Andhra Pradesh Grain & Seed
Merchants' Association Et Vs. Union of India & ANR [1970] INSC 79 (31 March
1970)
31/03/1970 SHAH, J.C.
SHAH, J.C.
HEGDE, K.S.
GROVER, A.N.
CITATION: 1971 AIR 2346 1971 SCR (1) 166 1970
SCC (2) 71
ACT:
Prevention of Food Adulteration Act (37 of
1954), ss. 7, 10 and 19--Constitutional validity of.
HEADNOTE:
The petitioners are traders in foodgrains,
edible oils and other articles of food. In a petition under Art.32 they
challenged the validity of ss. 7, 10 and 19 of the Prevention of Food
Adulteration Act, 1954. They contended that: (1) ss. 7 and 10 of the Act are
violative of Arts. 14 and 19(1)(g) because, (a) s. 16(1)(a) of the Act read
with s. 19(1) imposes an absolute liability on dealers; (b) the standards of
quality and limits of variability Of quality prescribed by the Act are
unreasonable and that small dealers would not be in a position to ascertain
whether the goods purchased by them or in their possession are according to
those standards as required by s. 7 of the Act; (c) even when an article is
purchased not as an article of food, but for other use, the vendor would be
deemed guilty if the article did not conform to the prescribed standards; (d) if
a retail seller opens a container of branded article of food he loses even the
limited protection provided by s. 19(2);
and (e) that the penalties which may be
imposed under s. 16(1) (a) are unduly severe; and (2) the non-availability to
the vendor of the plea of his ignorance and the conclusiveness of the
certificate of the Director of Central Food Laboratory under s. 13(5) of the
Act, violate the guarantee under Art. 20(3).
HELD : (a) The Act does not make mens rea an
ingredient of the offence. Ordinarily, for the protection of the liberty of a
citizen, in the definition of offences, blame-worthy mental condition is made
an ingredient: but in Acts enacted to deal with a grave social evil or for
ensuring public welfare especially in offences against health, it is often
found necessary in the larger public interest to provide for imposition of
liability without proof of a guilty mind. If from the scheme of an Act, it
appears that compliance with the regulatory provisions will be promoted by
imposing such absolute liability and that it cannot otherwise be reasonably
ensured, the court will be justified in holding that the restriction on the
right of the trader is in the interest of the general public. [172 H-173 C]
Adulteration and misbranding of food is a rampant evil in our country. The
channels of supply and the movement of goods from trader to trader, and fertile
sources of adulteration and misbranding, make it extremely difficult in a large
majority of cases to establish affirmatively that storage or sale of
adulterated or misbranded food-stuffs was with a guilty mind. Therefore, a
statute calculated to control that evil is in the interest of the general
public and merely because it makes a departure from the normal structure of
statutes enunciating offences and prescribing punishments, the restrictions on
traders will not be deemed unreasonable. The defences set out in s. 19(2) are
open to the vendor and the act does not dispense with proof that the article of
food is adulterated, misbranded or that its sale is prohibited : it only enacts
that a vendor selling adulterated and misbranded articles of food cannot merely
plead that he was ignorant of the nature and quality of the goods. [171 G-H;
173 C-D] 167 (b) The schedule to the Act uses technical expressions in relation
to standards of quality and an ordinary retail dealer may not be familiar, with
them. But the rules, made under s. 23(1)(b) prescribe clearly the standards of
quality. The standards are arrived at after consultation.
with the Committee for Food Standards which.
consists of experts in the field of food technology and food analysis and
representatives of the Central and State Governments.
Hence the standards cannot be, challenged as
arbitrary or unreasonable. [175, C] (c) What is penalised by s. 16(1) is the
importation, manufacture for sale or storage, sale or distribution of any
article of food. It is always open to a person selling an article capable of
being used as an article of food as well as for other purpose, to inform the
purchaser by clear notice that the article sold or supplied was not intended to
be used as an article of food and in such cases s. 16 would, not apply. [174 G]
(d) Under s. 19(2) if the vendor has obtained the article of food from a
licensed manufacturer, distributor or dealer or from a manufacturer,
distributor or dealer With a warranty, he is protected, provided he. has
properly stored the article and sold it in the same state as he purchased it,
even if it turns out to be adulterated or misbranded. By merely opening the
container the article of food does not cease to be in the same state in which
the vendor purchased it. Therefore, the vendor will not lose the protection of
the sub-section merely because he opens the container.. [173 G-H] (e) The
severity of the penalty is not so disproportionate to the gravity of the
offence that it may be deemed unreasonable, because, the penalties are imposed
as a deterrent to prevent malpractices by traders in articles of food and to
ensure the purity of articles of food. [174 C] The Act deals with the
regulation of a class of traders and in view of the widespread malpractices and
the practical difficulties of controlling the malpractices, stringent
provisions have been made in the Act. The classification is founded on an
intelligible differentia and has a rational relation to the object sought to be
achieved. [176 C] (2) Article 20(3) provides that no person accused of any
offence shall be compelled to be a witness against himself.
