T.N. Singh, J.
1. For adulterating 'jeera' (cumin) the petitioners were convicted Under Section 16 of Prevention of Food Adulteration Act, 1954, for short, the Act, and sentenced to undergo R. I. for 6 months and to pay a' fine of Rs. 1,000/-, in default further term of imprisonment of 2 months in each case. Second petitioner, Swadesh Ch. Saha, is the proprietor of M/s Saha & Sons in whose shop the first petitioner was employed as a salesman at the relevant time. Both of them appealed to the Court of Session against their convictions and sentences and having failed therein have come to this Court.
2. Briefly stated prosecution's story is that on 28-6-77 the Area Food Inspector (P.W. 1) visited the grocery shop of M/s Saha & Sons and purchased 900 grams of 'jeera' which was kept in the shop for sale. He complied with the legal requirements prescribed in this behalf in doing so and in due course the sample was sent to Public Analyst for report after complying with the formalities prescribed by law. After the report (Ex. 4) was received and it appeared that the sample did not conform to the prescribed standard and was adulterated, prosecution was launched. In the course of trial 3 witnesses were examined on behalf of the prosecution while the first petitioner Narayan examined himself as a defence witness and took the plea that the sample of 'jeera' sent for analysis was not meant for sale. Learned Magistrate rejected the defence plea and on consideration of the evidence held that prosecution had established the offence against the petitioners of selling adulterated 'jeera' and accordingly convicted them.
3. Before the learned Sessions Judge, in appeal, trial court's appreciation of evidence bearing on the defence plea was challeged. It was first contended that P.W. 3 had himself admitted the fact that 'jeera' was kept in the shop in two containers, in one clean and in the other sub-standard and that the Food Inspector (P.W. 1) insisted on purchasing the substandard 'jeera' despite being told by the first petitioner that the same was not meant for sale. It was also contended that the commodity ('jeera') being a primary food as defined in Section 2(xii)(a) of the Act the prosecution had to prove in terms of proviso to Clause (m) of Section 2(i)(a) that fall in the quality or purity of the article below the prescribed standard was 'solely due to natural causes and beyond the control of human agency'. Another objection taken in the court below was that the copy of the report of the Public Analyst served on the petitioners was incomplete and on the basis thereof no offence was made out against the petitioners. Learned Sessions Judge rejected all the contentions in dismissing the appeal and confirmed the findings of fact recorded by the trial court on a reappreciation of evidence of P.Ws. 1 and 3 on which reliance was placed by the petitioners in support of their contentions.
4. Learned Counsel for the petitioners, Mr. J. P. Bhattacharjee, has reiterated all the objections taken in the Court below and assailed the legality of the convictions on those grounds as also some others. He has mainly challenged the conclusion of learned Sessions Judge that an article which was otherwise a 'primary food' lost its character as such when came into the possession of a seller or manufacturer. He further submitted that although it was not urged in the Courts below as a point of law he was entitled to submit that the report (Ex. 4) having failed to state the variation in terms of the standard prescribed under the Rules offence against the petitioners cannot be said to have been proved beyond reasonable doubt.
5. However, the important point of law urged before me by Mr. Bhattachrjee, centres around the interpretation of the proviso to Sub-section (2) of Section 10 on which, submits learned Counsel, prosecution must founder and fail. I propose, therefore, to examine first the foundational contention. Indeed, it is necessary to do so as, according to Mr. Bhattacharjee, the Courts below failed to appreciate the change in law brought about by the amendment of the Act in 1976 which introduced for the first time in the Act the concept of 'primary food'. I should therefore, examine, implores leanred counsel, not only the aforesaid proviso in isolation but also the other provisions which were introduced into in Act 1976. Law was made, submits learned Counsel, more rational and realistic by introduction of the concept of 'primary food' when other necessary safeguards appurtenant thereto were also introduced to eschew abuse of the provision to check corruption. There is no doubt about it. Indeed, in the report of the Joint Committee of the Parliament, to which the amendatory bill was referred, this object is clearly spelt out. In its note in Clause (2) of the Bill the Committee noted that representations were received by it stating that a primary food which became sub-standard on account of natural causes but was not injurious to health should not be treated as adulterated. Observations also appeared in its report, in dealing with Clause (8) of the Bill, that representations were made to it complaining harassment by Food Inspectors in the matter of taking sample and that power given to him was used to his advantage. Accordingly, it suggested several changes in the Bill and in the Act we find reflection thereof.
