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1964 DIGILAW 355 (KER)

Moidu v. Food Inspector, Ernakulam Municipality

1964-12-13

P.GOVINDA MENON, T.K.JOSEPH

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Judgment :- 1. These two cases were heard together as the questions raised are identical. 2. Criminal Revision Petition No. 254 of 1963 is against concurrent judgments convicting the petitioner who was the first accused in C.C. No. 9 of 1962 on the file of the District Magistrate's Court, Ernakulam, under S.7 (1) (r) read with S.16(a)(1)(ii) and S.2(i) (a), (b), (c) and 0) of the Prevention of Food Adulteration Act and R.23 and 29 of the Central Rules, 1955, under the same Act. He was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 1000, in default of which he was to undergo simple imprisonment for three months. The conviction and sentence were confirmed in appeal by the Sessions Judge, Ernakulam. The charge was in respect of teer dhal, adulterated by the addition of metanil yellow, a coal tar dye, the use of which is not permitted by the rules. That the dhal kept for sale in the petitioner's shop was adulterated in the manner stated by the prosecution was not disputed either before the Sessions Judge or before us. 3. Original Petition No. 2215 of 1963 also arises from a case of concurrent conviction for the same offence. There is the further fact that a criminal revision petition filed by the accused before this court was dismissed after hearing the petitioner's counsel, without issuing notice to the respondent. The original petition has been preferred by the accused after dismissal of the criminal revision petition and this has given rise to a preliminary objection that the original petition is not maintainable. The adulterated article was lozenges coloured by non-permitted coal tar dye. The accused was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 2000 & in default to undergo simple imprisonment for a further term of three months. 4. Two points are raised in both the cases. The first is that the banning of colouring matter other than those permitted is arbitrary and an unreasonable restriction on a citizen's fundamental right to carry on any occupation, trade or business. That the articles seized in the two cases contained coal tar dye the use of which is prohibited by the rules was not disputed. The argument is that the prohibition is bad in law. 5. That the articles seized in the two cases contained coal tar dye the use of which is prohibited by the rules was not disputed. The argument is that the prohibition is bad in law. 5. We may in this connection refer to the procedure prescribed by the Act for making rules. S.23 provides that the Central Government may, after consultation with the Committee and subject to the condition of previous publication, make rules specifying the colouring matter and the maximum quantities thereof which may be used in any article of food - S.23 (1) 0). The Committee referred to is one of experts, constituted by the Central Government under S.3 of the Act. The functions of the Committee are advisory. Before making any rules prohibiting the use of any article, the rules have to be published by the Central Government. Thus there are adequate safeguards to ensure that there is no arbitrary interference with the liberty of the subject. No citizen has a fundamental right to manufacture or sell poisonous articles of food, and in view of the decisions of the Supreme Court in Cooverjee v. Excise Commissioner AIR. 1954 SC. 220 and State of Uttar Pradesh v. Kartar Singh AIR. 1964 SC. 1135 this argument of the petitioners has only to be repelled as the right of every citizen to pursue any lawful trade or business must be subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the country. In the latter case it was held: "The standards themselves, it would be noticed, have been prescribed by the Centra Government on the advice of a Committee which included in its composition persons considered experts in the field of food technology and food analysis. In the circumstances, if the rule has to be struck down as imposing unreasonable or discriminatory standards, it could not be done merely on any a priori reasoning but only as a result of materials placed before the Court by way of scientific analysis. It is obvious that this can be done only when the party invoking the protection of Art.14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. It is obvious that this can be done only when the party invoking the protection of Art.14 makes averments with details to sustain such a plea and leads evidence to establish his allegations. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the rules offend Art.14 the burden is on him to plead and prove the infirmity is too well established to need elaboration. If, therefore, the respondent desired to challenge the validity of the rule on the ground either of its unreasonableness or its discriminatory nature, he had to lay a foundation for it by setting out the facts necessary to sustain such a plea and adduce cogent and convincing evidence to make out his case, for there is a presumption that every factor which is relevant or material has been taken into account in and formulating the classification of the zones and the prescription of the minimum standards to each zone, and where we have a rule framed with the assistance of a committee containing experts such as the one constituted under S.3 of the Act, that presumption is strong, if not overwhelming. We might in this connection add that the respondent cannot assert any fundamental right under Art.19 (1) to carry on business in adulterated food stuffs." This point is therefore held against the petitioner. 6. The second point is equally unsustainable. It is that S.23 0) enables the Central Government to make rules specifying the colouring matter which may be used in any article of food and not on it. The argument is that so far as dhal is concerned, the dye is applied only externally and so it does not amount to violation of the rule. We may mention at least two reasons for not accepting this argument. One is that when you speak of dhal in bulk which has been coloured in this manner, you say that colouring matter has been used in the dhal. Another is that there is no case that the colouring matter used externally does not permeate into the dhal. This point must also be decided against the petitioner. 7. The two grounds raised therefore fail, and Criminal Revision Petition No. 254 of 1963 must therefore be dismissed. 8. Coming to the original petition, the same grounds raised in the criminal revision petition are raised here. This point must also be decided against the petitioner. 7. The two grounds raised therefore fail, and Criminal Revision Petition No. 254 of 1963 must therefore be dismissed. 8. Coming to the original petition, the same grounds raised in the criminal revision petition are raised here. There is a preliminary objection by the respondent that in view of the dismissal of the criminal revision petition by this court, the original petition is not maintainable. According to the petitioner, the dismissal of the criminal revision petition was at the stage of admission and the order of dismissal is therefore no bar. Both sides referred to the decision of the Supreme Court in U.J.S. Chopra v. State of Bombay AIR. 1955 SC. 633. 9. The question for decision in that case was whether the summary disposal of the appeal preferred by the accused precluded him from taking advantage of the provisions of S.439 (6), Code of Criminal Procedure, when he was subsequently called upon to show cause why the sentence imposed on him should not be enhanced. After considering the relevant sections of the Code the question was answered in the negative. This has no direct application to this case, but the following observations have a bearing on the point we have to decide. "The order dismissing the appeal or criminal revision summarily or 'in limine would no doubt be a final order of the High Court not subject to review or revision even by the High Court itself but would not tantamount to a judgment replacing that of the lower court. The convicted person would be bound by that order and would not be able to present another petition of appeal or application for criminal revision challenging the conviction or the sentence passed upon him by the lower court." The grounds taken in the original petition were not taken in the criminal revision petition, but that is no ground for interference. We do not in the circumstances consider this a fit case for interference under Art.226 or Art.227. We may add that even if the petition could have been entertained, the decision would have been the same, in the light of our decision in the Criminal Revision Petition No. 254 of 1963. 10. In the result, Criminal Revision Petition No. 254 of 1963 and Original Petition No. 2215 of 1963 are both dismissed. The bail bonds are cancelled. We may add that even if the petition could have been entertained, the decision would have been the same, in the light of our decision in the Criminal Revision Petition No. 254 of 1963. 10. In the result, Criminal Revision Petition No. 254 of 1963 and Original Petition No. 2215 of 1963 are both dismissed. The bail bonds are cancelled. We make no order as to costs. Dismissed.