Open iDraf
Goverdhan Lal v. The Commissioner Of Police, Hyderabad & Another

Goverdhan Lal
The Commissioner Of Police, Hyderabad & Another

(High Court Of Telangana)

Writ Petition No. 188 Of 1974 | 08-02-1974


On 28th of December, 1973, at about 12.30 p.m. the Food Inspector, Municipal Corporation of Hyderabad along with some other officers visited the business premises of Murari & Co., which is a firm doing business of selling refined Groundnut Oil and Vanaspati as a wholesale dealer. It is said that the Honourable Minister for Public Health of the State of Andhra Pradesh was also present at the time of the visit. Murari & Co. gets refined groundnut oil and Vanaspathi from manufacturers like Rajender Oil Mills, Musbeerabad etc., as sole distributors. It purchases refined Oil in bulk of about three tonnes a day. The supplies are made through a tanker of the manufacturers and the firm receives them into its own storing tank. That storing is under the exclusive control of the firm. From the tank the oil is taken out through a pipe to smaller tins of about 15 1/2 Kgs. and after filling them, those tins are sealed with its trade name 'Gold Mohar'.

2. When the Food Inspector and other Officers visited the business premises of the firm in the company of the Honorable Minister the process of filling the smaller tins with the oil from the storage tank was going on. One sample bearing No. 153 was taken from one of the smaller tins which were being filled up and another sample bearing No. 154 was taken from the oil in the storage tank. The specialists present made on the spot test of the two samples and found prima facie that both the samples were adulterated. After following the procedure prescribed therefor, the authorities took these samples after paying money to the firm and went away.

3. On the 4th January, 1974, Sri Lakshmi Niwas, the Managing Partner of the firm was detained under the order of the Commissioner of Police under S. 3(1)(a)(iii) of the Maintenance of Internal Security Act (hereinafter called the Act). The grounds for his detention were served on the detenu on 7-1-1974. This writ petition has been filed for the issue of a writ of habeas corpus to release him.

4. It may be useful to notice other events which have taken place in this connection. A criminal prosecution was launched against the detenu in C.C. No. 13/74 in the Seventh City Magistrate's Court, Hyderabad, alleging that the sample bearing No. 151 was found to be adulterated with Argemone Oil which is injurious to health. That allegation is based on the opinion of the Public Analyst. The same analyst also found that the sample No. 153 taken from the loose tins did not contain any adulteration. The Government of Andhra Pradesh approved the order of detention by its G.O.Rt. No. 73 dated 11-1-1974.

5. The first line of attack on the detention made by Shri B. C. Jain, learned counsel for the detenu is that the grounds are so vague that it is not possible for his client to make any effective and satisfactory representation against his detention. The ground stated by the detaining authority is

"the sample was sent to the public analyst for analysis. The analyst by report dated 31-12-1973 opined that the oil adulterated and contained extraneous substance, i.e., argemone oil which is injurious to the public health. The said opinion established that you adulterated the groundnut oil intended for the sale to the public with argemone oil and which is highly injurious to the health, causing diseases like peripheral neuritis, generalised incapacitating oedema, some times very serious heart damage, as opined by the Medical Officer of Health, Hyderabad Municipal Corporation." The Commissioner of Police, therefore, came to the conclusion that by these acts of adulteration and supply of adulterated essential commodity, i.e. ground nut oil, the detenu was depriving the community of the supply and service of a wholesome and unadulterated essential commodity and also creating an artificial scarcity of essential commodity of quality required for the public consumption and thereby indulging in acts prejudicial to to the maintenance of supplies and services essential to the community. Learned Counsel's criticism is that the public analyst found only the presence of argemone oil in the sample. He did not find out how much percentage of that oil was present in the sample. That means that no qualitative test showing the extent of adulteration was made. The detenu will not be able to make a satisfactory representation in the absence of a finding as to the percentage of the presence of argemone oil. According to him, the very presence of argemone oil is not injurious to health. Its presence beyond a certain limit alone may be injurious. If the actual content of argemone oil is not known, the detenu will not be in a position to effectively meet the accusation made against him. From the same position, learned counsel also spells out the infirmity of non-existence in the ground. If argemone oil is not injurious to health when it is present in smaller percentage, then one simple allegation that argemone oil is present and, therefore, the groundnut oil that is being sold by the detenu is injurious to health is based on a non-existing apprehension. He invites our attention to the definition of the word 'adulterated' in sec. 2(i) of the Prevention of Food Adulteration Act, 1954. Only two clauses of that definition are pertinent. Clause (1) thereof says that an article of food shall be deemed to be adulterated if its quality or purity falls below the prescribed standard or its constituents are present in quantities which remain excess of the prescribed limits of variability. It may be immediately noticed that no prescribed limits of the presence of argemone oil in ground nut oil are prescribed under the Rules of that Act, though in regard to mustard oil it is specifically stated that the test for argemone oil should be negative. Since there are no prescribed limits in regard to the presence of argemone oil in ground nut oil clause (1) is not attracted. Then of all the other clauses we are left with clause (h) alone, according to which an article shall be deemed to be adulterated if it contains any poisonous or other ingredient which renders it injurious to health. It is argued for the detenu that the very fact that the ground nut oil seized from the detenu contained argemone oil would not be sufficient to bring the detenu within the mischief of clause (h) so long as it is not established that its presence renders ground nut oil injurious to health. It renders ground nut oil injuries to health only if argemone oil is present beyond permissible limits. When the percentage of the content of argemone oil is not even found out, the allegation against the detenu is not only vague but also non-existing. This in substance is the submission in so far as these tip aspects are concerned.

