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Food Inspector Vs. Suwert and Dholakia (P.) Ltd. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1982CriLJ1707
AppellantFood Inspector
RespondentSuwert and Dholakia (P.) Ltd.
Cases ReferredDelhi Municipality v. Tandon
Excerpt:
.....the p. act itself will get defeated because no dealer would willingly sell an article of food to a food inspector. adulteration of food articles is rampant in the country and has become a grave menace to the health and well- being of the community. it is a well recognised rule of interpretation that where there is a general law and a special law relating to a particular class of object, the general law should be so applied as not to affect the special provisions unless an intention to abrogate the special law can be spelt out from the provisions in the general law. chapter iii thereof contains much information about blending like blending to suit the water, blending for quality and flavour, the mechanics of blending, specimen blends for the different countries. the order of acquittal is,..........per debit notes.3. the case of the complainant is as follows : on 27-10-1976 at 9.30 a. m. p.w. 1, food inspector. visited the godown of the company situated in willington island. he purchased four samples from the stock of tea kept in the godown from the third accused godown keeper. of the samples taken one was in respect of tea by name 'clen rock', the second was from 'thankakanam, b.a.p. tea', and the third was from 'blended b. p. tea'. the fourth was from 'rockmound b. p. f. tea', the samples were assigned the nos. 154 to 157. after following the formalities prescribed under the prevention of food adulteration act the samples were sent for analysis. the samples, other than the blended tea (no. 156). were found to consist of mixtures of tea and tea-waste. they did not conform to the.....
Judgment:

P. Janaki Amma, J.

1. The appellant is the Food Inspector of Cochin Corporation. The appeal is against the order of acquittal of the four accused in C. C. No. 10 of 1977, on the file of the Additional Judicial Magistrate, First Class, Ernakulam.

2. The first accused is a company by name 'Seiwert and Dholakia Private Ltd.', represented by its Managing Partner, The second accused is the Managing Partner of the company. The third accused is the Godown Keeper of the first accused company. The fourth accused is the National Tea Distributors, Wellington Island the concern, which is stated to have sold tea to the second accused as per debit notes.

3. The case of the complainant is as follows : On 27-10-1976 at 9.30 a. m. P.W. 1, Food Inspector. visited the godown of the company situated in Willington Island. He purchased four samples from the stock of tea kept in the godown from the third accused godown keeper. Of the samples taken one was in respect of tea by name 'Clen rock', the second was from 'Thankakanam, B.A.P. Tea', and the third was from 'Blended B. P. Tea'. The fourth was from 'Rockmound B. P. F. Tea', the samples were assigned the Nos. 154 to 157. After following the formalities prescribed under the Prevention of Food Adulteration Act the samples were sent for analysis. The samples, other than the blended tea (No. 156). were found to consist of mixtures of tea and tea-waste. They did not conform to the standard fixed for tea in the Prevention of Food Adulteration Rules. Ext. P8 series are the reports of the Public Analyst in respect of the adulterated samples and Ext. Dl is the report in respect of the Blended B. P. Tea. A complaint was thereafter filed alleging offences punishable under Sections 2(la)(m). 7(1) and 14A and 17 and 16(1A) I and II of P.F.A. Act 37/54 as amended by Act 34/1976 (for short the Act) read with. Rule 5 Appendix A. 14 of the P.F.A. Rules, 1955.

4. The taking of sample by P.W.-l Food Inspector is not disputed. There is no case that the formalities have not been complied with. The defence set up is that the first accused company is engaged in the business of exporting blended tea, the fourth accused is the purchasing agent of the first accused company and that the tea stored in the godown way meant for blending and export. The further case of the accused is that the third accused, as the godown keeper, had no authority to sell tea and that it was under threat of seizure of the whole tea that he permitted the Food Inspector to take sample. D. W.-l, an examiner in the Customs Collectorate at Cochin, D.Ws. 2 and 3, workers under the first accused, DW-3 the godown keeper, 3rd accused and DW-4 the 2nd accused were examined and Exts. D 1 to D 8 were marked in support of the above case, Ext, Dl as already stated is the analyst's report in relation to the sample taken from the blended tea. Ext. D5 and Ext. D6 are blend sheets and Ext. D7 and Ext. D8 are shipping bills. PW. 1 in his cross-examination admitted that no local sales were seen conducted by the first accused, that the third accused reported to him that the tea stored in the godown was meant for blending and export and also that he had no authority to sell. The trial Court accepted the defence set up and acquitted the accused. The order of acquittal is challenged in this appeal.

