1. By this revision application the original accused challenges the order of the Additional Sessions Judge, Thane, dated March 15, 1977, dismissing his appeal against the order of the Judicial Magistrate, First Class, Thana dated July 12, 1976, convicting him for an offence under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and sentencing him to suffer rigorous imprisonment for six months and to pay a fine of Rs. 1,000.
2. The facts giving rise to this revision application are briefly these: The revision petitioner-accused was a contractor of a canteen situate in the factory known as 'F.R. Windsor,' in the Industrial Estate, Thane. Sometime prior to January 28, 1974 there was a report in the newspaper about cases of food poisoning in the canteen of the accused. That is why on January 28, 1974, Food Inspector Barde went to the said canteen and after following the usual procedure he asked the accused to sell mustard oil, Batata wada and Besan. According to the Food Inspector the tin containing the mustard oil was in the kitchen, although the independent panch Miraj (p.w. 2) stated that it was in the store room. The Food Inspector took samples of this mustard oil, Batata wada and Besan. These samples were sent to the public analyst. While nothing incriminating concerning the Batata wada and Besan was detected, in respect of the mustard oil, however, the public analyst found that it contained 90 per cent, of ground-nut oil and 10 per cent, of mustard oil and also considerable portion of sediment. He also found that the mustard oil did not conform to the standard as specified under the rules as appears from his report exh. 12.
3. On these facts the accused was prosecuted.
4. The accused pleaded not guilty to the charge and claimed to be tried. The accused maintained that he never used the mustard oil for sale and that he had in fact purchased the mustard oil from the market for applying the same to the doors and wooden cupboards of his canteen. He maintained that he was not using the said oil for preparing the food stuffs which were sold in the canteen and that actually he was using refined oil of Postman make for preparation of eatables which were supplied in the canteen.
5. Both the Courts rejected the defence of the accused that he had stored the mustard oil for applying the same to the doors and cupboards and the trial Court having convicted and sentenced the accused as stated at the outset of this judgment that conviction and sentence was confirmed on appeal by the learned Additional Sessions Judge, Thane.
6. Mr. Ganatra, learned advocate for the accused has assailed the judgment of conviction on the ground that in the absence of any evidence for the prosecution to show that the accused had kept the mustard oil for sale and inspite of the admission of the Food Inspector that he does not know whether the mustard oil was kept for sale, the Courts below have erred in convicting the accused. He submits that on the admitted facts of this case, the Food Inspector had no power to take the sample, and much less to prosecute the accused on the basis of the report of the public analyst about the mustard oil being adulterated. In support of that submission he has relied upon the latest judgment of the Supreme Court reported in Delhi Municipality v. L.N. Tandon : 1976CriLJ547 .
7. Mr. Parkar, learned Public Prosecutor for the State however submits that whereas the judgment in L.N. Tandon's case is a judgment of only three Judges, the judgment in Mangaldas v. Maharashtra State : 1966CriLJ106 , is a judgment of five judges of the Supreme Court and, therefore, that judgment could not be said to have been impliedly overruled by the judgment in Tandon's case as is submitted by Mr. Ganatra.
8. While I find no force in the submission of Mr. Ganatra that the judgment of the Supreme Court in Mangaldas's case has been overruled impliedly by the judgment in Tandon's case, I find that the proposition of law as laid down in Tandon's case would apply to the facts of the case before us and, therefore, the judgment of conviction cannot be sustained.
9. What was laid down by the Bench of five Judges in Mangaldas's case is that the Prevention of Food Adulteration Act gives a special definition of 'Sale' in Section 2(xiii) which specifically includes within its ambit a sale for analysis and, therefore, a sale for analysis must be regarded as sale even if the transaction contains an element of compulsion.
