ORDER
1. The question that arises in this petition is whether Katha is included within the meaning of Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and whether Item A-21 of Appendix B of Rule 5 of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules) is ultra views of the Act and the Constitution of India.
2. In this petition under Article 226 of the Constitution of India prayer is made for a writ restraining the respondents. Union of India and the Delhi Municipal Corporation, Delhi, from interfering with the petitioners' trade of Katha (Catechu) and from enforcing the restrictions laid down in Item A-21 of Appendix B under Rule 5 of the Rules framed under the Act.
3. The petitioners are members of the Katha Dealers Association, Delhi and they are commission agents and wholesale merchants of the raw material from which Katha of various qualities for different purposes is manufactured. It is alleged that Katha represents two varieties of catechu derived from the heartwood of the Khair tree and the raw material of Katha is manufactured from those trees. It is also alleged that making Katha fit for edible purposes better qualities of raw material are put into judge quantity of water and boiled and strained through thin cloth. It is this kind of solution which is applied as a paste along with lime on betel leaves used for chewing. It is alleged that Katha is never eaten or consumed as food. It is stated in the petition that the Central Government by means of Notification dated 14-7-1956 added Item A-21 in Appendix B of Rule 5 of the Rulers prescribing the standard laid down for edible Katha. It is stated that the standard prescribed in the said Rules is of the highest possible quality and it is impossible to conform to the standard. It is stated that the respondents have started checking up the stock of Katha witht wholesale dealers and seizing the same if it is not in accordance with the prescribed standard laid down under the Rules. This is said to be in violation of the Fundamental Rights of the petitioners and it is claimed that the Rules are ultra virus of the Act and subarticle (5) or (6) of Article 19 of the Constitution of India. It is also stated in the petiton that Item A-21 in Appendix B of Rule 5 of the Rules hadbeen framed without previous publication and without laying it before the Houses of Parliament as is required by the Act. It is stated that no Katha in the market conforms to the prescribed standard and the tests made by the Public Analyst on some of the samples of Katha are given in annexures P-1 to P-3 to the petition.
4. This writ petition was admitted on 31-1-1961. Along with the said writ petition a stay application namely C.M. 228-D of 1961 was filed. But apparently it was not pressed at the time the mater came up before the Motion bench. Later on C. M. 1451-D of 1961 was filed in which it was stated that the respondents have taken samples of Katha and were threatening to seize stocks of Katha and have also started prosecution of the petitioners. It was stated that the next date of hearing of the case was 17-7-1961 and a prayer was made for restraining the respondens from enforcing the impugned restrictions against the Katha dealers of Delhi and from prosecuting the petitioners. Ex Gosain J., on 17-7-1961. Harbans Singh J on 24-1-1962 confirmed the stay given by Gosain J., and ordered that the main petition be expedited and heard, if possible during February, 1962.
5. Return was filed on behalf of respondent No. 1 i.e., Union of India by Dr. M. S. Chadha, Deputy Director General of Health Servies dated 28-11-1961. It was maintained that Katha and Cutch do not represent two varieties of Catechu derived from heartwood of the Khair tree, Katha is crystallised from the heartwood extract whereas Cutch represents the residual product obtained after Katha is separated. It was stated that Khata is not a raw material and is mainly used by panwalas by only mixing water and making a paste out of it or by straining it and then boiling the residue to a paste. It was maintained that Katha is food or at any rate an adjunct to food. It was stated that the minimum standards of quality for Catechu have been prescribed by the Central Government in exercise of the power vested in them. Vide Clause (b) of sub-section (1) of section 23 of the Act. It was denied that the draft rules regarding the standards of catechu were not published or were not placed before the Parliament. It was specifically stated that the rules regarding the standards of quality were publshed on 14-7-1956 after consultation with the Central Committee of food Standards. The said copies of notifications were laid on the table of the Lok Sabha and the Rajya Sabha on August 3, 1956 and August 5, 1956. It was maintained that the petitioners had not stated the correct facts before this court and the petition was liable to be dismissed on this ground alone. It is stated that the quality of tree does not materially affect the quality of the product. Katha is usually extracted during the winter season and, thereforee, the question of season does not arise. It is strongly maintained that Katha obtained by indigenous process can be as good and pure, if no superior, as the machine made product. It is asserted that the standards prescribed in appendix B of Rule 5 of the Rules are the minimum standards required for Katha whgich form the major bulk of the good quality products in the country. It was denied that the standard was of highest possible quality. Katha sold by the petitioners was food within the meaning of the Act. It was further stated that large stock of heavily adulterated Katha is lying with the petitioners for sale and does not conform to the prescribed standards and that the Government is entitled to enforce the provisions of the Act and the Rules. It is denied that there is any invasion of the Fundamental Rights of the petitioners or that the Rulers were in any case ultra vires. It is also submitted that the Act provides for the cognizance of offence under the Act and the proper remedy for the petitioners is to make a proper defense when the penal action is taken against them.