By providing that a plea of ignorance of the
vendor wilt not be a defence and that the certificate of the Director of
Central Food Laboratory, who is a disinterested and high placed official as
conclusive, Art. 20(3) is not violated.
[176 D-C]
ORIGINAL JURISDICTION: Writ Petitions Nos.
468, 469 489, and 490 of 1969.
Petitions Under Art. 32 of the Constitution
of India for enforcement of fundamental rights.
S. V. Gupte, D. Sudhakara Rao and B.
Parthasarathy, for the petitioners (in W. P. No. 468 of 1969).
B.ParthasarathY, for the petitioners (in W.
P. Nos. 469, 489 and 490 of 1969).
Niren DeAttorney-General, B. D. Sharma and S.
P. Nayar, for respondent NO. 1 (in all the appeals).
168 P. Ram Reddy and G. S. Rama Rao, for
respondent No. 2 (in all the petitions).
The Judgment of the Court was delivered by
Shah, J. The petitioners who are traders in foodgrains edible oils, and other
articles of food, challenge the validity of S. 7 read with s. 2 (v) and 2 (ix),
and S. 19, S. 2 (i) and s. 1 0 read with S. 13 of the Prevention of Food Adult
Iteration Act 37 of 1954 and the rules framed thereunder. They claim that by
the Act and the rules the fundamental rights guaranteed under Arts. 14, 19 (1)
(g) and 20(3) of the Constitution are infringed.
The Parliament, with a view to control
adulteration and misbranding of articles of food, enacted the Prevention of
Food Adulteration Act, 1954. The petitioners concede that they do not claim a
fundamental right to carry on business in adulterated or misbranded foodstuffs
: they claim that ,they are honest traders, and do not resort to any
malpractice, still in carrying on their business in foodstuffs they are, by the
Act, subjected to restrictions which are not reasonable. They contend that the
Act presumes every trader charged with an offence under S. 1 6 (1) (a) to be
guilty and imposes upon him the burden of proving that he is not guilty of the
offence charged, by establishing facts which are not within his knowledge, or
which without great expense wholly incommensurate with his means and the
facility available to him, he cannot establish. They also claim that by the Act
they are denied the equal protection of the laws and the guarantee of Art.
20(3) of the Constitution is infringed.
The relevant provisions of the Act may first
be noticed.
Section 7 of the Act provides No person shall
himself or by any person on his behalf manufacture for sale or store, sell or
distribute(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of
which a licence is prescribed, except in accordance with the conditions of the
licence;
(iv) any article of food for the sale of
which is for the time being prohibited by the Food (Health) Authority in the
interest of public health; or (V) any article of food in contravention of any
other' provision of this Act or of any rule made there under." 169 By s.10
a food inspector appointed under s. 9 ( 1 ) of the Act is authorised to take
samples of any articles of food from any person selling such article, or from
any person who is in the course of conveying, delivering or preparing to
deliver such article to a purchaser or consignee, or from a consignee after
delivery of any such article to him, and to send such sample for analysis to,
the public analyst, and with the previous approval of the health officer having
jurisdiction in the local area concerned, or with the previous approval of the
Food (Health) Authority to prohibit the sale of any article of food in the
interest of public health. Sub-section (5) of s. 13 provides "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 the Central Food Laboratory, may be used as evidence
of the facts stated therein in any proceeding under this Act or under sections
272 to 276 of the Indian Penal Code Provided that any document purporting to be
a certificate signed by the Director of the Central Food Laboratory shall be
final and conclusive evidence of the facts stated therein." Section 16(1)
prescribes the penalties : cls. (a) & (f) which are relevant provide
"(1) If any person(a) whether by himself or by any other person on his
behalf imports into India or manufactures for sale, or stores, sells or
distributes any article of food(i) which is adulterated or misbranded or the
sale of which is prohibited by the Food (Health) authority in the interest of public
health;
(ii)other than an article of food referred to
in sub clause (i), in contravention of any of the provisions of this Act or of
any rule made there under; or (f) whether by himself or by any other person on
his behalf gives to the vendor a false warranty in writing in respect of any
article of food sold by him, he shall in addition to the penalty to which he
may be liable under the provisions of section 6, be punish-able with
imprisonment for a term which shall not be less than L11Sup.Cl/70 12 170 six
months but which may extend to six years, and with fine which shall not be less
than one thousand rupees: Provided that.................................
