1. The proprietor of Radharamana Bhavan Coffee and Meals Hotel, Masulipatam who has been convicted under Section 2(1)(a) and Section 7 read with Rule 46 of the Prevention of Food Adulteration Act 1954 and sentenced to pay a fine of Rs. 50/-is the petitioner. The case against him is that he was found stocking adulterated ghee intended for service and for preparation of food articles. That ghee has been found to contain 37 per cent of fat not derived from milk or cream.
The question is whether the accused who is not in possession of ghee for the purpose of sale or sells ghee as such, but has stored ghee intended to be served with meals or in the preparation of an article of food viz., the preparation of dishes accomplying meals or as refreshments, could be found guilty of the offence charged with.
2. Mr. Adavi Rama Rao for the petitioner has contended that any storage of an adulterated article of food when it is not meant for sale as such would not constitute an offence when the accused is not a dealer in the article such as ghee in this case, When as in this case the accused is not only the manufacturer of an article of food but is In possession of ghee intended to be used in the article of food, the point for consideration will be whether such an act of possession of adulterated ghee in such circumstances could be an offence under Section 7 of the Prevention of Food Adulteration Act. That section reads :
'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 misbranded 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 with a view to preventing the outbreak or spread of infectious diseases; or
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.'
Having regard to the language of this section, the possession of adulterated ghee by a person who does not sell it cannot in any sense be the 'storing ol an adulterated food'; and would not, in my view, therefore fall within the purview of this section. The corresponding section in Madras Act III of 1918 has been the following :
5. (1) 'Every person who-
(a) sells any food which is not of nature, substance or quality of the article demanded by the purchaser; or
(b) manufactures, stores or offers for sale or hawks about or sells any food which is not of the nature, substance or quality which it purports, or is ropresented to be, .....'
It would be seen even in this provision that the storing of an article, which is a component as food for sale without that article being offered for sale is not an offence. Under both the provisions, old and new, what constitutes an offence is the selling of ghee as such, or storing or selling of food with adulterated ghee. Such being 'the case, the prosecution in my view cannot succeed by merely taking adulterated ghee from a hotel keeper, if there is no sufficient evidence to establish that the ghee used in preparing the food has not been made out to have formed a component of the food, but this can be established only by seizure of the food itself or when the allegation is that the adulterated ghee is served with the food, by the evidence of the person to whom the ghee is served as part ol the food.
Rule 46 may now be referred to and it is in these terms:
'No person shall sell or have in his possession for the purpose of sale or for use as an ingredient in the preparation for an article of food for sale as mixture of ghee or butter and any substance (a) prepared in imitation of or as a substitute for ghee or butter, or (b) consisting of or containing any oil or fat which does not conform to the definition of ghee:
Provided where a mixture prohibited by this rule is required for the preparation of an article of food, such mixture shall be made only at the time of the preparation of such article of food.'
Again, the sale or possession for the purpose of sale or for use as ingredients in the preparation of an article of food for sale is made an offence. The use of the adulterated ghee when actually mixed with food is made punishable. It is not, therefore, the mere intention to mix the adulterated ghee that constitutes the offence; for, the possibility of locus penitentiae cannot be altogether ruled out in such a case.
3. Therefore, viewed in any manner, the answer given by the accused to an enquiry made by the Food Inspector cannot alone be made the basis for successfully prosecuting the hotel-keeper, and especially so when the Food Inspector has not taken a sample of any preparation or made use of evidence or relied upon the evidence of any person to whom the food is served with this adulterated ghee,
4. The decision of Laxrnan Rao J., of the Madras High Court in Iswara Subramanya Ayyar v. Emperor, 1940 Mad WN 804 (2) ; (AIR 1940 Mad 938), can be considered in point in support of this view; and that the purchase of ghee by a Food Inspector has no consequence is made clear by another decision in K. P. Gopalan v. Emperor, 1936 Mad WN 750.
5. In this view, I am unable to uphold the conviction of the accused for an offence under the Fobd Adulteration Act. The accused is accordingly acquitted and the fine, if paid, is directed to be refunded.