C.B. Capoor, J.
1. This appeal by special leave has been preferred by the Nagar Mahapalika, Varanasi, against an order of the learned City Magistrate, Varanasi, acquitting the respondents of the offence under Section 16 of the Prevention of Food Adulteration Act read with Section 7 of that Act, The accusation against the respondents was that they had sold Ghee which, on analysis, was found to he adulterated.
2. The defence put forward by the respondents was that at the time of sale it had been declared that the Ghee was being sold for the purposes of burning only and that the respondents sold Ghee for that purpose. On 23-10-1961 Ganga Krishna, the then Food Inspector, attached to the Nagar Mahapalika, Varanasi, went to the shop of the respondents and purchased six Chhataks of Ghee at the rate of Rs. 3 per seer. As provided by the Rules, the sample purchased was divided into three parts each of which wag placed in a phial. The phials were duly sealed and one of them was handed over to the respondents and the other two were retained by the Food Inspector out of which one was sent to the Public Analyst for examination. The result of the examination was as below:--
1. Butyrorefractometer reading at 40:C...45.0.
2. Reichert Value ..................... 19.8.
3. Moisture (water content) ...........0.23%.
4. Free Fatty Acids (as Oleic acid).. .. .2.7%.
5. Baudouin's test (for presence of Til oil)....
The Public Analyst was of the opinion that the sample contained a large proportion of vegetable fat or oil foreign to pure Ghee.
3. The main contention advanced on behalf of the appellant is that under the provisions of the Prevention of Food Adulteration Act and the Rules framed thereunder sale of adulterated ghee is prohibited and any person found to be, inter alia, selling or exposing for sale adulterated ghee is liable to be prosecuted.
4. 'Food', according to Section 2(i)(v) of the aforesaid Act, means--
'Any article used as food or drink for human consumption 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 and
(b) any flavouring matter or condiments'. It cannot be gainsaid that 'ghee' is an article used as food for human consumption and is ordinarily used in the preparation of: human food. On behalf of the respondents, on the other hand, it has been contended that the ghee which was sold by them to the Food Inspector was Akhadya, i.e., non-edible and a note to that effect was made by them at the foot of the notice under Rule 12 of the Prevention of Food Adulteration Rules served on them. Support has also been sought from the fact that ghee was sold to the Food Inspector at the rate of Rs. 3 per seer while at that time pure ghee was selling in the neighbourhood of Rs. 5-8-0 per seer. It does appear from the evidence on record that at the material time the selling price of pure ghee was about Rs. 5-8-0 per seer and, as such, a person who purchased ghee from the shop of the respondents at the rate of Rs. 3 per seer would not have normally laboured under the impression that ho was purchasing pure ghee.
The question which arises for consideration is as to whether in view of the provisions of the Food Adulteration Act and the rules framed thereunder it was open to the respondents to sell ghee by describing it as 'Akhadya'. Under Rule 44 of the Prevention of Food Adulteration Rules, sale of ghee which contains any other matter not exclusively derived from milk fat is prohibited. According to Section 2(xiii) of the Prevention of Food Adulteration Act 'sale' with its grammatical variations and cognate expressions, means---
'The sale of: any article of food, whether for cash 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 or having in possession for sale of any such article, and includes also an attempt to sell any such article'. The aforesaid definition is of wide amplitude and embraces not only a sale for human consumption or use but also a sale for analysis. It is, therefore, manifest that the sale of a sample of ghee to the Food Inspector was a sale under the provisions of the Act. A dealer cannot, therefore, escape the clutches of law by merely describing an article of food at the time of its sale as 'Akhadya'.
5. The next question that arises for consideration is as to whether the sample of ghee sold to the Food Inspector was adulterated. According to Section 2, Clause (1) of the Food Adulteration Act, an article of food shall be doomed to be adulterated, inter alia, if--
(1) the finality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability. Under Rule A.11.14 in Appendix B to the Prevention of Food Adulteration Rules 'Ghee' means--
''The pure clarified fat derived solely from milk or from curds or from cream to which, no colouring matter or preservative has been added. It shall conform to the following specifications in, inter alia, Uttar Pradesh --
(a) Butyrorefractometer reading at 40.C , 40.0 to 43.0.
(b) Reichert Value. . . .Not less than 28.0.
(c) Free fatty acid as Oleic acid---Not more than 3.0 per cent.
(d) Moisture--Not more than 0.3 per cent.'
6. A perusal of the report of the Public Analyst will indicate that the sample contained a large proportion of vegetable fat or oil foreign to pure ghee and, keeping in view the requirements of Rule 44 and of Rule A.11.14, in Appendix A, there can be no escape from the conclusion that the sample in question did not conform to the prescribed specification. The contention advanced on behalf of the respondents that as the sample was not found to be below standard so far as the content of oleic acid and moisture was concerned and, as such, it should riot 1x3 held to be adulterated is barren of substance. I, therefore, hold that the sample in question was adulterated. Section 7 of the Prevention of Food Adulteration Act, inter alia, provides that--
'No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute--
(i) any adulterated food.' The prohibition is thus absolute. Section 16 of the aforesaid Act provides a penalty 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'.
7. It has already boon seen that the sample of ghee sold by the respondents to the Food Inspector was adulterated and they were thus liable to be punished under the Prevention of Food Adulteration Act.
8. On behalf of the respondents reliance has been placed upon the following two rulings--
1. Nishikanta Saha v. Emperor, AIR 1943 Cal 468.
2. Public Prosecutor (Andhra Pradesh) v.Samudrala Satyanarayana, AIR 1958 Andh Pra681.
The former case was under the Assam Pure Food Act No. IV of 1932 and as at the time of argument the aforesaid Act was not made available no useful purpose will be served by referring to the facts of the Calcutta case : AIR1943Cal468 (supra) in detail. In the second of the aforesaid cases, turmeric powder was sold for external use and it was admitted by the Food Inspector who was examined as a witness in that case that turmeric powder used for external use only was not an article of food. The aforesaid two cases are distinguishable and are not of much assistance.
9. On behalf of the appellant, reliance has been placed upon the case of Chairman, District Board, Midnapur v. Atul Chandra Pal : AIR1933Cal619 . That case was under the Bengal Food Adulteration Act No. VI of 1919. It is not known as to whether the provisions of that Act were in pari materia with the provisions of the Food Adulteration Act of 1954 and the proposition of law laid clown in that case cannot serve as a guide in the instant case.
10. In view of the provisions of the Prevention of Food Adulteration Act and the Rules framed thereunder it is clear that the learned Magistrate had committed a patent error of law in acquitting the respondents and the order made by him cannot be sustained in appeal.
11. The respondents are not proved to have been convicted previously for contravening the provisions of the aforesaid Act of 1954 and I propose to sentence each one of them to pay a fine of Rs. 750 and, in default of payment of fine, to undergo simple imprisonment for a period of three months.
12. In conclusion, the appeal is allowedand the order of acquittal is set aside. Therespondents are found guilty of the offenceunder Section 16 of the Prevention of Food Adulteration Act read with Section 7 of that Act and eachone of them is sentenced to pay a fine of Rs. 750and, in default of payment of fine, to undergosimple imprisonment for a period of threemonths. One month's time is allowed to therespondents to pay up the amount of fine.