6. The petitioners also filed C.M. 502-W of 1970 in which certain documents were filed. One of the documents, annexure P-6 was said to have been the report of the sub-committee issued by the Indian Standard Institution. This sub-committee is said to have recommended that there should be three grades of Katha namely grades 1,2 and 3. It was said that this committee was of the opinion that the standard laid down for Katha in the Rules is highly unreasonable and did not relate to the facts as they exist.
7. A reply was filed on behalf of the respondent by Shri D. S. Chadha, Assostant Secretary (P.F.A.), Directorate General of Health Services and it was maintained that Katha entered into human consumption with Pan which is ordinarily taken by human beings. It was also maintained that the sub-committee mentioned by the petitioners is not a sub-committee of the Central Government for food standards but is a sub-committee of the Indian Standard Institution. It was denied that the sub-committee has ever opined that the standard laid down for Katha in the rules is highly unreasonable and did not relate to the facts. It was stated that the method of sampling given in Indian Standard Institution Publication had no relevancy to the case. The method to be adopted for sampling of the food for the prupose of the Act was laid down by the Rules and it is these methods alone which are to be followed.
8. Mr. Bali, the learned counsel for the petitioners raised the following points before me:-
1. That Katha is not a food within the meaning of the Act and hence no prosecution or action can be taken against the petitioners in pursuance of any provisions of the Act and the Rules.
2. That the standards prescribed for Katha are impossible of fulfillment and are unreasonable and, thereforee, standard A-21 of Appendix B of Rule 5 of the Rules is ultra vires.
9. It is necessary to mention that though the petition grievance has been made that the addition of A-21 of Appendix 'B' of Rule 5 of the Rules was bad because it had not been framed after previous publication and after laying it before the Parliament no arguments were addressed by Mr. Bali on this point, and rightly so because there was categorical assertion in the written statement that the draft rules were duly published and were also laid on the table of the Parliament. In view of the fact Mr. Bali did not challenge the virus of the Rules on this ground.
10. Before I deal with the arguments of Mr. Bali it is necessary to reproduce the relevant provisions of the Act and the Rules. Section 2(v) of the Act defines 'Food' as follows:-
'Food, means 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.'
11. Section 7 of the Act reads as follows:-
'No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute:-
(i) ....................
(ii) ....................
(iii) .....................
(iv) ....................
(v) any article of food in contravention of any other provisions of this Act or of any rule made there under.'
12. Section 16 provides for penalties if any person sells or manufactures for sale any article of food which is adulterrated or which is in contravention of any provision of this act or any of the Rules made there under.
13. In exercise of the power conferred by sub-section (2) of Section 4 and sub-section (1) of Section 23 of the Act, the Central Government has framed the Rules known as the Prevention of Food Adulteration Rules, 1955. Rule 5 of the said Rules reads as under:-
'Standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that appendix.'
