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  • N.M Golwalkar
  • Suraj Bhan, JJ.
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  • N.M Golwalkar
  • Suraj Bhan, JJ.
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Smart Summary

Judgment Summary

Factual and Procedural Background

These two consolidated appeals were filed by the Municipal Council, Raipur, challenging orders of acquittal dated 5-12-1965 given by the Sessions Judge, Raipur, in two separate appeals arising from Criminal Cases Nos. 338/63 and 344/63. In each underlying criminal case the respondent was originally convicted by the Magistrate under Section 7 read with Section 16 of the Prevention of Food Adulteration Act and sentenced to a fine of Rs. 200 or two months rigorous imprisonment in default.

The prosecution case in both matters was substantially identical: on 28-11-1962 the Food Inspector (P.W.1) took samples, on payment of price, of gram-flour (besan) and wheat flour from the respondent after due notice; each sample was divided into three sealed parts, one packet of each article was sent to the Public Analyst, and the Public Analyst’s report (Ex. P-5) found both items to be below the prescribed standard. At trial the accused pleaded not guilty and contended he had sold what he had purchased from the common market. The Magistrate convicted on the basis of the Public Analyst's reports. The respondent succeeded on appeal before the Sessions Judge, who acquitted him. The Municipal Council then appealed to this court under Section 417(3) CrPC, and both appeals were heard together because they raised common questions of law.

Legal Issues Presented

  1. Whether the Food Laboratory referenced in the State Government notification dated 27-12-1960 (upgrading to a Regional Laboratory) is the same laboratory referred to in the order of appointment of Shri S.N. Dutta as Chemist (notification dated 22-6-1960).
  2. Whether the phrase “Medical Officer and the Chemist” in the notification dated 27-12-1960 required that a single person hold both offices (Medical Officer and Chemist) in order to be a competent Public Analyst, or whether it could be read to mean either officeholder (i.e., whether the conjunctive “and” should be read as the disjunctive “or”).
  3. Whether Shri S.N. Dutta, appointed as Chemist and continued in that post by subsequent notification, was a competent Public Analyst for purposes of the Act (including whether his appointment and the laboratory status were shown sufficiently to validate the Public Analyst's reports).
  4. Whether objections to the identity/status of the laboratory and the appointment/qualifications of the Public Analyst, not raised at trial, could properly be entertained on appeal.

Arguments of the Parties

Appellant's Arguments (Municipal Council / Counsel: Shri Jakatdar)

  • The notification dated 4-11-1959 upgraded existing laboratories (including Raipur) to Regional Laboratories to bring them into conformity with Central Government standards; therefore the Food Laboratory to which Shri S.N. Dutta was attached was properly a Regional Laboratory.
  • The notification dated 27-12-1960 fits Shri Dutta's appointment: the Medical Officer and the Chemist are two distinct offices, and Shri Dutta, being appointed Public Analyst by the relevant notifications, satisfied the description required for appointment as Public Analyst.
  • Given the above, the Magistrate’s convictions based on the Public Analyst’s reports were proper and ought not to have been disturbed by the Sessions Judge.

Respondent's Arguments (Counsel: Shri Sen)

  • The prosecution failed to prove that there was only one Food Laboratory at Raipur and that it was the laboratory raised to Regional status under the notification dated 27-12-1960.
  • There was no notification showing that Shri S.N. Dutta simultaneously held the offices of Medical Officer and Chemist (an alleged prerequisite, according to the Sessions Judge’s reading), and therefore he was not competent to act as a Public Analyst under the notification.
  • There was nothing to show Shri Dutta possessed the requisite qualifications for appointment as a Public Analyst.
  • At trial the respondent maintained a factual defence that the flour sold was purchased from the common market (i.e., denial of adulteration by respondent).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Green v. Premier Glynrhonwy State Company Ltd., [1928] 1 K.B. 561 (Scrutton L.J.) Illustration that conjunctions like "and" and "or" are generally conjunctive/disjunctive but may be read conversely where necessary to give effect to legislative intent. The court relied on this articulation of statutory interpretation to justify reading "and" as "or" in the notification so as to give effect to the State Government's manifest intention.
State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699 Authority for reading "or" as "and" (or vice versa) where required to carry out the clear intention of the legislature. Used to support the proposition that conjunctions can be read differently from their ordinary sense to implement legislative intent; helped the court adopt an interpretative approach to the notification language.
Mazagaon Dock Ltd. v. Commissioner of Income-tax and Excess Profits Tax, AIR 1958 SC 861 Another Supreme Court example of reading "or" as "and" to avoid producing an unintended or absurd result. Cited to show established judicial practice in India permitting such readings and to lend weight to interpreting "and" as "or" in the notification context.
T.S. Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638 Further Supreme Court authority on interpretative flexibility regarding disjunctive/conjunctive words to effect legislative intent. Reinforced the court's statutory interpretation that the phrase “Medical Officer and the Chemist” could be read to permit appointment of either officeholder as Public Analyst.

