H.S. Thakur, J.
1. The petitioners were convicted by the Chief Judicial Magistrate, Sirmur District, on 18th May, 1982 for an offence under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs. 2.000/- each and, in default of payment of fine, to suffer further rigorous imprisonment for a period of one month each. The petitioners preferred an appeal against the said order of conviction and sentence. The learned Additional Sessions Judge, Solan and Sirmur Districts, however, dismissed the appeal on 10th Sept. 1982. Aggrieved by the said order and judgment, the petitioners have preferred this revision petition in this Court.
2. The relevant facts may be stated. Subhash Chand petitioner has been carrying on a provision shop at Dhaulakuan, within District Sirmur. Ramesh Chand petitioner is his brother. The Food Inspector purchased 600 grams of 'suji' on 28th Sept. 1979, from Ramesh Chand petitioner, who was sitting at the said shop, for the purpose of analysis,, after giving a notice, which was divided in three equal parts. The sample was analysed by the public Analyst who opined that the sample contained 50 living and dead insects and the contents were unfit for human consumption, Consequently, the petitioners were found guilty of the offence alleged, and were sentenced as mentioned above.
3. The first contention of the learned Counsel for the petitioners is that the offence, if any made against, the petitioners, is under Section 16 (1-a) of the Prevention of Food Adulteration Act (the Act in short) and not under Section 16 (1-A) of the Act. It is convenient to extract the said provisions for a ready reference:
16. Penalties.- (1) Subject to the provision of Sub-section (1-A), if any person
(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food
(i) which is adulterated within the, meaning of Sub-clause (m) of Clause (ia) of Section 2 or misbranded within the meaning of Clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) other than an article of food referred to in Sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; or...
16 (1-A). If any person whether by himself or by any other person on his behalf, imports into India or manufactures for sale or stores, sells or distributes,
(i) any article of food which is adulterated within the meaning of any of the Sub-clauses (e) to (1) (both inclusive) of Clause (ia) of Section 2; or
(ii) any adulterant which is injurious to health, he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not. be less than two thousand rupees;
Provided that if such article of food or adulterant, when consumed by any person is likely to cause such harm, on his body as would amount to grievous hurt within the meaning of Section 320 of the Indian Penal Code (45 of 1860), he shill be punishable with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not he less than five thousand rupees.
4. Under Section 2 (ia), Clause (f), an article of food is deemed to be adulterated 'if the article consists wholly or in part of any filthy, putrid rotten, decomposed or diseased animal or vegetable substance or is insect infested or is otherwise unfit for human consumption.' Under Section 16 (1-A) reproduced above, for any article of food which is adulterated within the meaning of any of the Sub-clauses (e) to (1) (both inclusive) of Clause (la) of Section 2, an accused has been made punishable with imprisonment for a term which shall not he less than one year but which may extend to six years, and with fine which shall not be less than Rs. 2,000/-. It cannot be disputed that the article (suji) in question, contained 45 alive and 5 dead insects (sundis). As such, the same has to be considered as adulterated in view of the definition contained in Section 2 (ia) (f). It is not necessary that the same should also be injurious to health. In fact, infestation itself is sufficient to bring it within the definition of the aforesaid Clause (f).
5. In Municipal Corporation of Delhi v. Tek Chand Bhatia 1979 (2) FAC 218 : 1980 Cri LJ 316, their Lordships of the Supreme Court after reproducing Clause (f) reproduced above observed as under (at P. 319):
In the definition clause, the collocation of words 'filthy, putrid, rotten, decomposed and insect-infested' which are adjectives qualifying the term 'an article of food', show that it is not of the nature, substance and quality fit for human consumption. It will be noticed that there is a comma after each of the first three words. It should also be noted that these qualifying adjectives cannot be read into the last portion of the definition i.e. the words 'or is otherwise unfit for human consumption', which is quite separate and distinct from others. The word 'otherwise' signify unfitness for human consumption due to other causes. If the last portion is meant to mean something different, it becomes difficult to understand how the word 'or' as used in the definition of 'adulterated' in Section 2 (i) (f) between 'filthy, putrid, rotten etc.' and 'otherwise unfit for human consumption' could have been intended to be used conjunctively. It would be more appropriate in the context to read it disjunctively.
6. It may be pointed out that in cases relating to food, we are concerned with a law regulating adulteration of food which affects common people in their millions and their health. The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute, intended to protect the community generally, must be gathered from the commonsense understanding of the word. The Act, defines 'food' very widely as covering any article used as food and every component which enters into it. It is common knowledge that the word 'food' is a very general term and applies to all that is eaten by men for nourishment. Under Section 16 (1-A) (i) an article of food which is adulterated within the meaning of Sub-clause (f) reproduced above, has been made punishable with imprisonment for a term which shall not be less than one year and with a fine which shall not be less, than Rs. 2,000/-. So far as Clause (ii) of Section 16 (1-A) is concerned an adulterant, which is injurious to health has been also made punishable with the same sentence. Clauses (i) and (ii) are two separate clauses and it is not necessary that an article of food falling under Clause (f) of Clause (ia) of Section 2 should in addition be injurious to health or unfit for human consumption. In fact it is adulterated in law if it is insect-infested alone.
