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P. Govinda Pillai Vs. V.G.N. Padmanabha Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtKerala High Court
Decided On
Case NumberCriminal Appeal 104 of 1963 and Criminal Revn. Petn. Nos. 430 and 438 of 1963
Judge
Reported inAIR1965Ker123; 1965CriLJ446
ActsPrevention of Food Adulteration Act, 1954 - Sections 2, 2(5), 2(13), 16(1), 18(1), 23 and 23(1); Prevention of Food Adulteration Rules, 1955 - Rule 44A; ;General Clauses Act - Sections 20; Constitution of India - Articles 19(1), 19(6) and 20(1)
AppellantP. Govinda Pillai
RespondentV.G.N. Padmanabha Pillai and ors.
Appellant Advocate V. Narayana Menon, Adv. in Cri A. No. 104 of 1963,; K.T. Thomas and K.T. Thomas, Advs. in Cri. Revn.
Respondent Advocate S. Easwara Iyer and; L. Gopalkrishnan Poti, Advs. in Cri A. No. 104 of 1963 and;
DispositionAppeal allowed
Excerpt:
.....- sale of such article punishable under act - no necessity to prove that such articles kept for human consumption - prohibition of sale of kesari dal does not amount to violation of right to profession - accused guilty of sale of kesari dal and punished under section 16 (1). - - (4), that, should all these contentions be rejected, then the provisions of law making the act of possession an offence are bad for offending article 19(1)(g) of the constitution; (5) that the notification by the state government bringing rule 44-a into force in this state with effect from 1-7-1961 having been published in the gazette only on on 7-7-1961, the notification, and any conviction thereunder, are bad for offending article 20(1) of the constitution. therefore it clearly comes within clause (a)..........the purposes of their trade. their case that they were in possession of the dal for sale, not for human consumption or use, but, only as fodder, was uncontroverted; and we must therefore proceed on the basis that that was so, whether in fact, it was so or not. the question is whether such possession is prohibited by rule 44-a of the rules made under section 23 of the prevention of food adulteration act 1954 and is therefore an offence punishable under section 16(1)(a) thereof. the accused in the appeal have been acquitted on the finding that it is not, and the complainant, a food inspector, has appealed with leave granted under sub-section (3) of section 417 of the criminal procedure code; the accused in the revision petitions have been convicted on the finding that it is, and they have.....
Judgment:

Raman Nayar, J.

1. The accused persons in these cases are grocers who were admittedly stocking what Is known as Kesari dal for the purposes of their trade. Their case that they were in possession of the dal for sale, not for human consumption or use, but, only as fodder, was uncontroverted; and we must therefore proceed on the basis that that was so, whether in fact, it was so or not. The question is whether such possession is prohibited by Rule 44-A of the rules made under Section 23 of the Prevention of Food Adulteration Act 1954 and is therefore an offence punishable under Section 16(1)(a) thereof. The accused in the appeal have been acquitted on the finding that it is not, and the complainant, a Food Inspector, has appealed with leave granted under Sub-section (3) of Section 417 of the Criminal Procedure Code; the accused In the revision petitions have been convicted on the finding that it Is, and they have come up in revision.

2. On behalf of the accused it is urged:

(1) that, properly construed, Rule 44-A does not prohibit the possession of Kesari dal for sale otherwise than for human consumption or use.

(2) that, if it does, then it goes beyond the rule-making power conferred by Section 23(1)(f) of the Act under which it is made;

(3) that, in any case, the possession cannot come within Section 16(1)(a) of the Act, Kesari dal not being an article of food;

(4), that, should all these contentions be rejected, then the provisions of law making the act of possession an offence are bad for offending Article 19(1)(g) of the Constitution; and, as a last (and desperate) resort.

(5) that the notification by the State Government bringing Rule 44-A into force in this State with effect from 1-7-1961 having been published in the Gazette only on on 7-7-1961, the notification, and any conviction thereunder, are bad for offending Article 20(1) of the Constitution.

