S. Rangarajan, J.
1. Eight petitioners have invoked the jurisdiction of this Court under Section 482 of the Criminal Procedure Code (New) and Article 227 of the Constitution of India for quashing the order, dated 20th October, 1976, passed by the learned Metropolitan Magistrate (Shri. J.D. Kapur) holding that the presence of insect known as Makoda in the carbonated water known as Rim Zim sold to the Food Inspector Shri R. P. Singh, (P.W. 3) was prima facie sufficient ground to frame charge for selling adulterated carbonated water against all the eight of them.
2. The case of the prosecution is that on 19th May, 1973 the Food Inspector Shri R.P. Singh (P W. 3) saw a truck No. DLL 2222 carrying carbonated water parked in front of Kumar Cinema, Chandni Chowk and he contacted the driver-cum salesman Manohar Singh (petitioner/accused No. 1); after disclosing his identity as a Food Inspector he asked him to sell a sample of carbonated water. He saw one bottle of carbonated water 'Rim Zim' containing an insect, He purchased only one (that) bottle on payment of 90 P. not (6 as mentioned by the learned Magistrate). The liquid inside the said bottle was of brown colour. It was not stated in the memo of sale (Ext. PW 3/A) that the insect found was Makoda (it was only mentioned as an insect). The reference to the Makoda probably came only after a considerable lapse of time, when evidence was recorded; the prosecution has itself been launched in this case after a delay of nearly 2 1/2 years on 28th November, 1975.
3. It was admitted by P.W. 3 himself in cross examination that he had kept the bottle said to contain the insect with him for nearly three years, i.e. from 19th May, 1973 to 3rd May, 1976, on which date alone it was produced in the lower Court. Even at the stage no application had been made for sending the bottle for scientific analysis by the public analyst; no such application was made even subsequently. In the result we do not know whether the liquid had become unfit for human consumption, in terms of Section 2(1)(f) of the Prevention of Food Adulteration Act, 1954, on account of the presence of an insect. As the subsequent discussion will show the onus of proving the liquid having become unfit for human consumption because of the presence of an insect inside is on the prosecution without proving the same it cannot be said that a case which if unrebutted would warrant a conviction has been made out. One point of difference between the new and old Acts in this respect is significant : The word 'disgusting' has been dropped from the New Act. Section 2(1)(f) of the Old Act read:
'If the article consists wholly or in part of filthy, putried, disgusting, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption.'
I shall revert to this aspect later.
4. Concerning the delay in launching the prosecution it is explained as having been mostly due to the particulars concerning the directors and those responsible for the management of Delhi Bottling Company Private Ltd. (3rd petitioner) and Vijay Anand and Associates Private Ltd. (2nd petitioner) not being available but having to be ascertained. The prosecution was launched not only against the driver-cum-salesman Shri Manohar Singh (1st petitioner) who sold the said carbonated water bottle containing the insect to P.W. 3 but the aforesaid two companies (petitioners 2 and 3) as well as against five other persons who are said to be office-bearers of Vijay Anand and Associates Privates Private Ltd., the supplier (2nd petitioner). No person connected with the Delhi Bottling Company Private Ltd. (3rd petitioner) was prosecuted.
5. The law is now settled that no prosecution could be led against a partner or a director under Section 17 of the above Act unless that said partner or director in question was in-charge and responsible to the company for the conduct of the business at the time when the offence was committed. There being no such evidence in the case Shri B.T. Singh, learned counsel for the M.C.D., has rightly conceded that the proceedings taken against petitioners 4 to 8 should be quashed in any event. The said concession of Shri B.T. Singh is based on the decision rendered by V.D. Misra, J. in Shri Jarnail Singh v. M.C-D. (1977) 1 P.P.A.C. 186, Which in turn, refers to a number of decisions including that of the Supreme Court in Smt. Manibai v. The State of Maharashtra, : 1974CriLJ451 . It is needless to notice separately or in any detail these decisions. A rather unsatisfactory feature of the order passed by the learned Magistrate in this case is that the above said legal principle had not been adverted to by him though the more recent decision of V.D. Misra J. was not then available. The learned counsel for the petitioner had submitted to the lower court 22 pages of typed arguments making detailed reference not only to the above aspect but to several others, to some of which at least I shall refer presently. On this point, the criminal liability of corporations and corporate officials, including the above said decision of the Supreme Court, 9 decisions (but not that of V.D. Misra J) had been referred to therein. It is indeed a matter for regret that none of them bearing on this point had been discussed by the learned Magistrate. On the contrary the learned Magistrate had mentioned in the impugned order certain facts as having been brought out on this point even without their not having been so brought on the record. A good example of this is the statement, apparently attributed to P.W. 2 that the directors of the Vijay Anand and Associates Private Ltd. were in charge of and responsible for the conduct of its affairs. P.W. 2 who was called from the office of the Registrar of Companies, only filed the Memorandum of Association (Ext. PW 2/A) which only shows the names of directors and managing director but nothing more.
