M.C.D v. J.B Bottling Company Pvt. Ltd

Avadh Behari Rohatgi, J.:— The Facts:

This appeal has the rare distinction of going to the full bench twice for decision of difficult questions of law it raised. Now it has come before us for final disposal.

2. Twelve years ago, on September 10, 1966, at 10.30 a.m, a food inspector Chander Singh was on his daily round. He saw a van of M/s. J.B Bottling Company Private Limited (the company) delivering bottles of carbonated water to shopkeepers at Bara Hindu Rao Delhi. The food inspector went to the spot. He checked the stock of carbonated water. During checking he came across a bottle of “J.B Gold Crush Orange” having a dead fly in it He then in the presence of Zonal Health Officer, two other food inspectors, a witness from the public and two officials of the company seized and sealed the bottle containing the dead fly. He prepared a seizure memo (PW 1.A) which was signed by three witnesses. He took the bottle in his custody.

3. The Municipal Corporation launched a prosecution under sections 7 and 17 read with section 16 of the Act against (1) Raj Kumar, salesman-cum-driver; (2) Thakar Dass, sales supervisor; (3) Lachhman Dass, managing director, all three of the company and (4) J.B Bottling Company Private Limited. The substance of the complaint was that the dead fly in the seized carbonated water bottle made its contents filthy, disgusting, obnoxious, injurious to health and unfit for human consumption and adulterated within the meaning of section 2 of the Prevention of Food Adulteration Act 1954 (the Act).

4. On December 5, 1968, the trial magistrate held the company guilty of the offence and imposed a fine of Rs. 5000. The remaining three accused were acquitted.

5. The company appealed. On appeal the Additional Sessions Judge by his order dated November 21, 1969, set aside the conviction and sentence of the company. He took the view that the company being an artificial person cannot be tried and punished for an offence for which the sentence of imprisonment is compulsory under section 16 of the Act. Thereupon the Municipal Corporation brought the appeal to this court.

6. The appeal came before a division bench (Jagjit Singh and V.D Misra JJ). The Municipal Corporation at the hearing questioned the correctness of the decision in M/s. Rameshwar Chotte Lal v. Union of India (I.L.R 1969 Delhi 1196) (1) on which the Additional Sessions Judge had based his decision of acquittal. The bench, therefore, referred the question of immunity of the company from prosecution under the Act to a larger bench for an authoritative pronouncement. A full bench (T.V.R Tatachari CJ, V.S Deshpande and Yogeshwar Dayal JJ) gave the opinion on March 14, 1975. They held that a company referred to in section 17 of the Act does not enjoy any immunity from prosecution and if found guilty of an offence can be adequately punished with fine. (See Municipal Corporation of Delhi v. J.B Bottling Company Private Limited, I.L.R (1975) 1 Delhi 739. (2).

7. The appeal went back to the division bench for disposal. This time counsel for the company raised a new contention. He argued that the food inspector Chander Singh was not qualified to be appointed a food inspector as the evidence showed that he owned one share in a cooperative store of the Municipal Corporation. The division bench (Jagjit Singh and M.S Joshi JJ) made a second referring order on August 11, 1975, inviting the opinion of the full bench on the question whether holding of one or more share in the Municipal Corporation Cooperative Stores Ltd. amounted to having a financial interest in the manufacture, import or sale of articles of food within the meaning of the proviso to sub-section (1) of section 9 of the Act. A full bench of this court (T.V.R Tatachari CJ, Prithvi Raj and Yogeshwar Dayal JJ) again assembled to hear the reference. On November 9, 1977, the full bench returned the answer to the question in the affirmative. They held that the food inspector Chander Singh had a financial interest and that was a disqualification for appointment of a food inspector: See Municipal Corporation of Delhi v. J.B Bottling Company Pvt. Ltd., ILR (1978) 1 Delhi 129 (3). Now with this opinion the case has come to us.