3. Rule 44-A says (so far as is relevant for cur purpose)

'No person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale-- xxxxxxxxxxxxx

(b) Kesari dal (Lathyrus Sativus) and its products, xxxxxxxxxxxxx

Explanation. -- The equivalents of Kesari gram in some of the Indian languages are as follows :-xxxxxxxxxxxxx

Bengali, Malayalam, Tamil and Oriya--Khesari xxxxxxxxxxxxx'

(The use of the name, 'Khesari', however, seems to be of comparatively recent origin so far as this state is concerned and largely confined to official circles. We are told that the names In common use are, vattu paruppu, attani paruppu, vadakkan paruppu and vada paruppu). The rules do not carry a definition of the word, 'sale' but the Act does. It defines the word in a special sense different from its ordinary meaning, narrower in that it confines the word to sales of articles of food for human. consumption or use, or for analysis, and wider in that it includes in the word an agreement for sale, an offer for sale, an exposure for sale, possession for sale and an attempted sale of any such article. The argument is that, by reason of Section 20 of the General Clauses Act, Rule 44-A must be understood as using the word 'sale' with its grammatical variations and cognate expressions, not in the ordinary sense of the word (as meaning what we might call an ordinary sale) but in the special senss of the word as defined in the Act (as meaning what we might call an Act sale). And, for two reasons, there was no Act sale or possession for such sale in these cases so as to attract the rule, the first because it has not been proved that Kesari dal is an article of food, and, the second, because the dal was intended for sale as fodder and not for human consumption or use.

4. 'Sale', is thus defined by Section 2(xiii) of the Act

'sale' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article; and 'food' is thus defined by Section 2(v):

'food' means any article used as food or drirk for human consumption other than drugs and water and includes--

(a) any article which ordinarily enters into, or is used in the composition or preparation of human food, and

(b) any flavouring matter or condiments; Any article used as food or drink for human consumption (other than drugs and water) and any article which ordinarily enters into or is used in the composition or preparation of human food is food--whether or not the particular stock of the article is intended for human consumption or for the preparation of human food is of no moment. It is enough if the article in general is used as food for human, consumption, or is used in the preparation of human, food, and every particular stock of that article becomes food, no matter that it is intended for some other use. A particular stock of rice/or milk, for example, does not cease to be food because it is intended, not for human consumption but for feeding animals; and so long as Kesari dal in general is an article used as food for human consumption or is ordinarily used in the preparation of human food, the particular stocks which the accused persons were holding would be food as defined by the Act, no matter that the particular stocks were intended for sale as fodder.

5. It is common knowledge that Kesari dal is used as an article of human diet in many parts of the country, and we do not think that evidence is required to prove that it is an article of food any more than evidence would be required to prove that rice or milk is an article of food. Modi says in his text book of Medical Jurisprudence (Thirteenth Edition, at page. 705) that Kesari dal is a variety of pulse, used as an article of diet by the common people in Sind, Bihar, Uttar Pradesh, and some parts of Madhya Bharat and Madhya Pradesh. It is therefore an article of food throughout the country and it is not necessary to show that it is used as Human food in the particular locality where the alleged offence is committed, or by the particular persons in respect of whom it is committed. But, were that necessary, we might say that it is common, knowledge that, in this State, Kesari dal is used in the preparation of sambar, vadai and other articles of human food although it is perhaps not cooked and eaten by itself. Therefore it clearly comes within Clause (a) of the inclusive part of the definition of 'food' if not in the body of the definition itself.

6. It is thus beyond doubt that the accused persons in these cases were in possession of articles of food for sale, and the question is whether such possession is an Act sale where the intended sale is not for human consumption or use. We have already seen how 'sale', as defined by Section 2(xiii), is in some respects narrower and in some respects wider than sale as that word is ordinarily understood.

There is one remarkable, though perhaps unavoidable, feature of the definition, and that is that, in telling us what a sale is, it employs that very word. Obviously the word, 'sale,' as used in the definition, is different from the word defined and can only mean an ordinary sale, and we find it difficult to accede to the proposition that the word as used in the latter, or what we might call the inclusive part of the definition, has the meaning assigned to the word in the earlier part or the body of the definition, in other words, as meaning an Act sale. That would lead to the impossible position of defining a word used in a special sense in terms of that very special sense. Nor are we prepared to read into the statute words that are not there and construe the latter part of the definition as if the word, 'such' appeared before the word, 'sale' wherever it is used, thus making the words, 'such article' that actually appear, redundant.

