Krishnankutty Nair v. George — 1986 DIGILAW 244 (MAD)

JUDGMENT: 1. The Food Inspector, the complainant in C.C. No.14 of 1981 on the file of the Judicial Magistrate of the First Class, Changanacherry, is the appellant. He challenges the order of acquittal passed by the Court below. Accused, two in number, who are the partners of the provision store situated in building No. V/591 of Changanacherry, were prosecuted for offence under Ss.2(ia) and 7(1) read with S.16(1)(a)(i) of the Prevention of Food Adulteration Act. 2. The Food Inspector demanded 750 grams of black dhall from the first accused by issuing Ext. P1 Form VI notice. The receipt of that notice is evidenced by the signature on the reverse of Ext.Pl which is marked as Ext.P1(a). The first accused sold the said quantity under Ext.P2 cash bill on receipt of Rs.3.45. The said article of food was sampled in three clean dry bottles and sealed as per the provisions of the Act and the Rules. Ext.P3 is the mahazar prepared by the Food Inspector evidencing the action taken by him. One sample, along with Form VII memorandum, was sent to the Public Analyst tor analysis. Another copy of the Form VII memorandum and specimen impression of the seal used to seal the sample packet were separately sent to the Public Analyst by registered post. The other two samples, with Form VII memorandum, were sent to the Local Health Authority. The Public Analyst issued Ext.P9 report stating that the black gram dhall contained inorganic pigments of Magnesium silicate and therefore adulterated. The report reads as follows: “Macroscopic Examination: The sample consists of blackgram dhall without husk. Foreign matter - Nil Damaged and insect infested grain - Nil Moisture - 9.8 per cent by weight Coating of talc - Present Test for Magnesium - Positive Talc (Magnesium silicate) - 0.7 per cent by weight and am of the opinion that the said sample is coated with talc, an inorganic pigment, and is therefore adulterated.” On getting the report, the Food Inspector filed complaint before Court. He intimated the Local Health Authority about the filing of the complaint. The Local Health Authority then sent the intimation under S.13(2) and Rule 9A. to the accused. They did not ask for sending a sample to the Director of Central Food Laboratory for analysis. 3. To prove the prosecution story, they examined Pws. 1 to 4 and marked Exts. P1 to P14. The Local Health Authority then sent the intimation under S.13(2) and Rule 9A. to the accused. They did not ask for sending a sample to the Director of Central Food Laboratory for analysis. 3. To prove the prosecution story, they examined Pws. 1 to 4 and marked Exts. P1 to P14. On the side of the accused Pws.1 and 2 were examined and Ext.D1 marked. Pw.1 is the Food Inspector. He has sworn to all the steps taken by his in the purchase of 750 grams of blackgram dhall, the sampling of the same and the despatch of the same to the Public Analyst and to the Local Health Authority. He has deposed to the minutest details. Ext.P3 is the mahazar prepared by him at the time of the sampling. Pw.3, an independent witness who has attested the mahazar, has also supported the evidence given by Pw.1. 4. Pw.4 is the Public Analyst who has issued Ext.P9 certificate. According to him, talc which was present in the sample was a foreign matter viz. Magnesium silicate. He would swear that it is a prohibited item and that it is an inorganic pigment. He would further state that talc cannot be considered as a deleterious material or one injurious to human beings. 5. Accused contended that the blackgram dhall purchased by the Food Inspector was part of the dhall purchased by them from M/s. K.H. Mohammed Ismail and Company, Changanacherry under Ext.D1 Cash Bill, that they are protected by the warranty contained therein and that they sold the article in the same state as they purchased it. To prove this, the 2nd accused got himself examined as Dw.1. His statement in the chief examination that the blackgram dhall sold by them was properly stored and that it was sold in the same state as they purchased it, was not challenged in cross examination. It therefore goes to show that the prosecution proceeded on the basis that the accused sold the dhall in the same condition as they purchased it under Ext.D1. 6. The prosecution requested the Court to implead the warrantor viz. K.H. Mohammed Ismail and Company under S.20 - A of the Act and to have the trial started de novo. It therefore goes to show that the prosecution proceeded on the basis that the accused sold the dhall in the same condition as they purchased it under Ext.D1. 6. The prosecution requested the Court to implead the warrantor viz. K.H. Mohammed Ismail and Company under S.20 - A of the Act and to have the trial started de novo. The learned Magistrate took a curious stand that the said Mohammed Ismail and Company might only have been a distributor and not the manufacturer and therefore refused the prayer of the prosecution. S.20:A provides that the manufacturer, distributor or dealer of any article of food can be impleaded in the proceedings notwithstanding anything contained in subsection (3) of S.319 of the Code of Criminal Procedure or that contained is S.20 of the Prevention of Food Adulteration Act. 7. Learned counsel appearing for the respondent raises an argument that the impurity contained in the dhall was less than the permissible limit of one per cent, that there is no adulteration and hence the entire prosecution must fail. In support of this argument the learned counsel relies on A.18.06 of Appendix B. Clause (ii) of the above entry reads as follows: “(ii)Foreign matter: Foreign matter means extraneous matter other than foodgrains and will comprise inorganic and organic