6. Sub-section (ia) of Section 2 defines the term 'adulternated' and states that an article of food shall be deemed to be adulterated under certain contingencies and conditions which are mentioned in Clauses (a) to (m) thereof. We are concerned in this case particularly with Clause (1) which was amended and Clause (m) which was inserted in 1976 for the first time. I may indicate in the new Clause (1) extracted below, the expression under lined was not to be found in the old provision.
(1) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health;
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human, agency, then such article shall not be deemed to be adulterated within the meaning of this sub-clause.
Explanation -- Where two or more articles of primary food aremixedtogether and theresultant articleof food
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause.
7. The expression 'primary food' is defined in Section 2(xii-a) to mean 'any article of food being a produce of Agriculture or Horticulture in its natural form'. Although the term 'sale' defined in Clause (xiii) of Section 2 did not undergo any change let the same be also extracted for appreciating the conentions raised in this case:
(xiii) 'sale' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or 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, an 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:
The word 'sample' is defined in Clause (xiv) to mean a sample 'of any article of food taken under the provisions of this Act or any rule made thereunder'. While 'food' defined albeit inclusively in Clause (v) means categorically 'any article of food used as food or drink for human consumption other than drugs and water.
Now I quote the relevant portions from the key provsion:
10. Powers of Food Inspectors-- (1) A food inspector shall have power:
(a) to take samples of any article of food from--
(i) any person selling such article:
(ii) and (iii) ** ** **
(b) to send such sample for analysis to the public analyst for the local area within which such sample has been taken.
(c) ** ** **
(2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samplesof such article of food or adulterant from analysis:
Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food.
8. Was the prosecution still-born? Learned Counsel contends that burden lay on the prosecution to prove that the smaple of 'jeera' taken from petitioner's shop by the Food Inspector (PW. 1) was 'intended for sale' by the petitioners. The Food Inspector could take sample of only such 'primary food' as was 'intended for sale' by the accused. If the sample was taken of such food which was 'not intended for sale' by the accused the entire prosecution was vitiated as the proviso to Section 10(2) debarred taking of such sample and the said sample could not be sent for analysis for obtaining report of the Public Analyst to initiate prosecution. In other words, prosecution must prove that accused was such a person who 'intended' to sell the primary food of which sample was taken by the Food Inspector who was authorised by the proviso to take sample only from such a person.
9. Learned Counsel relied on the decision in Municipal Corporation of Delhi v. Laxmi Narain Tandon : 1976CriLJ547 , in support of his contention. However, I am not impressed by the argument advanced that Section 10 impinges on the jurisdictional competence of the Court to take cognizance of the offence and in any way affects the legality of the prosecution. The penal provision of Section 7 and the punishment for different kinds of offences committed under the Act are dealt with in Section 16. Any person who himself or by any other person on his behalf manufactures for sale or stores, sells or distributes any adulterated food or any misbranded food or carries on any of the other activites prohibited thereunder, commits an offence under the Act and is punishable in terms of Section 16 which prescribes different punishments for different species of the offences. That the chief ingredient of the offence in case of adulterated or misbranded food is 'sale' which the prosecution must prove, is itself projected in L. N. Tandon (supra). It is true that according to Clause (xiii) of Section 2 sale for 'analysis' made to a Food Inspector will be a 'sale' within the meaning of Section 7. It is also true that Section 10(1) empowers the Pood Inspectors to take and to send the sample obtained Under Section 2(xiii) for analysis to the Public Analyst However, it appears to me that if he obtains sample in violation of any of the mandates of Section 10 the sample so obtained merely assumes the character of tainted evidence being procured illegally. The probative value or admissibility whereof only the Court will be required to consider in the facts and circumstances of the case in the context of the other relevant statutory provisions. As in England, so in India, unlike in the U. S. A., the doctrine of fruit of poisoned tree manifesting the 'exclusionary rule' is not applicable. This Court had an occasion to deal with this aspect of the law in Uma Shankar Upadhaya's case, Criminal Revn. No. 10/78 decided on 24-1-83 - see (1983) 1 Gauhati LR NOC 30. It is true that in L. N. Tandon 1976 Cri LJ 547 (SC) (supra), in dealing with the scope of Section 10 their Lordships observed at para 14 of the report that the Food Inspector was authorised to take sample of an article of food only from particular persons indulging in a specified course of business activity but it was also held that 'the immediate or ultimate end of such activity is the sale of an article of food'. Although Mr. Bhattacharjee relied on the first part of the observation, I have no doubt that this decision does not support the proposition canvassed because the second part of the observation (indicated in double quotation) makes clear what their Lordships meant to say. The question answered by them was that 'storing for sale' and not 'storing' simpliciter was offensive. Reference was made to Section 10 to construe the terms used in Sections 7 and 16 of the Act.