Section 19 deals with the defences which may,
and which may not, be allowed in prosecutions under the Act. It provides
"(1) It shall be no defence in a prosecution for an offence pertaining to
the sale of any adulterated or misbranded article of food to allege merely that
the vendor was ignorant of the nature, substance or quality of the food sold by
him or that the purchaser having purchased any article for analysis was not
prejudiced by the sale.
(2) 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 '(a) that he purchased the article of food(i) in a
case where a licence is prescribed for the sale thereof, from a duly licensed
manufacturer, distributor or dealer;
(ii) in any other case, from any
manufacturer, distributor or dealer with a written warranty in the prescribed
form; and (b) that the article of food while in his possession was properly
stored and that he sold it in the same state as he purchased it.
(3)Any person by whom a warranty as is
referred to in section 14 is alleged to have been given shall be entitled to
appear at the hearing and give evidence." "Food" is defined in
S. 2(v) as meaning "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".
Clauses (i) and (ix) of S. 2 define the
expressions "adulterated" and "misbranded".
According to counsel for the petitioners the
Act imposes unreasonable restrictions, because it creates absolute liability by
S. 16(1) (a) and imposes severe penalties for storage and sale or distribution
of articles of food found to be adulterated or misbranded, or prohibited by
law; it prescribes standards which are technical, and absolute, and for the
slightest departure therefrom the trader is liable to be prosecuted and
punished. Counsel submitted that it is impossible for an ordinary trader
without the 171 assistance of an expert technician to ascertain whether the
articles of food purchased by him comply with the prescribed standards, and
that in prescribing the standards of quality the imperceptible changes which
take place in foodstuffs by passage of time, are not taken into account.
In our judgment, the restrictions imposed upon
the conduct of business by traders in foodstuffs cannot be deemed unreasonable.
By s. 16(1) provision is made for imposing penalties, among other acts, for
storage, sale or distribution of articles of food which are adulterated or
misbranded, or sale of which is prohibited by the Food (Health)authority in the
interest of the public health, or is in contravention of the Act or the rules.
The Act, it is true, does not make some blame-worthy mental condition
constituted by knowledge or intention relating to the nature of the article
stored, sold or distributed, an ingredient of the offence. Unless the case
falls within sub-s. (2) of s. 19, if sale, storage or distribution is
established, intention to sell articles or knowledge that the articles are
adulterated, misbranded, or prohibited need no, be proved by the prosecutor to
bring home the charge. Subsection (1) of s. 19 provides that it is no defence
in a charge, for an offence pertaining to the sale of any adulterated or
misbranded article of food to allege merely that the vendor was ignorant of the
nature, substance or quality of the food sold by him, or that the purchaser
having purchased any article for analysis was not prejudiced by the sale. By
that clause a bare plea of ignorance by a trader about the nature, substance or
quality of the food sold by him is not a defence in a prosecution for the
offence pertaining to the sale of any adulterated food nor that the article
was, purchased for analysis.
But in considering whether creation of
absolute liability amounts to imposing unreasonable restrictions, the Court has
to strike a balance between the individual right and public weal. The Courts
will not strike down an Act as imposing unreasonable restrictions merely
because it creates an absolute liability for infringement of the law which
involves grave danger to public health. The Courts will undoubtedly consider
whether without imposing absolute liability the object of the statute could be
reasonably secured. For that purpose the Court will consider the object of ,the
Act, apprehended danger to. the public interest, arising out of the activity if
not controlled and the, possibility of achieving the intended results by less
stringent provisions. The nature of the trade in foodstuffs, the channels of
supply and the movement of goods from trader to trader and fertile sources of
adulteration and misbranding make it extremely difficult in a large majority of
cases to establish affirmatively that storage or sale of adulterated or
misbranded foodstuff was with a guilty mind. Provisions in the statute book
creating absolute liability for sale of adulterated food are 172 fairly common.
Section 3(1) of the English "Foods & Drugs Act", 1938, imposes
absolute duty on a dealer in foodstuff regardless of negligence : Lindley v.
George W. Horner & Co.
Ltd.;(1) and Lamb v. Sunderland and District
Creamery Ltd. 2 ) The same provision is repeated in S. 2 of the "Food and
Drugs Act", 1955. In Halsbury's Laws of England, Vol. 10 (3rd Edn.) at
p.273, Art. 508, it is stated :"A statutory crime may or may not contain
an express definition of the necessary state of mind. A statute may require a
specific intention, malice, knowledge, willfulness, or recklessness. On the
other hand, it may be silent as to any requirement of mens rea, and in such a
case in order to determine whether or not mens rea is an essential element of
the offence, it is necessary to look at the objects and terms of the statute.
