BISHAN DASS MEHTA v. UNION OF INDIA — 1970 DIGILAW 93 (DEL)

Rajindar Sachar, J. ( 1 ) THE question that arises in this petition is whether Katha is included within the meaning of Prevention of Food Adulteration Act, 1954 (hereinafter REFERRED TO as the Act) and whether item A. 21 of Appendix B of Rule 5 of the Prevention of Food Adulteration Rules, 1955 (hereinafter REFERRED TO as the Rules) is ultra vires of the Act and the Constitution of India. ( 2 ) THIS is a petition under Article 226 of the Constitution of India prayer is made for a writ restraining the respondents, Union of India and the Delhi Municipal Corporation, Delhi, from interfering with the petitioners trade of Katha (Catechu) and from enforcing the restrictions laid down in item A. 21 of Appendix B under Rule 5 of the Roles framed under the Act. ( 3 ) THE petitioners are members of the Katha Dealers Association, Delhi and they are commission agents and wholesale merchants of the raw material from which Katha of various qualities for different purposes is manufactured. It is alleged that Katha represents two varieties of Catechu derived from the heartwood of the Khair tree and the raw material of Katha is manufactured from those trees. It is also alleged that making Katha fit for edible parposes better qualities of raw material are put into a huge quantity of water and boiled and strained through thin cloth. It is this kind of solution which is applied as a paste along with lime on betel leaves used for chewing. It is alleged that Katha is never eaten or consumed as food. It is stated in the petition that the Central Government by means of Notification dated 14th July, 1956 added Item A 21 in Appendix B of Rule 5 of the Rules prescribing the standard laid down for edible Katha. It is stated that the standard prescribed in the said Rules is of the highest possible quality and it is impossible to conform to the standard. It is stated that the respondents have started checking up the stock of Katha with the wholesale dialers and seizing the same if it is not in accordance with the prercribed standard laid down under the Rules. It is stated that the respondents have started checking up the stock of Katha with the wholesale dialers and seizing the same if it is not in accordance with the prercribed standard laid down under the Rules. This is said to be in violation of the Fundamental Rights of the petitioners and it is claimed that the Rules are ultra vires of the Act and sub-Articles (5) or (6) of Article 19 of the Constitution of India. It is also stated in the petition that Item A. 21 in Appendix B of Rule 5 of the Rules had beer framed without previous publication and without laying it belore the Houses of Parlament as is required by the Act. It is stated that no Katha in the market conforms to the prescribed standard and the tests made by the Public Analyst on some of the samples of Katha are given an annexures P. 1 to P. 3 to the Petition. ( 4 ) THIS writ petition was admitted on 31st January, 1961. Along with the said writ petition a stay application namely C. M. 228-D of 1960 was filed. but apparently it was not pressed at the time the matter came up before the Motion Bench. Later on C M. 145l-D of 1961was tiled in which it was stated that the respondents have taken samples of Katha and were threatening to seize stocks of Katha and have also started prosecution of the petitioners. It was stated that the next date of hearing of the case was 17th July, 1961 and a prayer was made lor restraining the respondents from enforcing the impugned restrictions against the Katha dealers of Delhi and from prosecuting the petitioners. Ex-parte stay of proceedings was ordered by Gosain J. on 17th July, 1961. Harbans Singh J. on 24th January, 1962 confirmed the stay given by Gosain J and ordered that the main petition be expedited and heard, if possible, during February, 1962. ( 5 ) RETURN was filed on behalf of respondent No. 1. e. Union of India by Dr. M. S. Chadha, Deputy Director General of Health Services dated 28th November, 1961. It was maintained that Katha and Cutch do not represent two varieties of Catechu derived from heart wood of the Khair tree, Katha is crystalised from the heartwood extract whereas Cutch represents the residual product obtained after Katha is separated. e. Union of India by Dr. M. S. Chadha, Deputy Director General of Health Services dated 28th November, 1961. It was maintained that Katha and Cutch do not represent two varieties of Catechu derived from heart wood of the Khair tree, Katha is crystalised from the heartwood extract whereas Cutch represents the residual product obtained after Katha is separated. It was stated that Katha is not raw material and is mainly used by panwalas by only mixing water and making a paste out of it or by straining it and then boiling the residue to a paste. It was maintained that Katha is food cr at any rate an adjunct to food. It was stated that the minimum standards of quality for catechu have been prescribed by the Central Government in exercise of the power vested in them vide Clause (b) of Sub-section (i) of Section 23 of the Act. It was denied that the draft rules regarding the standards of catechu were not published or were not placed before the Parliament. It was specifically stated that the rules regarding the standards of quality were published on 14th July, 1956 after consultation with the Central Committee of Food Standards. The said copies of notifications were laid on