1. This is an appeal filed by the Food Inspector of the Akot Municipal Council challenging the judgment of acquittal of the respondent No. 1, who was acquitted of the offence under Section 16(1)(B) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act.
2. The facts in this case are not disputed. The respondent No. 1 is a Kirana merchant, who deals, among other articles, in a product called Anik Ghee', which is product of Hindustan Lever Limited. The complainant went to the shop of the respondent No. 1 at about 11.20 A. M. on 19-8-1966 and asked him to sell him a sample of the quantity of 450 grains out of a sealed container weighing 2 kg. which was kept for sale in the shop by the accused. The complainant served a notice on the respondent No. 1 that the sample of the food article 'guaranteed pure Anik Ghee' which was stocked in his grocery shop for sale in the packing of 2 kg. was to be sent for analysis, and therefore, 450 grams of 'Anik Ghee' should be given to the Food Inspector. The respondent No. 1 received this notice and endorsed thereon that he sold packed tins of 'Anik Ghee' of Hindustan Lever Limited, Bombay, and that he did not sell in small quantity from the packed tin. He further stated 'if you require, you can purchase a packed tin.'
2A. The Food Inspector, however, carried the impression that he had no power to purchase a quantity larger than 450 grams of sample of food-stuff, and therefore, He didnot purchase the whole container. He prepared a memo reciting all these facts in the presence of the two Panchas whom he had taken with him. According to the Food Inspector, this failure of the respondent No. 1 to sell 450 grams of Anik Ghee after breaking open the sealed container amounted to preventing him from taking a sample and e had thus committed an offence under Section 16(1)(B) of the Act. He, therefore, filed a complaint in the Court of the Judicial Magistrate, First Class, Akot, reciting all these facts. It is not necessary to reproduce all the contents of the complaint except the one relating to the explanation of the complainant why he did not purchase a larger quantity than 450 crams. In the complaint it is stated as follows:--
'Under rules made under the Act, the quantity of sample of the said Article of Food-ghee to be supplied to the Public Analyst for analysis is specified to be 150 grams. The quantity of sample is to be separated into three parts before sending one of the parts for analysis to the Public Analyst, 'and therefore the complainant had no authority to collect the quantity of the sample in any amount except than 450 grams'.'
(Underlining (here in ' ') is mine.)
3. The complainant examined himself and admitted in the witness-box that the accused was willing to sell the whole tin if the complainant so wanted. He sticks to the explanation why he did not purchase the whole tin by stating that as per law he could not take more than 450 grams of sample. The defence of the accused was that he was not permitted to sell retail quantity of Anik Ghee and this defence was put to the complainant in cross-examination, and in cross-examination the complainant admitted that the accused had not sold any loose Ghee from the tin in question. The warranty which was issued to the dealer by the Hindustan Lever Limited in respect of this article was put to the complainant in cross-examination.
4. The trying Magistrate on these admitted facts found that there was no provision of law which prevented the Food Inspector from purchasing a larger quantity than 450 grams of sample. He thus took the view that because the complainant did not purchase the whole tin or was unable to purchase the same it did not mean that the accused prevented him from taking the sample. He, therefore, acquitted the accused. Against this acquittal this appeal has been filed.
5. The learned counsel for the appellant contends that having regard to the provisions of Rules 22 and 22-A of the Prevention of Food Adulteration Rules, 1955, the complainant could insist on a sale of 450 grams of Ghee in the sealed container and that since the respondent No. 1 had failed to sell this quantity he should have been held guilty of the offence under Section 18(1)(b) of the Act. He relied also on the provisions of Section 10(1)(a)(i) for the proposition that the power which is given to the Food Inspector by this Section to take a sample of any article of food from any person selling such article could not be construed in such a way that he would be prevented from taking the necessary sample. This argument was supported by the learned Assistant Government Pleader appearing for the State also.
6. The learned counsel for the respondent No. 1, however, contended that there was no provision either in the Act or the Rules which prevented the Food Inspector from purchasing a sample of a quantity larger than 450 grams and as he was willing to sell the sealed container he had not committed any offence.