In some cases, the courts have concluded that despite the absence of express
language the intention of the legislature was that mens rea was a necessary
ingredient of the offence. In others, the statute has been interpreted as
creating a strict liability irrespective of mens rea. Instances of this strict
liability have arisen on the legislation concerning food and drugs, liquor
licensing, and many other matters".
In Mousell Brothers v. London and North
Western Rail Co.(3) Atkin, J., observed :
"...... yet the legislature may prohibit
an act or enforce a duty in such words to make the prohibitions or the duty
absolute :.......
To ascertain whether a particular Act of
Parliament has that effect or not, regard must be had to the object of the
statute, the words used, the nature of the duty laid down, the person whom it
is imposed, the person by whom it would in ordinary circumstances be performed,
and the person upon whom the penalty is imposed." In Quality Dairies
(York) Ltd. v. Pedley 4 ) the Court of Appeal held that Regulation-26(1) of the
Mill and Dairies Regulation, 1949, requiring a distributor to ensure that every
vessel used as a container for milk shall be in a state of thorough
cleanliness, imposed an absolute liability.
It is true that for the protection of the
liberty of the citizen, in the definition of offences, blameworthy mental
condition is ordinarily an ingredient either by express enactment or clear
implication (1) [1950] 1 All. E.R. 234.
(3) [1917] 2 K.B. 845.
(2) [1951] All. E.R. 923.
(4) [1952] 1 All. E..R. 380.
173 : but in Acts enacted to deal with a
grave social evil, or for. ensuring public welfare, especially in offences
against public health, e.g., statutes regulating storage or sale of articles of
food and drink, sale of drugs, sale of controlled or scare commodities, it is
often found necessary in the larger public interest to provide for imposition
of liability without proof of a guilty mind.
If from the scheme of the Act it appears that
compliance with the regulatory provisions will be promoted by imposing an
absolute liability, and that it cannot otherwise be reasonably ensured, the
Court will be justified in holding that the restriction on the right of the
trader is in the interest of the general public. Adulteration and misbranding
of foodstuffs is a rampant evil and a statute calculated to control that evil is
indisputably in the interest of the general public : The statute imposing
restrictions upon traders will not be deemed unreasonable merely because it
makes a departure from the normal structure of statutes enunciating offences
and prescribing punishments. By sub-s. (2) of S. 19, even in respect of the
absolute offence, the Parliament has enacted that on proof of certain facts,
criminal liability will be excluded.
Thereby a vendor is not deemed to have
committed an offence pertaining to the sale of any adulterated or misbranded
article of food if he proves that the purchased the article of food from a duly
licensed manufacturer, distributor or dealer in a case where a licence is
prescribed for the sale thereof, and in any other case from any manufacturer, distributor
of dealer with a written warranty in the prescribed form, provided the article
of food while in his possession was properly stored and that he sold it in the
same state as the purchased it. The argument of counsel for the petitioners
that the provision that a retail seller who opens a container of a branded
article of food loses even the limited protection under s. 19(2) is without
substance.
Clause (b) of sub-s. (2) of s. 19 does not
provide, nor does it imply, that if the container of a branded article is
opened, the article of food ceases to be in them same state in which the vendor
purchased it. 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 article from a
licensed manufacturer, distributor or dealer or from a manufacturer,
distributor or dealer with a warranty, he is protected, provided he has
property stored the article and sells it in the same state as he purchased the
article, even if it turns out that the article was adulterated or misbranded.
The Act does not dispense with proof that the article of food is adulterated,
misbranded or that its sale is prohibited: it enacts that a vendor selling
articles of food adulterated or misbranded cannot plead merely that he was
ignorant of the nature, substance or quality 174 of the goods. A statute
enacted by the Parliament in the interest of public health (which is generally
made in similar statutes elsewhere) imposing liability for an offence without
proof of a guilty mind does not per se impose restrictions on the, freedom to
carry on trade which are unreasonable.
It is true that stringent penalties are
provided under S. 16 (1)(a). A vendor of adulterated, misbranded or prohibited
articles of food is punishable with imprisonment for a term which shall not, in
the absence of adequate and special reasons, be less than six months, and which
may extend to six years, and with fine which shall not be less than one
thousand rupees. But for the protection of the public by ensuring the purity of
articles of. food supplied to the people and preventing malpractices by the traders
in articles of food, severity of the penalties is not so disproportionate to
the gravity of the offence that it may be deemed unreasonable.