10. Viewing the matter from another angle on a plain reading of Sub-section (2) and its proviso, of Section 10, I have no hesitation to hold that the proviso in question does not speak of the character of the person from whom sample is taken as it refers explicitly to the character of the food of which sample is taken which conclusion is buttressed by the object of the provision and its context and setting. Because, Sub-section (1) authorises vide. Clause (a)(i) to take sample from 'any person' selling the article, a different purpose is achieved by Sub-section (2). What is authorised by Sub-section (2) is to enable • the Food Inspector to enter the particular place described therein. It is the statutory authority enabling him to enter the particular place and of course for the particular purpose of taking 'samples' with the particular object of 'analysis'. The proviso refers merely to a specified category of such food, namely, a 'primary food' which is'not intended for sale as such food'. If the Food Inspector conterriplates taking sample of the particular category of food envisaged under the proviso he must, in accordance with Section 11, make his intention clear to the vendor that he was taking sample of the primary food concerned assuming the same to be 'intended for sale as such food'. Because, in such a case the vendor shall have the opportunity to state that the concerned item of primary food of which the Food Inspector proposed to take sample was not 'intended for sale as such food'.The key expression, in my opinion, are the words 'as such food' in which legislative intent is vocally projected. Such construction on the proviso has to be placed, according to me, as will allow other relevant provisions of the Act to operate and not to become otiose. Therefore, the provision of Section 12 which empowers any purchaser'other than a Food Inspector to have the food analysed must also be seen. In such a case, Section 10(2) and the proviso for that matter, does not at all operate and Section 12 shall be rendered impotent if prosecution, on the basis of a report received from the Public Analyst pursuant to 'analysis' made Under Section 12, is denied. Further, it must also be noted that liability to prosecution arises Under Section 7 while Section 20 deals with the provision of 'cognizance and trial of offences' while Section 17 concerns 'offences by companies'. On the other hand, Sections 10 and 11. do not deal either with the jurisdiction of the court or with the character of the offender. According to me the later provisions merely inhere procedural safeguards and do not control Section 7 or 20. In each case, therefore, the Court shall be entitled to decide on the basis of evidence the question of breach thereof when raised by the accused. In Banwarilal, 11984) 2 Gauhati LR 320 : 1985 Cri LJ 1148, this Court took the view that Section 17 controls Section 7. and therefore strict compliance with the former must be regarded as a jurisdictional requirement. I have no doubt that proviso to Section 10(2) as in the case of Section 11, inheres merely a procedural safeguard and as such if infringement is complained, on the evidence recorded the court must see whether it so happened. It carries no jurisdictional requirement. The first contention of Mr. Bhattacharjee must, therefore, fail. I hold that the prosecution in the instant case was not still-born.
11. Another equally forceful contention of Mr. Bhattacharjee deserves consideration with which I propose to deal now. His submission is that the proviso to Clause (m) of Section 2(ia), though fashioned as a proviso, embraced a substantive provision dealing only with adulteration of 'primary food'. In other words, learned Counsel submits, it should be read as Clause (n) though the draftsman has not done so. Therefore, submits learned Counsel, like Clauses (a) to (m) which create distinct offences, in the case of proviso also it would be so considered and the burden will accordingly lie on the prosecution to prove all the ingredients of the offence which have to be culled out from reading merely the said proviso. In the instant case, Mr. Bhattacharjee submits, prosecution failed to prove that the 'jeera' in question was 'adulterated' as it did not conform to the prescribed standard (A. 05.09) and the fall in standard was not 'solely due to natural causes and beyond the control of human agency'. To support his submission he invoked the aid of the proviso (1) to Section 16(1) which reads as follows:
(i) if the offence is under sub-clause (i) of Clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of Sub-clause (k) of Clauses (i) and (x) of Section 2:
Indeed, this question caused me some anxiety and Mr. Bhattcharjee also conceded that there were some decisions which countered his contention. Accordingly, I invited learned Advocate General, Assam, to assist the court in view of the importance of the question raised to which he responded readily and rendered valuable assistance in the matter. 1 would like to express my appreciation of the painstaking effort of learned Advocate General in this regard. Indeed, I had taken the view, in State of Assam v. Puranand 1985 Cri LJ 46 : (1984)2 Gauhati LR 61, in construing a provision of the Rules framed under the Act, that the Act being a measure enacted to protect public health its provisions are not to be construed pedantically in a manner as may make it impossible to secure the conviction thereunder. Because, according to me, the Act fulfils the mandate of Article 47 and the Court is obligated to construe the provision according to primacy to the mandate adopting the Directive Principles as laying down the constitutionality entrenched Rules of Interpretation.
