RAM CHANDRA Vs. STATE

JUDGEMENT

(1.) The applicant Ram Chandra has been convicted under Sections 7/16, Prevention of Food Adulteration Ac| and sentenced to 14 months' R. I. and a fine of Rs, 1,000/-, in default further R. I. for throe months. It is not disputed that on February 20, 1973 at about 11. 30 A. M. the Food Inspector had taken a sample of Safed Zira from the Kirana shop of the applicant in Muzaf-farnagar town. On analysis this Zira was found to be adulterated because it contained 15 per cent of extraneous matter (0. 3% inorganic extraneous matter and 14. 9% organic extraneous matter but without any foreign edible seeds) as against the prescribed maximum of 7%. The defence of the applicant was that this Zira was not meant for sale as edible Zira and that it was the part left over after cleaning his stock of the Zira. Which continued the dust chaff of the stock (Jraran Phatkan ). The applicant had noted on the Food Inspector's notice in Form 6 the following language: " Yah Zira Khane yogya nahin the aur kisi bhi kam main laya ja sakta, hai. Is Zire ka vazan sirf aik kilo the 30 meri dukan par the is say ziyada koi zira nahin tha. " The Food Inspector in his evidence also admitted that this writing had been placed on Form No. 6 by the applicant at the time of sample taking and that the dealer has also told him (the Food Inspector) that the Zira in question was not fit for human consumption and it could be used for any other purpose because it was the left over bottom part "jharan Phatkan. " The courts below held that the Zira was exposed for sale of the sample to the Food Inspector and, therefore, the applicant was guilty. In revision this finding has been challenged and it has been stressed that unless the article exposed for sale is an article of food no offence can be committed. It is further pointed out that if an article though normally used as food is described as inedible it cannot be regarded as a case of storage or offer for sale of an article of food and, therefore, there can be no offence under Sections 7/16 of the Act in such a case. Reliance has been placed upon Nagar Mahapalika Varanasi v. Rmeshwar (1973 A. C. C. 64. ). That was a case of mustard oil sample which had been described as non-edible by the shop keeper at the time of sample taking. A learned Single Judge of this Court referred to the definition of "adulterated" in Section 2 (i) (a) and held that inasmuch as it was specifically stated by the shop keeper to the Food Inspector that the oil of which sample was taken was non-edible it could not be said that it was not of the nature, substance or quality which it purported or was represented to be within the meaning of Section 2 (i) (a) and on this ground upheld the acquittal. With great respect the case is not that the article in question is adulterated as it will fall within Section 2 (i) (a) but that it will fall within Section 2 (i) (1 ). However under either clause the question whether the article is admitted within the meaning the meaning of Section 2 would defend upon whether the article in question can be regarded as food. Since in the present case the article in question happens to be a primary food the proviso to sub-section (2) of Section 10 of the Act which was introduced by the amending Act 34 of 1976 is of assistance. This bars taking of sample of a primary food by the Food Inspector "if it is not intended for sale as such food". The object obviously is that where primary food is to be sold subject to some further processing the dealer is not to be harassed. This would cover a case where the dealer intends to clean up the article in question before selling it. Legally, therefore, if the dealer is conspicuous that the Zira contains too much extraneous matter because of being the bottom left over portion and tells the customer that in the present state it was not fit for human consumption, the inference is inescapable that it is not intended for sale as food. Therefore, whereas Section 10 (2) forbids the Food Inspector from taking a sample it also fol. lows that in that state it cannot be taken to be a case of exposure of an article of food for sale. The question then becomes a question of fact as to whether the applicant really was not exposing the Zira in that condition for sale. I have my suspicions of the Food Inspector's story on this specially because the note by the applicant uses the past tense that at no less than there places which would be unlikely if the note was being put at the very time of handout over of Form 6. The suspicion arises that this may have been a subsequent interpolation made involution with the Food Inspector. This is a matter that the authorities concerned with the Food 'inspector concerned with his sample Sri B. K. Agarwal, Chief Food Inspector. Mobile, Food Squad, Meerut, will do well to look into but the fact remains that in the present state of evidence even with these suspicions the accused is entitled to get the length or the admissions of the prosecution that he had specifically indicated that the Zira in question being the bottom part was not up to the mark and was not edible. If so, no offence under Section 7/16 can be found to have been committed by the applicant by the storage for sale of this Zira to the Food Inspector with a clear representation of the true position. In the result, the revision succeeds and is allowed. The conviction and sentences of the applicant are set aside. The applicant is on bail and need not surrender. The bail bonds are discharged. .