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Municipality Vs. Glaciers Cold Storage and - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1980CriLJ755
AppellantMunicipality
RespondentGlaciers Cold Storage and ; Ice Mill and ors.
Cases ReferredGlacier Cold Storage and Ice Mills v. Assessing Authority Sales Tax Jammu
Excerpt:
- .....question, therefore, which arises for consideration in this appeal is whether ice is an article of food as defined under the act.6. 'food' has been defined in section 2(v) of the act in the following terms:(v) 'food' means any article used as food or drink for human consumption other then drug 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.7. a plain reading of the sections shows that any article used as food or drink, for human consumption, including any article which ordinarily enters into or is used in composition or preparation of human food and any flavouring matter or condiment is food. however, drug and water have been expressly excluded, even though.....
Judgment:

A.S. Anand, J.

1. Having obtained leave to file an appeal against the acquittal of the respondents under Section 417 Cr.P.C., the Municipality Jammu, has filed this appeal against an order of acquittal passed by the learned Munsiff Magistrate, First Class Jammu dated 27th December, 1972, whereby the respondents were acquitted of the charges under Section 7/16 of the Prevention of Food Adulteration Act.

2. Briefly stated the prosecution case against the respondents is that the Food Inspector of the Municipality, Jammu, on 8th June, 1971, inspected Glacier Cold Storage and Ice Mill, Canal Road, Jammu. Respondent Nos. 2 and 3 were the proprietor and manager of the firm, respondent No. 1, respectively. Respondent No. 1 is engaged in the business of manufacturing Ice. The Pood Inspector demanded a sample of ice from one of the ice slabs (there were 200 Ice slabs in the Ice Mill) by giving notice in form No. 4, prescribed under the Prevention of Pood Adulteration Act (hereinafter called the Act) and purchased one kilogram of Ice for 8 No. from respondent No. 3. Ice was divided into three equal parts and secured in clean dry bottles which were properly closed with stoppers and sealed. One of the sealed bottles was handed over to respondent No. 3, against a proper receipt, while the second sealed bottle was sent to the Public Analyst, Jammu together with a memorandum in Form 6 and the specimen impression of the seal used to seal the sample bottles. The sample of ice had been taken in presence of Anayat Masih and Kaka Ram P. Ws. The Public Analyst, Jammu reported 'Presumptive coliform test....Coliform organism were found in 33 ml. and am of the opinion that the sample does not fall within the category of usable water'. A challan was accordingly filed against the accused persons.

3. The learned Munsiff Judicial Magistrate Ist Class acquitted the respondents on the ground that ice was not an article of 'food' as defined in the Act and as such the respondents had committed no offence under the Act.

4. Mr. Nanda, learned Counsel for the appellant has at the outset conceded,that since no standard of purity had been prescribed for ice under the Act or the Rules framed thereunder, the respondents could not have been convicted for the alleged adulteration of ice and to that extent the acquittal of the respondents cannot be questioned. According to Mr. Nanda the sample was not 'adulterated' within the meaning of the expression 'adulterated' as defined in the Act. Mr. Nanda has, however, vehemently argued and seriously questioned the ooinion of the learned Munsiff Judicial Magistrate First Class, Jammu, to the effect that 'ice' is not an article of food or drink as defined in the Act. It is argued that as ice is an article, which is mostly consumed by human beings and is distinct from water, as understood in common parlance, it would be included in the definition of food under the Act. According to learned Counsel for the respondent, on the other hand, ice is only a form of water and has been expressly excluded from the definition of 'food' under the Act. It is argued that a penal statute has to be strictly construed and the theory of common parlance has no application to a penal statute like the Prevention el Food Adulteration Act.

5. The short question, therefore, which arises for consideration in this appeal is whether ice is an article of food as defined under the Act.

6. 'Food' has been defined in Section 2(v) of the Act in the following terms:

(v) 'Food' means any article used as food or drink for human consumption other then drug 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.

7. A plain reading of the sections shows that any article used as food or drink, for human consumption, including any article which ordinarily enters into or is used in composition or preparation of human food and any flavouring matter or condiment is food. However, drug and water have been expressly excluded, even though 'water' as such enters into the composition and preparation of human food. Ice has not been defined anywhere in the Act and no standard of its purity has been prescribed under the Rules either, although standards have been prescribed for icecandy etc. in the Rules, The ordinary dictionary meaning of ice is 'frozen water'. In Corpus Juris Secundum (Volume XLII), ice has been defined 'as a noun, water frozen or reduced to the solid state of cold.' In Webster's Third New International Dictionary, ice has been defined as 'water reduced to the solid state by cooling and when pure constituting a nearly colorless, brittle sub-stance that in freezing expands about one eleventh in volume that has a specific gravity of 0.9166 as compared with 1.0 for water at 4 C.'

