TMI Blog1979 (10) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... in cashew nuts under the invoice Ext. DW 3/A, which contained a description of the goods as SW Best Bormia . The facts of the prosecution case are these. The respondent is a partner of the firm M/s. Narain Dass Tek Chand, Khari Baoli, Delhi. The firm is engaged in wholesale business in dry-fruits including cashew nuts which it gets from different manufacturers. On August 1, 1968 three samples of cashew nuts were taken from its shop by the two Food Inspectors, S. L. Mehra, P.W. 1 and H. K. Bhanot, P.W. 3 from three sealed tins supplied by Sri Venkateswara Cashews, Panruti. These samples were duly forwarded to the Public Analyst, Delhi who by his three reports dated August 3, 1968 in Form III, Exts. PE, PE/1 and PE/2 found that all the three samples taken were insect-infested . Of these, two were insect-infested to the extent Fr of 20.6 and 20.7 per cent and the third to the extent of 5.63 Per cent. The Magistrate 1st Class, Delhi acquitted the respondent holding (1) that the respondent was a sleeping partner residing at Kanpur, and that there was nothing to show that he was incharge of and was responsible for the conduct of the business which was carried on at the shop of the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he last clause or is otherwise unfit for human consumption is residuary provision which would apply to a case not covered by or falling squarely within the clauses preceding it. If the phrase is to be read disjunctively the mere proof of the article of food being filthy, putrid, rotten, decomposed....or insect-infested would be per se sufficient to bring the case within the purview of the word adulterated as defined in sub-cl. (f) and it would not be necessary A in such a case to prove further that the article of food was unfit for human consumption. It is, however, pointed out that the construction placed by the High Court in Dhanraj s case upon s. 2(i)(f) of the Act has been received with approval by this Court in Municipal Corporation of Delhi v. Kacheroo Mal.(l) where it is observed that the construction placed by the High Court in Dhanraj s case is the correct exposition of the law embodied in s. 2(i) (f). It is added for the sake of elucidation that the adjectives which precede the phrase or is otherwise unfit for human consumption indicate presumptive but not absolute criteria as to the quality of the article of food. If we may say so with respect, we have reserv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfested which are adjectives qualifying the term an article of food , show that it is not of the nature, substance and quality fit for human consumption. It will be noticed that there is a comma after each of the first three words. It should also be noted that these qualifying adjectives cannot be read into the last portion of the definition i.e., the words or is otherwise unfit for human consumption , which is quite separate and distinct from others. The word otherwise signifies unfitness for human consumption due to other causes. If the last portion is meant to mean something different, it becomes difficult to understand how the word or as used in the definition of adulterated in s. 2(i) (f) between filthy, putrid, rotten etc. and otherwise unfit for human consumption could have been intended to be used conjunctively. It would be more appropriate in the context to read it disjunctively. In Stroud s Judicial Dictionary, 3rd Edn., vol. 1, it is stated st p. 135: And has generally a cumulative sense, requiring the fulfillment of all the conditions that it joins together, and herein it is the antithesis of OR. Sometimes, however, even in such a connection, it is, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsumption. In regard to casew nuts there was, at the material time, no statutory provision prescribing any minimum standards of purity. It is, therefore, for the Court to decide upon the evidence in the case, whether the insect infestation found was of such nature and extent as to make it unfit for human consumption. Assuming the test in Kacheroo Mal s case to be correct, and the report of the Public Analyst to be just a piece of evidence which has to be evaluated by the Court in the facts and circumstances of each particular case to reach a finding as to the unfitness or otherwise of the sample for human y. consumption, there is in the present case such evidence. Dr. B. D. Narang, DW 1, examined by the respondent, is an expert on the subject, being a member of the Central Committee of Food Standards besides holding Ph. D. degree in Chemistry from the University of Texas. He unequivocally states that although in regard to cashew nuts, there was at that time no statutory provision prescribing any minimum standard of purity, the Committee had recommended to allow a 10 per cent insect infestation as it was of the view that this much infestation should not be taken as an act of adu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retailer, like the respondent will not lose the protection of sub-s. (2) of s. 19, particularly when it is certified to be of good quality. We are afraid we cannot appreciate this line of reasoning. The two decisions in Ranganatha Raddiar s case and in Andhra Pradesh Grain Seed Merchants case are clearly distinguishable. In the former case, the cash memo contained the words quality is up to the mark which meant that the quality of the article supplied was up to the standard required by the Act and the vendee. It was observed: It must be remembered that it is not a document drafted by a solicitor; it is a document using the language of a tradesman. Any tradesman, when he is assured that the quality of the article is up to the mark will readily conclude that he is being assured that the article is not adulterated. In the latter case, it was a branded article of food, and it was said: If the article of food is sold in the same condition in which it was purchased from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will not lose the protection of sub-s. (2) of s. 19 merely because he opened the container. If the vendor has obtained the arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts case observed: The reason why a warranty is required in both the cases contemplated in section 19(2)(a)(i) and (ii) is that if warranty were not to be insisted upon by the statue and if a vendor would be permitted to have a defence merely by stat- ing that the vendor purchased the goods from a licensed manufacturer, distributor or dealer adulterated or misbranded articles would be marketed by manufacturers, distributor, dealers as well as purchasers from them with impunity. That is why a written warranty is enjoined in both the cases in section 19 (2) (a) (i) and (ii) . Section 19 (2) (a) of the Act will provide a defence where a vendor purchases articles of food from a licensed manufacturer, distributor or dealer with a written warranty in the prescribed form. Again, a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the article from any manufacturer, distributor or dealer with e written warranty in the prescribed form. These salutary provisions are designed for the health of the nation. Therefore, a warranty is enjoined. No laxity should be permitted. (Emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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