matter. Inorganic matter which includes sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud shall not exceed 1 per cent whereas in case of paddy, it shall not exceed 3 per cent by weight. Organic matter which includes chaff, straw, weed seeds, inedible grain, oil seeds and other nonpoisonous seeds shall not exceed 3 per cent by weight.” According to counsel, the words used in that clause are ‘inorganic matter which includes” and not “inorganic matter means and includes”. Therefore, it is contended that the said definition is not a restrictive definition or an exhaustive one. The definition is one which enlarges the meaning of the terms inorganic matters and organic matters. In support of this argument the learned counsel relies on the decision reported in Ouso v. Helegua Ouso v. Helegua (1968 K.L.T. 428 (FB). Paragraph 13 of that decision where in this matter has been dealt with is as follows: “13. The definition is one which enlarges the meaning of the terms inorganic matters and organic matters. In support of this argument the learned counsel relies on the decision reported in Ouso v. Helegua Ouso v. Helegua (1968 K.L.T. 428 (FB). Paragraph 13 of that decision where in this matter has been dealt with is as follows: “13. It is a well — known rule of interpretation that the word ‘include’ or ‘includes’ is used as a word of enlargement and ordinarily implies that something else has been included which falls outside the general language that preceedes it and to add to the general clause a species which does not naturally belong to it. In Carrays on Statute Law (Sixth Edition) page, 212, it is observed thus: “There are two forms of interpretation clause. In one, where the word defined is declared to ‘mean’ so and so, the definition is explanatory and prima facie restrictive. In the other, where the word defined is declared to ‘include’ so and so, the definition is extensive.” In the matter of the petition of Nasinum((1882) 8 Calcutta 534) the court observed: “The word ‘includes’ has an extending force, and does not limit the meaning of the term to the substance of the definition.” The Privy Council in Dilworth v. Commissioner of Stamps Dilworth v. Commissioner of Stamps (1889) AC.99 at 105 said: “The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statue; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was merely employed for the purpose of additing the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, invariably be attached to these words or expressions. It may be equivalent to ‘mean and include’, and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, invariably be attached to these words or expressions. In Mellows v. Low Mellows v. Low (1923) I KB.522, Cardie, J. observed: “In any view the word ‘includes’as used in para(g) is not a term of limitation or precise definition; it means what it says-that it includes the matters thereafter mentioned; in other words, it is a word of enlargement rather than of restriction.” In view of this statement of the law, it is con-tended that inorganic matters other than those mentioned in the above clause can be present in food grams. Talc is an inorganic foreign matter and it can also be present in foodgrains. The only restriction is that the total quantity of foreign matter should not exceed 1 percent. In the black gram dhall purchased by the Food Inspector the presence of foreign matter is found to be less than one per cent by weight. Therefore, the food grain is not adulterated and the prosecution should fail. 8. This argument appears to be quite attractive. But it cannot stand scrutiny even for a moment. Inorganic matters and organic matters which are allowed under the clause quoted above are of natural origin. They are not to be article of human creation. Inorganic matters and the organic matters mentioned therein should be read applying the rule of ejusdem generis. That means, inorganic matters and organic matters of natural origin alone can be found in foodgrains upto the permissible limits and not any other kinds of inorganic matters or organic matters. Rule 27 of the Prevention of Food Adulteration Rules specifically prohibits the addition of inorganic colouring matters and pigments. This provision leads to the inference that inorganic pigments cannot be added to any foodgrains. Pw.4, the Public Analyst, has categorically stated that the talc found in the dhall was inorganic pigment. It is not of natural origin. It is Magnesium silicate. The addition of that inorganic substance is prohibited under Rule 27 of the Rules. Therefore, it goes without saying that the blackgram dhall purchased by the Food Inspector is adulterated 9. Pw.4, the Public Analyst, has categorically stated that the talc found in the dhall was inorganic pigment. It is not of natural origin. It is Magnesium silicate. The addition of that inorganic substance is prohibited under Rule 27 of the Rules. Therefore, it goes without saying that the blackgram dhall purchased by the Food Inspector is adulterated 9. As stated earlier, the accused have shown that the said article of food was purchased by them M/s. K.H. Mohammed Ismail and Company under Ext.D1 bill, that they had stored it properly, and that they sold that same in the same state as they purchased. Therefore, the warrantor viz. M/s. K.H. Mohammed Ismail and Company ought to have been impleaded in this proceedings involving S.20 -A of the Act. In not having impleaded them, the Court below and committed an illegality and it has resulted in miscarriage of justice. 10. In view of what has been stated above. I allow this appeal, set aside the order passed by he Court below and remand the matter to that Court for fresh trial and disposal after impleading the warrantor under Ext. Dl. Appeal allowed.