5. The appellant would contend that absence of local sales, did not stand in the way of his taking sample for the purpose of analysis and that storing even for the purpose of export could come within the purview of the Act. The taking of sample being sale for the purpose of the Act, the accused would be liable for punishment if the tea stored was found to be adulterated. The stand taken by the respondents-accused is that storing by itself or storing for the purpose of export does not amount to storing for sale which alone is made punishable under the Act. The respondents' further and alternate case is that export of tea is governed by the Tea Act of 1953, read with. The, Tea (Distribution and Export) Control Order, 1957 and the Export (Quality, Control and Inspection) Act, 1963, and these being special Acts in relation to tea and export, the provisions of the general statute have no application.

6. As regards the first contention, it is now well-settled that storage simplicitor or storage otherwise than for sale is not an offence under the Act. The question came up for consideration before this Court in Food Inspector v. Punsi Desai 0065/1959 : AIR1959Ker190 . The Division Bench which decided the case observed that it was not the object of the Act to make storage or distribution otherwise than for sale any more an offence than such manufacture. The Court held (Para 16):

The general words 'store' and 'distribute'1 found in Section 7 should be read as qualified by the particular words 'for sale' and 'sell' preceding them. Therefore it is only storage for sale that is prohibited under the section.

7. The above decision has been followed in Food Inspector v. Vijaya Singh : AIR1969Ker75 . Though the question whether the expression 'store.' in Section 7 and Section 16 should be interpreted as storage for purposes of sale was left open by the Supreme Court in Food Inspector v. Gopalan : 1971CriLJ1277 , the point was ultimately decided in Delhi Municipality v. Tandon : 1976CriLJ547 . After - referring to the relevant portions of Section 7 and Section 16, the Supreme Court observed (Para 14):

From a conjoint reading of the above referred provisions, it will be clear that the broad scheme of the Act is to prohibit and penalise the sale, or import, manufacture, storage or distribution, for sale of any adulterated article of food. The terms 'store' and 'distribute' take their colour from the context and the collocation of words in which they occur in Sections 7 and 16. 'Storage' or 'distribution' of an adulterated article of food for a purpose other than for sale does not fall within the mischief of this section. That this is the right construction of the terms 'store' and 'distribute' in Section 16(1) will be further clear from a reference to Section 10. Under that section, the Food Inspector, whom the Act assigns a pivotal position for the enforcement of its provisions, is authorised to take samples of an article of food only from particular persons indulging in a specified course of business activity. The immediate or ultimate end of such activity is the sale of an article of food. The section does not give a blanket power to the Food Inspector to take samples of an article of food from a person who is not covered by any of the sub-clauses of Sub-section (1)(a) or Sub-section (2). The three sub-clauses of Sub-section (1)(a) apply only to a person who answers the description of a seller or conveyer, deliverer, actual or potential, of an article of food to a pur-purchaser or consignee or his consignee after delivery of such an article to him. Sub-section (2) further makes it clear that sample can be taken only of that article of food which is 'manufactured' 'stored' or exposed for sale. It follows that if an article of food is not intended for sale and is in the possession of a person who does not fulfil the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is referred in Sub-section s (1)(a) and (2) of the section, the Food Inspector will not be competent under the law to take a sample and on such sample being found adulterated to validly launch prosecution thereon. In short, the expression 'store' in Section 7 means 'storing for sale', and consequently storing of an adulterated article of food for purposes other than for sale would not constitute an offence under Section 16(1)(a).

8. In Municipal Corporation of Delhi v. Nand Kishore, 1972 FAC 561 (Delhi), the Food Inspector purchased til oil from the accused's mill where there were oil extracting machines for manufacturing oil. The Court acquitted the accused holding that there was no evidence that the process of manufacture was over and that the oil was ready for sale.

