SHYAM LAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THE applicant has been convicted under Section 7/16 of the Prevention of Food Adulteration Act and sentenced to 6 months' R. I., and a fine of Rs. 1000/-. His conviction and sentence has been maintained in appeal by the Sessions Judge, Fatehpur. Hence this revision. THE prosecution case is that the Food Inspector purchased a sample of Mustard oil from the shop of the applicant on 7th August, 1977 in accordance with the formalities prescribed by law. One of the sample phial was sent for analysis. THE report of the Public Analyst disclosed that it was mixed with linseed oil to the extent of 5 per cent. After obtaining sanction, the applicant has been prosecuted and convicted as above. I have heard learned counsel for the applicant and have perused the impugned orders and the record of the case. Learned counsel contends that a mixture of linseed oil to the extent of 5 per cent in Mustard oil would not constitute adulteration, as both the oils were edible oils and were not harmful to health. In support of his contention, he has relied upon a Single Judge decision of this Court by Hon'ble K.B. Asthana J., as he then was in Ayodhya Prasad v. State, 1977 A.W.C. 196. It appears that the above quoted decision was referred to a Division Bench in Criminal Revision No. 1284 of 1977. Badri Prasad v. State, Bro thers, S. Malik and M. P. Saxena JJ, after considering the effect of Rule 44 (e) of the Prevention of Food Adulteration Rules, came to the conclusion that even the sale of an admixture of edible oils contravenes Section 7 (v) of the Act, read with Rule 44 (e) and is punishable under Section 16 of the Prevention of Food Adulteration Act. THE Division Bench thus overruled the decision of the single Judge. But from a careful perusal of the decision of the Division Bench, I find that certain observations have been made therein to indicate that Mustard oil and Linseed oil being articles of primary food, and a mixture of both these oils loot being injurious to health, such a mixture of these two oils would not be deemed to be adulterated provided it is sold as a mixture of Mustard oil and Linseed oil THE Division Bench has further gone to observe that the mixture of other edible oil with Mustard oil upto a limit of 7 per cent is permissible in law in view of Rule 5 and Items A 17.06 and A.05J5 appearing in Appendix 'B' of the Rules...THEy have further observed that the mixture of edible oil upto a limit of 7 per cent with Mustard oil can be said to be permissible keeping in view the standard laid down for purity of Mustard Seeds in these Rules. In the end they have also observed that even if the admixure of other edible oils does not exceed 7 per cent, the Mustard oil must conform to the standard laid down in Item No. A 17.06 in Appendix 'B' of the Rules. With all deference to the view expressed by the Division Bench, I am unable to agree with observations that Mustard oil and Linseed oil being articles of primary food, their mixture would not be deemed to be adulterated provided it is sold as a mixture of Mustard oil and Linseed oil. Primary food has been defined in Section 2 (xii-a) of the Prevention of Food Adulteration Act. It means any article of food being a produce of agriculture or horticulture in its natural form. Mustard oil or Linseed oil are not the produce of agriculture in its natural form. THEse oils are extracted from seeds, and therefore, they are not covered by the definition of primary food. THE explanation to Section 2 below the proviso to sub section (m) of Section 2 applies in those cases, where two or more articles of primary food are mixed together and the resultant article of such primary food is sold under a name, which denotes its ingredients and is not injurious to health, then such resultant article would not be deemed to be adulterated. For these reasons, I am unable to agree with the observations of the Division Bench. I am also unable to agree with the observations of my brother Judges that the mixture of other edible oil with Mustard oil up to a limit of 7 per cent is permissible in law. In view of item Nos. A.17.06 and A.05.15 appearing in Appendix B of the Rules. As I have mentioned above, mustard oil is extracted from Mustard seeds. It has to undergo a physical or a mechanical process before it can be reduced from its natural form of seeds to liquid oil. Item No. A 17.06 has laid down the standard to which mustard oil must conform. If it falls below the standard, it must be deemed to be adulterated under Section 2 (ia) (a) of the Prevention of Food Adulteration Act, even though the Mustard oil may not contain any mixture of any other edible oils. If the mustard oil conforms to the standard laid down in item No. A.17.06, but it also contains a mixture of another edible oil, even then such an article would be deemed to infringe Rule 44 (e) of the Prevention of Food Adulteration Act. Rules, which prohibits a mixture of two or more edi- ble'oils as an edible oil. This is irrespective of fact whether the constituents of each of the admixed oils taken independently conforms to the standard prescribed under the Rules. Rule 44 totally prohibits a mixture of two edible oils and therefore, if they are so mixed, it shall be deemed to be an infringement of Rule 44, which would be covered by Section 7 (v) of the Prevention of Food Adulteration Act. Section 7 (v) prohibits any person from selling any article of food in contravention of any other provision of the Act or of any Rule made there under. Such an infringement would be clearly punishable under Section 16 (1) (a) of the Prevention of Food Adulteration Act. Item No. A.05.13 refers to Mustard whole meaning thereby dried seeds of Brassica alba etc. Having regard to the definition of primary food, referred to above, Mustard seeds would be covered therein, since it is the produce of agriculture in its natural form, THErefore, if in such Mustard seeds, there is a mixture of extraneous matters, organic or inorganic, to the extent of 7 per cent only, such an impurity has been permitted to that extent only. This latitude which has been provided under item No. A.06.15 to a primary food cannot be made applicable to item No. A-1706 viz. Mustard oil which is not an item of primary food. THErefore, if Mustard oil conti ins impurity and does not conform to the standard laid down in item No. A. 17,(6, such an impurity cannot be condoned and the offence of adulteration would be complete rendering the adulterator liable to prosecution and conviction under Sections 7/16 of the Prevention of Food Adulteration Act. In view of this difference of opinion, which I have expressed above, I would have directed this case to be referred to a larger bench for considera tion of these questions, but I do not think it necessary in the instant case because the limited question with which I am directly concerned in this revision is whether a mixture of Mustard oil and Linseed oil in breach of Rule 44 amounts to an offence under Sections 7/16 of the Prevention of Food Adulteration Act. On that point the Division Bench has overruled the decision of the Single Judge and has clearly held that it does amount to an offence. la the instant case, therefore, I have no hesitation in holding that the Courts below have correctly held the accused guilty of the offence in question. THE sample of Mustard oil which has been found to be adulterated was taken from the shop of the applicant on 7th August, 1977. THE minimum sentence that has been provided after the Amendment Act No. 34 of 1976, came into force is six months' R. I and a fine of Rs. 1000/-. This Court is not empowered to interfere with the minimum sentence except under the proviso to Section 16 which is not applicable to the facts of this case. In the result, therefore, this revision application fails and is hereby dismissed. THE applicant is on bail. He shall be taken into custody forthwith to serve out the unexpired portion of the sentence of imprisonment.