7. For the foregoing reasons, there is no substance in this contention and hence the same is repelled.
8. The next contention of the learned Counsel for the petitioners is that 'suji' is a primary food. The word 'primary food' has been defined under Section 2 (xii-a) of the Act which has been introduced by Act No. 34 of 1976. 'Primary food' means any article of food, being a produce of agriculture or horticulture in its natural form. As such, 'suji' cannot by any stretch of imagination be considered as an article of primary food.
9. It is further contended that the article of food (suji) in this case cannot be considered as insect-infested. According to the report of the Public Analyst (Ex. P. 6), the contents of the sample weighing about 200 grams contained 50 living and dead insects and the contents as such were unfit for human consumption. The report reveals that out of 50 insects, 45 were alive and 5 dead. There is no doubt that the report of the Public Analyst is not binding on a court. This report, however, has been considered by the courts below and accepted as correct. As such, there is no reasonable ground to differ with the view taken by the courts below. At any rate, it cannot be said that in the sample of 'suji' weighing 200 grams in which 50 dead and alive insects were found is not insect-infested. As such, this contention also cannot, be sustained.
10. It may be pointed out that the sample of the 'suji' was taken on 28th Sept. 1979 and was received by the Public Analyst on 3rd Oct. 1979. The analysis of the sample was conducted on 6th Oct. 1979. As such, there has been no unreasonable delav in making the analysis.
11. The learned Counsel has vehemently contended that at any rate, Ramesh Chand petitioner who accidentally happened to be present at the shop and sold 'suji' to the Food Inspector, cannot be found guilty of the offence alleged. The point needs consideration. It is in evidence that Ramesh Chand is neither an owner or an employee in the shop. It has been admitted by the Food Inspector (PW-1) in his cross-examination that the owner of the shop is Subhash Chand and the license is also in his name. He has denied the suggestion that he forcibly got the shop opened from Ramesh Chand, when the shop was closed. He has also denied the suggestion that Ramesh Chand petitioner told him that he had no knowledge about the articles in the shop and that he was not dealing in the goods in the shop, Even Attar Singh (PW 3) has in his cross-examination stated that he did not remember whether Ramesh Chand petitioner at the time of sale of the 'suji' to the Food Inspector had told him that he was not selling the goods and that it was only the concern of his brother. In his statement under Section 313, Cr. P.C., it is stated by Ramesh Chand petitioner that he had told the Food Inspector that he was not concerned with the shop and had even refused to give the sample. Subhash Chand petitioner in his statement under Section 313, Cr. P.C. has also stated that he had not authorised his brother Ramesh Chand to sell any article from the shop. Shri Kamal Lal (DW 1) has stated that he has been working as a doctor in the adjoining shop and that he was working as such since the year 1976. It is further stated by him in his cross-examination that at the time when the Food Inspector came to the shop of Subhash Chand petitioner. Subhash Chand had perhaps gone to latrine. It is also stated that Subhash Chand at that time had told him that he was going out and he (the witness) may. take care of the shop. He has also denied the suggestion that in the absence of Subhash Chand, Ramesh Chand had been sitting at the shop. The witness has also stated that at Dhaulakuan, only Subhash Chand and his mother have been living whereas other members live in Tokyo.
12. The courts below appear to have overlooked the above evidence. The statement of an accused person recorded under Section 313, Cr. P.C. always needs consideration. It is not disputed by the prosecution that Ramesh Chand had no interest in the shop. It appears that he happened to be at the shop by accident. Under these circumstances, it is to be considered whether any leniency can be shown in awarding sentence to him. It cannot be disputed that the sample taken from Ramesh Chand on payment of price is a sale and he is liable to be convicted. My attention, however, has been drawn to a decision of the Supreme Court in Ram Mahadev Nayak v. State of Maharashtra 1982 (1) FAC 213 : 1981 Cri LJ 1282 (1). That was a case in which in the peculiar facts the accused was given the benefit of the Probation of Offenders Act. The facts of that case were these. In the course of his short visit. the accused was asked by his father to look after his hotel just for a day, when the Food Inspector came and took the samples which were found adulterated. At that lime, he being in charge of the hotel was found liable for the offence and was accordingly sentenced. Under these circumstances, their Lordships of the Supreme Court, on appeal by special leave in view of the accidental presence of the appellant in the hotel due to circumstances beyond his control, did not send him to jail but was given the benefit of the Probation of Offenders Act.
13. In the face of the aforesaid decision of the Supreme Court, it is to be seen whether any leniency can be shown to Ramesh Chand petitioner also By reducing the sentence awarded to him. I think, under the peculiar circumstances of the case and following the principle laid down by their Lordships of the Supreme Court in the above, decision, a lenient view in the matter of sentence can be taken so far as Ramesh Chand petitioner is concerned.
14. For the foregoing reasons, I am of the view that the sentence awarded to. petitioner Ramesh Chand be reduced from one year to the one already undergone. He is, however, liable to pay the fine imposed on. him and, in default of payment of fine is to suffer further rigorous imprisonment for. a period of one month. The revision petition is allowed to the above extent only. The conviction and sentence awarded to Subhash Chand petitioner is, however, maintained.