12. Learned Counsel fairly placed before me the decisions which negatived his contention. In two decisions of the Kerala High Court the view taken was that the proviso to Clause (m) of Section 21(1) of the Act was in the nature of an exception and it was for the defence to establish the exception. This was so stated by the leanred single Judge of the said Court in (1981) 1 FAC 362 : 1981 Cri LJ 528 (Ker), C. Janardhanam v. A. Mohammadkunju, which view was adopted by another learned single Judge of the same Court in (1982) 2 FAC 205 : 1982 Cri LJ 170 (Ker), M. Rajan v. Food Inspector. Mr. Bhattacharjee is right in contending that in Kerala decisions no notice was taken of previso (i) to Section 16(1) of the Act. That apart, he also rightly contends that no arguments at all were advanced before their Lordships in those cases that the proviso in question should be read not as a proviso but as a substantive provision. Indeed, no reasons are to be found in both the judgments to indicate why it was considered as a 'proviso' and therefore as an exception. My attention was also drawn by Mr. Bhattacharjee to a Bench decision of Punjab and Haryana High Court reported in (1982) 2 FAC 167 : 1982 Cri LJ 1370, State of Haryana v. Rama Nand. Therein also no contention similar to that advanced before me by Mr. Bhattacharjee was pressed for the consideration of the Court. Still, Mr. Bhattacharjee relies on the observations of their Lordships that the Parliament in its wisdom by causing the. amendment in 1976 considered it proper to place 'primary food at a different level for the purpose of the Act'. It was also observed that the proviso in question made it abundantly clear that primary food which was non-injurious to health but substandard due to natural causes and beyond the control of human agency had been totally exempted from the purview of the Act. herein, however, it appears, that notice was taken of proviso (i) to Section 16(1) and on that footing it was observed that primary food, which was non-injurious to health, but adulterated by human agency, attracted a lesser punishment.
13. At one stage it appeared to me also I confess, that 1976 amendment sought to make a distinction between what I would call processed food' and 'primary food' which the legislature have therefore then defined. But considering the matter in greater detail I have taken the view ultimately that Clause (m) and its proviso were not mutually exclusive and for that matter it cannot be said that Clauses (i) and (m) deal with cases of 'processed food while the proviso took care of the 'primary food'. In reaching this conclusion I read the proviso in its setting and context to define its object in the backdrop of other amendments simultaneously brought in by the legislature in 1976 as also the consequential measures adopted pursuant thereto. Such an exercise accords with established canons --contemporanea exposito and ex viscaritus actus of hallowed and universal currency. As it is permissible to me to consider the Joint Committes' report as 'surrounding circumstances' bearing on the amendatory process, I have already referred thereto. Proceeding thus I ceased to have any doubt why the term 'human agency' had to be used by the legislature in proviso (i) of Section 16(1). I have also no doubt now why the terms 'solely due to natural causes and beyond the control of human agency' are used in the proviso to Clause (m).of Section 2(ia). At this stage I would also like to mention that the construction which has ultimately appealed to me dawned on me reading a latest decision of the Apex Court reported in : 1985CriLJ508 , State of Maharastra v. Baburao. I recall also that the Joint Committes noted that a pragmatic view should be taken in such matter and therefore a primary food which becomes sub-standard on account of natural causes but was not injurious to health should not be treated as adulterated. It was also cognizant of the situation that sometimes Food Inspectors caused harassment in the matter of taking samples.