the table of the Lok Sabha and the Rajya Sabha on August 3, 1956 and August 5,1956. It was maintained that the petitioners had not stated the correct facts before this court and the petition was liable to be dismissed on this ground alone. It is stated that the quality of tree does not materially affect the quality of the product. Katha is usually extracted during the winter seasoa and, therefore, the question of season does not arise. It is strongly maintained that Katha obtained by indigenous process can be as good and pure, if not superior, as the machine made product. It is asserted that the standards prescribed in appendix B of Rule 5 of the Rules are the minimum standards required for Katha which form the major bulk of the good quality products in the country. It was denied that the standard was of highest possible quality. Katha sold by the petitioners was food within the meaning of the Act. It is asserted that the standards prescribed in appendix B of Rule 5 of the Rules are the minimum standards required for Katha which form the major bulk of the good quality products in the country. It was denied that the standard was of highest possible quality. Katha sold by the petitioners was food within the meaning of the Act. It was further stated that large stocks of heavily adulterated Katha is lying with the petitioners for sale and does not conform to the prescribed standards and that the Government is entitled to enforce the provisions of the Act and the Rules It is denied that there is any invasion of the Fundamental Rights of the petitioners or that the Rules were in any case ultra vires. It is also submitted that the Act provides for the cognizance of offence under the Act and the proper remedy for the petitioners is to make a proper defence when the penal action is taken against them. ( 6 ) THE petitioners also filed C. M. 502-W of 1970 in which certain, documents were filed. One of the documents, annexure P. 6 was said to have been the report of sub committee issued by the Indian Standard Institution. This sub-committee is said to have recommended that there should be three grades of Katha namely grades 1,2 and 3. It was said that his committee was of the opinion that the standard laid down for katha in the Rules are highly unreasonable and did not relate to the facts as they exist. ( 7 ) A reply was filed on behalf of the respondent by Shri D. S. Chadha, Assistant Secretary (P. F. A), Directorate General of Health Services and it was maintained that Katha entered into human consumption with Pan which is ordinarily taken by human beings. It was also maintained that the subcommittee mentioned by the petitioners is not a sub committee of the Central Government for food standards but is a sub-committee of the Indian Standard Institution. It was denied that the sub committee has ever opined that the standard laid down for Katha in the Rules is highly unreasonable and did not relate to the facts. It was stated that the method of sampling given in Indian Standard Institution Publication had no relevancy to the case. It was denied that the sub committee has ever opined that the standard laid down for Katha in the Rules is highly unreasonable and did not relate to the facts. It was stated that the method of sampling given in Indian Standard Institution Publication had no relevancy to the case. The method to be adopted for sampling of the food for the purpose of the Act was laid down by the Rules and it is these methods alone which are to be followed. ( 8 ) MR. Bali, the learned counsel for the petitioners raised the following points before me:- 1. that Katha is not a food within the meaning of the Act and hence no prosecution or action can be taken against the petitioners in pursuance of any provisions of the Act and the Rules. 2. that the standards precribed for Katha are impossible of fulfillment and are unreasonable and, therefore, standard A. 21 Appendix B of Rule 5 of the Rules is ultra vires. ( 9 ) IT is necessary to mention that though in the petition grievance has been made that the addition of A 21 of Appendix b of Rule 5 of the Rules was had because it had not been framed after previous publication and after laying it before the Parliament, no arguments were addressed by Mr. Bali on this point and rightly so because there was categorical assertion in the written-statement that the draft rules were duly published and were also laid on the table of the Parliament. In view of that fact Mr. Bali did not challenge the vires of the Rules on this ground. ( 10 ). Before I deal with the arguments of Mr. Bali it is necessary to re produce the relevant provisions of the Act and the Rules. In view of that fact Mr. Bali did not challenge the vires of the Rules on this ground. ( 10 ). Before I deal with the arguments of Mr. Bali it is necessary to re produce the relevant provisions of the Act and the Rules. Section 2 (v) 31 the Act defines food as follows :- "food, means any article used as food or drink for human consumption other than drugs 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 ;" Section 7 of Act reads as follows:- No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute :- (v) any article of food in contravention of any other provision of this Act or of any rule made there under. " ( 11 ) SECTION 16 provides for penalties if any person sells or manufatures for sale any article of food which is adulterated or which is in contravention of any provision of this Act or any of the Rules