9. In Din Dayal v. State 1972 FAC 636 (Delhi), the sample of cumin seeds purchased from the accused's godown was insect infested and adulterated. It was however in evidence that the accused had a shop as well as a godown, that some men were engaged in clearing the cumin seeds in the godown, and a board had been put up in the godown that the stock of cumin seeds was not meant for sale, The Court held that there was no storing for sale.

10. In the instant case it is an admitted fact that the first accused is engaged in the business of exporting tea and that there has been no instance of sale inside the country. Therefore it is safe to conclude that the tea kept in the godown was not meant for local sale. The evidence available in the. case also shows that the third accused had no authority to sell the tea entrusted to his custody, and as such, according to accused 1 and 2, the purchase of the sample was not binding on them. To constitute sale, it is argued that there must be an agreement between the parties for the purpose of transferring title to goods and that pre-supposes capacity to contract. Reliance was placed on Benjamin on sale and also on the decision of the Supreme Court in Madras State v. Gannon Dunkerly & Co. : [1959]1SCR379 , in support of the above contention. No doubt the argument would have had force if it were a case of ordinary sale. But the expression 'sale' as defined in Section 2(xiii) of the Act has a special connotation and means 'the sale of any article of food, whether for cash or on credit or by way of exchange or whether by wholesale or retail, for human consumption or use, or for analysis and includes an agreement for sale, the exposing for sale or having in possession for sale any such article, and includes also an attempt to sell any such article'. Interpreting the above provision the Supreme Court held in Mangaldas v. Maharashtra State : 1966CriLJ106 as follows:

No doubt a contract comes into existence by the acceptance of a proposal made by one person to another by that other person. That other person is not bound to accept the proposal but it may not necessarily follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract. Apart from this we need not, however, consider this argument because throughout the case was argued on the footing that the transaction was a 'sale'. That was evidently because here we have a special definition of 'sale' in Section 2(xiii) of the Act which specifically includes within its ambit a sale for analysis.' The above dictum has been reiterated in Food Inspector, Calicut v. C. Gopalan : 1971CriLJ1277 .

11. If the word 'sale' is to be construed in its ordinary dictionary meaning, or in the sense it is used in statutes like the Sale of Goods Act, the purpose and the object of the P. F. A. Act itself will get defeated because no dealer would willingly sell an article of food to a Food Inspector. As has been observed in Delhi Municipality v. L.N. Tandon : 1976CriLJ547 , the language of the statute should be construed 'in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention.' Therefore, the mere fact that the third accused was only a godown keeper and had no authority to sell may not by itself stand in the way of the transaction coming under the purview of sale under the Act if it is made out that the Food Inspector had the authority to take the sample from the godown and the article itself is kept for sale.

12. The further question is whether the entry of the Food Inspector into the godown of the accused and taking of sample are authorised under the Act. Section 10(1) of the Act is the relevant provision. It confers on the Food Inspector the power to take sample from-

(i) any person selling such article;

(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;

(iii) a consignee after delivery of any such article to him.' Under the explanation to the Sub-section, consignee does not include a person who purchases or receives any article of food for his own consumption. Sub-section (2) reads:Any food inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis.

13. As already noted the Supreme Court in Delhi Municipality v. Tandon : 1976CriLJ547 , has interpreted Section 10 as authorising the Food Inspector to take samples of an article of food from persons indulging in specified business activity mentioned therein, the immediate or ultimate end of such activity being sale of the article. If the article of food is not in the possession of a person specified in Section 10 and the article of food is not intended for sale or distribution the Food Inspector will not be competent under law to take a sample and oh such sample being found adulterated, to validly launch a prosecution.

14. There is no case for the complainant that the tea of which the samples were taken in the instant Case was meant for local sale or sale Inside the country. On the other hand, the evidence is categoric that the tea was stored in the godown for blending for the purpose of export. Though the word export may at times involve an element of sale and payment of consideration the expression has a wide import. The meaning given to the word in Concise Oxford Dictionary is 'send out (goods) to another country.' The Export (Quality Control and Inspection) Act, 1963 defines the word in Section 2(b) as follows:

'Export', with its grammatical variations and cognate expressions, means taking out of India to a place outside India.

Under Section 3(f) of the Tea Act, 'export' means to take out of India by land, sea or air to any place outside India other than a country or territory notified in this behalf by the Central Government by notification in the official gazette. It follows that the term need not necessarily imply a sale of the article.