Relevant statutory provisions:

8. The food inspector started the proceedings by seizing the article of food (food includes a drink) in exercise of his power under section 10 (4) of the Act. That provision reads:

“10. Powers of food inspectors —

(1) A food inspector shall have power —

(4) If any article intended for food appears to any food inspector to be adulterated or misbranded, he may seize and carry away or keep in safe custody of vendor such article in order that it may be dealt with as hereinafter provided:

..............”

9. The food inspector, after seizure may carry away the article or he may keep it in safe custody of the vendor and for this the vendor can be required to execute a bond for a sum of money equal to the value of the article.

10. Section 11 (4), (5) and (6) are important. The lay down the procedure to be followed by food inspectors. These provisions have altogether been missed in the fortunes of this case. In truth the case has not been fought and decided on relevant statutory provision. Section 11 (4) to (6) are a complete answer to the whole case. Why go to full benches? Statute is our guide.

Section 11 (4) provides that —

“An article of food seized under sub-section (4) of sec. 10, shall be produced before a magistrate as soon as possible.

Section 11 (5) says: “If it appears to the magistrate on taking such evidence as he may deem necessary that the article of food produced before him under sub-section (4) is adulterated, he may order it —

(a) to be forfeited to the local authority; or

(b) to be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food, or

...................”

12. Sub-section (6) provides that if it appears to the magistrate that any such article of food is not adulterated the person from whose possession article is taken shall be entitled to have it restored to him and the magistrate may, in his discretion, award compensation to him not exceeding the actual loss sustained.

13. It will be seen that under sub-section (4) of section 10 a food inspector may seize any article of food which appears to him adulterated or misbranded and such an article is required to be produced before a magistrate under Sub-section (4) of section 11. But sub-sections (5) and (6) empower the magistrate to deal with the article where it is found to be adulterated or unadulterated as the case may be, and the provision is silent on the question as to what the magistrate is to do if, the article in question appears to be misbranded or where the food inspector seizes it on the ground that it appeared to him misbranded and the magistrate finds it misbranded or not misbranded, as the case may be. I think this is a drafting slip. The draftsman has forgotten to use the word ‘misbranded’ in sub-section (5) and (6), though he does provide for a misbranded article in clauses (c) and (d) of sub-section (5).

14. Clauses (c) and (d) clearly refer to a misbranded article. In sub-section (6) also the draftsman ought to have provided for the restoration of the article to the owner if the magistrate finds it not misbranded. I need not dwell on this as we are not concerned with misbranded articles in this case.

15. In this case the procedure of a seized article has not been followed at all. The complaint was filed on August 7, 1967. The bottle was seized on September 10, 1966. The article seized had to be produced before the magistrate “as soon as possible”, to use the words of the statute. To do a thing “as soon as possible” means to do it within a reasonable time, with an understanding to do it in the shortest practicable time. Perhaps the most satisfactory paraphrase is to say, with all reasonable expedition of which the circumstances allow. (See Hydraulic Engineering Co. Ltd. v. Mc Haffee (1878) 4 Q.B.D 670 (673) (CA) per Bramwell L.J) (4). A period of nearly eleven months which elapsed between the seizure of the bottle and the filling of the complaint cannot be termed as the shortest possible time.

16. It seems to me that the entire legal procedure went wrong. A case of seizure is different from a case of sample. Under section 10 (4) the article is seized. Under section 11 (4) it has to be produced before a magistrate “as soon as possible”. If the magistrate, on taking such evidence as he may deem necessary, comes to the conclusion that the article is adulterated he may order it to be forfeited or destroyed “so as to prevent its being used as human food”. Like an obscene book the adulterated article intended for food may be confiscated as forfeit or destroyed. If the article is not found to be adulterated the article has to be restored to the person from whom it was taken. He may, in the discretion of magistrate, be also awarded compensation but not exceeding the actual loss sustained.