14. It is necessary now to refer in this connection to Appendix B to the Rules framed under the Act containing the prescribed definitions and, standards of qualities of food and prevention of adulteration whereof is contemplated by the Act. It may be noted that consequent upon 1976 amendment in almost every unprocessed item of spices and condiments (covered under the main head A. 05) the same type of amendment was made. In almost all cases the different standards were qualified by the requriement 'the amount of insect damaged matter shall not exceed 5 per cent of weight'. On the other hand, the main head A. 18.06 which deals with 'foodgrainsis meant for human consumption' was not amended generally in a similar fashion and only in case of 'bajra and wheat grain' it was provided in 1977 that such foodgrains 'shall not contain ergot-affected grains more than 0.05 per cent by weight'. It, therefore, appears to me that because,1 particularly, in spices insects have a tendency to germinate which obviously happened due to 'natural causes and beyond the control of human agency', notice was taken of this phenomenon in the proviso to Sections 2(ia), (m) and by amending accordingly the standards prescribed for spices. Similarly, only in respect of such foodgrains which were susceptible to a similar process, a similar amendment was made. Hence, the limit of exemption permitted in terms of the proviso (prescribed limit of variability solely due to natural causes and beyond the control of human agency) was duly provided as was required to be done under the proviso. Thus, burden was sought to be placed on the vendor by the proviso to prove the contrary in cases where it was contended by him that the prescribed limit exceeded' due to natural causes and beyond the control of human agency'. Importance has also to be attached to the term 'either cases' by which the exception obviously has been related to the limits of variability not only to the 'constituents' but also to the standard prescribed in respect of the general quality of the article of food in respect of which there already existed the necessary guidelines in the prescribed standards. As for example, food grains meant for human consumption are required by the prescribed standard A. 18.06 to be free from 'foreign matters' to the extent indicated therein and similarly from 'damaged grain' and 'insect damaged grain'. Because sale of adulterated processed food meant for human consumption is also sought to be prohibited by the Act, different standards in respect of different items of such foods are also prescribed in Appendix B. In case of processed food invariably different constituents comprise such food. When a 'primary food' is used in the manufacture of a processed food' the benefit of the exception contemplated under the proviso is extended thereto also and that the. exception is also, therefore, attracted in case of processed food'' as has been impliedly held in Babu Rao 1985 Cri LJ 508 (SC) (supra). In that case of sale of ice-cream, it contained 5.95 per cent of milk-fat which was a constituent of the ice-cream and because minimum of 10 per cent was prescribed under para A 11.02.08 it was held to be punishable. It was contended that the prescribed standard of milk-fat for buffalo-milk was 5 per cent and therefore it was impossible for the ice-cream to contain a minimum per cent of 10 per cent milk-fat. The contention was repelled holding that the requirement must be satisfied because it was not impossible to increase percentage of milk-fat in ice-cream as a higher percentage of milk fat can be attained in several ways, such as, by heating the milk to reduce the percentage of water and thereby to increase the percentage of milk-fat. That the proviso was invested with an exception only and it was not to stand apart from the main enactment of Clause (m) appears clear to me because, as alluded, exception took care of not only of the 'primary food' but also of the 'processed food'.
15. Having stated my view and the reasons therefor I proceed now to examine the contention that in proviso to Section 2(i)(a) contained not an exception but a substantive provision, as advanced by the petitioners' counsel. Mr. Bhattacharjee drew my attention to two passages in Maxwell wherein it is observed:
Difficulties sometime arise in construing provisos' and that 'if the language of the proviso makes it plain that it was intended to have an operation more extensive than that of the provision which it immediately follows, it must be given such effect'. (see 12th edn. pp. 189-190).
Reliance was also placed on Craies wherein at page 219 (7th edn.) it is observed that
Sections, though framed as provisos upon preceding sections may exceptionally contain matter which is in substance a fresh enactment, adding to and not merely qualifying what goes befor
16. The decisions cited by learned Counsel for the petitioners may now be considered. In Shah Bhojraj Kuverji Oil Mills : 2SCR159 their Lordships observed that as a general rule, a proviso added to an enactment to qualify arid it creates an exception to what is in the enactment but often they are added not as an exception or qualifications but as a saving clause. In Commr. of I.T. v. P. Krishna : 53ITR176(SC) it was held that 'the clean language of the substantive provision as well as the proviso may establish that the proviso is not a qualifying clause of the main provision but is in itself a substantive provision'. In State of Rajasthan v. Leela : 1SCR276 the different functions and purposes of a proviso were indicated and also that the purpose has to be found out in the language used therein as also the provision of the main enactment and other provisions thereof. In Hiralal Ratanlal : 2SCR502 the principles enunciated in Leela (supra) were referred to and reiterated.