7. In the body of the definition which tells us what an Act sale means, there is the qualification that the sale must be of an article of food and that it must be for human consumption or use. (We may, for the purposes of these cases, leave out analysis, and, with it, the question whether the compulsory taking of a sample for analysis under Section 10 of the Act becomes a sale because its cost is paid. In any case the accused were not in possession of the dal for the purpose of samples being taken). But, in the inclusive part of the definition which tells us what an Act sale includes, there appears the qualification that the sale must be of such article, namely, an article of food, but not the qualification that it must be for human consumption or use, The words, 'for human consumption or use' appearing in the body of the definition, like the words, 'whether for cash or on credit or by way of exchange and whether by wholesale or retail', preceding them, qualify the word, 'sale' and not the words, 'article of food' so that they are not attracted by the word, 'such' which qualifies the word, 'article' in the inclusive part of the definition. The express inclusion of the qualification that the sale must be of an article of food, and the omission of the further qualification that it must be for human consumption or use, make it clear that, for the fictional sale created by the inclusive part of the definition, it is not necessary that the sale should be for human consumption or use.

8. The position then is that, whereas an actual sale must be of an article of food for human consumption or use before it can become an Act sale, the fictional sale created by the inclusive part of the definition becomes an Act sale if the article concerned is an article of food and it is not necessary that the sale should be for human consumption or use. The result would be that, whereas an actual sale of adulterated food otherwise than for human consumption or use would be no offence, a fictional sale, namely, a mere agreement, offer, exposure or possession for safe or an attempted sale of such food would bean offence even if the intended said was not for human consumption or use. Why this should be so we do not know, but there it is.

!t has been suggested by the learned Advocate General that, while an actual sale otherwise than for human consumption or use would not result in the article being consumed or used by human beings, in the case of a fictional sale, such as possession for sale, there would be no guarantee that the article would not eventually be actually sold for human consumption or use with the result that it would be so used. But then, if an article is generally used as human food, the fact that its sale is professedly not for human consumption or use would not effectively prevent its being so consumed or used.

It has also been suggested that, since an actual sale must always be preceded by a fictional sale, control over the latter necessarily involves control over the former. If that be so, and the Intention were to bring both actual and fictional sales of articles of food for any purpose whatsoever under control, one wonders why the words 'for human consumption or use' were used at all in the body of the definition. It looks very much as if these words were either introduced there by some mistake or were omitted from the inclusive part of the definition by some oversight. But we must construe the definition as it stands, and it is not for us to speculate as to whether it was the one or the other that happened.

9. It is pointed out that, if the possession of articles of food for sale otherwise than for human consumption are to be regarded as Act sales, that would result in such hardships to and restrictions on the trade and consequent prejudice to the consumer as to amount to a public disservice. It would mean, for example that a wholesale merchant who stocks coconut oil or linseed oil in bulk for sale solely to manufacturers of soaps, or paints and varnishes, would be guilty of an offence under the Act if the quality of the oil falls below the prescribed standard. Such considerations might have been relevant had the language of the definition been ambiguous -- even so, it might well be said that the purpose of the Act, namely, the prevention of adulteration of human food, can be served only if control is exercised over all sales of food, whether for human consumption or not; but they are altogether irrelevant when the language is clear. When there is no ambiguity they are no aids to construction and, except to the extent that any question of fundamental rights is involved, are matters for the legislature and not for the courts to consider.

10. All this apart, it seems to us that the rule uses the word, 'sale' in the ordinary sense and not In the Act sense, it is true that Section 20 of the General Clauses Act requires that any expression used in a rule made under an Act should be given the same meaning as it is given in the Act unless there is anything repugnant in the subject or context. It might be possible to say that there would be no actual repugnancy if the word, 'sale' appearing in the rule were to be read to mean an Act sale, but then, Section 2 of the Act begins by saying that the definitions given therein do not apply where the context otherwise requires. Therefore, in the Act itself, the word, 'sale' is not to be read as meaning an Act sale where the context otherwise requires, and that must be so in the rule as well. Now, if we turn to the rule, what we find is that it prohibits the sale, offer for sale, exposure for sale, or possession for sale, of Kesari gram in its several forms including Kesari dal.

Now an Act sale, as we have seen, would Include the fictional sale of offer for sale, exposure for sale and possession for sale, so that if the words, 'sell' and 'sale' in the rule were meant to connote an Act sale, the rule could well have omitted the words,

'or offer or expose for sale, or have in his possession for the purpose of sale' appearing in it after the word, 'sell'. And if the inclusive part of the definition in Section 2(xiii) creating a fictional sale were to foe read into the word, 'sale' wherever it appears in the rule, it would be something more than more redundancy, it would virtually make nonsense of the rule. It is also to be noted that the omission of an agreement for sale and an attempt to sell from the rule shows an intention to exclude these acts from its operation and confine the operation to the acts. mentioned in the rule. But, the effect of reading the word, 'sale' in the rule as an Act sale would be toattract these former acts as well. It seems to us that the context requires that the word 'sale' appearing in the rule should be read as meaning an ordinary sale and not an Act sale.