Court's Reasoning and Analysis

The court carefully considered the contentions and concluded that the Sessions Judge erred in allowing the acquittal. The analysis proceeded along the following lines, as expressly set out in the opinion:

  1. Procedural posture: The court observed that objections to the identity/status of the Food Laboratory and to Shri Dutta's appointment or continuance as Chemist were not raised at trial; the court noted such objections ordinarily should not be permitted to be raised first on appeal. Nonetheless, because the Sessions Judge entertained and decided those objections, the High Court addressed them on the merits.
  2. Statutory context: The court referred to Section 8 of the Prevention of Food Adulteration Act (which empowers the State Government to appoint Public Analysts) and to sub-section (5) of Section 13 (which permits use of a Public Analyst's report as evidence), establishing the legal importance of a duly appointed Public Analyst and his report.
  3. Interpretation of notifications: The central dispute turned on construction of the State Government notification dated 27-12-1960, specifically whether the expression “Medical Officer and the Chemist” required a single person to hold both offices. The court applied established principles of statutory interpretation — including authorities that permit reading “and” as “or” (or vice versa) where necessary to effect legislative intent — and concluded that the State Government intended to appoint either the Medical Officer or the Chemist as Public Analyst (i.e., the conjunctive “and” in column 4 should be read as “or”).
  4. Support from subsequent notification: The court noted a later notification dated 11-10-1966, which, in a table, identifies "The Chemist, Public Health Laboratory, Raipur" as an appointee. The court treated that subsequent notification as consistent with the view that the State intended the Chemist alone to be appointable as Public Analyst.
  5. Application to Shri S.N. Dutta: Shri Dutta had been appointed Chemist by the State Government (notification dated 22-6-1960) and his continuance in the post was extended by a notification dated 22-6-1961. Given the court's interpretation that a Chemist could be appointed as a Public Analyst by virtue of his office, the court held Shri Dutta was a fit person to perform Public Analyst duties at the relevant time.
  6. Qualifications and proof: The court observed that qualifications for a Public Analyst are prescribed, but also noted that no objection was taken at trial that Shri Dutta lacked the requisite qualifications; because this was a factual matter not challenged at trial, the court declined to permit it to be raised for the first time on appeal.
  7. Resulting conclusion: On these grounds — the correct interpretation of the notifications, the upgrading of the laboratory, Shri Dutta's office-holding as Chemist, and the absence of contemporaneous objection to his qualifications — the court held the Sessions Judge’s acquittal was erroneous and restored the Magistrate’s convictions and sentences.

Holding and Implications

Holding: The court ALLOWED the appeals. The impugned orders of acquittal passed by the Sessions Judge in both appeals were set aside, and the convictions and sentences awarded to the respondent by the Magistrate in both criminal cases were restored.

Implications:

  • Direct effect on the parties: The respondent's acquittals were reversed and the earlier convictions and sentences (fine of Rs. 200 or two months rigorous imprisonment in default) reinstated.
  • Legal/practical implication stated by the court: The opinion applies established rules of statutory interpretation to notifications under Section 8 of the Prevention of Food Adulteration Act, concluding that a State Government may appoint a person as Public Analyst by virtue of the office he holds (e.g., the Chemist of a Public Health Laboratory) and that the conjunctive wording in a notification may be read disjunctively to give effect to the State's manifest intention.
  • Precedential outcome: The court relied on existing authorities to interpret the notifications; the opinion restored convictions on those grounds. The judgment does not assert that it establishes a new legal principle beyond the application of accepted interpretative authorities to the facts of these notifications.

No additional factual or argumentative material beyond the provided opinion was introduced in this summary.

Show full summary ...

    Municipal Council, Raipur v. Bishandas Nathumal .

    Suraj Bhan, J.:— This appeal, as also Chdrninal Appeal No. 476 of 1965, which too has been filed by the Municipal Council, Raipur, against the same respondent, both arise out of a common judgment of acquittal of the respondent delivered by the learned Sessions Judge, Raipur, in two different appeals, viz. Criminal Appeal No. 147 of 1964 and No. 148 of 1964, arising out of Criminal case No. 338 of 1963 and No. 344 of 1963 respectively, and as common questions of law are involved in both of them, they were heard together and this judgment shall govern the disposal of the other appeal also.

