Basi Reddy, J.
(1) This is an appeal by the Public Prosecutor on behalf of the State Government from the judgment of the Additional District Munsif-Magistrate, Kovvur, in C. C. No. 162/1962 on his file, acquitting the accused-respondent of an offence under Section 16(1)(a) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter called 'the Act'). The case against the respondent was that on 21-1-1962 at 6 P. M. at his shop at Nidadavole, he had sold a sample of coconut oil to the Food Inspector of Nidadavole Panchayat ; that when a portion of that sample was sent to the Public Analyst, it was found to contain 79 % of mineral oil and in the opinion of the Public Analyst, the consumption of coconut oil containing mineral oil is highly dangerous to public health ; and that, inasmuch as the respondent had sold adulterated food, he had rendered himself liable to punishment under Sec. 16(1) of the Act.
(2) One of the grounds upon which the lower Court based its order of acquittal was that 'in these parts of the country coconut oil is used for external application and not for preparation of food-stuffs'. In so holing, the learned Magistrate relied on an observation of Kumarayya J., in Criminal Appeal No. 512 of 1959 (AP) to the following effect :-
'It admits of no doubt that coconut oil as such is not an edible oil in this part of the country.'
(3) However, in an earlier decision in Criminal Appeal No. 320 of 1959 (AP), which apparently has not been brought to the notice of Kumarayya, J., Sharfuddin Ahmed J. had held as follows :-
'The second argument, which has found favour with the learned Sessions Judge, is that coconut oil is not used as an article of food in that part of the country. It is to be noted, that the definition of 'food' in the Prevention of Food Adulteration Act is sufficient exhaustive to cover even coconut oil. It cannot be validly argued that if a particular commodity is not used as an article of food by certain people, or is not used as such in a part of the country, it losses its character as an article of food. For example, in certain parts of the Punjab, people use wheat only as a staple article of food; rice is seldom in demand in these areas. It cannot be urged therefrom that rice ceases to be an article of food in the Punjab. The learned Advocate for the respondent has not invited my attention to any ruling wherein it has been specifically held that the prosecution in each case has to establish that the article adulterated came within the definition of food as laid down in the Act. It is common experience that coconut oil is used both as an article of food and also for toilet purposes.'
(4) This appeal came up before Mirza J. in the first instance. In view of the above difference of opinion between two learned single Judges of this Court, Mirza J. directed this appeal to be posted before a Bench. That is how the matter comes up before us.
(5) Another ground upon which the learned Magistrate rested that order of acquittal was that there was no proof that the respondent had sold the sample of coconut oil as an article of food, and in support of this view, he relied on the decision of Manohar Pershad J. in Public Prosecutor (Andhra-Pradesh) v. S. Satyanarayana, AIR 1958 Andh-Pra 681, wherein the learned Judge has taken the view that before a conviction could be held under Sec. 16 read with Sec. 7 of the Act, the prosecution should not only prove that what was-sold was an article of food and that it was adulterated but the prosecution must also establish that the adulterated food had been sold as an article of food. The correctness of this view is canvassed before us by the learned Public Prosecutor.
(6) Before considering the legal issues involved in this case, it is necessary to set out the facts as they emerge from the evidence on record. The respondent is running a kirana (gorcery) shop at Nidadavole. On 21-1-1962 at about 5-30 P. M. P. W. 1 (R. S. Satyanarayana), who was the then Food Inspector of the Nidadavole Panchayat, inspected the respondent's shop. The respondent was in charge of the shop. P. W. 1 deposed that inside the shop he found a tin (M. O. 1) containing about four visses of coconut oil. The tin was kept by the side of an iron balance. The tin had a label on it with the words 'Silver clear coconut oil' an it was kept in the shop for sale, P. W. 1 called in two mediators, Medapati Venkatareddi and Ganham Venkateswara Rao - the former of whom has been examined as P. W. 2 - and in their presence, service a notice (Ex. ). 1) on the respondent to the effect that the (P. W. 1) was taking a sample from M. O. 1 for sending it to the Public Analyst for analysis. P. W. 1 the took a sample of twenty-seven tolas of coconut oil from the tine and paid As. 11/- towards its cost, as demanded by the respondent and obtained a signed receipt (Ex. P. 2) therefore into three parts and put them in three separate bottles, sealed them, gave one bottle to the respondent, retained with him one bottle for sending it for analysis and entrusted the third bottle to the Panchayat.
