NARSINHA BHASKAR CHITALE Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is an application under Section 435 Criminal Procedure Code, by the petitioner Narsinha Bhaskar Chitale, who has been convicted by the learned Special Judicial Magistrate, First Class, Municipal Corporation, Poona, for the offence under Section 16(1)(a)(i) of the Prevention of Food Adulte ration Act, 1954, and sentenced to pay a fine of Rs. 300, in default, to suffer rigorous imprisonment for three months, and whose conviction has been upheld by the learned Additional Sessions Judge, Poona, who has reduced the sentence from Rs. 300 to Rs. 150.

(2.) THIS revision petition raises a short question relating to the interpretation of the word 'butter' as used in Appendix B to the Prevention of Food Adulteration Rules, 1955, framed by the Central Government, after consultation with the Central Committee for Food Standards, under Sub -section (1) of Section 23 of the Prevention of Food Adulteration Act, 1954. The facts leading tip to the present revision application are not in dispute. The petitioner is a dealer in butter. On September 6, 1956, the Food Inspector, Poona Municipal Corporation, visited the shop of the petitioner and purchased from him 12 ounces of butter. This butter was divided, as usual, into three parts, one of which. was given to the petitioner. One of the other two parts was examined by the Public Analyst. The result of his examination was. that the butter contained moisture to the extent of 22.7 per cent. The prosecution. case was that this percentage was above the limit laid down by the Central Government in the Prevention of Food Adulteration Rules, 1955. Therefore, the prosecution alleged that the article which the petitioner had sold was an adulterated article. This contention of the prosecution was based upon the definition of the expression 'adulterated article' as given in Section 2(i)(l) of the aforesaid Act. That definition is in two parts. The first part of the definition says that an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard. I am not concerned in this petition with this part of the definition. The second part of the definition states that an article of food shall be deemed to be adulterated if its constituents are present in quantities which are in excess of the prescribed limits of variability. It is not disputed that the limit of variability in respect of butter is prescribed by the Central Government under the Prevention of Food Adulteration Rules, 1955. The prescription is to be found in A. 11.05 which is to be found at page 1475 of the Bombay Government Gazette dated October 13, 1955, Part IV -C. A. 11.05 first defines what butter is and, then, proceeds to state that such butter shall not contain more than 16 per cent, of moisture. The petitioner has not disputed the report of the Public Analyst that the sample which was purchased by the Food Inspector contained 22.7 per cent, of moisture. Therefore, it is also not disputed that the butter did not come up to the standard as mentioned in A. 11.05. It is conceded that the sample, if it falls within the definition of butter as given in A. 11.05, would come within its mischief. Section 7 of the Act prohibits a person, inter alia, from selling any adulterated food, and Section 16(1)(a) punishes a person who sells adulterated food. Therefore, it is not disputed by the petitioner that, having regard to the fact that the butter which was sold by him did not come up to the standard mentioned in A. 11.05, the petitioner would be guilty of having contravened the provisions of Section 7 of the Act and render himself liable under Section 16(1)(a) of the Act. But the contention which was urged by the petitioner in both the lower Courts was that the butter which he had sold was not butter within the meaning of the definition given in A. 11.05 of Appendix B to the Prevention of Food Adulteration Rules. Therefore, the short question which the Courts below had to decide was whether the butter which was sold by the petitioner was butter within the meaning of the definition given in A. 11.05. The contention put forward by the petitioner was rejected by both the lower Courts. They came to the conclusion that the butter which was sold by the petitioner came within the definition of the word 'butter'. The definition is as follows: Butter means the product prepared exclusively from the milk or cream of cow or buffalo, or both, with or without the addition of salt and annatto.... The admitted fact is that the butter which was supplied to the Food Inspector was prepared from curd. The contention of the petitioner is that the butter, supplied by him, having been prepared from curd, cannot be said to have been prepared from out of either milk or cream. Therefore, the main question which requires to be considered in the present revision application is whether butter which is prepared from out of curd does or does, not come within the purview of the definition of the word 'butter' as given aforesaid.

(3.) THE main argument of the learned Additional Assistant Government Pleader was that if the word 'butter' were to be construed so as to exclude butter prepared from curd, then, a major quantity of butter which is prepared in the country would be taken away from the purview of the prescribed standard, and, consequently, the intention of the Central Government in enacting the aforesaid Rules would be frustrated. Therefore, the learned Additional Assistant Government Pleader alternatively contended that the definition of the word 'butter' should be so construed as to bring all products from milk, including curd, within that definition, I have given my anxious thought on this subject. The question for consideration is whether the word 'milk' as used in the definition of 'butter' should be given an extended meaning, that is, a meaning which is not assigned to it by the Central Government itself when it defined the word 'milk' in A. 11.01. The argument of the petitioner is that a Full Bench of our High Court has definitely laid down the principles for construing a penal statute and, having regard to the fact that the consequence of the proposed construction would be that the act of the petitioner would become punishable under Section 16, the definition should be confined strictly within its limits and should not be given an extended meaning, so that an act, which does not come within the plain and natural meaning thereof, is brought in it by a rule of construction. The Full Bench ruling Which is referred to is the case of Tolaram Relumal v. Stated (1953) 55 Bom. L.R. 366 . The relevant remarks are to be found at p. 376 in the judgment of his Lordship Chagla C.J. The relevant observations are as follows: .Mr. Lulla is perfectly right when he argues that if two possible and reasonable constructions can be put upon a penal provision, the Court must lean towards that provision which exempts the subject from penalty rather than one which imposes a penalty. It is also correct that the principle of construing a statute in order to suppress a mischief and to advance the object of the legislation does not apply to a penal statute. It is not competent to the Court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature. A penal statute must be consrued according to its plain, natural and grammatical meaning. Further on, the learned Chief Justice has made a reference to the case of Howell v. Falmouth Boat Construction [1951] 2 All. E.R. 278, and observed that a statute should not be so construed that a man is put in peril on an ambiguity. Thereafter, the learned Chief Justice has referred to a passage from the judgment of Lord Macmillan in London and North Eastern By. Co. v. Berriman [1946] A.C. 278 and observed that the test laid down therein is the correct test to apply where a Court is construing a penal statute. The passage which is quoted is as follows (p. 295): .it must be borne in mind that while the statute and rule have the beneficent purpose of providing protection for workmen, their contravention involves penal consequences under Section 11 of the Act. Where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language. Though the aforesaid Full Bench ruling was reversed by the Supreme Court in Tolaram Relumal v. State of Bombay : [1955]1SCR158 the observations which were made by the Full Bench for the construction of penal statutes have been approved by their Lordships of the Supreme Court. They quote with approval the aforesaid passage from Lord Macmillan.