6. The most important question for consideration now is whether on the materials before the trial court the order directing the framing of charge in respect of the said sale was warranted In the other words, was there a prima facie case or sufficient ground to frame charge for selling adulterated carbonated bottle, as the Magistrate persuaded himself in the impugned order Here again elaborate arguments had been urged on behalf of the petitioners in the written arguments submitted to the lower court by Shri Sareen who states at the bar that he also argued the same points orally before him on three occasions. But the learned Magistrate had not come to grips with them. He seems to have contended himself with observing that it looked to him that the arguments were being made in a circle : 'using', as he put it, 'conclusion as one of the arguments' (sic) I have not even been able to follow him here. He then persuaded himself to hold that some of the points raised on behalf of the accused/petitioner did not call for decision 'at the present stage'. I am afraid the learned Magistrate did not even properly conceive of his duty at the time of framing of charge(s). This has been explained very clearly recently by Chandrachud J. speaking for the Supreme Court in State of Karnataka v. L. Miniswami, : 1977CriLJ1125 . It has been pointed out that for the purpose of determining whether there is substantial ground for proceeding with the prosecution against the accused the Court possesses a comparatively wider discretion in the exercise of which it can determine the question whether on the material on record, if un-rebutted, a conviction can be said to be reasonably possible. The High Court in that case had quashed the charges against certain accused persons; the special appeal against the said decision was dismissed holding that for meeting with the ends of justice the proceedings against these accused had been properly quashed. The discretion which the court has while framing charge, is, thereforee, comparatively wider than what the learned Magistrate thought he had. It would be useful to set out the following observations of Chandrachud, J :
'.........the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D. D. Gandiganokar. : 1SCR1 and Century Spinning & Manufacturing Co. v. State of Maharashtra, : 1972CriLJ329 show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration . whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and thereforee it is the duty of the court to consider judicially whether the material warrants the framing of the charge', (pp 1493-94).
7. A number of contentions have been raised before me. They have fully stated in the present petition. It will be sufficient to note that Mr. C.L. Sareen learned counsel for the petitioners argued every one of the points which had been taken in the petition. But it does not seem necessary to discuss herein all of them. I say so because it seems to me that the evidence led by the prosecution falls far short of proof that the carbonated water containing the insect was unfit for human consumption, a fact which has to be proved by the prosecution; it cannot be presumed merely from the presence of insect. P.W. 3 had himself admitted that he cannot say if this insect was poisonous or not and that he was not an expert; it could be explained only by the Public Analyst. Yet he had not sent it to the Public Analyst. There is no other evidence on this question. Even on this important aspect the above said written arguments submitted to the Magistrate had referred to several authorities, English and Indian. Some of them were noticed by the learned Magistrate but he did not apply his mind to them; he contended himself with observing that they were 'not so persuasive at this stage' and that they must be considered 'at the final stage'. I am afraid that this observation does not reflect a correct understanding of the legal position. It has been explained by Chandrachud J in the aforesaid case. Either the learned Magistrate thought these authorities were determinative of the question in favor of the accused or it was not; they could not become determinative at a later or final stage. There has been a failure to realise that framing of charge has a substantial impact on the liberty of an individual though such a course would have to be adopted when warranted. Much more serious application of mind is necessary.