17. Section 16 (1) (c) prescribes penalties for a person who, for instance, prevents a food inspector from exercising his power of seizure conferred on him by or under the Act. Section 16 (1A) and (1B) lay down penalties for persons tempering with or selling the article kept in their safe custody under sub-section (4) of section 10.

18. Now we have a full picture. Sub-section (4) of section 11 lays down as to what is to be done by the food inspector with the article seized by him under section 10 (4). Either the seized article should be produced before a magistrate as soon as possible, or if any sample of the article so seized has been sent to public analyst for analysis, it may be produced on or later the receipt of the report of the public analyst. If the food inspector does not produce the article so seized before the magistrate immediately, an application in this behalf can be made by the person from whom the article has been seized and thereupon the magistrate shall by a written order direct the food inspector to produce such article before him within such time as the magistrate may specify in his order.

19. Sub-section (5) and (6) lay down what the magistrate is to do in case of an article of food seized by the food inspector and produced before him. After the article in question is produced before the magistrate, he is to decide whether the article is adulterated or not. For that purpose he may take such evidence “as he may deem necessary.” These words show that the magistrate has got a discretion in the matter of taking evidence. He may have the report of the public analyst. He can have such other evidence as he may “deem necessary”. The object is to give greater freedom to the magistrate in the admission of evidence. Consistent with the principles of natural justice he will also allow the party whose article has been seized to produce all such evidence as it thinks necessary. On evidence it must appear to him that the article is unfit for human consumption: (See section 2 (1) (f) and Municipal Corporation of Delhi v. Kacheroo Mal ., AIR 1976 SC 394 (5). If the article is found adulterated the magistrate has the power to confiscate it or condemn it to destruction.

Law of seizure:

20. Another related question is: What is the effect of the disqualification of the food inspector on the proceedings he took? It is now established that Chander Singh could not be appointed under section 9 of the Act became he had a financial interest which was found by the full bench sufficient to disqualify him for appointment as a food inspector.

21. If seizure at the very threshold, as is the case here, is unlawful because the food inspector who seized the article of food had not been duly appointed what will be its effect on the subsequent proceedings? Counsel for the Corporation contends that this illegality has no effect because the article was adulterated. He referred us to H.N Rishbud and Inder Singh v. The State of Delhi, (1955) 1 S.C.R 1150 (6).

22. The prosecution case is founded on seizure. Chander Singh, food inspector, seized the bottle containing the dead fly. The complaint recites the fact of seizure. The documents prepared at the spot on September 10, 1966, speak of seizure of the article. Chander Singh in the seizure memo (PW 1.A) clearly said that the bottle was “seized by me under the provisions of section 10 (4) “. Witnesses at the trial spoke to seizure. They proved their signatures on the seizure memo. The question is: Chander Singh not being a duly appointed food inspector had he power to seize? My answer is an emphatic “no”.

23. The ordinary and natural meaning of seizure is forcible taking of possession (per Cave J. in Johnstone v. Hogg 10 Q.B.D 432 (7). It may reasonably be interpreted to embrace every act of taking for cible possession either by lawful authority or by overpowering force. The word ‘seizure’ is a strong expression. Seizure implies force. It results in deprivation of possession. The legislature has given power to a food inspector to seize an article of food if he finds it adulterated. Not only may he seize, he may as well “carry away” the article. It is a statutory power conferred on the food inspector. The statute for sound reasons has conferred special powers on food inspectors in an all-out effort to eradicate the evil of adulteration. The authorised officer has power to seize any article of food which appears to him adulterated. But the power of seizure is not arbitrary. It is regulated by law. Seizure means the act of taking possession of property by virtue of a warrant or legal authority. It is the power to take possession of something after or by a court order, legislative enactment or other legal process. (Webster — Third International Dictionary).

24. The legislature has not stopped at seizure. It has also given power to the food inspector to make searches of places where any article of food may be kept for sale (see sub-section (5) of section 10). Community health is the dominant consideration. In a bid to root out the evil of adulteration the legislature has gone to the farthest limits.

