U H SHAH Vs. ABDULHABIB ABDULMAJEED

JUDGEMENT

(1.) Food Inspector of Surat Municipal Corporation Shri U. H. Shah has filed this appeal against the order passed by the learned Additional Sessions Judge Surat in Criminal Appeal No. 89 of 1973 by which he acquitted respondent No. 1 Abdulwahab Abdulmajeed of the offence under sec. 16 (1) (a) (i) of the Prevention of Food Adulteration Act 1954 (hereinafter referred to as the Act) for contravention of sec. 7 (1) of the Act. He was prosecuted in the Court of the learned Special Judicial Magistrate First Class (Municipal) Surat for having committed the said offence on 15th May 1973 by selling 375 grams adulterated and sub-standard coconut oil to complainant Shri U. H. Shah. He pleaded not guilty to the charge and claimed to be tried. On conclusion of the trial the learned Judicial Magistrate found him guilty of the offence changed against him and sentenced him to undergo R. I. for 9 months and to pay a fine of Rs. 1 500 in default R. I. for 2 months more. There were 2 accused in that case. Respondent No. 1 was accused No. 1. The other accused was acquitted by the learned Judicial Magistrate. He was said to be a partner in the shop of accused No. 1. In this appeal. we are not concerned with the prosecution case against original accused .No. 2.

(2.) Facts of the prosecution case are very short. Appellant-original complainant. Shri U. H. Shah is Food Inspector in Surat Municipal Corporation. Respondent No 1 original accused No. 1 was then running a grocery shop in Surat city. The complainant visited the shop of the accused on 15th May 1973. Under sec. 10 of the Act he purchased 3 samples from the shop of the accused. One was a sample of chillies powder with which we are not concerned in this appeal because the same on analysis was found to be according to the standard prescribed under the Act. He purchased sample of coconut oil weighing 375 grams. He followed the procedure prescribed in sec. 11 of the Act. A panchnama was prepared. One bottle of the sample was given to the accused. The sample was sent to the public analyst. The public analyst on analysis of the sample found that the same was adulterated and sub-standard. Thereupon after obtaining the requisite sanction the complainant filed the complaint in the Court. The defence of the accused was that he was not a dealer in coconut oil. He is running a cycle shop in the same premises. He had kept coconut oil for use in cycle repairing. When the complainant demanded the sample of the coconut oil he told him that the same was not meant for sale as an article of food. He also told him that it was in his possession for repairing the cycles. The complainant insisted for the sample of the same and therefore he was compelled to sell the sample to him. On conclusion of the trial the learned Judicial Magistrate found that the accused sold coconut oil which was an article of food to the complainant. Coconut oil was found to be adulterated and sub-standard and therefore he was proved to have committed an offence under sec. 16. (i) (a) (i) read with sec. 7 (i) of the Act. In the appeal before the learned Additional Sessions Judge it was argued that even if coconut oil was food as defined under the Act the accused did not sell it for human consumption and he was not a dealer in the said articles. It was also argued that supply of the sample by the accused to the complainant did not amount to sale of coconut oil and therefore he could not be said to have committed the offence charged against him. The learned Additional Sessions Judge found that coconut oil was not used for human consumption in the State of Gujarat and therefore it could not be said that it was food as defined under the Act. He further held that even if it was taken to be food as defined under the Act the same was sold to the complainant by the accused with a clear representation that he was not dealing in it and that the same was not meant for human consumption. Therefore he found that the accused could not be said to have sold the article of food as defined under the Act and therefore he could not be convicted of the offence charged against him

(3.) The argument of the appellant before us is that coconut oil is food as defined under the Act. Even if coconut oil is not generally used for human consumption in the State of Gujarat it does not cease to be food as defined under the Act. It is further argued that in fact the accused is a dealer in coconut oil. Even if it is assumed that he is not proved to be a dealer in coconut oil the sale of the sample of coconut oil by him to the complainant is sufficient to prove that he sold coconut oil as required under the Act. Coconut oil on analysis is admittedly found to be adulterated and sub-standard and therefore according to the appellant the offence being complete the learned Additional Sessions Judge erred in acquitting him. Mr. Takwani for the State respondent No. 2 has adopted the arguments advanced by Mr. Adhyaru for the appellant.