14. Appendix B to which a reference is made in Rule 5 provides in A-21 the standard prescribed for Catechu and the standard to which it is to conform and is as follows:-
'A-21. Catechu (Edible) shall be the dried aqueous extract prepared from the heartwood of Acacia catechu. It shall be free from infestation, sand, earth or other dirt and shall conform to the following standard:
(a) 5 ml. Of 1 per cent aqueous solution, and 0.1 per cent, solution of ferric ammonium sulphate shall give a dark greem colour, which on the addition of Sodium hydroxide solution shall change to purple
(b) when dried to constant weight at 100 decree C, it shall not lose more than 12 per cent, ofits weight
(c) Water insoluble residue (dried at 100 decree C) shall not be more than 25 per cent by its weight
(d) alcohol insoluble residue in 90 per cent alocohol dried at 100 decree C - not more than 30 per cent by weight
(e) Total ash on dry basis-not more than 8 per cent by weight. (Water insoluble matter shall be determined by boiling water).
(f) Ash insoluble in Hcl not more than 0.5 per cent on dry weight basis.'
15. It is quite clear from the provsions reproduced above that before the petitioners could be prosecuted under the Act and the Rules they must be held to have violated the provisions of the Act and the Rules. Mr. Bali contends that provision of this Act or any of the Rules Katha is not food and, thereforee, the Rule down any standard for Katha. His conmaking authorities should not have laid tention is that if food as defined in the Act does not cover Katha then standard prescribed by A. 21 of Appendix B of Rule 5 of the Rules is ultra virus of the Act and the petitioners, thereforee, could not be proceeded with. His main argument, thereforee, is that Katha is not food as defined in the Act. Mr. Bali submits that an article of food must be an article which is used as a nutrition for the body and it must be a thing which one eats for the development of body. He submits that Katha is not eaten by human beings either as a nourishment or for the strength of the body and it is, thereforee, not food. According to Mr. Bali, the essential criterion to determine whether any article is food or not is to see whether that article is consumed by the human body for one of the two purposes of nutritions or for the stregthening. He has in this connection referred me to a decision of the Supreme Court in State of Bombay v. Virkumar Gulabchand Shah, : 1952CriLJ1406 . But that case in my opinion goes against the contention of Mr. Bali.
In that case the question called for determination was whether Turmeric was 'foodstuff' within the meaning of clause 3 of the Spices (Forward Contracts Prohibition) Order, 1944, read with Section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946. Their Lordships held that keeping in view the object of the legislation Turmeric fell within the definition of 'foodstuff'. It has to be remembered that definition of food is not to be taken in the abstract but it will depend on the contexts and the background whether the definition should be narrow or wide. In the context of the Prevention of Food Adulteration Act, the purpose of which is to prevent adulteration of all articles which are used for human consumption. It would be consistent with the object of the Act to give wider meaning to the definition of Food in the Act. The definition of food alsoin the Act specifically means not only an article used as food or drink but includes any article which ordinarily enters into or is used for the composition or preparation of human food. This definition supports the respondents' contention that in order that an article should be food within the meaning of the Act it is not essential that it must be an article which is consumed by human being as such. It would still be food within the meaning of the Act if this article enters into the prepartion of human food. Admittedly Katha by itself is not an article which is consumed by human being but it cannot be denied that Katha is an extremely important and essential component of Pan. No one can deny that Pan is taken by lakhs of people in our country, and Katha which is an essential competent cannot, thereforee, be held to be other than food. According to Mr. Bali, simply because Katha is not taken by human being separately it cannot be said to be food within the meaning of the Act, but it is not the correct way of looking at the things, as Supreme Court said in the case referred to above:
'Even in a popular sense, when one asks another, 'Have you had your food?' one means the composite preparations which normally go to constitute a mealcurry and rice, sweetmeats, pudding, cooked vegetables and so forth. One does not usually think separately of the different preparations which enter into their making, of the various condiments and spices and vitamins, any more than one would think of separating in his mind the purely nutritive elements of what is eaten from their non-nutritive adjuncts.