We are again unable to accept the argument
that under the Act even when an article is purchased not as an article of food,
but for use otherwise, the vendor will be deemed guilty if the article does not
conform to the 'prescribed standards, or is as an article of food adulterate or
misbranded. Counsel said that coconut oil is used in the State of Kerala as a
cooking medium, and sale of adulterated coconut oil may in Kerala be an offence
under S. 16, but in other parts of the country where coconut oil is not used as
a cooking medium and is used as a component of hair oil or for other purposes,
it amounts to imposing an unreasonable restriction to penalise the vendor who
sells coconut oil knowing that the, purchaser is not buying it as a cooking
medium. But there are no articles which are used as food only in one part, and
are not at all used as food in another part of the country. Even coconut oil is
used as a cooking medium by certain sections of the people in parts of India
other than Kerala. In any event it is always open to a person selling an
article capable of being used as an article of food as well as for other purpose,
to inform the purchaser by clear notice that the, article sold or supplied is
not intended to be used as an article of food. What is penalised by s. 16(1) is
importation manufacture for sale, or storage, sale, or distribution of any
article of food.
If what is imported manufactured or stored,
sold or distributed is not an article of food, evidently S.16 can have no
application.
The various items in the Schedule setting out
standards of quality use technical expressions with which an ordinary retail dealer
may not be familiar, and also set out percentages of components which the
dealer with the means at his command 175 cannot verify. But by S. 3, the
Central Government has to set up the Central Committee for Food 'Standards to
advise the Central and the State Governments on matters arising out of the
administration of the Act. The Committee consists of experts and
representatives of the Central Government and of the State Governments and the
Director General of Health Services is its Chairman. Under S. 23 (1) (b) the
Central Government makes rules prescribing the standards of quality and the
limits of variability permissible in any article of food. The rules are made
after consultation with the Committee for Food Standards. The standards set out
in the Appendix to the Rules are prescribed after consultation with the
Committee for Food Standards. It has not been even urged that the standards
have been fixed arbitrarily.' Apart from a general argument that small retail
dealers may not, be in a position to ascertain whether goods purchased by them
or in their possession are according to the standards, no specific argument was
advanced that the standards, are not normal, or that the variations in quality
during the course of storage are unreasonably restricted.
This Court in State of Uttar Pradesh v.
Kartar Singh(1) in which in dealing with an argument of invalidity of the rule
setting out standards under the Prevention of Food Adulteration Act observed :
"The standards themselves, it would be
noticed, have been prescribed by the Central 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. . . . That
where a party seeks to impeach the validity of a rule made by a competent
authority . . . . . . 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
formulating the classification of the zones and the, prescription of the
minimum (1) [1964] 6 S.C.R. 679.
176 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." In the petitions a plea was raised that by the Act and the
Rules, the guarantee of Art. 14 was infringed, but no argument was presented
before us independently of the argument relating to infringement of the
guarantee under Art. 19(1)(g), in support of the contention that the Act
infringed the guarantee of equality before the law or equal protection of the
laws. The Act deals with the regulation of a class of traders, and in view of
the widespread malpractices, and the practical difficulties of controlling
those malpractices, stringent provisions have been made by the Act. The
classification is founded on an intelligible differentia and the differentia
has a rational relation to the object sought to be achieved. The provisions of
the Act again do not invest arbitrary authority upon those who are to
administer the Act. nor can it be said that the standards prescribed are
arbitrary.
The Act does not infringe the guarantee of
Art.20(3) of the, Constitution. By that clause no person accused of any offence
shall be compelled to be a witness against himself.
But by enacting that a plea by the vendor in
a prosecution for an offence pertaining to sale of adulterated or misbranded
article of food, that he was ignorant of the nature, substance or quality will
not be a defence, the guarantee under Art. 20(3) is not infringed. The vendor
when charged with an offence is not thereby compelled to be a witness against
himself. Nor can it be said that by making the report of the Director of
Central Food Laboratory conclusive evidence of the facts stated therein, any
such infringement is intended. The provision has been made with a view to
secure formal evidence of facts without requiring the Director to remain
present, and in' the interest of effective administration of the Act, the
certificate signed by the Director of the Central Food Laboratory is made final
and conclusive evidence of the facts stated therein. The Director is a highly
placed official, an expert in determining the nature, substance and quality of
food, and is wholly disinterested in the result of any case coming before the
Courts. It is difficult to appreciate how conclusiveness attributed to the
certificate of the Director compels the vendor charged with an offence under
the Act to be a witness The petitions fail and are dismissed with costs. One
hearing fee Y.P. Petition dismissed.
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