made thereunder. In exercise of the power conferred by sub-section (2) of Section 4 and sub-section (1) of Section 23 of the Act, the Central Government has framed the Rules known as the Prevention of Food Adulteration Rules, 1905. Rule 5 of the said Rules reads as under:- "standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that appendix". Appendix B, to which a reference is made in Rule 5 provides in A. 21 the standard prescribed for Catechu and the standard to which it is to conform and is as follows:- "a. 21. Catechu (Edible) shall be the dried aqueous extract prepared from the heart-wood of Acacia catechu. It shall be free from infestation, sand, earth or other dirt and shall conform to the following standards: (a) 5 ml. of I per cent aqueous solution, and O. I per cent. solution of ferric ammonium sulphate shall give a dark green colour, which on the addition of sodium hydroxide solution shall change to purple. (b) when dried to constant weight at 100c, it shall not lose more than 12 per cent. of its weight. of I per cent aqueous solution, and O. I per cent. solution of ferric ammonium sulphate shall give a dark green colour, which on the addition of sodium hydroxide solution shall change to purple. (b) when dried to constant weight at 100c, it shall not lose more than 12 per cent. of its weight. (c) Water insoluble residue (dried at 100c) shall not be more than 25 per cent, by its weight. (d) Alcohol insoluble residue in 90 per cent. alcohol dried at 100c-not more than 30 per cent by weight. (e) Total ash on dry basis-not more than 8 per cent by weight. (Water insoluble matter shall be determined by boiling water ). (f) Ash insoluble in Hel not more than 0. 5 per cent on dry weight basis. ( 12 ) IT is quite clear from the provisions reproduced above that before the petitioners could be prosecuted under the Act and the Rules they must be held to have violated the provisions of the Act and the Rules. Mr. Bali contends that Katha is not food and, therefore, the Rule making authorities should not have laid down any standard for Katha. His contention is that if food is defined in the Act does not cover Katha then standard prescribed by A. 21 of Appendix B of Rule 5 of the Rules is ultra vires of the Act and the Petitioners, therefore, could not be proceeded with. His main argument, therefore, is that Katha is not food as defined in the Act. Mr. bah submits that an article of food must be an article which is used as a nutrition for the body and it must be a thing which one cats for the development of body. He submits that katha is not eaten by human beings either as a nourishment or for the strength of the body and it is, therefore, not food. According to Mr. Bali, the essential criterion, to determine whether any article is food or not is to see whether that article is consumed by the hum in body for one of the two purposes of nutrition or for the strengthning He has in this connection referred me to a decision of the Supreme Court in State of Bombay v. Vir kumm Gulabchand Shah. But that case in my opinion goes against the contention of Mr Bali. But that case in my opinion goes against the contention of Mr Bali. in that case the question called for determination was whether Turmeric was foodstuff within tie meaning of clause 3 of the Spices forward Contracts Prohibition) Order, 1941, read with Section 2 (a) of the Essential Supplies (Temporary Powers) Act, 1946. Their lordships held that keeping in view the object of the legislatioin Turmeric fell within the definition of foodstuff. It has been remembered that definition of food is not to be taken in the abstract but it will depend on the contents and the background whether the definition should be narrow or wide. In the context of the Prevention of Food Adulteration Act, the purpose of which is to prevent adulteration of all articles which are used for human consumption, it would be consistent with the object ofthe Act to give wider meaning to the definition of food in the Act. The definition of food also in the Act specifically means not only an article used as food or drink but includes any article which ordinarily enters into or is used for the composition or preparation of human food. This definition supports the respondent s contention that in order that an article should be food within the meaning of the Act it is not essential that it must be an article which is consumed by human being as such. It would still be food within the meaning of the. Act if this article enters into the preparation of human food. Admittedly Katha by Itself is not an article which is consumed by human being but it cannot be denied that katha is an extremely important and essential component of Pan. No one can deny that Pan is taken most by most of people inour country, and katha which is an essential component cannot, therefore, be heid to be other than food. According to Mr. Bali simply because katha is not taken by human being separately it cannot be said to be food within the meaning of the Act, but it is not the correct way of looking at the things, as Supreme Court said in the case REFERRED TO above:- "even in a popular sense, when one asks another, "have you had your food?, one means the composite preparations which normally go to constitute a meal curry and rice, sweetmeats, pudding, cooked vegetables and so forth. One does not ususally think separately of the different preparations which enter into their making, of the various condiments and spices