17. Some decisions were also cited by learned Advocate General, Assam, to which I may now refer. The first case, Anguarbala : 2SCR1125 was concerned with the interpretation of a provision of a deed and not a statutory provision. However, the second case, Ramnarain Sons Ltd. : 2SCR483 , which concerned a constitutional provision, may be referred to. Their Lordships held it to be a 'Cardinal Rule of Interpretation' that a proviso to a particular provision of a statute only embraces a field which is covered by the main provision and that therefrom it carves out an exception. It is not necessary for me to refer to the two cases cited by him as the position in law, according to me, is well established. Albeit, it is succinctly stated by Maxwell and Craies also, as to what the general and the normal rule are it is only when the language of the concerned provision suggests, then the normal rule or presumption is to be waived and the provision may not be read as an exception. The object of the enactment and the purpose of the provision should, however, receive main consideration in the light of which the language has to be interpreted. In the instant case, I have already stated earlier what the object of the enactment and purpose of the provision are and if those are to be subserved, it is difficult to read the provision in this case as a substantive provision and not as an exception. The language of the key expression 'solely due to natural causes and beyond the control of human agency of the proviso merely subserved the object and purpose of the Act and the main provision enacted in Clause (m). What further bears emphasis is the fact that the expression 'within the meaning of the sub-clause' sets at rest any doubt which may arise as to the proviso not being a part of the Sub-clause (m). The Explanation when considered, as it has to be, as a part of the sub-clause, also buttresses the conclusion. Because, it contemplates 'mixing', which does not exclude 'processing'; even the concept of 'resultant food' is obviously not excluded. Both terms'mixed' and 'resultant' have common significance. Indeed, in the case of ice-cream with which Babu Rao 1985 Cri LJ 508) (SC) (supra) deals Sub-clause (m) was read as a whole and it cannot be said that the court overlooked the proviso and the Explanation. Learned Advocate General also relied on the punctuation used in Sub-clause (m) whereby legislative intent, according to him, was made clear. Mr. Bhattacharjee disputed this and requested me to consider that the general scheme of punctuation adopted by the draftsman in respect to various clauses of Section 2 negatived learned Advocate' General's contention. However, according to me, the role of punctuation in statutory interpretation is a subsidiary one. Indeed, the modern trend is to follow the norms of 'purposive interpretation' to which all other rules of interpretation are to be deemed subservient. I have, therefore, no hesitation to hold that the proviso in question cannot be considered as a substantive provision.
18. What still remains to be considered is, whether in the instant case the prosecution has proved beyond reasonable doubt 'sale' of the jeera in question by the petitioners. The question really is, whether the 'sample' taken by the Food Inspector could be considered to be 'sale' so as to attract the provision of Section 7 of the Act. Learned Advocate General, Assam submits that the 'sale' was complete as soon as the petitioners accepted money for the articles sold and executed Ex. 2 in respect thereof. However, this Ex. 2 is not a cash memo or a receipt written by any of the petitioners. It is a printed form (in English) captioned 'acknowledgment by vendor' and is in two parts. It is doubtful if the Salesman (Ist petitioner), from whom his signature was obtained on it, at all understood its content. Indeed, Ex. 1 (Form VI, to which it refers) served on him, was also in English and there is no evidence that Ist petitioner understood the contents of both. The first part is a 'receipt' and the second part is the 'acknowledgment' of the prescribed notice (Form VI) and the document bears, no doubt, the signature in vernacular of the first petitioner proved as Ex.-2(1). But the decision, according to me, does not rest in the instant case on the mere proof of Ex. 2. I have to see if the 'sample' was taken 'under the provisions of the Act'. In my opinion, the expression just quoted can only mean whether such sample was taken in accordance with the provisions of the Act Because, the definition of the term 'sale' does not correspond wholly to the concept of 'sale' envisaged under Sale of Goods Act and the word is used in the P. F. A. Act in a technical sense. It is, therefore, to be construed strictly inasmuch as the penal liability ensues from this term. According to me, therefore, a 'sample' which is not taken in accordance with the provisions of the Act shall not tantamount to sale of the article of food in question by the vendor and on the basis of such 'sale' he cannot be punished Under Section 7 of the Act. In the instant case the proviso allowed 'sample' to be taken only of such primary food as was 'intended for sale as such food' which expression, as I have held above, manifested a procedural safeguard. It is, therefore, necessary for the Court to reach a conclusion on the evidence adduced in the case as to whether the 'sample' taken, in case of primary food, was such an article of food which was 'intended for sale as such food'. If the evidence on this point is doubtful, the accused shall be entitled to the benefit thereof in accordance with the established norms of criminal jurisprudence if the breach remains unabridged damaging the substratum of prosecution case. The purport of the proviso to Section 10(2), noted earlier, achieves this result. I have already held above that whether or not a primary food was 'intended for sale as such food' will be a matter of evidence which is to be decided on the fact and circumstances of each.