7. We are afraid that this argument is misconceived. The impugned ground stated that the public analyst found the sample of ground nut oils seized from the storage tank of the detenu to have been adulterated with argemone oil which is injurious to public health. According to the ground the very presence of argemone oil is highly injurious to health, since it causes very serious diseases mentioned therein. A copy of the opinion of the public analyst was sent to the detenu and is also before us on his behalf as Annexure I(a). In that opinion the public analyst, after enumerating the other ingredients, stated that the test for argemone oil by thin layer chromatography method gave a positive result, and consequently, be expressed the opinion that the sample contained argemone oil which is injurious to health and is, therefore, adulterated. The public analyst may right or may be wrong. But he is clearly of the opinion that argemone oil by itself is injurious to health. It is true that he did not note the percentage of the argemone oil. Even without it his opinion is that the presence of argemone oil itself is injurious to health which necessarily means that whatever be its percentage, argemone oil is by itself injurious to health. The Commissioner of Police relied on this opinion of the expert and stated in the ground that the oil was injurious to health. It should be remembered that under the Prevention of Food Adulteration Act, 1954, Public Analyst is constituted as the statutory authority for doing analysis of food and is appointed by the Central or State Government under Section 8 of the Act. Under Section 13, the Public Analyst is required to send a report in the form which is prescribed to the Food Inspector of the result of the analysis of any article of food submitted to him for analysis. The form in which the public analyst had sent up his report in this case is in accordance with the form prescribed. This report or opinion of the public analyst is accepted as a statutory basis as to the analysis of any food material. However, an accused vendor or the complainant may apply to the Court to send a part of the sample to the Director of the Central Food Laboratory for a certificate as provided under Section 13(2). Sub-section (3) lays down that the certificate issued by the Director of the Central Food Laboratory shall supersede the report given by the public analyst. Sub-section (5) further provides that any document purporting to be a report signed by a public analyst; unless it has been superseded under sub-section (3), may be used as evidence of the facts stated therein in any proceeding under the Act or under the Penal Code. It is admitted before us that there is no certificate so far issued by the Director of Central Food Laboratory. Consequently the opinion of the public analyst holds the field and the detaining authority relied on this opinion. It may be open to the detenu before the appropriate forum like Criminal Court or before the Advisory Board under the Act, to dispute the correctness of the opinion expressed by the Public Analyst. The correctness of the opinion can be canvassed only by producing evidence, certificates and opinions to the contrary and that it will have to be decided by the appropriate forum. That is totally different from saying that the allegation made against the detenu in the grounds is vague or non-existent. Basing on the public analyst's opinion, the Commissioner of Police came to the conclusion that the mere presence of argemone oil is injurious to health. There is no vagueness about it nor by any stretch of imagination could it be said that the apprehension expressed by the Commissioner is not existing. There is thus ample scope for the detenu to state in his representation to the Advisory Board that this opinion which is categorical in its nature is wrong by placing before it all the necessary scientific data and evidence. It is wholly futile to argue that the ground is vague or non-existent. It is the positive assertion of the Public Analyst and so that of the detaining authority that the presence of argemons oil in the groundnut oil sold by the detenu rendered the groundnut oil injuries to health. Thus the matter comes squarely within the scope of Section 2(1)(b) of the (Prevention of) Food Adulteration Act.