and vitamins, any more than one would think of separating in his mind the purely nutritive elements of what is eaten from their non-nutritive adjuncts. So also, looked at from another point of view. the various adjuncts of what I may term food proper which enter into its preparation for human consumption in order to make its pelatable and nutritive can hardly be separated from the purely nutritive elements if the effect of their absence would be to render the particular commodity in its finished state unsavoury and indigestible to a whole class of persons whose stomaches are accustomed to a more spicely prepared product. "the definition of food specifically mentions that even those articles which are used in the preparation of articles are to be considered as articles of food. The mere fact, therefore, that katha by itself is not consumed by human being is not determinative of the matter. Katha is admittedly used in composition of Pan and, therefore, would be governed by the definition of food given in section 2 (v) of the Ace. To constitute food what has to be seen is whether the article in question is usable and enters into the composition or preparation of food which is taken by human beings. The definition is worded in a very wide language and would govern any article which enters into the composition or preparation of human food and would cover any flavouring matter and condiments. In Sainsbury v. Saunders . the question that came up tor consideration was whether tea was food. The question was whether tea would be food within the meaning of the expressions used in certain provision of Defence of the Realm regulations read with the New Ministries and Secretaries Act of 1918 which empowered the Food Controller to regulate the food supp;ey of the country and the supply and consuption and production of food . A vory J. held that tea comes within the expression of food as used in statute and in the regulation. Salter. J. also agreed that tea was food within the meaning of the Act of 1916. A vory J. held that tea comes within the expression of food as used in statute and in the regulation. Salter. J. also agreed that tea was food within the meaning of the Act of 1916. Now it would be seen that tea by itself is not consumed by human beings- It is not food in the sense that it is not nutritious nor will it add to the amount of tissues in the body of the person who drink it nor can a person live on it. Thus the test which Mr. Bali propounds that an article in order to be food must be one which is nutritious or helps in developing the tissues of the body of human being in applicable in the case of tea and yet learned Judges Avory and Salter JJ. held that tea was food. I cannot see any distinction in the proposition why on a parity of reasoning Katha should not be held to be food within the meaning of the Act. Mr. Bali also REFERRED TO the definition of Katha as given in the Wealth of India, A Dictionary of India Raw Materials and Industrial Products which is as follows:- "cutch has long been used in Indian medicine. According to Dymock, Warden and Hooper, (1,557), Sanskrit writers mention two varieties, dark and pale. The latter is katha. the medicinal variety Katha is regarded as astringent, cooling and digestive; useful in relaxed conditions of the throat, mouth and gums also in cough and diarrhoea. Externally it is employed as an astringent and as, a cooling application to ulcers, boils and eruptions on the skin. Katha. also enters into a number of compound preparations and a few prejeriptions are given by Birdwood (50 ). It is an indispensable ingredient of pan preparations. In combination with lime, it gives the chdracteristic red colouration resulting from the chewing of pan. Continued use is said to cause blacken ing of teeth. "this definition also mentions that Katha is an indispensable ingredient of Pan preparation. It is thus obvious that this definition does not advance the argument of Mr. Bali on this point. It cannot, there- lore, be accepted that simply because Katha is not taken as an edible article, it cannot amount to food. "this definition also mentions that Katha is an indispensable ingredient of Pan preparation. It is thus obvious that this definition does not advance the argument of Mr. Bali on this point. It cannot, there- lore, be accepted that simply because Katha is not taken as an edible article, it cannot amount to food. This way of defining the term food was not accepted in the case reported as James v. Jones where Hawkins J. held as follows:- "we do not, however, in anything we have said intend to convey it as our opinion that nothing can be deemed to be an article of food unless it be made up into an eatable or drinkable form and fit for immediate use. for we have no doubt that the substantial and requisite materials for making, and which are to form part of the unadulterated article when made e. g. flour, butter, salt, mustard, pepper and care articiles of food; for though nobody would ordinarily dream of eating them alone, yet they are articles intended to from substantial components of articles of food, or to be eaten as adjuncts thereto. "i may also mention that it has been held in Chitar Mal v. State that definition of food is wide enough to include Katha as article of food within the meaning of Section 2 of (J. P. Prevention of Adulteration Act (6 of 1912 ). The first contention of Mr. Bali, therefore, is devoid of merits and is rejected. The second convention of