So also, looked at from another point of view, the various adjuncts of what I may term food proper which enter into its preparation for human consumption in order to make it palatable and nutritive can hardly be separated from the purely nutritive elements if the effect of their absence would be to render the particular commodity in its finished state unsavoury and indigestible to a whole class of persons whose stomachs are accustomed to a more spicely prepared product.'
16. The definition of food specifically mentions that even those articles which are used in the preparation of articles are to be considered as article of food. The mere fact, thereforee, that Katha by itself is not consumed by human being is not determinative of the matter, Katha is admittedly used in composition of Pan and, thereforee, would be governed by the definition of food given in Section 2(v) of the Act. To constitute food what has to be seen is whether the article in question is usable and enters into the composition or preparation of food which is taken by human beings. The definition is worded in a very wide language and would goven any article which enters into the composition or preparation of human food and would cover any flavouring matter and condiments. In Sainsbury v. Saunders, (1918) 88 Ljkb 441 the question that came up for consideration was whether tea was food. The question was whether tea would be food within the meaning of the expressions used in certain provisions of defense of the Realm Regulations read with the New Ministries and Secretaries Act of 1916 which empowered the Food Controller to regulate 'the food supply of the country' and the 'supply and consumption and production of food'. Avory J., held that tea comes within the expression of food as used in statute and in regulation, Salter J., also agreed that tea was food within the meaning of the Act of 1916. Now it would be seen that tea by itself is not consumed by human beings. It is not food in the sense that it is not nutritious nor will it add to the amount of tissues in the body of the person who drink it nor can a person live onit. Thus the test which Mr. Bali propounds that an article in order to be found must be one which is nutritious or helps in developing the tissues of the body of human being inapplicable in the case of tea and yet learned Judges Avory and Salter JJ., held that tea was food. I cannot see any distinction in the proposition why on a parity of reasoning katha should not be held to be food within the meaning of the Act. Mr. Bali also referred to the definition of Katha as given in the Wealth of India, a Dictionary of India Raw materials and Industrial Products which is as follows:-
'Cutch has long been used in Indian medicine. According to Dymock, warden and Hooper, (1,557), Sanskrit writers mention two varieties, dark and pale. The latter is Katha, the medical variety Katha is regarded as astringent, cooling and digestive, useful in relaxed conditions of the throat, mouth and gums also in cough and diarrhoea. Externally it is employed as an astringent andas a cooling application to ulcers, boils and eruptions on the skin. Katha also enters into a number of compund perparations and a few prescriptions are given by Birdwood (50).
It is an indispensible ingredient of pan preparations. In combination with lime, it gives the characteristic red colouration resulting from the chewing of pan. Continued use is said to cause blackening of teeth.'
17. This definition also mentions that Katha is an indispensible ingredient of Pan preparation. It is thus obvious that this definition does not advance the argument of Mr. Bali on this point. It cannot, thereforee, be accepted that simply because Katha is not taken as an edible article, it cannot amount to food. This way of defining the term food was not accepted in the case reported as James v. Jones (1894) 1 Qb 304 where Hawkins J., held as follows:-
'We do not, however, in anything we have said intend to convey it as our opinion that nothing can be deemed to be an article of food unless it be made up into an eatable or drinkable form and fit for immediate use, for we have no doubt that the subtantial and requisite materials for making and which are to form part of the unadulterated article whn made, e.g., flour, butter, salt, mustard, pepper & C are articles of food; for though nobody would ordinarily dream of eating them alone, yet they are articles intended to form substantial components of articles of food, or to be eaten as adjuncts thereto.'
18. I may also mention that it has been held in Chitar Mal v. State, Air 1955 Nuc (All) 169 that 'Definition of food is wide enough to include Katha as article of fod'. Within the meaning of Section 2 of U.P. Prevention of Adulteration Act (6 of 1912).