19. Learned Counsel for the petitioners, Mr. Bhattacharjee, submits that the finding of learned Sessions Judge on the question of the, breach is not conclusive inasmuch as he did not address himself thereto from the right perspective. Indeed, it appears from the impugned judgment that the learned Sessions Judge took the view that when sample was taken of any primary food not from a grower or a person concerned with manufacturing of masala but from a retail shop it lost its character as a primary food. In that view of the matter the Court below did not consider the relevant evidence to reach the necessary conclusion. The evidence that there was available in the shop of the petitioners 'jeera' in two containers, in one clean and in the other substandard did not receive due consideration of the Court-below. He also dismissed the evidence of PW. 3 who was not only a prosecution witness called to prove the prosecution case but a witness called in accordance with the provisions of Section 10(7) for the purpose of taking sample. I wonder, therefore, how the evidence of this witness
could be totally ignored for the mere fact that he was a 'businessman' and had a shop in the central market. This witness stated that the second petitioner was absent at the time of taking the sample and that the first petitioner insisted on the Food Inspector to take sample from the other container and not from the container from which the Food Inspector, brushing aside the objection of the salesman (first petitioner), obtained sample. It may also be observed in this connection that the salesman (the first petitioner) examined himself as a witness and gave the following evidence complaining breach of the proviso to Section 10(2):
The Inspector asked me if there was any other jeera. I told him that here was some but the same was not for sale since it had not been cleaned and as such had been kept separately. The said jeera which was not sold was also kept in a tin. The Inspector enquired as to where the said jeera was kept. On going to the place where the tin containing the said jeera was kept he wanted to take sample from there. I told him that the said jeera was not kept for sale and asked him to take sample from that kept for sale. He did not listen to me and asked me to give sample from there.
20. Mr. Bhattacharjee relied on two decisions of the Apex Court to submit that the evidence of PW. 3 and DW. 1 was wrongly rejected and the question of breach of the proviso has to be decided by this Court In Kaur Sain : 1974CriLJ358 it was held that there was no presumption that defence witnesses always lie and prosecution always tells the truth. In Lakshmi Singh : 1976CriLJ1736 it was held that it was sufficient if the defence succeeded in throwing a doubt on the prosecution case, but need not prove its case with the same rigour as prosecution's. Mr. Bhuyan, on the other hand, relied on : 1972CriLJ1198 (Mohd. Yamin v. State of U.P.) wherein, however, the Court did not actually deal with the defence case but held that the sale of 'gur' to Food Inspector was sale for the purpose of Section 16. Not only Gur was not primary food the proviso itself was not born then and the Court was not required to consider its effect. Mr. Bhuyan also relied on a decision of an Hon'ble single Judge of A.P. High Court reported in 1984 EFR 204, Kotha v. State of A.P., but I could not find any discussion of law or evidence in the judgment which simply noted that plea of the accused appeared to the Court to be 'not bona fide' on a perusal of the evidence.
21. Learned Advocate General, Mr. Bhuyan, further submitted that as a result of the first petitioner accepting price for the sample, 'sale' was complete and the plea that the jeera in question was not intended for sale must fail. But the question is, whether sample' was taken of such jeera as was intended for sale for human consumption. Because, importance must be attached to the words 'as such food' which, according to me, as already observed controls the definition of 'sale' given in Clause (xiii) of Section 2 and also of 'sample' in Clause (xiv). Not only evidence of PW. 3 and DW. 1 rendered doubtful the position that the 'jeera' of which sample was taken was meant for human consumption and offered for sale as such, even Exts. 1 and 2 do not manifest anything to the contrary. The notice (Form VI) proved in this case as Ex. 1 shows that in terms of Section 11 the vendor was not told that the sample of the jeera was taken because it was intended for sale for human consumption. Indeed, Ex. 2 also does not show that it was meant for human consumption inasmuch as it was described therein simply as 'jeera'. These documents buttress the conclusion that the jeera in question may not have been intended for sale for human consumption as it had not been cleaned. In this connection I feel disposed to observe that the legislative amendment (in 1976) intended, by defining the term 'primary food' with the qualifying clause 'in natural form' that a produce of agriculture or horticulture in virgin form (untouched by human hands or mechanical means) may not be fit for human consumption in the form it was harvested or garnered and that it had to be made fit for human consumption by eliminating therefrom 'foreign matters' (though not injurious to health) before it can be offered for sale. Therefore, only when a primary food is offered for sale for human consumption without making it fit for the purpose (by making it conform to the prescribed standard), penal liability would accrue under Section 7 of the Act, read with Clauses (ia)(m), (xii-a), (xiii) and (xiv) of Section 2.