7. It is also urged that if percentage of the argemone content has been found out, it would have demonstrated whether the contamination of the groundnut oil with argemone oil was a natural one or whether it was the result of deliberate adulteration. Percentage is, therefore, an essential factor which should have been found out and in its absence, the ground becomes vague and non-existent. In this connection reliance is placed on Bhagwandass v. State, AIR 1962 Punj 419 = (1962 (2) Cri LJ 400). The State v. Shanti Parkash AIR 1957 Punj 56 = (1957 Cri LJ 390) and Nandu Ram v. State, (1962) 2 Cri LJ 579 (Punj). In the first of these cases, the learned Judge thought that if the report of the analyst contained some indication of the quantity of saccharine it would have been better, for it was possible for traces of saccharine to remain in a bottle which had not been properly washed before it was refilled again. It will be noticed that the mere presence of saccharine was not found to be dangerous and hence the Court thought that the percentage of its content should have been indicated. Likewise, in the last of the three cases, the Court was dealing with the presence of quantity of formalin in milk. Under Rule 20 of the Act the strength is prescribed and so the Court felt that unless proof is offered, it is not possible for the Court to hold that it was all the same adequate to prevent its disintegration or changes in composition. Similar is the position with regard to the other case cited. We have already pointed out that the rules under the Food Adulteration Act do not say anything about the argemone oil in groundnut oil, while it is totally forbidden in mustard oil. The public analyst is of the opinion that its very presence is injurious to health. Therefore, the question of percentage is totally irrelevant. The decision in In re, K. Abdul Azeeze AIR 1964 Ker 107 = (1964 1 Cri LJ 403) and Delhi Municipal Corpn. v. Satpal, AIR 1962 Punj 524 = (1962 (2) Cri LJ 778) are very useful in this connection. There it was held that where foreign matter is prohibited, percentage need not be stated. Argemone oil is clearly mentioned with regard to mustard oil because mustard and argemone seeds look very much similar and it is possible to mistake one for the other. By any stretch of imagination it cannot be postulated that argemone seeds can be mistake for groundnut kernel and unless they are deliberately mixed they cannot be crushed together. We may here usefully refer to a passage in Modi's Medical Jurisprudence and Toxicology, Eighteenth Edition at page 607; Dealing with argemone seed and plant the learned author stated that : "The seeds are poisonous, and when taken internally produce oedama of the legs, breathlessness, slight enlargement of the liver and occasionally diarrhoea."

He referred to a report that some labourers who ate bread made from wheat flour contaminated with the seeds of argemone died of poisoning. He also observed that the oil extracted from the seeds is known as argemone oil and is used occasionally as an adulterant of mustard oil. This statement of the position by Modi lends considerable support to the opinion of the public analyst that argemone oil is per se injurious to health. When that is so, it is wholly unnecessary to go into the question of percentage.

8. Apart from that, the contention that the contamination could be natural is unwarranted. It is not shown to us how there can be natural contamination of groundnut oil with argemone oil. Even that possibility is not demonstrated before us. Moreover we do not think that there could be any natural contamination of argemone seed or oil with groundnut kernel or oil. As we said, the two are totally different in colour, shape and size. We see no possibility of accidental or natural mixing up of the two. Therefore, this contention should be rejected.

