R.K. Das, J.
1. This is an appeal against the order of the Sub-divisional Magistrate, Puri acquitting the respondent of an offence under Section 7 read with Section 16(1)(a) of the Prevention of Food Adulteration Act (37 of 1954) (hereinafter referred to as the 'Act' ).
2. The facts giving rise to this appeal may briefly be stated thus :
The respondent has his residence in Matimandapsahi and shop known as 'Jagannath Ghruta Bhandar' in Dolmandap Sahi in the town of Puri. He carries on the business of preparing ghee and selling the same at his residence and shop. On 26-1-61 the Food & Health Inspector P. W. 4 got some information that the respondent-accused was selling adulterated ghee for human consumption. Thereafter P. W. 4 along with P. W. 3 and some others raided the house of the accused and seized 141 tins of ghee of different varieties. Out of the said tins, nine tins were marked as S.G.S. red label ghee, 21 tins were marked as S.G.S green label ghee, 56 tins of 'prepared ghee, 49 tins were found as Prasad Banaspati ghee and seven tins as K. M. B. variety ghee. He also seized some empty tins and buckets containing ghee. Some other articles such as ghee flavouring essence, cauldrons, loose labels, one tin of Kum-kum ground nut oil, test tubes, two tins of til oil, ghee dust, Etna fruits, Sodibicarb, some acid, one pipe fitted drum and three big ovens and some iron materials used in the preparation of ghee were also seized.
P. W. 4 after giving notice (Ext. 6) to the accused under Section 11 of the Act, purchased for analysis different varieties of ghee by way of samples on payment of the usual price to the accused amounting to Rs. 11.19 as per receipt, Ext. 5. Thereafter he sealed the same into 27 sample bottles and separated them into three parts of nine bottles each and sealed them in the presence of the witnesses and the accused, as required under the rules. He then sent one set of sample of nine bottles to the public analyst, one set of bottles were given to the accused and the third set was kept by P. W. 4. The public analyst examined the samples and found the S. G. S. Green label and S. G. S. red label ghee to be grossly adulterated, the reports being Exts. 7 and 8 respectively. He also found some other samples of ghee to be grossly adulterated as would appear from his report Exts. 9 and 9/1. He found some samples of ghee to be fit for human consumption which were returned to the accused in due course. In the present case we are concerned only with the adulterated ghee found unfit for human consumption as reported by the public analyst in his report Exts. 7, 8, 9 and 9/1.
3. The accused was originally tried and convicted by a Magistrate and his conviction and sentence were upheld in appeal. On a revision preferred by the accused (Cri. Revn. No. 314 of 1962, reported in AIR 1963 Orissa 158) the High Court set aside the conviction and sentence on the ground that the complaint was not duly filed in accordance with the requirements of Section 20(1) of the Act. The High Court, however, without expressing any opinion on merits of the case observed that it was open to the Municipality of Puri at whose instance the prosecution was launched to start fresh proceedings according to law. Accordingly fresh proceedings were initiated after due compliance with the provisions of Section 20(1) of the Act and the accused was retried.
4. The accused took the plea that the ghee in question were not meant for human consumption and they were only meant for lighting purposes and it was so written on the labels of tins seized by P. W. 4.
5. The learned Magistrate who tried the case found that the adulterated ghee seized from the accused was meant only for lighting purposes and that the accused was not selling the same for human consumption. He accordingly acquitted the accused. It is against this acquittal the complainant has preferred the appeal.
6. Mr. Kanungo, learned Counsel for the respondent mainly raised the following contentions : (1) That the purchase of the ghee by way of samples by the Food Inspector does not amount to 'sale' and as such the provisions of the Act are not attracted so as to make the accused liable under Section 16 of the Act; (2) That the description on the labels that the Ghee was meant for lighting purposes, was a sufficient notice to the Food Inspector that it was not fit for human consumption and that the Food Inspector had no jurisdiction to take samples of such ghee and to make the petitioner liable under the Act, and (3) that there being a marked difference between the market price of the ghee sold for use as food and the price at which the petitioner was selling the ghee in question, the Food Inspector should have found that [he ghee sold by the respondent was not meant for Human consumption.
7. Mr. Misra, learned counsel for the appellant, on the other hand contended that once the ghee was offered for sale in the market, it must be taken to be the ghee fit for human consumption and any adulteration found in such ghee will make the seller liable under the Act and it was no excuse that some label was attached to the tins indicating that the contents were not meant for human consumption.