22. I have no doubt that mere 'storage' of an article of good (including 'primary food') does not attract the penal provision of Section 7 in view of what has been stated by their Lordships of the Supreme Court in L. N. Tandon 1976 Cri LJ 547 (SC). In case of an allegation of 'sale' of a primary food it may very well turn out to be a case of 'storage' by processor or even a vendor and it may not be a case of an article intended for sale. A milk vendor may have sold milk to a restaurant serving tea or coffee' when such milk may have been 'stored' only in the restaurant for making tea or coffee and may not be available for 'sale' as milk. Foodgrains (in uncleaned and sub-standard state) are also sold as cattle-feed. So, mere storage of unclean foodgrain will not indicate that if was meant to be sold in that state not as a cattle feed but for human consumption. Statutory safeguards deliberately and designedly intended by the legislature to protect innocent vendors or processors must, according to me, be given meaning and effect.
23. In the instant case, for the reasons alluded, I have no hesitation to hold that on the evidence is writ large infraction of statutorily entrenched procedural safeguards contemplated by the proviso to Section 10(2) and Section 11 which renders doubtful the evidence of 'sale' of the 'jeera' of which sample was taken and was alleged to be adulterated on the report of the Public Analyst. I say writ large because PW. 3 himself admitted infraction of the proviso and Exts. 1 and 2 manifest same position in respect also of Section 11. It is no doubt true, as I observed in Puranmal 1985 Cri LJ 46 (Gauh) (supra), that burden to prove infraction of any procedural safeguard does not shift to the prosecution until such infraction is complained. But, in the instant case, the prosecution evidence as discussed, reflects on its face the infractions complained. Although Mr. Bhuyan contended that 'defences' available to a vendor under the Act are exhaustively defined in Section 19 and that the accused has to prove his defence, in the instant case the argument does not avail the prosecution. Because, it is not a case of a plea based on a statutory defence; the petitioner has invoked Court's duty to test his grievance of infraction of statutory safeguards. Whether the grievance is bona fide or not I have to see and on evidence I find the grievance to be just and bona fide as discussed above.
24. Indeed, in Bhanda Garh 1984 Cri LJ 217 a Division Bench of this Court held that an accused was entitled to benefit of doubt in case of infraction of a procedural safeguard also. This view was reiterated by another Division Bench of this Court, in State of Assam v. Gopikrishna, (Govt. Crl. Appeal No. 29/79, decided on 6-6-84) (Reported in (1985) 1 Gauhati LR 193) wherein the Court referred to Bhanda Garh and also to Umashankar (1983) 1 Gauhati LR NOC 30) (supra). In the last mentioned case, the Court pronounced on the illegality of seizure and in the other two cases on insufficency of proof of seizure but in all cases the questions were considered in the light of infringement of procedural safeguards. In Gopikishan (supra) several decisions of the Appex Court were cited and relied on and the acquittal was upheld while in Umashankar (supra) the conviction was set aside giving benefit of doubt to the accused. According to me, when the 'defence' or defence version of a case is accepted and prosecution's 'case' is in toto rejected it would be a case of clear acquittal but when a procedural safegaurd is infringed it would impinge on proof of latter's case and therefore be a case of lenefit of doubt. Mr. Bhuyan's submission has no force therefore and his contention must, accordingly, fail.
25. It is not necessary for me to consider other submissions of Mr. Bhattacharjee challenging validity of the copy of analysis report (Ext. Gha) and of the report itself (Ext. 4) as the petition succeeds on another point.
26. In the result the conviction and sentence are set aside and the rule is made absolute.