    2. The Municipal Council, Raipur, has Bled these appeals under Section 417(3) of the Cr PC against the judgment of acquittal of the respondent dated 5-12-65, in the aforesaid two appeals which arose from Criminal Cases Page: 148Nos. 338/63 and 344/63, and in each of those cases, the respondent was convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (hereinafter called the Act), and sentenced to a fine of Rs. 200/- or in default, to suffer rigorous imprisonment for a period of two months. The facts of the prosecution case are identical in both the cases, excepting that the article seized in one case was wheat flour and in the other, gram-flour (Besan). Food Inspector, Shri Khimji Bhiwanday (P.W 1) had, on 28-11-62, took sample of Besan (gram-flour) as well as wheat-flour, on payment of price therefor, for purposes of analysis, from respondent Bishandas, after due notice to him, and divided the sample of each in three equal parts, which were sealed in the presence of the witnesses, and one packet of each of the two articles was sent to the Public Analyst for test, vide his report, Ex. P-5, and in both cases, each of the two items were found below the standard specification.

    3. At the trial, the accused had pleaded not guilty to the charge against him under Section 7 read with Section 16 of the Act in each case, and his defence in both was that he did not adulterate the stuff, but he had sold the same from what he had purchased from the common market. The learned Magistrate, as aforesaid, found gram-flour and the wheat-flour both to be below the specified standard, vide the reports of the Public Analyst, Ex. P-5, and hence he convicted and sentenced the respondent in each case as aforesaid. Being aggrieved, the respondent went in appeal before the learned Sessions Judge, Raipur, who held a different view, and passed the impugned orders of acquittal in the two appeals, and hence these appeals before this court.

    4. The learned Judge based his order of acquittal on two grounds, firstly that the Food Laboratory referred to in the order of appointment of Shri S.N Dutta (vide Notification No. 3695/2879.XVII-PH-IV dated 22-6-1960) is not proved to be the same Laboratory which has been referred to in the State Government notification No. 2683/3282.XVII-M-IV dated 27-12-1960 (hereinafter referred to as Notification dated 27-12-60), and secondly, Shri Dutta was appointed only as a Chemist, while the notification dated 27-12-60, purported to (Sic) the Medical Officer and the Chemist in the Public Health Laboratory, Raipur, being appointed as Public Analyst under the Act, and as Shri Dutta did not hold both the above said Offices, he was in the opinion of the learned Judge, not competent to act as a Public Analyst.

    5. Shri Jakatdar, the learned counsel for the appellant in both appeals, has urged before us, that the learned Sessions Judge had erred on both the grounds in acquitting the accused. He invited our attention to the notification No. 7010/2717.XVII-M dated 4-11-1959 (hereinafter referred to as Notfn dated 4-11-1959), whereby the existing laboratories at Gwalior and Raipur etc. were raised to the status of the Regional Laboratories in order to bring them in conformity with the status as approved by the Central Government for such a laboratory and the Food Laboratory being raised to the status of the Regional Laboratory, it could not be said that Shri Dutta's appointment as Public Analyst, vide this notification, was not in order. He further urged that this notification clearly shows that the medical officer and the chemist being two different offices, and Shri Dutta having been appointed Public Analyst, vide notification dated 22-6-60, answered all the description as mentioned in the relevant notification for appointment as a Public Analyst, and that being the position, the conviction of the accused by the learned Magistrate in both the cases was proper and should not have been interfered by the learned Sessions Judge.

    6. Shri Sen, the learned counsel for the respondent, on the other hand, urged that the prosecution has not properly proved that there was only one. Food Laboratory at Raipur, and it was that laboratory which was raised to the status of the Regional Laboratory of which Shri Dutta was the Chemist. He also contended that there is no notification to show that Shri Dutta was the Medical Officer as well as a Chemist both as it was necessary before he could be appointed as a Public Analyst, and he further urged that there was nothing to show that Shri Dutta possessed the requisite qualifications for such an appointment.

    7. We have given our careful consideration to all the contentions raised before us and we are of the view that the impugned order of acquittal in both the appeals deserves to be set aside.

    8. Section 8 of the Act makes a provision for the appointment of a Public Analyst, by the State Government, and sub-section (5) of Section 13 provides that any document purporting to be a report, signed by a Public Analyst, unless it has been superseded under sub-section (3) or any document purporting to be a certificate signed by the Director of Central Food Laboratory, may be used as evidence of the facts stated therein in any proceedings under the Act.

    9. At the outset we must say that no objection was raised on behalf of the accused that the Food Laboratory at Raipur was not the Regional Food Laboratory as up-graded, vide notification dated Page: 14927-12-60, and similarly no objection was also raised regarding the appointment of Shri Dutta as a Chemist and about his continuance as such, and these objections in our view should not have been allowed to be raised in appeal, but since that have already been taken up, end dealt with by the learned Judge, we are of the view that they have no force, and the conviction in both cases, as held by the learned Magistrate, was justified.