25. It is true that in recent times searches and seizures have increasingly come to be regarded as a necessary power in the interest of community and without it the process of law enforcement might suffer to the detriment of public interest or public health as in the present case. The power of seizure being exceedingly arbitrary in character the legislature is always careful to impose stringent statutory conditions for the exercise of this power. It did so in 1898 when for the first time it conferred power of search and seizure under the old Code of Criminal Procedure on the police officers for the prevention and investigation of offences. The Supreme Court, while examining the validity of section 96 (1) of the Code of 1898 empowering search and seizure, said:

“A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessary regulated by law”

See M.P Sharma v. Satish Chandra, AIR 1954 SC 300 (306) (8).

26. The prohibition against unreasonable searches and seizures is still regarded as indispensable to freedom, since “uncontrolled, search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. The human personality deteriorates and dignity and self reliance disappear where homes, persons, and possessions are subject at any hour to unheralded search and seizure by the police.” (Per Jackson J. in Brinegar v. United States, 338 (J.S 160 (1949) (9).

27. I feel myself impelled to hold that the very act of seizure of Chander Singh being unlawful the entire prosecution case falls like a house of cards. The case is founded on the power of seizure of the food inspector. Chander Singh was not a food inspector as he was not validly appointed. He was no more than a private person. A private person has no power of seizure. Any act which if not done with the authority of law would amount to trespass to goods. It is a general invasion of the liberty of the citizen. To take possession of an article in pursuance of a statutory provision of food law is perfectly lawful, sanctioned as it is by the command of the sovereign. But seizure by a private person is without authority of law. It is naked power. It is brute force. Such evidence of guilt cannot be used in the prosecution of a criminal action for some crime or offence with which an accused is charged.

28. A duly appointed food inspector has been clothed by the legislature with the power of seizure. No one else is armed with that power. This is why penalties are prescribed in section 16 for a person who offers resistance to the exercise of that power. But a private person can always be resisted if he threatens to take forcible possession: See Delhi Administration v. Ram Singh, AIR 1962 SC 63 (10). Where a statute confers a power on certain, officers, that power can obviously be exercised only by these officers. No other officer can exercise that power for it has not been given to him. Power under section 10 (4) is conferred on the food inspector. If a statute has conferred a power to do an act and laid down the method in which that power is to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted: See Nazir Ahmad v. King Emperor, AIR 1936 PC 253 (11) and State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358 (361) (12).

Proof of adulteration:

29. It is important to note that the case was not tried under section 10 (4) and section 11 (4) to (6) of the Act. The Corporation made the complaint under sections 7 and 17 of the Act. The result was a mistrial. The article in question was never produced before the magistrate within the shortest possible time or within a reasonable time. The magistrate did not follow the procedure laid down in section 11 (5). He did not take such evidence as lie might have deemed necessary. Instead of recording a finding of the article being adulterated under section 11 (5) he recorded a finding under sections 7 and 17. And instead of ordering forfeiture or destruction of the article as he ought to have done under section 11 (5) if he was of the view that the article was adulterated the magistrate went on to punish the company by fine under section 16 without taking the essential step of procedure as prescribed in section 11 (4) and (5). I do not say that in a case of seizure the application of sections 7 and 16 is excluded. Once it is found that the article was intended for sale those sections are attracted if the article is found to be adulterated.

30. The legislature has twin objects in, view — preventive and punitive. The article, if, found adulterated, has to be forfeited or destroyed “to prevent its being used as a human food”, in the words of section 11 (5). The legislature is not prepared, to view the adulterated food with indulgent eyes. The vendor selling the adulterated article must also be punished for the article has been found to be adulterated under section 11 (5). And selling adulterated food is an offence. Section 7 creates the offence. Section 16 prescribes the penalties for the offence of adulteration. Beyond this I need not say. How, when and at what stage complaint under sections 7 and 16 is to be filed I do not decide. That question, properly speaking does not arise in the case before us.