All this was done in the presence of the mediators and the mediator's report, Ex. P-3 was drawn up then and there evidencing all that was done. The mediator's report was attested by both the mediators, P. W. 1 seized the tine M. O. 1 containing the rest of the coconut oil, sealed it, gave it to the respondent for custody and took a receipt Ex. P-4. P. W. 1 then forwarded the sample to the Public Analyst is Ex. P. 5, and it showed that the sample contained not less than 79 % of mineral oil and as such was adulterated. In the opinion of the Public Analyst, 'the consumption of coconut oil containing mineral oil will cause grave danger to public health'. After receipt of this report, P. W. 1 launched a prosecution against the respondent under the Act.
(7) In cross-examination, P. W. 1 said that he had served the notice Ex. P. 1 on the respondent before paying the price. He knew the suggestion that P. W. 2 first refused to serve as a mediator and came only after he was threatened by P. W. 1 that a notice would be served on him compelling him to figure as a mediator. The witness further stated that the other mediator, Gandham Venkateswara Rao was in police service but the service did not know if he had been removed from service. The witness called the mediators inside the ship when they were passing along the road. There were no customers in the shop at that time. The respondent sells fancy goods like locks. The witness did not know if the respondent sold iron and steel goods. The witness admitted that he had not seen the respondent selling coconut oil to customers.
(8-13) (His Lordship reviewed the evidence of P. W. 2 and D. W. 1 and continued)
(14) It will thus be seen that the plea of the accused was that the tine from which the Food Inspector, P. W. 1 had bought a sample, was not meant for sale and that the oil in the tine had got spoiled and had been discarded. The respondent's further case was that P. W. 1 had taken the sample by show of force and compelled the respondent to put his signature on the notice, Ex. P.1 and presumably on the receipt, Ex. P-2 passed by the respondent. In our opinion, the plea put forward by the respondent is unacceptable, firstly because it is inherently improbable, secondly because there is no reason to doubt the veracity of P. Ws. 1 and 2, and thirdly because it was not even suggested to P. Ws. 1 and 2 that at the time the sample was taken, the respondent had protested that the oil was not meant for sale, or that the respondent had been coerced to put his signature on the notice served on him and on the receipt, passed by him. Indeed, even the learned Magistrate who acquitted the respondent, did not accept his version. We have therefore no hesitation in holding that the respondent had kept the tin. M. O. 1, bearing the label 'Silver clean coconut oil'. for purposes of sale, and his plea that he had kept the oil in a damaged tin in one of the inner rooms because the oil was not useful; is palpably false. Equally untrue is the respondent's plea that the Food Inspector had taken the sample by show of force.
(15) As noticed earlier, the learned Magistrate has acquitted the respondent of two grounds; first, that the coconut oil is not used as an article of food in this part of the country and secondly, that the prosecution had failed to prove that the coconut oil had been sold to the Food Inspector as an article of food.
(16) In our considered view, both the grounds are untenable. As regards the first ground, there is nothing in the Act which posits that an article of food may be adulated with impunity provided it is not used as food throughout the length and breadth of the country. On the contrary, there is every indication in the Act that it seeks to protect the public preventing adulteration of any article or substance which is used as food in a particular region, or is used only by a section of the people in a given region. In this connection, it is necessary to refer to the definition of 'food' in clause (v) of Sec. 2 of the Act :-
'Food' means any article used as food or drink for human in the composition other than drugs and water and includes-
(a) any article which ordinarily enters into, or is used in the composition or preparation of human food ......................'
(17) The word 'ordinarily' occurring in the above clause, does not mean universally or generally but it is apparently used in contradistinction to exceptionally or unusually; nor is the word used in relation to a particular region or a particular section of the people in a region. I construing the word, it should be fully borne in mind that the Act is a Central enactment and extends to the whole of India except the State of Jammu and Kashmir; so also the rules framed by the Central Government under the Act. Before the Act was passed by Parliament, there were several laws in the various States governing food adulteration. They were all repeated and a uniform law for the entire country was enacted by Parliament in 1954. By Section 23 of the Act, power was conferred on the Central Government make rules after consultation with the Central Committee for Food Standards, constituted under Sec. 3 of the Act, and among the rules which could be made, are those defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food. Section 24 of the Act confers power on the State Governments also to make rules for the purpose of giving effect to the provisions of the Act, but only in respect of matters not falling within the purview of the rule-making power of the Central Government under Sec. 23. We shall presently refer to the rule framed by the Central Government treating coconut oil as edible oil and prescribing a standard of quality for it.