    10. The notification dated 4-11-1959, relates to the up-grading of the then existing laboratories at Gwalior, Raipur and Jabalpur, as Regional laboratories, and notification dated 27-12-60. Which was in exercise of powers conferred by Section 8 of the Act appointing the Medical Officer and the Chemist of the Public Health Laboratory, Raipur, as a Public Analyst. Now the question that arises is, whether, vide notification dated 27-12-60 (at Ser. No. 4), the “Medical Officer and the Chemist” (Public Health Laboratory) is one person or consists of two persons i.e a medical officer and a chemist. The question turns round, whether the word ‘and’ should be interpreted as ‘or’. The word ‘and’ is normally conjunctive and the word ‘or’ is normally disjunctive, but sometimes: they are read as vice versa to give effect to the manifest intention of the legislature as disclosed from the context. Scrutton L.J, in Green v. Premier Glynrhonwy State Company, Ltd., [1928] 1 K.B 561 has observed as follows:

    “You do not sometimes read ‘and’ in a statute, but you do not do it unless you are obliged, because ‘or’ does not generally mean ‘and’, and ‘and’ does not generally mean ‘or’.” In Maxwell's Interpretation of Statutes, at p. 229, in dealing with conjunctions ‘or’ and ‘and’, it is said:

    “To carry out the intention of the legislature, it is occasionally found necessary to read conjunctions ‘or’ and ‘and’ one for the other.’*

    11. In State of Bombay v. R.M.D Chamarbaugwala, AIR 1957 SC 699, the Supreme Court read ‘or’ as ‘and’ to give effect to the clear intention of the legislature as expressed in Bombay Lotteries and Prize Competition Control and Tax Act, (No. 54 of 1948). Similarly, in Mazagaon Dock Ltd. v. Commissioner of Income-tax and Excess Profits Tax, AIR 1958 SC 861 the word ‘or’ was read as ‘and’, as the result produced by reading ‘or’ in Section 42(2) of the Income-Tax Act, 1922 could not have intended. See also T.S Govindlalji Maharaj etc. v. State of Rajasthan, AIR 1963 SC 1638.

    12. By reading column 2 of the notification, it appears that the State Government intended that a ‘Medical Officer and the Chemist’ are two different persons and any one of them could be appointed as a Public Analyst having the requisite qualifications, and in our view, the word ‘and’ used in column 4 should be read as ‘or’, and we are supported in our view by the notification dated 11-10-1966, the relevant portion of which is as under:—

    “Notification No. 4762/5177.XVH-Med.-IV, Bhopal dated 11th October, 1966—

    13. In exercise of the powers conferred by Section 8 of the Prevention of Food Adulteration Act, 1954 (No. 37 of 1954), and in supersession of all previous Notifications issued in this behalf the State Government hereby appoints the persons specified in Col. (2) of the Table below to be Public Analysts for the purposes of the said Act and further defines the local areas as specified in the corresponding entries in Col. (3) of the said Table, over which they shall exercise jurisdiction.—

    S.N Persona. Local Areas (1) (2) (3) x x x 4. The Chemist, Public Health Laboratory, Raipur. xx”

    14. It is, therefore, quite clear that the intention of the State Government was to appoint a Chemist as a Public Analyst, vide Notification dated 27-12-1960, and the learned Judge erred in holding that an “Officer holding charge of Medical Officer as well as that of Chemist” could only be competent person to be appointed as a Publia Analyst.

    15. Shri Dutta was appointed as a Chemist by the order of the State Government, vide the notification dated 22-6-1960, and the notification dated 22-6-61 (No. 4162/77.XVIII-Med/I) extended the continuance of the pot;t of a Chemist, and having held that the Medical Officer and the Chemist were two quite distinct offices, and any one of them holding such an office, could be appointed as a Public Analyst, vide notification dated 27-12-1960, we are of the view that at the time when the accused is alleged to have committed the offence, Shri Dutta was holding the office of a Chemist and further, the Food Laboratory at Raipur, having been upgraded to the status of the Regional Laboratory with which he was attached as a Chemist he was a fit person to perform the duties of a Public Analyst. It is pertinent to note here that it is not necessary for the State Government to appoint any person as a Public Analyst by name. It can be done even by virtue of his office also. It is also true that certain qualifications Page: 150are prescribed for appointment as a Public Analyst and the accused had not taken any objection whatsoever in the trial Court that Shri Dutta was not so qualified. That being the position, and it being a question of fact, it cannot be allowed to be raised here.

    16. In view of the aforesaid discus-don, we are of the view that the view taken by the learned Sessions Judge in acquitting the accused in both the cases was erroneous, and the conviction and sentence awarded to the respondent by the learned Magistrate in both the cases was proper. Consequently, both the appeals are allowed; the impugned orders of acquittal passed by the learned Sessions Judge in both the appeals are hereby set aside, and the conviction and sentences awarded to the accused-respondent by the learned Magistrate in both the criminal cases are hereby restored.

    SSG/D.V.C

    17. Appeals allowed.

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    Comments

    Municipal Council, Raipur v. Bishandas Nathumal .
    (Nov 22, 1968)