31. Counsel for the Municipal Corporation argued that it was not necessary to take evidence as a visual inspection showed adulteration. This argument is misconceived. It had to be seen from evidence that the carbonated water containing the dead fly was unfit for human consumption. It cannot be presumed merely from the presence of the dead fly. The statute permits a sample to be sent to the public analyst for analysis (section 11 (4)]. We cannot speculate the reasons which the public analyst might have advanced as an expert in the science of dietics in support of his opinion. What would lie have testified and opined we cannot divine?

32. The article on taking evidence must appear to the magistrate to be adulterated. The conclusion, must be reached on evidence. The statute uses the words “appears to the magistrate”. The word “appear” is nearly, if not quite synonymous with “proved”. But the article must appear to the magistrate adulterated “on taking such evidence as he may deem necessary.” This procedure is the crucible, the seive through which the article after it has been produced within a reasonable time must pass in order to pass the test of fitness for human consumption.

33. In Municipal Corporation Of Delhi v. Kacheroo Mal . AIR 1976 SC 394 the Supreme Court had occasion to construe section 2 (1) (f). The words or otherwise unfit for human consumption appearing at the end of the definition were read as conjunctively and not disjunctively with the preceding words, of the section. It was opined that adjectives “filthy”, “putrid”, “disgusting”, “decomposed”, “rotten” or “insect-infested” refer to the quality of the article and are no more than “an indicia for presuming the article to be unfit for human consumption”. But presumption is not conclusive. And a conviction cannot be based on mere presumption. Sarkaria J. speaking for the court said:

“In each case it must be proved that the “article was unfit for human consumption”. (p. 398).

34. That it must be proved in each case as a fact that the article is unfit for human consumption appeared to the Supreme Court a sounder and more acceptable construction. Unfitness can be proved by the evidence of the public analyst. The opinion of the public analyst who examines and analyses the article of food, as to its fitness or otherwise for human consumption, would constitute legal evidence under section 13 of the Act. But this does not mean that the report of the analyst is the last word on the subject and is conclusive and binding on the court. Ultimately the decision rests with the court. It is for the court to weigh his opinion and reach its own finding. To do otherwise would be to abdicate the judicial function and leave the case to be tried by the analyst, as it were: (See Kacheroo Mal's case, supra p. 393).

35. It is for the magistrate to decide upon evidence whether the dead fly found was of such a nature as to make the article unfit for human consumption. In the present case there is no evidence of adulteration. The presence of the dead fly in the bottle may be an “indicia” or “presumptive test” of the article being unfit for human consumption, to use an expression of Sarkaria J. But “in each case it must be proved that the article was unfit for human consumption”. There being no evidence at all in this case that the article was unfit for human consumption and, therefore, adulterated, the prosecution fails.

Conclusion:

36. No one realised that it was a case of seizure and, unlike a case of sale and sample, the provisions of section 11 (4) and (5) apply. Without following the essential procedure there was no case to go to trial. Unless the seized article of food is produced with all reasonable expedition before the magistrate the complaint cannot proceed to trial.

37. To sum up: (1) The seized article has to be produced before the magistrate as soon as possible.

(2) The magistrate must take such evidence as he deems necessary.

(3) On taking such evidence it must appear to him that the article is adulterated.

(4) He can order (a) forfeiture or (b) destruction of the adulterated article.

(5) In the end the magistrate will decide what sentence to pass and against whom under the substantive provisions of sections 7 and 16 of the Act.

(6) If not found adulterated the magistrate will restore the article to the owner or person from whose possession it was taken.

38. The respondents who have more than their normal share of suffering over these twelve years could have been spared much of the trial and tribulation of a criminal prosecution if sufficient attention had been paid to the fatal flaw in the proceedings by reason of the failure to produce the article of food with all reasonable despatch before the magistrate.

39. For these reasons, I would dismiss the appeal.

Appeal dismissed.