NANDLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition has been filed under Section 397 read with Section 401, Code of Criminal Procedure, 1973 (hereinafter referr-ed to as 'the Code') against the judgment of the Additional Sessions Judge, Nagaur dated February 27, 1981, confirming the conviction and sentence of the accused-petitioner under Section 16, Food Adulteration Act (hereinafter referred to as 'the Act') read with Rule 50, Prevention of Food Adulteration Rules (hereinafter referred to as 'the Rules' ). The facts of the case giving rise to this revision petition may be summarised thus.

(2.) ON December 29, 1976, the Food Inspector, Deedwana, Shri H. K. Vishnoi P. W. 1 inspected the oil mill of the petitioner situated at Kuchaman Road, Deedwana. He took a sample of the til oil for analysis. He also found that the petitioner was running his business without any licence required under Rule 50 of the Rules. ON analysis, the sample of oil was found not conforming to the prescribed standard of purity. Two complaints were filed in the court of Munsif-cum-Judicial Magistrate, Deedwana against the petitioner and Shanker-lal. The first complaint pertained to the sale of adulterated til oil and the second complaint related to the violation of the Rule 50 of the Rules. The trial court convicted the accused petitioner in both the cases and passed the sentences. Co-accused Shankerlal was acquitted. Appeals were filed against both the judgments. Appeal pertaining to the conviction of earring on business without licence has been dismissed by the learned Additional Sessions Judge, Nagaur by his judg-ment dated February 27, 1981 which has been challenged in this revision petition. It is said that the appeal against the conviction and sentence for manufacturing and selling adulterated til oil is still pending in the court of the Additional Sessions Judge, Nagaur.

(3.) THERE is a great force in the contention of the learned counsel for the accused-petitioner that after filing of the first complaint under Sec. 16 read with Sec. 7 of the Act for manufacturing, storing and selling adulterated oil, the second complaint under Sec. 16 of the Act read with Rule 50 of the Rules was not maintainable. It has been observed in Vasudeo Bhat, Food Inspector v. Ganpat (supra) as under: - "4. Now, sections 16 (1) (a) (i) and (ii) read as under: - 16. (1) If any person - (a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores, sells or distributes any article of food - (i) which is adulterated or mis-branded or the sale of which is prohibited by the Food (Health) authority in the interest of public health. (ii) other than an article of food referred to in sub-clause (i), in contrav-ention of any provisions of this Act or of any of the provisions of this Act or of any rule made thereunder. " A person can be convicted under section 16 (1) (a) (ii) of the Act if two conditions are satisfied. Firstly, that person should be importing, manufactur-ing, for sale or storing, selling or distributing any article of food other than article of food referred to in sub-clause (i) of section 16 (1) (a ). Secondly, the act should be in contravention of the provisions of the Act or the rules made thereunder. Unless both these conditions are satisfied, a person cannot be held guilty under section 16 (1) (a) (i) of the Act. Now, in the instant cases, the aforesaid respondents are proved to have sold adulterated milk, an article of food referred to in sub-clause (i) of section 16 (1) (a ). The fact that adulterated milk is also considered to be an article of food is clear from a perusal of the provisions of section 7 of the Act. That section reads as under - Prohibition of manufacture, sale etc. of certain articles of food. "7. No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute- (i) any adulterated food, (ii) any mis-branded food, (iii) any article of food for the sale of which a licence is prescribed except in accordance with the conditions of the licence, (iv) any article of food the sale of which is for the time being prohibited by the Food (Health) authority in the interest of public health, or (v) any article of food in contravention of any other provision of this Act or any rule made thereunder. " It is thus clear in the scheme of the Act adulterated milk is also an article of food. It is an article of food referred to in sub-clause (i) of section 16 (1) (a) of the Act. THEREfore, in a case where a person is prosecuted for selling adulterated milk, even though the sale may be in contravention of the rules under the Act as no licence, as required by the rules, is obtained, the first condition for the applicability of section 16 (1) (a) (ii) of the Act is not satisfied. Such a person is liable to be dealt with under section 16 (l) (a) (i) of the Act, but not under sub-clause (ii) of section 16 (1) (a) of the Act. THERE is therefore, no reason to interfere with the orders of acquittal. Similar views have been taken in M. C. D. v. Darshan Kumar and State, (supra) and Mohammad Ali v. State of U. P. (supra ). On this ground alone, the accused deserves to be acquitted.