8. The food sample in question was held not to become unfit for human consumption within the meaning of Section 9(1) of the Food and Drug Act, 1938, merely on the ground of presence of some metal in it (vide Reference J. Miller v. Butterson Burough Council (1955) 3 A.E.R. 279Lord Chief Justice Goddard asked : How can one say that the food became unsound, that it is to say rotten or putrid merely because there is some piece of extraneous matter in the food which has no effect on the general composition A similar approach was adopted in Reference Edward v. Llaethdy Mierion Limited, (1957) 107 L.J. 138where the cap of the milk bottle was found in the milk. In Turner & Sons. Limited v. Owen (1957) 3 A.E.R. 565 a piece of string was found in a loaf of bread; In Chibnall's Bakeries v. Cope Brown, 1956 Times January 31 used bandage was found sticking to the bottom of the crust of loaf of bread: in none of these cases was the sample of food found to be unsound.
9. The prosecution has not only got to establish that there is an extraneous matter, but it must also prove that the said extraneous matter in the food has 'affected the general composition of the food item' that it has, aside from aesthetical or like considerations, become unfit for human consumption by the general composition becoming so affected as to make it unsound.
10. It was held by the Supreme Court in Municipal Corporation of Delhi v. Khacheru Mal (1976) 3 Cr. L.T. 150 that the phrase 'or is otherwise unfit for human consumption' in Section 2(1)(f) is to be read 'conjunctively'. Sarkaria, J., speaking for the Court, observed:
'The adjectives filthy, putrid, disgusting, decomposed, rotten, insect-infested refer to the quality of the article and furnish indicia for presuming the article to be unfit for human consumption, but the presumption may not be conclusive in all cases, irrespective of the character of the article and the nature and extent of the vice inflicting it. // is particularly so where the article is found to be insect-infested, in which case it must be proved that the article was unfit for human consumption'. (emphases added).
The article could become unfit for human consumption by the insect found in the sample being alive or dead. It must be proved in each case, as a fact, that the article is unfit for human consumption. It will be for Judge to decide, upon evidence, whether the insect found was of a such nature to make the article unfit for human consumption: even the ipse dixit of the public analyst may not be of much help by itself, because even when there is a report of the Public Analyst the Court cannot abdicate its judicial function leaving it to be tried by the Analyst as it were. The Court, Sarkaria, J. said, should reach its own finding. Such a finding has obviously to be reached by the application of mind to the actual evidence before it. P.W. 3, in the present case, categorically admitted that the only reason for his saying that the sample was unfit for human consumption was the presence of an insect inside it. He further added : 'I cannot say that this particular insect is quite poisonous or not. It can only be explained by the Public Analyst.'
11. A Division Bench of this Court in Municipal Corporation of Delhi v. Bhawani Shankar (1975) 1 F.A.C. 251, held that the mere presence of one or two insects will not make the article insect infested within the dictionary meaning of the expression. In another decision rendered by the same Bench in Municipal Corporation of Delhi v. Behari Lal (1975) 1 F.C.A. 246 it was explained that a vague or general expression of opinion by the expert in this respect could not support a conviction. In that case a sample of Amchoor Pieces were analysed by the Director, Central Food Laboratory, Calcutta, according to whom insect infestation was present in the sample, he had, however, failed to give any idea of the infestation referred to by him. It was not known what percentage of the 'Amchoor' pieces had been attacked by insects and to what extent the infested pieces had been affected. These decisions, by which I am bound, explain the kind and nature of duty placed on the prosecution to show how the article in question is unfit for human consumption. In like manner, it is not possible, on the state of evidence in this case, to say that the presence of an insect inside the carbonated water bottle was sufficient to render it unfit for human consumption within the meaning of Section 2(1)(f) of the above said Act.
12. On this sole ground the order of the learned Magistrate has to be quashed as against all the petitioners and not merely petitioners 1 to 3 as urged by Shri B. T. Singh, Learned Counsel for the respondent before me.