8. In case ice is only a form of water, then by express words, it has been excluded from the definition of food under the Act but in case ice is something, other then water, then being an article, which is ordinarily consumed by human beings, it would be an article of food, as denned under the Act. Learned Counsel for the parties have not been able to bring to our notice any authority in which this question has even been considered.

9. Let us, therefore, consider whether ice is a form of water or a bye product of water and the process of its manufacture. that ice is manufactured from water, without addition of any chemical sub-stance is not at all disputed. It is also not disputed that the chemical composition of ice and water is the same. According to Mr. Nanda, however, the definition of 'food' (supra) should be so construed as to include ice, which is an article of wide human consumption, and is distinctly different from 'water', which the legislature excluded. It is argued that by including 'ice' as an article of food, this Court would be giving effect to the object of the Act, which aims at preventing adulteration of articles of food and the courts should be reluctant to let the adulterator escape from the clutches of the Act. Since ice, unlike water and drugs, has not been excluded from the definition, it should be deemed to have been included in the definition of 'food'. It is further urged by Mr. Nanda that while interpreting the expression 'ice' a Full Bench of this Court, in Glacier Cold Storage and Ice Mills v. Assessing Authority Sales Tax Jammu 1974 Kash LJ 412, held 'ice' to be an article entirely different in entity from water and in that view of the matter, it is argued that since ice has been found to be distinct from water, the same distinction would apply in the present case also. Mr. Nanda has, in particular, relied upon the following passage from the judgment of Full Bench.

Although Ice derives its source or genus from water by being reduced to a solid state, yet water on solidification into ice completely changes its state and becomes a distinct entity; the specific gravity is changed, the melting point has a temperature of 0 C or 32 F and the sub-stance which forms as ice has hexagonal crystals. Therefore we are unable to agree with the contention of the petitioners that ice and water are the same things and when the notification includes water in the exemption list, it includes Ice also.

And urged that since ice has been held to be distinct from water, the exclusion of water from the definition of food would not save ice from being classified as an article of food under the Act. The precise argument is that the interpretation given by the Full Bench to the term ice be adopted in this case also.

10. The Full Bench of this Court (supra) while interpreting the provisions of the Sales Tax Act, has held 'ice' to be distinct from 'water' and chargeable to Sales Tax, even though water is not so chargeable, on the ground that in the Commercial world, the distinction between Ice and water is well understood. Can the interpretation given to the expression 'Ice' in the Sales Tax Act be extended to the Prevention of Food Adulteration Act also, is the important question which comes up for consideration at this stage.

11. It is well settled that the terms in the Sales Tax Act, unless clearly defined, are to be understood in their popular and commercial sense and not in a scientific or technical sense. This is so, because the same commodity may assume different characteristics at different stages and the commodity which undergoes these changes, is liable to tax differently at different stages. While interpreting a term in the Sales Tax Act, recourse is generally had to the sense in which that term is understood generally and in commercial world. In contradistinction penal statutes are to be strictly construed and cannot be enlarged or abridged by intendment, implication or any other equitable considerations, beyond the fair meaning of the language used. Only those persons, offences and penalties which are clearly included are ordinarily considered within the operation of the penal statute and all questions of doubt are required to be resolved in favour of the person who is alleged to have contravened the provisions of law. The duty of the court is to interpret the law as it stands irrespective of the consequences or hardship which the interpretation may cause. While considering a penal statute, the courts should always guard against the tendency to take recourse to the theory of 'common parlance' which has no application to the penal statutes. In construing any Act, one has to bear in mind the scheme of the Act and the purpose for which the Act was passed. It is generally regarded dangerous to construe the language of one Act, having regard to the construction placed by the court on somewhat similar language, of another statute, where the object and context of the two statutes are entirely different. The court should guard itself from succumbing to the temptation of reading into a statute more then what the legislature has said, merely because it thinks that it would have been reasonable to say so. The court must proceed on the assumption that the legislature intended what it has said, as the legislature must be presumed to know the need of the people. Some of the basic rules of construction of statutes are, (1) that where the language of a statute is plain, unambiguous and clear, the same must be given effect to; (2) where the statute; speaks for itself clearly, any attempt by the court to make it clearer by imposing another meaning would not be construing the statute but enacting one, which is decidedly outside the powers of the court (3) in deciding the true scope and effect of the relevant words, context in which the words occur, the object of the statute in which they are included and the policy underlying the statute becomes relevant and material and (4) that the interpretation which the court gives must be actuated with a desire to promote and further the object and policy of the legislation, without in any way stepping into the field of legislation.