15. The argument put forward by Shri Rama Shenoi is that the Act applies only to articles of food meant for consumption inside the country and has no application to articles of food meant for export. There is considerable weight in the contention. The relevant portion of Statement of Objects and Reasons annexed to the P. F. A. (Amendment) Bill, 1974 reads:

Adulteration of food articles is rampant in the country and has become a grave menace to the health and well- being of the community.... Keeping in view the gravity of the problem and the growing danger that it poses to the health of the nation, it has become necessary to amend the P. F. A. Act, 1954, so as to plug loopholes and provide for more stringent and effective measures with a view to curb this menace.

It was the above bill which became the law as the P. F. A. (Amendment) Act 34 of 1976. It is thus evident that the Parliament in enacting the law was concerned only with the adulteration of food meant for consumption within the country. It is only proper to point out in this connection that while Section 5 of the Act prohibits import of adulterated and misbranded food there is no provision prohibiting export of such food. Section 16 provides for penalty on person who 'whether by himself or by another person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food'. While there is a specific mention about import, there is significant omission of the word 'export'. This also is an indication' to show that the purpose of the Act is confined to providing unadulterated articles of food to the people of the country and has no application to commodities meant' for export,

16. That the Act has no application In relation to export is also made out from the fact that there are special enactments dealing with maintenance of standard and purity in respect of articles meant for export, The Export (Quality Control and Inspection) Act 1963 is a statute meant 'to provide for the sound development of export trade of India through quality control and inspection and for matters connected therewith'. An Export Inspection Council has been established under that Act, the function of which is to advise the Central Government regarding measures for the enforcement of quality control and inspection in relation to commodities intended for export. The Central Government is invested with power to notify the commodities which should be subject to quality control to specify the type of quality control and to prohibit export of the notified commodity unless it satisfies the conditions relating quality control.

17. Apart from what is stated already, so far as tea is concerned, the Parliament has passed a special Act viz., the Tea Act of 1953 (Act XXX of 1953). Prior to the passing of the said Act there were in existence the Indian Tea Control Act of 1938 and the Central Tea Board Act. The objects of the former Act included control of the export of tea. It was for combining the provisions of the above two Acts that the Tea Act was passed. A Tea Board 'has been constituted under the Act, the functions of which include 'improving the quality of tea' and 'regulating the sale and export of tea'. In exercise of the powers conferred under the Tea Act, the Central Government passed the Tea (Distribution and Export), Control Order in 1957. Clause 11 of the Order has put restrictions on distribution and export of tea and under that clause no distributor or exporter to whom a licence has been issued, by himself or by any other person on his behalf, distribute or export tea for sale which is adulterated, Under Explanation to that clause tea shall be deemed to be adulterated -

(a) if such tea is not of the nature, substance or quality contracted or to be distributed or exported, or is not at the nature, substance or quality which it purports or is represented to be;

(b) if such tea contains any other substance which affects injuriously the nature, substance or quality thereof:

(c) if any inferior or cheaper substance has been substituted wholly or in part for such tea so as to affect injuriously the nature, substance or quality thereof;

(d) if such tea contains any poisonous or other ingredient which renders it injurious to health.

Section 18 of the Tea Act provides for licence for export. Penalty for illicit export,is provided in Section 36. Under Section 45 of the Tea Act prosecution for an offence under that Act is to be instituted only with the previous sanction of the Central Government.

18. Thus the Tea Act and the Export (Quality Control and Inspection) Act are special enactments dealing with tea and export of commodities and also adulteration of tea meant for export. It is a well recognised rule of interpretation that where there is a general law and a special law relating to a particular class of object, the general law should be so applied as not to affect the special provisions unless an intention to abrogate the special law can be spelt out from the provisions in the general law. The position is made clear in the following passage in Interpretation of Statutes by Maxwell (10th Edition page 176).