11. We are aware that the special definition of the word, 'sale' in the Act unavoidably makes for some measure of redundancy. For example, since the word, 'sale' is by definition confined to sales of articles of food, the use of the expressions, 'food' and 'article of food' in Sections 7 and 16 would be redundant in relation to sale. But then they would not be redundant in relation to distribution, and, a mere redundancy can scarcely attract the qualification, 'unless the context otherwise requires'. But, in the case of the rule, not only would the words we have referred to be completely redundant if the word 'sale' is to be read as meaning an Act sale, but, as we have already pointed out, it would be difficult to make sense of the rule.

12. In any view of the matter there can be title doubt that the rule prohibits the possession of Kesari dal for the purpose of sale under any description whatsoever--the evidence that some of the accused used to write, 'C. F.' to mean cattle food, in their cash bills for the sale of the dal is therefore of no account--irrespective of whether or not the sale is for human consumption or use.

13. We have already shown that Kesari dal is an article of food within the meaning of the Act, and that disposes of the contention that its possession for sale cannot be an offence under Section 16(1)(a).

14. The rule-making power in Section 23(1)(f) is conferred in the following terms:

'Power of Central Government to make Rules 23. (1) The Central Government may, after constitution with the Committee and subject to the condition of previous publication, make rules--

XXXXXXXXXXXXX(f) prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food;' There is nothing in the context here requiring the word 'sale' to be read otherwise, and, therefore, the word must be read as meaning an Act sale. It is common knowledge that Kesari dal is used as food and that, when used as food, it is injurious to health. Both Modi and Lyon in their text books of Medical Jurisprudence deal with Kesari dal under the heading, 'Poisonous Food Grains', (see page 705 of the 13th Edition of the former and page 753 of the 10th Edition of the latter) and say that its use as food can lead to paralysis. There can therefore be no doubt that prohibition of the 'sale' (we are using the word in the Act sense to include possession for sale) of Kesari dal is well within the power conferred by the section.

15. The argument based on Article 19(1)(g) of the Constitution need not detain us long. As we have seen, it is common knowledge that Kesari dal is an article which, if available, is generally used as human food; equally, that when used as food it is injurious to health. As early as 1948 the Madras Government published a Press Note (No. 200 dated 24th August 1948 issued by the Public Works (Information and Publicity) Department) stating that it was advised that Kesari gram, Kesari dal and their products were unwholesome and unfit for human consumption and harmful to the health of the people and warning the public and prospective Importers of these articles that the sale or exposure or hawking about for sale or storage or preparation for sale of these articles would constitute an offence under the Madras Public. Health Act, 1939 and would attract action under Section 314 of the Madras City Municipal Act, 1919 or Section 274 of the Madras District Municipalities Act, 1920.

Later, in 1950 (by G. O. No. 3082, Health, dated 1st September, 1950) it made a rule (Rule 28-E) under the Madras Prevention of Adulteration Act 1918 (the corresponding law repealed by Section 25 of the present Act), more or less in the same terms as the rule we are now considering. This is what Lyon has to say of Kesari under the heading, 'Poisonous Food-Grains' (see page 753 of the 10th Edition of his book):

'POISONOUS FOOD-GRAINS

Various cereals, when affected by fungi, including, maize, become poisonous, as has already been mentioned, Cases of poisoning have also arisen through the eating; of certain wild, grains and peas, especially in times of famine. The symptoms resulting are those of spastic spinal paraplegia and polyneuritis. The condition has been called Lathyrism or 'Bean Paralysis' in Europe, after the particular genus of pea or vetch most commonly causing these symptoms, though similar disturbances result from eating certain grasses and other plants. Cases of this kind of poisoning are most common in the Central Provinces, including Chota Nagpur and in the outer Himalayas. When mixed with three times its weight of wheat, and cooked as pottage or bread, the grain is apparently harmless, but cooked by itself it acts as a poison. Lathyrism has occurred in epidemic form during times of famine, in India, and its connection with the eating of certain peas has been recognised since Hippocratic times. It has frequently been described in Europe by writers of the fifteenth and sixteenth centuries. It has given rise to epidemics in France, Italy, Algiers and Abyssinia, and also in India--Sind, Chota Nagpur and the Central Provinces. The incriminated pea is Lathyrus sativa, locally Known as Kesari (also Khesari) or Teora. L. Cicera is incriminated elsewhere.