8. Before I proceed to examine the correctness of the respective contentions, it is necessary to notice the relevant provisions of the Act and the Rules made thereunder. From the preamble of the Act it appears that the Act was brought about to deal with prevention of adulteration of food. Under Section 2(v) 'Food' has been defined to mean any article used as food or drink for human consumption other than drugs and water and includes any article which ordinarily enters into or is used in the composition or preparation of human food and any flavouring matter or condiments. Section 7 prohibits manufacture and sale of certain articles of food and it says that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any adulterated food ... or any article of food in contravention of any other provisions of the Act or any of the rules made thereunder. Under Section 2(1) an article of food is adulterated if the quality or purity of the article falls below the prescribed standard. Section 23 empowers the Central Government to make rules specifying the articles of food or classes of food defining the standard of quality, fixing limit of variability permissible in respect of any article of food etc.
In exercise of powers under Section 23, the Prevention of Food Adulteration Rules were framed. Rule 5 of the said Rules specifies the standard of quality of the various articles of food specified in Appendix B to the Rules and Ghee is one of the articles of food whose standard has been prescribed in item A. 11.14 as follows :
'Ghee means the pure clarified fat derived solely from milk or from curd or from deshi (cooking) butler or from cream to which no colouring matter or preservatives has been added. .........'
and the standard quality of ghee must conform to the standard as laid down State-wise in the Table given under the aforesaid item. So far as Orissa is concerned in item No. 15 of the Table the minimum Reichert value of Ghee has been fixed at 26. In the present case as appears from Exts. 7 and 8, the report of the analyst, the Reichert value of the kinds of ghee examined by him is far below the value prescribed under the above item, that is, it is only 3.9 in respect of S. G. S. Brand Green label ghee and 2.5 in respect of S. G. S. Red label Ghee.
In two other samples he found the Reichert value to 3.5 and 8.4 in respect of prepared ghee as disclosed from Exts. 9 and 9/1. The Public Analyst found that the ' sample was grossly adulterated. Section 8 of the Act makes provision for appointment of public analyst and Section 9 for appointment of Food Inspectors by the State Government. Under Section 13 the Public analyst has to deliver his report in a prescribed form to the Food Inspector of the result of any analysis of any article of food submitted to him for analysis. By virtue of this authority the Public Analyst submitted his report giving the result of his analysis of the ghee in question. From the said report it is clear that the articles seized from the accused were grossly adulterated within the meaning of the Act.
9. Mr. Kanungo, the learned counsel for the respondent contended that the purchase of the articles by way of samples by P. W. 4 does not amount to sell so as to make the respondent liable under the Act. Section 10 definest the powers of Food Inspectors and amongst others it authorises the Food Inspector to take samples of any article of food from any person selling such articles and when a food inspector takes a sample of food for analysis he has to follow the procedure laid down in Section 11 and under Sub-section (1) of Section 11 when a Food Inspector takes a sample of food for analysis he shall give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and except in special cases provided by rules under the Act, he shall separate the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and then deliver one of the parts to the person from whom the sample has been taken, send another part for analysis and retain the third part for production in case any legal proceedings are taken or for analysis by the Director of the Central Food Laboratory under Sub-section (2) of Section 13, as the case may be.
That the food inspector followed the procedure laid down in Sections 10 and 11 cannot be disputed. From the evidence it is clear that P. W. 4 searched the house of the accused at Dolmandap Sahi on suspicion that he sold adulterated ghee. He disclosed his intention to the accused, issued notice to him to the effect that he would take samples of the ghee sold by him. He therefore, paid him the price as evidenced by Ext. 5 under the signature of the accused (Ext. 5/1). The evidence further discloses that he took 27 samples three from each of the nine varieties, gave one set of samples to the accused, kept one set for himself and sent the third set of samples to the Public Analyst as required under the rules. The accused does not dispute this position. It is not his case that the Food Inspector did not take the sample or that he did not follow the procedure laid down under Sections 10 and 11 of the Act. When questioned under Section 342, Cr. P. C. his only grievance was that the Food Inspector did not pay him the price of the samples of ghee taken from him. The evidence of P. Ws. 2, 3 and 4 and the receipt Ext. 5/1 signed by the accused himself fully falsifies the statement that he was not paid the price of the samples.
