P.N. Bakshi, J.
1. Parmesar son of Chunni Sao has been acquitted by the Additional City Magistrate, Varanasi on 3-10-1969 of an offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 for selling adulterated mustard oil at his shop C.K. 68/23 Kachchi Sarai, Police Station Chauk on 27-9-1968 at about 12 noon,
2. The case for the prosecution is that Kesho Prasad Singh, Food Inspector. Nagar Maha Palika, Varanasi went to the shop of the accused situate in Mohalla Kachchi Sarai at about 12 noon 27th September, 1968. The accused on who was running a grocer's shop (Perchoon ki dookan) was present . at that time. The Food Inspector informed him by tendering form No. 6 that he wanted a sample of the mustard oil which was being purchased by him for chemical examination. He purchased 375 grams of mustard oil from the accused on payment of Rs. 1.50 P. at the rate of Rs. 4/-iper K.G. The said oil was divided in three parts and put in three separate inphials. which were sealed and labelled in the presence of the accused. The accused signed these labels. The Food Inspector obtained receipt for the sale which was also signed by the accused and the witnesses. When the accused signed the receipt he described the mustard oil as 'Akhadya tail'. The Food Inspector gave one phial to the accused and retained the other two with himself. Out of these two phials retained W him. one was sent to the Public Analyst, Lucknow for examination and report. On receipt of the report of the Public Analyst it was discovered that the mustard oil was adulterated. He, therefore, submitted his report to the Nagar Swastha Adhikari and obtained his sanction for prosecuting the accused under Section 7/16 of the Prevention of Food Adulteration Act-He then filed a complaint on 22-3-1969 in the court of the Sub-Divisional Magistrate. Varanasi, which is Ex. Ka-6 on the record. The accused was, thereafter charged for having committed an offence under Section 16(1)(a) of the said Act.
3. The accused pleaded not guilty. In his statement recorded under Section 342, Cr.PC he took up the plea that he had informed the Inspector at the time of sale that the mustard oil in question was non-edible oil (Akhadya tail). In short, the defence was that at the time when the sample was taken by the Food Inspector the accused informed him that the mustard oil which was being sold by him was non-edible oil and as such he had not committed any offence. The accused examined Sheikh Nazir Ahmad D.W. 1 in his defence. Nazir Ahmad is the landlord of the shop where the accused carries on his business. The defence case as elaborated by Nazir Ahmad in his statement is that the oil in question is used for colouring purposes and not meant for human consumption.
4. The prosecution in support of its case examined Kesho Prasad Food Inspector P.W. 1 and Phool Chand Hawaldar P.W. 2. Both these witnesses have deposed to the prosecution story. Notice Ex. Ka-1. receipt Ex. Ka-2, report of the Public Analyst Ex. Ka-3, report of the Food Inspector Ex. Ka-4 sanction for prosecution Ex. Ka-5 and the complaint Ex. Ka-6 had been filed in support of the prosecution case.
5. The Additional City Magistrate has acquitted the accused on the ground that because Parmesar informed the Food Inspector before giving the sample of his mustard oil that the said mustard oil was non-edible (Akhadya tail) and because the accused wrote down the words non-edible (Akhadya) on the notice Ex. Ka-1 and the receipt Ex. Ka-2, the Food Inspector should not have taken the sample of the oil from the accused. He was of the view that it is not proved beyond reasonable doubt that the sample of the oil which was purchased by the Food Inspector for analysis was edi- ble oil and as such the benefit of doubt must go to the accused. On this finding he has acquitted the accused. Aggrieved by the aforesaid order the Nagar Mahapalika. Varanasi has now filed an appeal under Section 417. Cr.PC before this Court,
6. I have heard counsel for the parties and have also gone through the entire evidence on the record. Counsel appearing on behalf of Nagar Mahapalika iVaranasi has very strenuously urged that the view of the court below is perverse and illegal. He has submitted that the offence under Sections 7/16 of the Prevention of Food Adulteration Act had been fully established from the evidence on the record. He hag referred to certain relevant sections of the Prevention of Food Adulteration Act and has also cited some case law in support of his arguments to which reference shall be made hereafter. Counsel for the accused, on the other hand, contends that in an appeal against acquittal the findings of the court below should not be set aside and the accused is entitled to the benefit of doubt. He has further submitted that no offence has been committed by the accused. I shall now examine the force of these arguments.