13. Some at least of the other points argued by the learned counsel for the petitioner in this case have considerable force; I would like to refer to the following :
(1) P.W. 3 did not even say that he made efforts to secure the presence of a person to witness and attest the taking of sample as required by Section 10(7) of the Act. On this aspect also the learned Magistrate has incorrectly read the evidence of the Food Inspector as stating that he had made such efforts to secure the attestation by independent witnesses and failed in this regard; he has not stated so. The obligation which Section 10(7) lays on the Food Inspector is to 'call' one or more persons to be present at the time of taking such action. Chandrachud, J., speaking for the Supreme Court, explained in Ram Labhaya v. Municipal Corporation of Delhi, (1974) 1 Cr L.T. 165 the scope of that provision, the obligation to 'call' one or more persons was stressed; it was further explained that if he was still unable to secure the presence of any he would be driven to taking such action in the presence of the members of his staff. The amendment made in 1964 had omitted the previously used expression 'as far as possible'. A division Bench of this Court in Krishan Lal v. State, (1972) F.A.C. 530 to which I was a party, had discussed the above aspect and had explained how the said provision relating to the evidence is only directory and not mandatory. It would be different altogether if the Food Inspector threw over board the obligation squarely laid on him to even 'call' witnesses. On this ground alone V. D. Misra., J. dismissed a revision Petition against the discharge of the accused by the Magistrate (vide Mangal Singh v. State, (1976) 1 F.A C. 139 It is needless to multiply the further citations on this question. This action taken by P.W. 3 in the present case was vitiated for this reason also.
(2) Another point argued by Shri Sareen on behalf of the petitioners was that there had been a considerable amount of delay in filing the prosecution. Actually no limitation has been prescribed for the launching of the prosecution but the prosecution has to be made as expeditiously as possible especially because such delay may defeat the right of the accused under Section 3(2) of the said Act, namely, to ask for the sample to be further analysed by the Director of the Central Food Laboratory, Calcutta. For the purpose of this case however, it seems needless to pursue this matter.
3. Yet another aspect pertains to the relative case with which any person can temper with carbonated water bottles especially in the context of P. W. 3 having kept the same in his private custody for the nearly two and half years. My attention has been drawn by Shri Sareen to the Notification of the Government of India, Ministry of Health and Family Planning (F. 40 105/76 PHI dated 18th March, 1976). The Ministry of Health has expressed therein its concern about the possibility of misuse and tampering with the crown cork of such bottles for ulterior purposes. This is yet another caution to bear in mind in the context of this case.
14. It only remains to notice the decision of a division Bench of this Court in Madan Lal v. R. N. Gujral (Cr. Revision No. 35/68, Cr. R. 35 of 1958 decided on 6th October, 1970), which has been relied upon by Shri B. T. Singh, learned counsel for the M. C. D. The factual situation then was so different that it affords no parallel to the present case. In that case the Food Inspector had recovered certain samples as a part of an enquiry ordered by the Health Department into cases of food poisoning due to consumption of eatables prepared by a certain halwai in Delhi, who had closed clown his business and fled from the place. The Corporation lodged a prosecution on the basis of such samples taken by the Food Inspector who was admittedly not acting as Food Inspector when he look the samples. The provisions of the said Act relating to taking of samples did not obviously apply. Reference was made to Nazir Ahmed v. Emperor which explained the legal position that if statues conferred a certain power on an official subject to certain preconditions these conditions must be strictly fufilled. A confession has been made in that case before the Magistrate who did not comply with some requirements of the Code of Criminal Procedure. But the Evidence Act rendered admissible confessions made in the presence of a Magistrate. It held that the Magistrate could not give oral evidence of that confession relying upon the provisions of the Evidence Act. There was no need in Madan Lal to comply with the provisions of the Prevention of Food Adulteration Act and, thereforee, the said Act had not been contravened. The said decision is, thereforee, of no assistance to Shri B. T. Singh.
15. Quite apart from consideration of legality the opportunity which the prosecution had in the matter of proving its case against at least some of the petitioners was lost by the contents of the bottle not having been scientifically analysed and even not produced the same before the Court early enough. The opportunity having been thus lost it cannot be said to be made good now as feebly suggested by Shri B. T. Singh. The concern now is and can be only with the evidence on record, the prosecution having closed its case already.
16. In the result, the petition is accepted and the impugned order is quashed. All the petitioners arc discharged from the proceedings entitled Municipal Corporation of Delhi v. Manohar Singh and Ors. pending before Shri J. D. Kapur, Metropolitan Magistrate Delhi.