1. From the shop of Messrs. Janta Sudh Masala Store at No. 489/20B, Gandhi Nagar, Delhi, Shri Prem Parkash Sinha, a Food Inspector, took on October 22, 1971, at about 12.45 P. M. a sample of ginger for the purpose of getting it analysed. He purchased 450 grams of that article on payment of Rs. 3.05 to Jagan Nath. who was present in the shop and selling goods. On one part of the sample being analysed by the Public Analyst it was reported to be adulterated. On the basis of that report Jagan Nath, Ram Chand, Subhash Chand and Messrs. Janta Sudh Masala Store were prosecuted. All the accused were, however, acquitted by Shri B.L. Anand, Judicial Magistrate, First Class. Against the order of acquittal dated September 11, 1972 the present appeal was filed on behalf of the Municipal Corporation of Delhi
2. It may be mentioned that Jagan Nath, Ram Chand and Subhash Chand were alleged to be partners of the firm Messrs Janta Sudh Masala Store located at 489/20B, Gandhi Nagar. Jagan Nath, who had sold the sample of ginger to the Food Inspector, however, took the stand that he was the sole proprietor of the firm. Ram Chand and Subhash Chand as well stated about having no concern with Messrs. Janta Sudh Masala Store. The trial Court held that Jagan Nath, Ram Chand and Subhash Chand were the partners of Messrs. Janta Sudh Masala Store, but acquitted all the accused on the ground that the prosecution had failed to prove that the article of food of which the sample was taken had become unfit for human consumption on account of insect infestation. Reliance was also placed on a decision of this Court in the case of Dhan Raj v. Municipal Corporation of Delhi 1972 FAC 335 : : 8(1972)DLT180 .
3. The sample of ginger was taken by the Food Inspector after observing the required legal formalities. On that very day one of the three parts of the sample was delivered to the Public Analyst. The Public Analyst got the sample analysed on October 26, 1971 and made a report (Exhibit PE) that the sample was adulterated due to the presence of insect infestation and on account of 60.6 % of insect damaged rhizomes. The result of the analysis was stated in the import to be as follows:
Extraneous matter : Nil.
Moisture. : 11.6%.
Volatile oil (v/w) on dry wt. basis : 1.38%.
Insect infestation : Present (living insects present done on 23-10-71).
Insect damaged rhizomes : 60.6% by wt.
4. During the trial Shri Kesho Parshad Attri, Deputy Health Officer, and Shri Ram Chander, a Pharmacist, were also examined as Court witnesses. The evidence given by Shri Attri was that in case ginger is infested with living in-sects it should not be consumed by human beings for by taking such infested ginger it can create trouble in stomach and intestines. He, however, had to admit that during his thirty years' practice of Indian system of medicine he did not come across any case where by consuming insect infested ginger disorder may have been caused in the system of any person. Shri Ram Chander, who claimed to have experience of thirty-five years in the practice of Indian system of medicine, as well deposed that ginger infested by insects should not be consumed by human beings as it may cause harm. Like Shri Attri he also admitted that during his long practice, no patient had complained to him that consuming insect infested ginger had resulted in any disease.
5. In the case of Dhan Raj : 8(1972)DLT180 (supra), on which reliance was placed by the learned trial Magistrate, it was held by a Bench of this Court of which one of us (Jagjit Singh, J.) was a member that Sub-clause (f) of the definition of 'adulterated' as given in Section 2(i) of the Prevention of Food Adulteration Act only applies if an article of food consists of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect infested and for any of those causes or for any other cause is unfit for human consumption. It was also remarked that the said sub-clause specifically mentioned some of the well-known causes on account of which an article of food may be called unfit for human consumption but as it is not possible to exhaustively enumerate all such causes the latter portion of the sub-clause brings within its ambit any other cause or means which may make such article of food also unfit for human consumption.
6. The Public Analyst did not mention in his report the extent of insect-infestation, though he did state that living insects were found present. Without knowing the extent of insect infestation it would not be possible to say whether the ginger of which sample was taken had become unfit for human consumption on account of insect-infestation.
7. The learned trial Magistrate, however, failed to consider that the report of the Public Analyst also showed that 60.6% by weight of the rhizomes were insect damaged and that living insects were found present in the sample which was analysed. Obviously a sample of rhizomes of Zingier officinal Rose which are insect damaged to the extent of over 60 per cent, and in which living insects are found present have to be regarded as unfit for human consumption. For coming to this conclusion no evidence was needed. Each case depends upon its own facts. The condition of an article may by itself be indicative of the fact that it is not fit for human consumption and while considering whether an article of food is fit for human consumption the matter has to be approached from the view point of an ordinary rational person.