Mr. Bali was that the standards prescribed in A. 21 of Appendix B of Rule 5 of the Rules are impossible of attainment and the Rule must be held to be ultra vires. It was not, however, made clear how the said Rule was said to be impossible of fulfillment. All that was suggested was that Katha is mainly prepared by indigenious method. The standards laid down cannot be attained and if these standards are be held to apply then manypersons who are earning their livelihood by manufacturing Katha. by indigenious mathod will be thrown out. One answer to this contention is that the present writ petition has been brought by parsons who are dealers and not by those who are engaged in the manufacture of Katha. They, therefor, cannot make a grievance, if any, which is concerning those persons who are engaged in the manufacture of Katha. by indigenious mathod will be thrown out. One answer to this contention is that the present writ petition has been brought by parsons who are dealers and not by those who are engaged in the manufacture of Katha. They, therefor, cannot make a grievance, if any, which is concerning those persons who are engaged in the manufacture of Katha. That apart it has been specifically denied in the return that the standards prescribed in the Rules and Appendix by indigenious method does not mean that the prescribed standard cannot be fulfilled. No material has been placed on record by the petitioners in any way to substantiate this bald contention In the absence of that, therefore it cannot be held that the standard prescribed in A. 21 of Appendix B of Rule 5 of the Rules is in any manner unreasonable restriction on the rights of the petitioners to carry on their trade. In this connection it is well to remamber that the petitioners are stated to be being prosecuted for violation of the Rules and it will always be open to them in the appropriate proceedings to show by evidence that the standard prescribed is impossible of performance. In the absence of any material on record it is not possible to hold that the standard prescribed is unreasonable or very high. The petitioners had filed along with their petition annexures P. I to P 3 to show the report that the public analyst had found from some of the tests that he made of Katha obtained from the market that it was adulterated. That have been filed by the petitioners with a view to show that not only the Katha dealt with by the petitioners but the Katha found in the market was adulterated and this with a view to support their case that the standard prescribed was unreasonable. The petitioners had also filed annexure P. 6 along with C. M. 502-W/of 1970 which was said to be a report of the sub committee issued by the Indian Standard Institution which committee had recommended three grades of the Katha. A reference to P. 6 and the relevant portion will show that table I shows the requirements for Katha for grade I, grade 2 and grade 3 and days down different characteristics that it should possess. A reference to P. 6 and the relevant portion will show that table I shows the requirements for Katha for grade I, grade 2 and grade 3 and days down different characteristics that it should possess. Report P. I shows that it is said to be adulterated due to excess of moisture by 43% and excess of ash insoluble in Hydrochloric acid by 84% Similarly P. 2 is said to be adulterated due to 1. 2% excess of ash insoluble in Hydrochloric acid, and P. 3 is said to be adulterated due to excess of 12% ash insoluble in hydrochloric acid. The standard by which it has been judged is laid down in A. 21 of Appendix B of Rule of the Rules as reproduced above. If reference is made to P. 6, the documents filed by the petitioners it will be seen that the requirements laid down for grades 1, 2 and 3 in item No. 1 is 12% on drying by-weight This correspond with what is given in clause (b) of A. 21. similarly item 6 of page 6 of P. 6 gives the requirement of acid insoluble ash percent by weight as 0. 2 for grade I and 0. 5 for both grades 2 and 3. A comparison of clause (f) of A. 21 will show that 0. 5% is given there as being common to all grades. This comparison will show that of these two items the standard laid down in A 21 is almost similar to the standard which according to the petitioners has been suggested by the sub-committee of Indian Standard Institution. It is quite obvious, therefore, that if a sub-committee in which the petitioners have faith has itself recommended the standard for some of the characteristics for Katha in almost similar terms as laid down in A. 21, the challenge to the said Rules as being unreasonable and impossible of attainment is futile and without any justification. Mr. Bali was not able to give any cogent reason how the said Rule A. 21 can be considered to be ultra vires Challenge to this ground also fails. The result is that thire is no merit in the petition and the same is, therefore, dismissed with costs. Mr. Bali was not able to give any cogent reason how the said Rule A. 21 can be considered to be ultra vires Challenge to this ground also fails. The result is that thire is no merit in the petition and the same is, therefore, dismissed with costs. The prosecution had been stayed for all these years and the counsel for the parties have not been able to tell me in which court the prosecutions are pending I therefore, thought it proper to direct the parties through their counsel to appear before the Chief Judicial Magistrate on 15th May, 1997 .