(18) By the use of the word 'ordinarily' in cl. (v) (a) of Sec. 2 of the Act. It seems to us that the legislature intended to lay down that when an article or substance is used as an ingredient in the preparation of food, even by some inhabitants of this country, usually and not as something exceptional or our of ordinary, it would come within the definition of 'food'.
(19) Now, it is a matter of common knowledge that coconut oil is used extensively in Kerala as a cooking medium and Malayalees wherever they may, generally use coconut oil for that purpose. That being so, the fact that coconut oil is used as edible oil either in the Andhra area or in the Telangana area, is beside the point and is wholly irrelevant in determining whether it comes within the definition of 'food'.
(20) We are supported in our view by a recent Full Bench ruling of the Allahabad High Court in Kanpur Municipality v. Janki Prasad, : AIR1963All433 (FB). There the question was whether linseed oil fell within the definition of 'food' under the Act. It would appear linseed oil is not used as a cooking medium or for other food purpose in Uttar Pradesh although it is used as a cooking medium in several parts of the country. The Full Bench held, by a majority, that linseed oil is comprehended by the definition of 'food' given in Sec. 2(v)(a) of the Act. They further found that the fact that linseed oil has been treated as an item of food under the rules framed under the Act, lent support to their conclusion that it is food within the meaning of Sec. 2(v)(a) of the Act.
(21) It is worthy of note that as in the case of linseed oil, coconut oil also is treated as edible oil and the standard of quality is prescribed by the Prevention of Food Adulteration Rules, 1955. As noticed above, the rules have been framed by the Central Government under the power conferred upon them by Sec. 23 of the Act. Rule 5 which occurs in Part III of the rules - headed 'Definitions and Standards of Quality' - says that the 'Standards of quality of the various articles of food specified in Appendix B to these rules, are as defined in the appendix'. Coconut oil is one of the articles of food in respect of which standards are prescribed in Appendix B, Edible Oils being listed under head A. 17. Coconut oil is dealt with as item A. 17.01, and the standard prescribed for it is as follows :
'A. 17. 01 Coconut oil (Naryal-ka-tel) means the oil expressed from copra obtained from the kernal of Cocos uncifera nuts. It shall be clear and free from rancidity, suspended or other foreign matter, separated water, added colouring or flavouring substances, or mineral oil. It shall conform to the following standards- (a) Butyro-refractometer reading at 40 C34-0 to 35.5(b) Saponification value . . . . . . Not less than 250.(c) Iodine value. 7.5 to 10.0(d) Polenske value. Not more than 13.0per cent. (e) Free fatty acid as Oleic Not more than 3.0acid. per cent.
(22) It is also important to note that whenever it was though necessary to take into account varying local conditions in different parts of the country, the rules did so and prescribed different standards.
Vide Appendix B to the rules-
Item A. 11.01.01 with regard to cow milk;
Item A. 11.01.02 as regards buffalo milk;
Item A. 11.01.03 as regards goat or sheep milk;
Item A. 11. 14 in regard to ghee.
(23) In respect of coconut oil, however, only one uniform standard of quality is fixed under the rules.
(24) For the foregoing reasons, we are clearly of opinion that the lower court erred in acquitting the respondent on the ground that coconut oil is not used as an article of food in this part of the country. If we may say so with respect, on this point the view of Sharfuddin Ahmed j. in Criminal Appeal No. 320 of 1959 (AP) is preferable to that of Kumarayya J. in Criminal Appeal No. 512 of 1959 (AP).
(25) The second ground which weighed with the lower Court in acquitting the respondent is equally untenable. The Magistrate was of the view that because there is no evidence that the respondent had sold the sample of coconut oil to the Food Inspector as an article of food, an essential ingredient of the offence under Section 16(1)(a) read with Sec. 7(i) of the Act, was wanting.
(26) We have found already that the plea of the reasonable that he had not kept the oil for sale, is false. From the tin, M. O. 1, which was kept in the shop with a label 'Silver clean coconut oil', P. W. 1, the Food Inspector, purchased the sample of coconut oil. The sale, like the purchase, was for the purpose of analysis. The oil was found to be adulterated. The case, therefore, falls fairly with Sec. 7(i) of the Act. The very definition of the word 'sale' makes this position patent.