8. As Sub-clause (f) of Section 2 (i) of the Prevention of Food Adulteration Act is not confined in its application to insect infestation but as held in the aforesaid case of Dhan Raj the said sub-clause also applies where an article of food is unfit for human consumption for a cause other than those enumerated in the sub-clause. Even if no importance is attached to the evidence given by the Deputy Health Officer and a Pharmacist, who were examined as Court witnesses, still the only possible inference which can be drawn is that due to over 60% of the rhizomes being insect damaged and the presence of living insects in the sample it was unfit for human consumption and had, thereforee, to be deemed to be adulterated. Sub-clause (f) of Section 2(i) of the Prevention of Food Adulteration Act was applicable.
9. On behalf of the respondents it was contended that the insect damage may have been superficial and, thereforee, may not be such as to render the article unfit for human consumption. There is, however, no basis for such an assumption. If the insect damage had only been superficial then that fact would have been mentioned in the report of the Public Analyst. The fact that rhizomes to the extent of over 60 per cent. were found insect damaged does indicate that the insect damage possibly could not be superficial.
10. Beyond doubt Jagan Nath, who had sold the sample of ginger to the Food Inspector, was guilty of an offence under Section 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act.
11. It has next to be seen whether Ram Chand, Subhas Ghand and the firm Messrs. Janta Sudh Masala Store are also liable. The evidence of Food Inspector Prem Prakash Sinha was that Jagan Nath had not only said that besides him Ram Chand and Subhash Chand were the partners of Messrs. Janta Sudh Masala Store but had also shown him the original deed of partnership. None of those three persons had the courage to deny that there was no partnership deed in existence. It is also significant that Ram Chand as a partner of Messrs. Janta Sudh Masala Store had authorised Jagan Nath to appear and defend the partnership firm. That writing was presented in the trial Court by the respondents' counsel and reads as under:
This is to authorise Shri Jagan Nath S/o Shri Sahib Ditta Mal, R/o House No. 489/20-B, Gandhi Nagar, Delhi of M/s. Janta Sudh (Shudih.) Masala Store, 489/ 20-B, Gandhi Nagar, Delhi to appear and defend M/s. Janta Shudh Masala Store, 489/20-B, Gandhi Nagar, Delhi in the matter of M.C.D. v. Jagan Nath and Ors.
That the firm shall be bound by all acts done by him.
Sd/- (In Urdu)
M/s. Janta Shudh
12. Obviously if Messrs. Janta Sudh Masala Store was not a partnership firm but the proprietary concern of Jagan Nath, there would have been no occasion for Ram Chand, one of the alleged partners, to authorise Jagan Nath to defend the said firm. It is also interesting to note that all the three partners were represented by Shri O. P. Malhotra, Advocate, and the said Advocate had attested the signature of Ram Chand on the document by which Jagan Nath was authorised 'to appear and defend M/s. Janta Shudih Masala Store'.
13. We have no hesitation in holding that Messrs, Janta Sudh Masala Store was a partnership firm and Jagan Nath was only one of the partners and was acting as the salesman in the shop Jagan Nath as the vendor and the firm on whose behalf the sale of adulterated ginger was made were, thereforee, liable. So far as Ram Chand and Subhash Chand are concerned it could not be proved that at the time the offence was committed they were or any one of them was in-charge of, and was responsible to the firm for the conduct of the business of the firm. Ram Chand and Subhash Chand cannot, thereforee, be deemed to be guilty of the offence of sale of adulterated ginger by applying Section 17 of the Prevention of Food Adulteration Act.
14. The appeal is consequently accepted in so far as Jagan Nath and the firm Messrs, Janta Sudh Masala Store are concerned and the order of acquittal in their favor is set aside, Both Jagan Nath and the firm Messrs. Janta Sudh Masala Store are convicted under Section 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act. Jagan Nath respondent is sentenced to rigorous imprisonment for six months and fine of Rs. one thousand and in default of the payment of fine he shall undergo four months' rigorous imprisonment. The firm Messrs. Janta Sudh Masala Store is sentenced to fine of Rs. 1,000, The order of acquittal against the other respondents shall stand.
15. If Jagan Nath respondent does not surrender within three days the Chief Metropolitan Magistrate shall take steps to take him into custody, by issuing non-bailable warrants, so that he is made to serve, in accordance with law, the sentence that has been awarded to him. Further if on behalf of the firm Messrs. Janta Sudh Masala Store the fine is not paid within a fortnight steps for recovering the amount shall be taken.