The onset is in many cases sudden. The patient may wake up feeling pains in the loins and calves and an inability to move his legs. The lower limbs assume the rigid character of spastic paraplegia (Lateral scale-rosis) and in severe cases there may be complete paraplegia. The kneejerk is greatly exaggerated; ankle-clonus is generally readily obtained, and in severe cases is caused in progression when the weight of the body is brought to bear on the ball of the toes. A slight tap may throw the legs into severe clonic spasm initial and transitory paralysis of the bladder has been described, but was not noticed in all cases.

Beyond the initial backache, etc, there is no sensory disturbance, nor is there any muscular atrophy except such as arises under the famine conditions which may-have forced the patient to resort to a diet of inferior food-grain.

The head, upper part of the trunk and upper extremities are not affected, so that late in the disease when the rigid legs are useless for progression, the patient drags or pulls himself along by means of a lathi grasped in the hand, or in other cases squats in a metal basin and 'rows' himself about with clogs held in the hands.' it would appear from what Modi has to say about it (at page 705 of the 13th Edition of his booh) that them is some controversy as to whether it is Kesari dal itself that carries the poison, or some weed with which it is generally contaminated although the later investigators seem to be of the view that the poison is a toxin pre-sent in the dal itself. However that might be, there can be little doubt that it is in the interests of the general public, that the consumption of Kesari dal by human beings is completely stopped, even if, as indicated by Modi, the prevalent view seems to be that it is generally the prolonged use of the dal on a poor diet that leads to the disease. In the case of something that is traditionally regarded and used as human food this, it seems to us, can be effectively secured only by making the thing unavailable in the market.

The alternative use to which kesari dal can be put, it would appear from the evidence, is as fodder. It is said that it is good fodder and entirely harmless to cattle (although with regard to this there is no evidence), and that the complete prohibition of trade in Kesari dal would be to substantially reduce the amount of fodder available in a country which is already woefully deficient in that respect. But we are inclined to think that it can reasonably be said that no system of labelling, warning or licensing can effectively prevent Kesari dal, which people have been accustomed to regard as an article of food, from being used as human food.

A complete prohibition of trade in Kesari dal would therefore be in the interests of the general public even if its effect would be to reduce the amount of fodder available for the cattle in the country, and having regard to the serious consequences that the consumption of Kesari dal by human beings entails, it can scarcely be contended that the prohibition is not a reasonable restriction (restriction, it is now well settled, is wide enough to cover a prohibition) on the fundamental right to trade. Therefore, even if trade in a poisonous food-grain like Kessri dal were not to be regarded as res extra commercium so that it would attract the fundamental right in Article 19(1)(g) of the Constitution, the prohibition would clearly come within the saving in Article 19(6). And, in this connection, it would be pertinent to bear in mind that the rule imposing the prohibition was made, as requirerd by Section 23 of the Act, in consultation with the expert committee constituted under Section 3 and after 'previous publication'. Also that the rule was laid before both Houses of Parliament.

16. There remains only the argument based of Article 20 (1) of the Constitution. The rule we are considering requires the State Government concerned to notify in the official Gazette the date from which the rule is to apply in the State and the prohibition embodied in the rule takes effect in that State from that data. The date fixed by the State Government, was the 1st July 1961 and that meant that on and after that date the possession of Kesari dal for the purpose of sale was prohibited in this State. The notification was however published in the Gazette only on the 7th July so that with regard to acts of possession between the 1st and 7th July it can be said that, in view of Article 20(1) of the Constitution, the prohibition is of no avail to create art offence. But the acts of possession in these cases were all after the 7th July and we fail to see why the notification as a whole must go merely because the prohibition it imposes, cannot make offences of acts committed between the 1st and 7th July.

17. In the result we dismiss the criminal revision petitions. We allow the appeal and convict both the accused therein under Section 16(1)(a) of the Prevention of Food Adulteration Act read with Rule 44-A of the rules made thereunder. We sentence each of them to pay a fine of Rs. 100/-, in default to suffer rigorous imprisonment for one month. We further direct that the Kesari dal seized from the accused be destroyed.


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