10. It was that very view which was followed by the Supreme Court in Food Inspector, Calicut v. C. Gopalan : 1971CriLJ1277 . In this case the Supreme Court in para. 25 observed that when there is a sale to the Food Inspector under the Act of an article of food, which is found to be adulterated, the accused will be guilty of an offence punishable under Section 16(1)(a)(1) read with Section 7 of the Act. It was also observed in that case that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article. It may be, however, mentioned that the judgment in this case viz. Gopalan's case is judgment of a division Bench of two Judges. In Mangaldas's case the question of the powers of the Food Inspector was not raised and much less was it decided. That question arose directly for consideration and decision in Tandon's case and it was decided by a Bench of three Judges. After dealing with the scheme of the Act and in particular Sections 7 and 10, the Supreme Court laid down the law thus in para. 14 of the judgment, about the powers of the Food Inspector (p. 624):
Under that section, the Food Inspector whom the Act assigns a pivotal position for the enforcement of its provisions, is authorised to take samples of an article of food only from particular persons indulging in a specified course of business activity. The immediate or ultimate end of such activity is the sale of an article of food. The section does not give a blanket power to the Food Inspector to take samples of an article of food from a person who is not covered by any of the sub-clauses of Sub-section (1)(a) or Sub-section (2). The three sub-clauses of Sub-section (1)(a) apply only to a person who answers the description of a seller or conveyer, deliverer, actual or potential, of an article of food to a purchaser or consignee or his consignee after delivery of such an article to him. Sub-section (2) further makes it clear that sample can be taken only of that article of food which is 'manufactured', 'stored' or exposed for sale. It follows that if an article of food is not intended for sale and is in the possession of a person who does not fulfil the character of a seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is referred in Sub-sections (1)(a) and (2) of the section, the Food Inspector will not be competent under the law to take a sample and on such sample being found adulterated, to validly launch, prosecution thereon. In short, the expression 'store' in Section 7 means 'storing for sale', and consequently storing of an adulterated article of food for purposes other than for sale would not constitute an offence under Section 16(1)(a)(i).
11. Having regard to the above observations of a Bench of three Judges in Tandon's case, it would appear that the observations of a Bench of two Judges in Gopalan's case to the effect that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article, must be deemed to have been impliedly overruled. Even otherwise as against the decision in Gopalan's case, which is a decision of a Bench of two Judges, I am bound to follow the decision of the Bench of three Judges in Tandon's case.
12. Since there is no dispute that there is no evidence for the prosecution that the mustard oil was kept by the accused for sale having regard to the dictum of the Supreme Court in Tandon's case it would appear that the Courts below were in error in convicting the accused.
13. It was, however, argued by Mr. Parkar that it may be that the accused was not selling mustard oil but it appears that he had kept that oil for preparing the articles of food which he was selling in his canteen. In other words he argued that it must have been used as an ingredient for the manufacture of food stuffs which were sold in his canteen. Now this submission cannot be accepted for more than one reason. Factually it is not disputed that two other articles viz. Batatawada and Besan, samples of which were taken and were sent to the public analyst have not been proved to be adulterated. Legally speaking to accept Mr. Parkar's argument would be to read in Sections 7 and 10 something which is not there. In fact Mr. Ganatra has brought to my notice that it was after the judgment of the Supreme Court in Tandon's case which was delivered on December 17, 1975 that by Act No 34 of 1976 which came into force from April 1, 1976, appropriate amendments have been made in Sections 7 and 10(2) of the Act. For instance by Section 6 of that Act, an Explanation is added to Section 7 of the principal Act. That Explanation reads as under:
For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food (referred to in Clause (iii) or Clause (iv) or Clause (v) if he stores such food for the manufacture therefrom of any article of food for sale.
14. So also by Section 8 of the Amendment Act, Sub-section (2) of Section 10 of the principal Act has been substituted as under:
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 samples of such article of food or adulterant for 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.
15. The implication of this amendment would be clear when we read the unamended Sub-section (2) of Section 10, which may be set out here for ready reference. It reads as under:
Any food inspector may enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples of such articles of food for analysis.
16. It would appear that it is precisely because of the judgment in Tandon's case that the ingredients for manufacturing an article of food which were not covered by Sections 7 and 10, that the Legislature appears to have stepped in and made consequential amendments to Sections 7 and 10 of the Act by Amendment Act No. 34 of 1976, which has come into force on April 1, 1976. That being the position, since in the instant case the sample was taken on January 28, 1974 i.e. long prior to the coming into force of the Amendment Act No. 34 of 1976 there is no force in the submission of Mr. Parkar that the conviction could be sustained on the ground that the mustard oil might have been stored for manufacturing the article of food.
17. In the result, the revision application is allowed. The order of the learned Additional Sessions Judge, dated March 15, 1977 confirming the order of the learned Magistrate dated July 12, 1976 convicting and sentencing the accused is set aside. The fine if paid shall be refunded to the accused. The bail bond of the accused is cancelled. Rule made absolute.