PUBLIC PROSECUTOR Vs. RAMACHANDRA RAJU

JUDGEMENT

(1.) This appeal by the State is directed against the order of acquittal passed by the learned II Additional Munsif Magistrate, Kakinada in C.C. No. 908 of 1972 on the file of his court. The facts leading to this appeal are as follows : A-I carries on business in a Kirana shop, known as Price & Co., in Raja Ram Mohan Roy Road, at Kakinada. OB 30-5-1972 at about 12-15 p.m. the Food Inspector, Kakinada (P.W. 1) visited the shop. P.W. 2 who wanted to purchase nut-powder was also at the shop then. P.W. 1 inspected the various articles kept for sale at the shop and suspected the quality of the rcdgram dhall which was in a gunny bag in the midst of several other articles kept for sale at the shop. In the presence of P.W. 2 he offerred to purchase a sample of the red-gram dhall. A 1 stated that the red-gram dhall was not being sold as food for human consumption and that it was being sold only as fodder for cattle, Even so P.W. I purchased a sample of the red-gram dhall after paying the Cost quoted by A-1 and carried out all the necessary formalities in purchasing a sample, with P.W. 2 as the mediator. He divided the sample of red-gram dhall into three equal parts and filled the three parti into three separate bottles. Giving one bottle to the accused he sent one bottle to the Public Analyst and the other bottle to the court. After due analysts, the Public Analyst reported under Ex P. 5 that the sample of red-gram dhall was misbranded in so far as it was found to contain 'an artificial water soluble yellow colouring matter derived from coal-tar'. After receipt of the report of the Public Analyst the" Food Inspector filed a complaint against A-1 as the person who kept for sale the misbranded red-gram dhall and also against A-2 as the owner of the shop on whose behalf A-I was carrying on business Except the allegation that A-2 is the owner of the shop, there was nothing more. The Magistrate discharged A-2 and tried A-1 alone for an offence punishable under sections 16 (1) and 7 read with Sec. 2 (ix), (j) of the Prevention of Food Adulteration Act and Rule 29 of the Prevention of the Food. Adulteration Rules. It was not disputed before the trail court that A-1 was in possession of the misbranded red-gram dhall for sale. Though A-1 disputed having received any price from P.W. 1 for the sample taken by P.W. 1 the trial court held in the light of the evidence of P.Ws. 1 and 2 and the receipt (Ex. P. 2) passed by A-I that A-I sold the sample of misbranded redgram dhall to P.W. 1 for Rs. 1-20 Ps. Relying on a decision of our learned brother Lakshmiah J., in V.S, Chengalrayudu Chetty vs State of A P. (1) wherein it was held that a person commits no offence under the Prevention of Food Adulteration Act if he sells adulterated food declaring to the purchaser that the food was not intended for human consumption, the learned Magistrate acquitted A-1 observing that from the beginning it was the case of accused that red-gram dhall was not intended for human consumption, but was being sold as cattle fodder. The State having preferred an appeal against the order of acquittal of A-I and the sams having come up for hearing before one of us, (Muktadar J) it was felt that when a particular article which could be used for human consumption is kept for sale in a Kirana shop, the mere statement of the vendor that it is not meant for human consumption, cannot absolve him of the liability under the Prevention of Food Adulteration Act. The appeal has therefore been referred to a Bench of two Judges for decision and it is how this appeal is before us now.

(2.) The only question for decision in this appeal therefore, is, whether in a trial for selling or for being in possession for sale of, adulterated or misbranded food can the accused succeed by merely, asserting before the Food Inspector that though the food is ordinarily intended for human consumption he is selling the same not for human consumption but for consumption by animals or for other purposes. To resolve the question, it may be necessary to notice the relevant provisions of the Prevention of Food Adulteration Act, 1954, which will hereinafter be referred to as the Act. 'Preamble.An Act to make provision for the prevention of adulteration of food. Be it enacted by Parliament in the Fifth year of the Republic of India as follows; Section 1 :Short title extent & commencement(1) This Act may be called the Prevention of Food Adulteration Act, 1954. (2) xx xx xx (3) xx xx xx Sec. 2 :DefinitionsIn this Act, unless the context otherwise requires, xx xx xx (v) ''food" means any article is used as food or drink for human consumption other than drugs and water includes (a) any article which ordinarily enters into, or used in the composition or preparation of human food, and (b) any flavouring matter or condiments : XX XX XX (xiii) "sale" with its grammatical variations and cognate expresions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, offer for sale, the exposing for sale, or having in possession for sale of any such article and includes also an attempt to sell any such article ; Sec. 5. Prohibition of import of Certain articles of food: No person shall import into India (i) any adulterated food; (ii) any misbraded food ; (iii) any article of food for the import of which a licence is prescribed, except in accordance with the conditions of the licence ; and (iv) any article of food in contravention of any other provisions of this Act or of any rule made thereunder. Sec. 7 Prohibition of manufacture, sale etct of certain articles of food:No person to all himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food; (ii) any misbranded food; (iii) any article of food, the sale of which a licence is prescribed, except in accordance with the conditions of the licence ; (iv) any article of food, for the sale of which is for the time being prohibited by the Food (Health) Authority in the interests of public health ; or (v) any article of food in contravention of any other provisions of this Act or of any rules made thereunder. Sec. 16. Penalties(1) If any person (a) Whether by himself or by any other person on his behalf imports into India for manufactures for sale, or stores, sells or distributes any article of food (i) Which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) Authority in the interest of Public health; XX XX XX he shall, in addition to penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but which may extend to six years and with a fine which shall not be less than one thousand rupees ; Provided that xx xx Section 19. Defences which may or may not be allowed in prose- eution under this Act

(3.) It would not be difficult for a dealer in sugar to adulterate all the stock of sugar in his shop and inform the Food Inspector when questioned, that the sugar in bis shop is adulterated and is being used only for external application to woundi but not for human consumption. The Act aims rendering unavailable for sale of human food which is adulterated or misbranded or prohibited by the food (Health) Authority in the interests of public health. If an article which is 'ordinarily used as food for human consumption is adulterated or misbranded and such adulterated or misbranded article of food is sold within the meaning of the word" sale' as defined in the Act, the offence is complete. The definition of "sale" in the Act consists of two parts. The first part is an explanatory true definition of the word 'sale". The latter part is an artificial inclusion of transactions which are not normally sales. The Legiflature evidently wanted to make the definition sufficiently comprehensive 30 as to include all possible and conceivable model and purposes of sale. Even sale for analysis, though admittedly not for consumption it a sale. A mere agreement for sale is a sale under the Act. Even the exposing for sale or merely being in possession for a sale of an article of food is considered as sale under the Act. An attempt to sell any article of food is also a sale within the meaning of the Act. The definition is indeed extraordinary and is obviously calcuated to see that the principle involved in the prohibition of any sale is not failed or frustrated by an ingenious vendor. A Full Bench of the Bombay High Court has held in Dhirajilal vs. Ramachandra (I) that the definition of 'sale" in the Act comprised of three modes of sale and four purposes of sale. Speaking for the Full Bench Kotval C.J. observed as follows :