9. It is also argued that the Public Analyst was not justified in using the thin layer chromatography method, which is also called T.L.C. method to find out whether argemone oil was present. On the other hand, the Indian standard method of sampling and testing for oils and facts is still the Hydrochloric Acid test, whose shortened name is HCL test. Indian standard tests are those followed by all Government institutions and HCL tests still continues to be adopted by all Government and Public Institutions. The Public Analyst followed the TLC test only for the purpose of somehow or other finding some argemone oil content in the sample. This circumstance is sought to be utilised by the learned counsel for the detenu not only to show that the presence of argemone oil is non-existent but also to demonstrate that the public analyst and other concerned authorities acted mala fide and were keen on finding something injurious to health in the sample taken out by them. This contention is wholly unwarranted. The register which has been maintained by the public analyst showing all the samples he had been testing has been placed before us by the respondents. That register clearly shows that the public analyst has been adopting only TLC test whenever there was suspicion of adulteration. He followed this method not only in regard to the samples taken out from the detenu's shop, but in examining all samples whenever aldulteration was suspected. It is, therefore, unjustifiable to say that to find something in the sample of the detenu, the public analyst went out his way and introduced some new method. What is equally telling is the circumstances that the other sample of the detenu, viz. 153 was also subjected to the same test by the public analyst and the same showed negative when it was tested for argemone oil. It is also pertinent to note from the scientific and opinions filed by the petitioner and the respondents that the minimum limit for detection of argemone oil and other oils through the Hydrochloric Acid test appears to be 0.1%. On the the other hand, the TLC method was found to be rapid and specific for argemone oil. The sensitivity of that test is as low as 0.005% or even less and the minimum limit for development and detection is only 3 to 5 minutes after extraction of alkaloids from the oil. It is thus manifest that the TLC test is more modern and sophisticated than the Hydrochloric Acid test. It is much quicker and it can show the presence of argemone oil even upto 0005%. There is no wonder then that this later, quicker, and more sensitive test has been adopted by the public analyst. It is also been from the scientific studies, copies of which have been filed before us, that 0.004% is the permissible limit for the presence of argemone oil in edible oils. Even if the sensitivity capacity of the TLC test is 0.005% and if argemone oil is found to be present in the sample of the detenu, it means that argemone oil is present more than the permissible limit. The public analyst in his affidavit filed on behalf of the respondents says that the sensitivity of HCL test is 0.5% whereas the TLC teat is 0.1% and for that reasons the latter is a well recognised, effective and valid one. This would show that the test which the public analyst did through TLC method was capable of showing the presence of argemone oil only upto 0.1%, which is far above the permissible limit. The Medical Officer of the Municipal Corporation in his affidavit submits that argemone oil is injurious to health according to the findings of the experts. We have also referred to the opinion of Modi on this aspect. Therefore, the TCL test followed by the Public Analyst does not exhibit any mala fides on the part of the respondents and on the other hand it demonstrates the presence of argemone oil in the sample in more than permissible limit.

10. In this connection, another contention which is probably allied to the contention of mala fides may be noticed. Learned counsel argues that the concerned authorities placed before the Police Commissioner only the finding in regard to sample No. 154 and did not send him the report that sample No. 153 did not contain any argemone oil. Had that fact been placed before him, in all probability the Commissioner would not have passed the order of detention. To say the least, this argument is highly farfetched. Both samples were taken from the oil that was available for sale in the premises of the detenu's firm. Sample No. 153 was taken from the smaller tins, while sample No. 154 was taken from the main storage tank, which contained a much larger quantity of oil than the loose. This demonstrates that a large part of the oil stored by the detenu at that time was adulterated with argemone oil. The circumstances that the result of testing of sample No. 153 was not placed before the detaining authority is thus immaterial.

11. Yet, another attempt is made on behalf of the detenu to say that if any trader adulterates the commodity he deals in, he would do it for profit. Argemone seed and oil are not available in India and even if they are secured with great difficulty, they would to three times more expensive than the groundnut oil itself. It is, therefore, said that no clever trader would indulge in adulteration of this nature. This circumstances was actually stated in the petition. Because of that, the learned Public Prosecutor brought to the Court both fresh and tender argemone plants as well as grown up argemone plants with fruits. In the counter affidavits, it was stated that argemone seeds are freely available anywhere in India and the seeds can be picked up freely and the only expenditure involved is the labour charge. When both fresh and grown up plants are brought before us, this stand taken by the respondents is fully demonstrated. In fact, Modi says in his book at page 607 that though this is an American Plant, it is now growing wild in the could season all over India. It has got different names in different parts of the country. It is not therefore, possible to accede to the contention of the detenu that the argemone seed and oil are more expensive than the ground nut kernel and oil and, therefore, no trader would mix them together. 12. Even so, it is submitted that the adulteration is so negligible that the trader would not get any profit out of it. To what extent in a given quantity the trader is adulterating is not the material question. The real point in issue is whether the detenu, as a dealer in groundnut oil, has a tendency to adulterate groundnut oil with argemone oil. This sample demonstrates that tendency in ample measure. The possibility of adulteration on a larger scale, given the opportunity, cannot, therefore, be exclude.