(27) Now the relevant provisions of the Act may be noticed. Section 16 provides for the penalties for offences under the Act and reads as follows:
'16 (1) If any person-
(a) whether by himself or by any person on his behalf imports into India or manufactures for sale, or stores, sells or distributes, any article of food in contravention of any of the provisions of this Act or of any rule made thereunder, or
* * * * * * * * * * * * he shall . . . . . . . . . . . . . . . . be punishable-
(i) for the first offence, with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both;'
Section 7 provides :
'7. No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute -
(a) any adulterated food;'
Section 2 is the definition Section and clause (i) defines 'adulterated' thus :-
* * * * * * * * * * * * (1) If the quality or purity of the articles falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.'
Clause (xii) reads :
'(xii) 'prescribed' means prescribed by rules made under this Act.'
Then clause (xiii) defines the word 'sale' as under '
'(xiii) 'sale' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for case 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, an offer for sale, the exposing for sale for having in possession for sale of any such article, and includes also an attempt to sell any such article.'
(28) In the present case, inasmuch as the report of the Public Analyst showed that the sample of coconut oil purchased from the respondent contained a mixture of 79 per cent of mineral oil, whereas according to the standard of purity prescribed by the rules, coconut oil should not be mixed with mineral oil to any extent, the coconut oil in question was adulterate within the meaning of S. 2(i)(1) of the Act. Furthermore, as the respondent had sold the oil to P. W. 1 for analysis, his act constituted a sale within the meaning of S. 2(xiii) of the Act. By its very definition, a sale is not the less a sale because it is for analysis, it need not necessarily be for human consumption or for human use. The purchase of a sample by a Food Inspector is not for his personal consumption or use but is only for the purpose of detecting if the article of food is adulterated. It is obviously for this reason that S. 19 of the Act which sets out the defences open to accused persons in prosecutions under the Act, expressly rules out a plea that the purchaser of an article of food for analysis, was not prejudiced by the transaction. We are therefore of opinion that the lower Court was in error in insisting on proof of an additional element not contemplated by the Act, viz., that the respondent had sold the sample of coconut oil to the Food Inspector, as an article of food. In doing so, it obviously lost sight of the important circumstances that in the instant case, the sale was for analysis and not for human consumption or use.
(29) The lower court purported to follow the judgment of Manohar Pershad J. in AIR 1958 Andh Pra 681. That was an appeal against an order of acquittal in respect of an offence under S. 16(1)(a) of the Act, for the sale of turmeric containing a foreign substance. In contravention of R. 44 (h) of the Prevention of Food Adulteration Rules. On the evidence, the learned Judge found that the vendor had sold turmeric powder, an article of food, to the Food Inspector and on analysis. It was found to have been adulterated. But as there was no evidence on the side of the prosecution to establish that the sample of turmeric had been sold by the vendor as an article of food, and the vendor had stated even at the time of the sale that the powder was intend only for external application, the learned Judge upheld the order of acquittal.
(30) The learned Judge's attention does not appear to have been pointedly drawn to the distinction contemplated by the definition itself, between a sale for human consumption or use on the one hand, and a sale for analysis on the other. If, however, the learned Judge meant to lay down that even in the case of a purchase for analysis, before a conviction can be had under S. 16(1)(a) of the Act. It is incumbent on the prosecution to prove that the article of food and that it was adulterated, we must express our respectful dissent.
(31) It follows from the foregoing discussion that the acquittal of the respondent is bad in law and cannot be sustained. We accordingly allow this appeal, set aside the order of acquittal passed by the Court below and convict the Respondent under S. 16(1)(a) read with S. 7(1) of the Act.
(32) As regards the punishment, it was pointed out by their Lordships of the Supreme Court in M. V. Josh v. M. U. Shimpi, : 3SCR986 that offences under the Act are serious ones calling for deterrent punishment, and in most of the cases, imprisonment would be a suitable sentence. However, in the present case, as the offence was committed more than two and a half years ago and the respondent is a first offender, we sentence him to pay a fine of Rs. 500/- (Rupees five hundred) and in default, to undergo rigorous imprisonment for three months.
(33) Appeal allowed.