12. In the light of the aforesaid prinples, we proceed to answer the question posed in the earlier part of this Judgment. The object and scope of the Sales Tax Act is to levy tax on the sale of goods. The object is to tax the sales of all commodities, unless specifically exempted. Whenever ' an article is not defined under the Sales Tax Act, resort is had to see whether that article Is 'sold' and its nature as understood in the commercial world. In interpreting a term under the Sales Tax Act, the sense in which the term is generally understood m the commercial world is resorted to and the article is rendered liable to sales tax often at different stages of the manufacture of the article, when at every such stage the article becomes a distinct saleable entity. The Full Bench of this Court (Supra) defined the term Ice', in relation to Sales Tax Act and being of the view that 'Ice' was an entity distinct from 'water', as understood in the commercial world, and was 'saleable' as such, proceeded to observe that the exemption from tax available to water could not be extended to 'Ice', However, it is obvious that the considerations under the Sales Tax Law are essentially different from considerations under the Prevention of Food Adulteration Act and it would be wrong, and even dangerous to apply the same principles to construe the meaning of the expression Ice' in relation to the Prevention of Food Adulteration Act. Since, while construing a penal statute, it is not permissible for courts to enlarge the scope of the statute by adding either persons or offences or penalties, which are not expressly included in the statute, it is not permissible to apply the theory of 'common parlance' and hold 'ice' to be distinct from water under the Prevention of Food Adulteration Act. The legislature must be presumed to have known that 'ice' was used by common man for human consumption, yet, it did not choose to include it specifically in the definition of food, apparently because Ice is a form of water and the chemical composition of ice and water is the same.

13. The legislature also has treated the two at par as would be noticed from the Appendix, wherein it has been provided that:

Aerated water shall be deemed to be below the standard of purity if it is manufactured from water which is unfit for drinking purposes or if ice manufactured from such water is inserted in it.

and again:

Soda water shall be deemed below the standard of purity if it is manufactured from water which is unfit for drinking purposes or if ice manufactured from such water is inserted in it.

Thus aerated water or Soda water, which is an article of food, if mixed with impure water or ice manufactured from such impure water, it would render the Soda water or aerated water adulterated. The legislature, therefore, is alive, to the fact that 'water' or 'ice' can be impure and when added to an article of food render that article as adulterated. If the exclusion of.'water' from the definition of food was not to apply to ice also, there was no need to say specifically that ice manufactured from impure water when used would render the drink adulterated because of Clause (a) of Section 2(v) of the Act, which provides that any article which enters into food would also be 'food'. This also supports our conclusion that 'ice' and 'water' have been treated at par by the legislature and excluded from the definition of food.

14. It is well known in chemistry that water has three forms-solid (i.e. ice); liquid (i.e. water itself) and vapours (i.e. water beyond the boiling temperature). The exemption granted to 'water' in Section 2(v) of the Act would in our opinion extend to all the three forms of water. May be, the legislature felt that it is as difficult to prescribe any standard of purity of water, as is generally supplied by the Government or the Municipality, because the standards of purity are changing with the advancement of science and technology. In its strict sense, pure water will be the only 'usable water', but the same cannot be easily produced or procured on large scale for supply to millions of people. Depending upon the source of the supply of water, different types of impurities are likely to enter it. The legislature when it excluded water from the definition of food under the Act, perhaps realised that usable water, which is generally crystal clear, can be seen by any person who wants to consume it and since any impurity in it i.e. the likely presence of mud, sand, insects etc. would be visible to the consumer, he is not likely to drink it. No person is likely to consume impure water knowingly. However, where heat has been taken out of water, and its temperature decreased to below 0 degree C. by mechanical means, water would freeze and transform into a solid state, known as 'ice'. It would ordinarily not be possible to detect with a naked eye, any impurity in 'Ice'. Of course, no manufacturer, however unscrupulous or profil minded, is likely to make water impure, before decreasing its temperature to convert into ice (because it would nol give him any benefit) yet, the possibility that because of his negligence or carelessness, water which is not otherwise fit for human consumption, may be used for manufacturing ice cannot be ruled out. It is, therefore, a matter for the legislature to take note of and in spite of excluding water from the definition of food, to consider the desirability of including 'Ice' specifically in the definition of food, under the Act. The inclusion of ice as an article of food, would in our opinion, promote the objective of the Act, which aims at prohibiting sale of adulterated food, in the larger interest of the maintenance of public health. Even though the expression 'food' has been defined widely under the Act, and all articles which are ordinarily consumed by human beings, are included in the definition by virtue of the wide amplitude of the definition (see in this connection : 1974CriLJ313 )' yet, it is not possible to include 'Ice' as an article of 'food', in view of the express exclusion of 'water' from the definition of food.

15. Since, a man cannot be punished for the breach of an obligation of which the words imposing that obligation do not given him a clear notice, we are unable to agree with Mr. Nanda that on equitable considerations and to promote the objective of the Act, we should hold that a person who sells 'ice', manufactured from water which is not 'usable' commits an offence under the Act. We accordingly hold that the acquittal of the accused-respondent by the learned Munsiff Judicial-Magistrate, Jammu, is well founded and was based on a reasonable construction of the provisions of the statute, and calls for no interference at our hands. The appeal against the acquittal of the accused-respondents is accordingly dismissed. The respondents are on bail, their bail bonds shall stand discharged.

16. A copy of this Judgment is directed to be sent to the Government.


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