13. The next contention is that there was already a criminal prosecution launched against the detenu and it is going on and preventive detention cannot be resorted to when the prosecution is pending. This circumstance is also utilised by the learned counsel to show the existence of mala fides on the part of the detaining authority and it is said that they are bent upon wreaking vengeance on the detenue and persecute him in all possible ways. Reliance is placed upon the decision of the Bombay High Court in Maledath Bharathan v. Commr. of Police, AIR 1950 Bom 202 = (51 Cri LJ 1126 (FB)). That decision is not of any avail to the petitioner because, there preventive detention was resorted to to deny the detenu the opportunities available to him under the provisions of the Criminal Procedure Code when the investigation was going on. But, such is not the case here. On the other hand, the Supreme Court in a recent decision held in Abdul Aziz v. District Magistrate, Bardwan, AIR 1973 SC 770 = (1973 Cri LJ 590) that detention can be made pending prosecution. And in Masood Alam v. Union of India, AIR 1973 SC 897 = (1973 Cri LJ 627) it was held that no mala fides can be inferred from preventive detention when criminal prosecution was pending against the detenu. Therefore, this contention also fails.

14. Sri Jain strongly urges before us that the detenu is only wholesale distributor and he purchases groundnut oil from the manufacturer under a warranty of quality. What he got from the manufacturer, he is making available to the consumer. Consequently, he is projected by the provisions of Section 19(2) of the Food Adulteration Act. The facts admitted by the detenu are against this contention. Those facts are that the manufacturer gets oil in his tanker to the business place of the detenu and empties that oil in the storage tank or tanks of the detenu. Those storage tanks are always under the exclusive custody and control of the detenu and not of the manufacturer or anybody else. The storage tank from which sample No. 154 was taken was under the exclusive custody and control of the detenu. Therefore, when adulteration is found, the warranty of quality given by the manufacturer does not save him. In this connection clause (b) of Section 19(2) should be read. The warranty would come to his rescue only if the article of food, while in his possession, was properly stored and when he sold it in the same state as he purchased it. When the storage tank is entirely that of the detenu and when the oil therein is found to be adulterated, it is not possible to say that he is making that oil available for sale in the same states as he has purchased it from the manufacturer. So, the warranty given by the manufacturer does not take away the primary responsibility of the detenu, who is the dealer.

15. Then, there is the final contention, which is strongly presses before us both by Sri Jain and Sri Kameswara Raju, who gave the reply for the detenu. The argument is that even supposing what the detaining authority has alleged about the adulteration of the groundnut oil with argemone oil is true, such adulteration is not within the scope of Section 3(1)(a)(iii) of the Act, which is concerned only with maintenance of Supplies and services. Only when a person is likely to act in any manner prejudicial to the maintenance of supplies and services essential to the community, the prescribed detaining authority would have power to detain him under this provision. Adulteration of edible oils, which is alleged in this case is not within the ambit of maintenance of supplies and services. Strong reliance is placed upon a Full Bench decision of the Patna High Court in Misrilal v. The State, AIR 1951 Pat 184 = (52 Cri LJ 1175) where Imam J., who rendered the main opinion of the Full Bench, observed that "the plain duty of the Court is to consider the words of the Act as they stand and give them their ordinary meaning. The words 'maintenance of supplies and services essential to the community" themselves have to be construed independently of what is stated in items 3 and 18 in the concurrent list of Schedule VII of the Constitution and what is contained in Rule 81 of the Defence of India Rules. I do not think that the words "maintenance of supplies and services essential to the Community" could reasonably carry the meaning that any one who adulterated food-stuffs would be acting in manner prejudicial to the maintenance of supplies or the continuity of supplies. It is true the adulterated foodstuffs supplied to the community may be harmful to its health, but supplying such adulterated foodstuff would not be prejudicing the maintenance of supplies."