7. It is proved from the statement of Kesho Prasad. Food Inspector P.W. 1. as well as of Phool Chand P.W. 2. that the sample of mustard oil in question was purchased from the shop of the accused- It is also proved from their evidence that before purchasing the sample the Food Inspector informed the accused that it was being taken for the purpose of analysis. It is further proved from the statement of the aforesaid witnesses that the accused had informed the Food Inspector at the time of the sale that the mustard oil of which sample was being purchased was non-edible oil and that the accused made an endorsement to that effect in the notice Ex. Ka-1. as well as in the receipt for payment of the price Ex. Ka-2. In both these documents the accused has endorsed the words 'Akhadya tail'. It is also proved from the report of the Public Analyst that a sample of the mustard oil taken from the shop of the accused contained a large proportion of linseed oil.' The Public Analyst has given the proportion as 35.1 per cent. These are facts which can admit of no doubt, having been established from the evidence on record.
8. The Question, however, which remains for consideration is whether on (these facts the accused can be held guilty of an offence under Section 16(1)(a) of the Prevention of Food Adulteration Act Section 7(11) of the Act prohibits the sale of any adulterated food. Section 16(1) imposes a penalty for such prohibited sale. Section 16(1)(a) of the said Act runs as follows:-
(1) If any person:
(a) whether by himself or by any other person on his behalf imports into India or manufactures for sale, or stores or distributes any article of food.
(i) which is adulterated or misbrand-ed or the sale of which is prohibited by the Food (Health) Authority in the interest of public health....
he shall .... be punished with imprisonment for a term which shall not be less than six months but which may extend to six years, and with fine which shall not be less than one thousand rupees....
The question therefore for consideration is as to what is adulterated food within the meaning of the Prevention of Food Adulteration Act. Reference may be made to the definition of the word 'Food' as laid down in Section 2(v) of the Act. It runs as follows:-
'Food', 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.
The word 'ordinarily' as used in this section has been interpreted by a Full Bench of this Court in : AIR1963All433 Municipal Board, Kanpur v. Janki Prasad. In that case the question for consideration was: Whether linseed oil can be treated as an item of food. Their Lordships were of the view that linseed oil was food within the meaning of Section 2(v)(a) of the Prevention of Food Adulteration Act. In the present case before us the sample which was taken from the shop of the accused was that of mustard oil. It contained a mixture of linseed oil in the proportion of 35.1 per cent. It is argued by the counsel appearing on behalf of the Nagar Mahapalika. Varanasi that this mixture of the two oils amounted to adulteration within the meaning of this Act. It is contended that the prohibition contained in Section 7(1) of the Act is absolute and admits of no exception. It is urged that the accused cannot be absolved of the liability under the Act merely because he informed the Food Inspector and made an endorsement to that effect in Exs. Ka-1 and Ka-2 that the oil in question was non-edible oil (Akhadya tail). Reliance for this submission is placed on a Single Judge decision of this Court in : AIR1966All64 , Nagar Mahapalika, Varanasi v, Sm. Sudheshwari Devi. In that case the accused was selling Ghee by describe ing it as 'Akhadya'. The learned Single Judge was of the view that under E. 44 of the Prevention of Food Adulteration Rules sale of ghee which contains any added matter not exclusively derived from milk fat is prohibited. As such he found the accused guilty of an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. The definition of the word 'adulterated was not brought to the notice of the Court in that case. In the present case the position was that the accused had not only informed the Food Inspector that the oil in question was 'Akhadya' but he also made an endorsement to that effect in the notice Ex, Ka-1. as well as the receipt. Ex. Ka-2 at the time of sale of his sample. He has_ also produced a witness Sheikh Nazir Ahmad who has a shop adjacent to the shop of the accused. Seikh Nazir Ahmad has deposed that there are 8 or 10 factories for the manufacture of boxes and that these factories are purchasing oil in question for colouring these boxes. Io my opinion this defence plea has been fully established from the evidence on the record. Hence it cannot be said in the present case that there was 'a mixture of two or more edible oils as an edible oil'. The question is does it absolve the accused from his liability under Sections 7/17 of the Prevention of Food Adulteration Act. Section 2(i) defines the word 'adulterated'. The definition runs as follows:
2 (i) 'Adulteration'- an article of food shall be deemed to be adulterated-'(a) if the article sold by vendor is not of the nature, substance or quality demanded by the purchaser and is-to his prejudice or is not of the nature, substance or quality which it purports or represents to be.
On the facts found by me It is established that the Food Inspector when he went to the shop of the accused informed him that he had come to take a sample of the mustard oil from the accused for analysis. It is also established that the accused informed him that the oil in his possession was non-edible oil. It, therefore, cannot be said that the sample taken from the accused is not of the nature, substance or quality, which it purports or is represented to be. The accused never claimed to have sold pure mustard oil to the Food Inspector, He did not say that it was edible oil and could be used for human consumption. He made it very clear that It is non-edible oil. In these circumstances I am of opinion that the sample taken possession of by the Food Inspector cannot be said to be adulterated within the meaning of Section 2(1)(a) of the Act. In this view of the matter I hold that the accused has not committed the offence for which he has been charged.
9. In the result, therefore. I do not find any force in this appeal, which is hereby dismissed.