7. In order to appreciate the rival contentions it will be necessary to refer to certain provisions of the Act and the Rules. It is not disputed that the provisions of Section 10(1)(a)(i) give power to the Food Inspector to take sample of any article of food from any person selling such article. Admittedly it was this power which the Food Inspector was seeking to exercise. But the real question is whether the failure of the Food Inspector to obtain the necessary sample from the respondent No. 1 was a result of any act on the part of the respondent No. 1 or whether it was a result of misapprehension of the legal position with regard to his powers under which the Food Inspector was, namely, that there was prohibition for him to purchase a quantity more than 450 grams by way of a sample. It is also an admitted position that Rule 22 prescribes the quantities of samples to be sent to the Public Analyst in respect of several articles specified therein. So far as Ghee is concerned, the quantity specified under Rule 22 is 150 grams. It is worth noting that these different quantities in respect of different articles which are specified under this Rule are only approximate quantities, because the column specifying the quantity of the article under this rule is itself headed as 'approximate quantity to be supplied'. The very fact that the quantity is specified to be an approximate quantity indicates that this Rule is of directory nature and there is nothing in this Rule which prevents the Food Inspector in a given case from sending a larger quantity. Section 11 of the Act prescribes the procedure to be followed by the Food Inspectors where a sample of food is taken for analysis and it requires that the sample taken is to be divided into 3 parts then and there and these parts are to be marked and sealed in such manner as its nature permits. Clause (c) of Sub-section (1) of Section 11 of the Act requires one of the parts to be delivered to the person from whom the sample is taken, another part is to be sent for analysis to the Public Analyst and the third part is to be retained for production if necessary, in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under Sub-section(2) of Section 13 of the Act. It is on the basis of this provision with regard to the division of the sample into 3 parts that it is contended that not more than 450 grams could be taken by the Food Inspector, Section 11(1) nowhere specifies the quantity to be taken by way of a sample. It is difficult to read the figure '450' into this Section, but probably the argument is that since 3 parts are to be made and one part which is to be sent to the Public Analyst is to consist of 150 grams it is intended that the total quantity must be of 450 grams. In a given case that may be so, but there is nothing in Section 11(1) of the Act which casts any positive obligation on the Food Inspector to purchase 450 grams alone and not a gram more nor is mere anything which can be read as a prohibition to purchase a larger quantity if he thought it necessary. Reliance is then placed on Rule 22-A of the Rules which is as follows :--
'22-A--Contents of one or more similar sealed containers having identical labels to constitute the quantity of food sample. Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample.'
On the basis of this rule it is contended that the Food Inspector was justified in asking the respondent No. 1 to break open the sealed container and sell 450 grams out of its contents to him. I am unable to spell out this power of the Food Inspector from the words of this rule. The obvious purpose of this rule appears to be that in a given case the contents of one of the containers may be such that it may not be sufficient to fulfil the requirement of Rule 22 and also the requirement of Section 11 where out of the 3 parts made, one is to be kept with the dealer and the other is to be retained by the Food Inspector. In a given case if the contents of a container are less than or even equal to 150 grams, it will be impossible to divide contents of that container into 3 parts so as to make available to the Public Analyst a quantity sufficient for analysis and also a sufficient quantity to be retained, if necessary, to be sent to the Director of the Central Food Laboratory under Sub-section (2) of Section 13, and it may, therefore, be necessary to draw on the contents of another container in order to provide sufficient quantity of this food article. In the absence of this rule the accused might raise a defence that the different parts are not out of the same sample and it is obvious that it is to meet such a contention that this rule appears to have been made. But it is impossible to spell out from this rule a restriction on the power of the Food Inspector to purchase anything more than 450 grams or to insist upon the dealer to break open a sealed container and sell him a lesser quantity. Such a power does not appear to have been givenby any of the provisions of either the Act or the Rules, either expressly or impliedly.
8. In this connection a reference to Section 19 also becomes necessary. Section 19(2) enumerates the defences which are Open to a person who is prosecuted in respect of an offence under the Act and one of the defences is that the seller has purchased an article of food with a written warranty in the prescribed form and that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. If we contemplate a case in which a dealer who sells articles received by him in sealed containers under a warranty from the manufacturer and that article, if it is sold in the same state, namely, the sealed condition in which he had received from the manufacturer, and that article is found to be adulterated, then there is a good defence to him that the goods were purchased under a warranty and they were sold in the same state in which he had received them. The accused is entitled to raise such a statutory defence especially in a case where the dealer deals in an article like the present case. The accused has produced a warranty from the Hindustan Lever Limited as contemplated by Section 19(2) and if he had sold this article in a state other than the one in which he had received, namely, by retail sale after breaking open the seal of the manufacturer, he would nave been deprived of the statutory defence under Section 19(2) of the Act. The provisions of Sections 10, 11 and 19 of the Act will have to be read harmoniously and the provisions of Section 10 dealing with the powers of the Food Inspector cannot be so construed as to deprive the seller of the statutory defence under Section 19(2) of the Act. If Section 10 is construed as giving a power to the Food Inspector to insist on a sale of an article in sealed container received by the seller with a warranty from the manufacturer after breaking open the seal then such a construction will deprive the seller of the defence under Section 19(2) of the Act.
9. It will, therefore, be seen that the failure to obtain the sample by the Food Inspector was essentially the result of a misapprehension of the legal position under which the Food Inspector himself was labouring, namely, that he was prohibited from purchasing more than 450 grams of the food article. Secondly this is not a case in which the respondent No. 1 refused to sell an article of food. All that he insisted was that it should be purchased in the form in which he had received it from the manufacturer and in my view he was entitled to so insist, having regard to his right to take the benefit of the statutory defence under Section 19 of the Act. Under such circumstances, it cannot be said that the accused had committed an offence of preventing the Food Inspector from taking a sample as contemplated by Section 16(1)(b) of the Act. The trying Magistrate was, therefore, right in acquitting the accused.
10. The result is that the appeal falls and is dismissed.
11. Appeal dismissed.