The other two learned Judges concurred with this view, though Shearer J., also observed that a short period of preventive detention is not suitable in a case of adulterating food. Owners of mills, who do this sort thing, ought to be kept in prison for a longer period and when in prison, ought to be put to hard labour. While coming to this conclusion, the learned Judges relied on the meaning of the word 'maintain' given in the Webster's Dictionary, which has various definitions including 'to sustain, to support, to keep up, not to suffer to fail or decline." Consequently the learned Judges thought that the meaning of these crucial words must be up-keep of the needs and the provisions essential to the community. We have been told by the learned counsel on both sides that so far there is no other decision of either the Supreme Court or any other High Court which has considered the view expressed by the Full Bench of the Patna High Court in the aforesaid decision. So, Sri Kameswara Raju maintains that when the Parliament made the Act in 1971, using the same words, it must be deemed that it has used those words with the same meaning and content as has been given to them by the Full Bench of the Patna High Court.

16. We are, therefore, obliged to consider this question unaided by any other judicial pronouncement directly on the point. According to our lights, the crucial words in Section 3(1)(a)(iii) are not only 'maintenance' but also 'essential to the community.' If any person acts in a manner prejudicial to the maintenance of any supplies and services, he cannot be brought within the mischief of this provision simply for that reason. Those supplies and services should, at the same time, be essential to the community. We feel, there-fore, that while trying to find out the scope of this clause, we must understand the full amplitude of the expressions 'maintenance' as well as 'essential to the community.'

17. The word 'maintain' has variety of meanings. They are not limited only to keep up the quantity of a particular commodity. It also includes keeping a particular commodity or a thing unimpaired. It is freely used in common parlance to indicate the keeping up of anything in good shape. For instance, it is said that certain amount is being spent for maintaining a building. Likewise, the word 'maintenance' is used in regard to the allowance provided for a dependent. It means, the allowance is given to a dependent to keep him or her not only alive but also in the satisfactory shape. We may here usefully refer to the meaning of the word 'maintain' contained in volume 54 of Corpus Juries Secundum. At pages 897 and 898 it is stated that while the word is of common use and is said to have a well-defined meaning, oftentimes its meaning depends on the intention of the parties and the context of the instrument. On the other hand, it has been said that so many different and conflicting constructions appear to have been given to the word 'maintain' that its character for exactitude of meaning is badly damaged. The word 'maintain' is employed in one sense to indicate the idea of preserving or keeping something which is already in existence. When the word 'maintain' is used to signify the preserving or keeping of something in an existing state or condition, it embraces acts of repair and all other acts which are necessary to prevent a decline lapse or cessation from that state or condition. In a slightly different sense, the term, as ordinarily used, implies an effort or will to hold or keep in a particular state or condition. The word also means along with several other thins 'to keep the proper condition,' 'to keep in repair'. The word has also been defined as meaning 'to preserve from lapse, decline, failure or cessation; to keep from falling, declining or ceasing; to hold or keep in any particular state or condition, especially in a state of efficiency or validity.' When the word 'maintain' has such varied an wide amplitude, it will be doing violence to the word and if we may say so to the very spirit of the Act, if it is given a narrow meaning, thus stultifying the intendment of the provision and the Act. It may be in 1950's when the graver problem facing the country was to secure sufficient quantities of food and other essential commodities, greater emphasis was laid on the limited meaning of the word that it concerned only with keeping up quantities of supplies of certain commodities. As times change and new problems face the country, which are not only in regard to the keeping up of quantities of supplies but also of their quality, it would be wholly inappropriate, in our opinion, to still limit the meaning of the word 'maintenance' to 'keep up quantities of certain commodities.' We are not here unaware of the view expressed, which has always been taken not only by the several High Courts but the Supreme Court itself, that in order to advance the cause of social welfare individual liberty should not be stifled. We are equally jealous of sustaining individual liberty so long as it is permissible within the bounds of law. That is totally different from saying that we should give and go on giving only one limited meaning to the word 'maintenance,' when there are obviously several other meanings to that word, which include the keeping up the quality of supplies and keeping up the supplies in good shape and repair. When the word 'maintenance' is capable of the later meaning also, we should not be hesitant to give that connotation to the word, particularly in view of the 'felt necessities of the times'. The crying need of the teaming millions of this country now, is not only to have the basic commodities supplied to them in sufficient quantities, but also to have them in an unadulterated and wholesome manner. We suppose we can take judicial notice of the prevalent complaint in the country that essential commodities like food material are being adulterated. We cannot close our eyes to this grave danger of adulterating essential commodities, and limit the meaning of the word 'maintenance' to a very narrow sense of keeping up the quantities alone, when it is capable of having the other meaning 'maintaining a thing unimpaired and in good shape.' We would like to share the opinion of Justice Oliver Wendell Holems when he said "the word is not a crystal, transparent, and unchanged. It is the skin of a living thought and may vary greatly in colour and content according to the circumstance and the time in which it is used."