19. The first contention of Mr. Bali, thereforee, is devoid of merits and is rejected.
20. The second contention of Mr. Bali was that the standards prescribed in A.21 of Appendix B of Rule 5 of the Rules are impossible of attainment and the Rule must be held to be ultra vires. It was not, however, made clear how the said Rule was said to be impossible of fulfillment. All that was suggested was that Katha is mainly prepared by indigenous method. The standards laid down cannot be attained and if these standards are to be held to apply then many persons who are earning their livelihood by manufacturing Katha by indigenous method will be thrown out. One answer to this contention is that the present wrti petition has been brought by persons who are dealers and not by those who are engaged in the manufacture of Katha. They, thereforee, cannot make a greivance, if any, which is concerning those persons who are engaged in the manufacture of Katha. That apart it has beenspecifically denied in the returns that the standard prescribed in the Rules and Appendix by indigenous method does not mean that the prescribed standard cannot be fulfillled. No material has been placed on record by the petitioners in any way to substantiate this bald contention. In the absence of that thereforee it cannot be held that the standard prescribed in A-21 of Appendix B of Rules 5 of the Rules is in any manner unreasonable restriction on the rights of the petitioners to carry on their trade.
In this connection it is well to remember that the petitioners are stated to be prosecuted for violation of the Rules and it will always be open to them in the appropriate proceedings to show by evidence that the standard prescribed is impossible of performance. In the absense of any material on record it is not possible to hold that the standard prescribed is unreasonable or very high. The petitioners had filed along with theri petition annexures P-1 to P-3 to show the report that the pubilc analyst had found from some of the tests that he made of Katha obtained from the market that it was adulterated. Those have been filed by the petitioners with a view to show that not only the katha dealt with by the petitioners but the Katha found in the market was adulterated and this with a view to support their case that the standard prescribed was unreasonable. The petitioners had also filed annexure P-6 along with C.M. 502-W/ of 1970 which was said to be a report of the sub-committee issued by the Indian Standard Institution which sub-committee had recommended three grades of the Katha. A reference to P-6 and the relevant portion will show that table 1 shows that requirements for katha for grade 1, grade 2 and grade 3 and lays down different characteristics that it should possess. Report P-1 shows that it is said to be adulterated dur to excess of moisture by 4.3% and excess of ash insoluble in Hudrochloric act by 0.84% Similarly P.2 is said to be adulterated due to 1.2% excess of ash insoluble in Hydrochloric act, and P. 3 is said to be adulterated due to excess of 1.2% ash insoluble in hydrochloric act. The standard by which it has been judged is laid down in A.21 of Appendix B of Rule 5 of the Rules as reproduced above. It reference is made to P6 the documents filed by the petitioners it will be seen that the requirements laid down for grades 1, 2 and 3 in item No. 1 are 12% on drying by weight. This corresponds to what is given by Cl (b) of A. 21. Similarly Item 6 of page 6 of P.6 gives the requirement of acid insoluble ash percent by weight as 0.5 for grade 1 and 0.5 for both grades 2 and 3. A comparison of Cl (f) of A. 21 will show that 0.5% is given there as being common to all grades. This comparison willshow that of these two items the standard laid down in A. 21 is almost similar to the standard which according to the petitioners has been suggested by the sub-committee of Indian Standard Institution. It is quite obvious, thereforee, that if a sub-committee in which the petitioners have faith has itself recommended the standards for some of the characteristics for Katha in almost similar terms as laid down in A. 21, the challenge to the said Rules as being unreasonable and impossible of attainment is futile and without any justification. Mr. Bali was not able to give any cogent reason how the said Rule A-21 can be considered to be ultra vires. Challenge to this ground also fails.
21. The result is that there is no merit in the petition and the same is, thereforee dismissed with costs. The prosecution had been stayed for all these years and the counsel for the parties have not been able to tell me in which court the prosecutions are pending. I, thereforee, thought it proper to direct the parties through their counsel to appear before the Chief Judicial Magistrate on 15-5-1970.
22. Petition dismissed.