation placed by me on the Act. It is nto a case where a firm cannto be prosecuted or convicted at all because admittedly one of the offences alleged falls under proviso to section 16(1).
(16) In other writ pettions besides the common points regarding the valdity of the appointments of public analysts and the Food Inspectors, liabity of the firm to be prosecuted and punished, validity of the standards prescribed vis-a-vis Article 19, the other points relate only to the merits of the controversy, which will again be a matter for the trial Court to decide.
(17) In this view, these petitions must fail and are dismissed, with no order as to costs. The parties to appear before the Chief Judicial Magistrate on Nov. 15, 1969. October 10,1969.
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M.R.A. Ansari, J.
(18) I agree