18. Further, as we said, there is another crucial expression in Section 3(1)(a)(iii), which should be taken account, while understanding the full amplitude of the provision and that is "essential to the community." The gives another clue to understand the intendment behind this provision. No one can say with any jurisdiction that adulterated food or edible oil is essential to the community. On the other hand, it would be very reasonable to say that what is essential to the community is the supply of a commodity needed by it for its sustenance in a wholesome manner and in unadulterated form. Wholesome food material is essential to the community. Probably the community may be able to carry on for a little while with, even reduced quantities of supplies than what are required. But is would suffer a great deal if what is supplied to it is not wholesome and is adulterated and that too with injurious substances.

19. To us, therefore, the scope of clause (iii) is as clear as day light. It takes in its ambit not only the keeping up of quantities of supplies but also keeping them up unimpaired in quality. The Full Bench of the Patna High Court was dealing with a case of flour which was not probably very essential to the community. That apart for the reasons we have stated above, we are not in a position to agree with the construction laid on these words by the learned Judges with all our great respect to them.

20. We may here usefully refer to the some observations in one or two decisions. In A.P.G. & S.M. Association v. Union of India, AIR 1971 SC 2346 = (1971 Cri LJ 1556) the Court was dealing with a case under the Prevention of Food Adulteration Act. Though this question did not specifically fall for consideration, Shah J., as he then was, who spoke for the Court observed in paragraph 9 :

"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 have extracted this passage only for the purpose of noticing the great emphasis which the Supreme Court laid on ensuring purity of articles of food supplied to the people.

21. A Division Bench of the Punjab High Court, consisting of Dua and Mahajan JJ., in a Criminal Appeal, in Municipal Corporation, Delhi v. Surja (1965) 2 Cri LJ 571 (Punj), dealing with Food Adulteration referred to the importance of legislation for preventing food adulteration under the increasing tempo of industrialisation and urbanisation. These observations of the Courts only emphasize the preservation of the wholesomeness and purity of food supplied to the community. It is true, that there is prevention of Food Adulteration Act passed in 1954 penalising adulteration of food. Those, who indulge in adulteration of food are liable to be punished under the provisions of that Act. At the same time, we must not lose sight of the fact the that the Parliament has given great importance to the task of keeping food supplies in good quality and in unadulterated form by making such enactments. When adulteration assumes greater and greater proportions and some traders exhibit a tendency of adulterate food and to act in a manner prejudicial to the maintenance of supplies of unadulterated food which are essential to the community, the detaining authority, we hold, has ample power to exercise his powers under Section 3(1)(a)(iii) of the Act and detain that trader.

22. Learned Advocate General also invites our attention to the use of the word 'services' and contends that keeping up supplies of unadulterated food materials is a service rendered to the community within the meaning of the clause. In the light of the view we have expressed above, it is not necessary to go into this question. We, accordingly, repeal the contention put forward for the detenu and hold that selling adulterated edible oils and other food stuffs is within the scope of Section 3(1)(a)(iii) of the Act.

23. These are all the arguments advanced before us and we are not impressed with any of them. We accordingly dismiss the writ petition.

Petition dismissed.

Advocates List

For the Petitioner B. C. Jain and K. Kameswara Raju, Advocates. For the Respondent Advocate General for Public Prosecutor.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List



Eq Citation

LQ 1974 HC 0856