It is but a particular application of the general presumption against an intention to alter the law beyond the immediate scope of the statute (supra, p. 81) to say that a general Act is to be construed as not repealing a particular one, that is, one directed towards a special object or a special class of objects (r). A general later law does not abrogate an earlier, special one by mere implication (a). Generalia specialibus non derogant (t), or, in other words, 'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so' (u). In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act. Having already given its attention to the particular subject and provided for it, the legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language (v), or there be something which shows that the attention of the legislature had been turned to the special Act and that the general one was intended to embrace the special cases provided for by the previous one (x), or there be something in the nature of the general one making it unlikely that an exception was intended as regards the special Act. In the absence of these conditions, the general statute is read as silently excluding from its operation the cases which have been provided for by the special one.

19. There is nothing in the P. F. A. Act which goes to show that it applies to tea meant for export in preference to the provisions contained in either the Tea Act or the Export (Quality Control and Inspection) Act. It follows that as far as adulteration of tea meant for export is concerned, the statutes that govern are the latter Acts.

20. In the instant case, the reports of the Public Analyst only show that the tea stored in the godown, excepting the blended tea was a mixture of tea and tea-waste. Tea waste is not a foreign matter as far as tea is concerned. The consistent case of the accused is that blending of tea for purpose of export was being done in the godown, That this could be so is made out from the fact that blended tea which was not found to be adulterated was also found kept in the godown. The second accused as DW-4 speaks to the procedure followed. According to him, table blending is done first and sample from the blended tea would be) sent by air-mail to the foreign buyers and after their approval of the sample, blending will proceed and the blended tea would be sent packed in tea-chests. It is also stated that the process of blending was going on even at the time when the food inspector visited the godown,

21. That the tea blended properly has a market in foreign countries may not be disputed. Reference is made by the learned Counsel for the first respondent to the book. 'All About Tea', by Wiliam H. Ukers. M. A., Vol. II. Chapter III thereof contains much information about blending like blending to suit the water, blending for quality and flavour, the mechanics of blending, specimen blends for the different countries. Page 59 of the book deals with Tea Blending at Wholesale. The following passage is instructive:

Today, it is the general practice of the wholesale trade to sell blends of mixed tea, prepared after formulae that are varied to offset seasonal and other differences. in order to assure their uniformity. By establishing a demand for such blends the difficulties common to the bulk tea trade are eliminated.

It is therefore only natural that exporters of tea would be inclined to devote their attention in the blending of tea so that they may be in a position to capture the foreign market. Blending means mixing of various kinds of tea having different quality and value, According to DW-4 during blending the tea waste particles will be eliminated. That this is so is borne out from the fact that Ext. Dl report of the Analyst does not make mention of any tea-waste and the blended tea was not found adulterated. There is no case for the appellant that blending of tea is arranged at a different place so far as the first respondent is concerned. In the absence of such a plea, the case put forward by the first respondent, that blending takes place in the godown and it is for the purpose blending that different kinds of tea are stocked in the godown, has to be accepted. Evidently, the tea from which samples were taken by the food inspector consisted of three different varieties, and this probabilises the case of the first respondent that they were collected for the purpose of blending.

It is further the case of the first respondent that raw-tea collected from different sources are cleared of the tea-waste before blending. In other words, the consistent case of respondents 1 and 2 is that the tea stored in the godown was not for the purpose of sale, but for export after processing and blending. This plea gains support from Exts. D5 and D6 blend sheets and also from Exts. D7 and D8 shipping bills. There are thus sufficient materials in the case to make out that the tea stored in the godown of the first accused was for export and not for sale. No doubt, it is open to the food inspector to enter the godown to satisfy himself that the storing of tea is not for sale. But once it made out that it is for export it is not within his province to take sample and launch a prosecution if the sample taken does not conform to the standards fixed under the Act. The prosecution launched against accused 1 to 3 is therefore not sustainable,

22. So far as the fourth accused is concerned, the prosecution proceeded on the footing that the tea stored in the godown was sold to the first accused by the fourth accused as per debit notes. There are no documents or other evidence to substantiate the contention. On the other hand, the stand taken by the accused is that the fourth accused is the purchasing agent of the first accused company and the purchases were made on behalf of the first accused company. There is no relationship of dealer and purchaser or consignor or consignee between the first accused and the fourth accused. There is also no evidence to show that the tea from out of which the samples were taken was part of the quantity collected as per the purchase advice of the fourth accused.

The order of acquittal is, for reasons mentioned, perfectly justified. No interference is called for. The appeal is accordingly dismissed.


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