10. Mr. Kanungo urged that the 'sale' under the general law must be consensual act of both the buyer and seller, but as the sale in the present case to the Food Inspector had an element of compulsion in it and was not voluntary in nature, the transaction cannot be regarded as a sale and as such the accused cannot be said to have sold adulterated ghee to the Food Inspector so as to make him liable under Section 16 of the Act. In support of his contention he relied upon a decision of the Kerala High Court reported in 1962 (1) Cri. LJ 152 (Ker) where Raman Ayer J. observed that the obtaining of sample under Section 10 of the Act would not amount to sale as it is not a voluntary transaction, but in the nature of compulsory acquisition in exercise of statutory power. The Supreme Court, however, in a case Cri Appeals No. 57 and No. 113 of 1963: (AIR 1966 SC 128) Mangaldas Raghavji Ruparel v. State of Maharashtra, (see also Supreme Court Notes Vol. 7 (4) 1965 Note No. 53) referred to the above decision of the Kerala High Court and were unable to accept the view. The Supreme Court have also in a number of other cases treated such transactions of sale to the Food Inspector as sales under the Act: (see (1961) 3 SCR 324 : (AIR 1961 SC 631); (1961) 3 SCR 986 : (AIR 1961 SC 1494), M.V. Joshi v. M.U. Shimpi; AIR 1964 SC 1135, State of Uttar Pradesh v. Kartar Singh). The different High Courts of India have also taken the same view. See AIR 1954 Bom 216 State v. Amratlal Bhogilal; AIR 1953 Mad 241, The Public Prosecutor v. Dada Haji Ebrahim; AIR 1965 All 39 : Usman Ali Khan v. State; AIR 1964 Guj 191 State of Gujarat v. Asandas Kimmatrai; AIR 1965 Andh Pra 118 Public Prosecutor v. Nagabhushanam and AIR 1965 Mad 98 Public Prosecutor v. Palanisami Nadar. The definition of sale itself as given in Section 2 (XIII) of the Act specifically includes within its ambit a sale for analysis to the Food Inspector. In view of the definition also it is no more open to the learned counsel for the respondent to contend that the transaction would not amount to 'sale'.
11. I shall next examine the other contentions that the Ghee in question was meant for lighting purposes and not for human consumption. It is not disputed that the various kinds of Ghee including that which is fit for human consumption were seized by the Food Inspector from the house of the accused and those that were found to be unadulterated were returned to the accused and the prosecution was started only with respect to the adulterated stuff. Thus both the adulterated and non-adulterated ghee were found from the same premises. It is the case of the accused that red labelled and green-labelled ghee tins were meant for lighting purposes. It is however the evidence of P.W. 2 that the accused used to sell red-labelled ghee as cow's ghee and the green labelled ghee as buffalo ghee and that he purchased these ghee as such on some occasions prior to the occurrence on such representation being made by the accused. He further asserted that he purchased one seer of red-labelled ghee from the house of the accused in the morning of the very date of the seizure by the Food Inspector on the understanding that it was cow's ghee. P.W. 3 denied the suggestion of the defence that the ghee was meant only for burning purposes. Both P.Ws. 2 and 3 were witnesses to the seizure and have signed the relevant seizure lists, Exts. 3 and 4. Nothing has been brought out to discredit them. In fact, the learned Magistrate has not given any satisfactory reason for having rejected their evidence. Apart from these 2 kinds of ghee the Public Analyst also found some other kinds of ghee as grossly adulterated as will appear from Exts. 9 and 9/1.
12. The accused has examined two witnesses. D.W. 1 is his own brother-in-law and was working in his shop, and D.W. 2 is one of his customers. It is in the evidence of D.W. 1 that they sell three types of ghee, viz. Cow-ghee, buffalo-ghee known as K.M.B. Ghee and a third variety known as S.G. 8 ghee and it was only the last variety that was used for lighting purposes. Though it is his evidence that they do not sell red-labelled or green labelled ghee for human consumption, the evidence makes it clear that the accused used to sell even those two kinds of ghee for human consumption. Obviously the accused passed off all kinds of ghee as fit for human consumption and as rightly suggested by Mr. Misra the learned counsel for the appellant, the small letter imprinted on the labels of S.G. 8 Ghee showing that they were meant for lighting purposes is merely a device to put forth a ready defence in case of detection.
13. It is true that a large quantity of ghee is daily required for lighting purposes in the temple of Lord Jagannath and other temples, but that does not mean that such ghee must necessarily be adulterated. Undisputedly Ghee is a food-stuff as it is used in various forms in the preparation of human food and sale of adulterated ghee is prohibited by law. Although the Ghee might have an alternative use such as for lighting purposes, it cannot lose its use or importance as a food. It was open to the accused to sell such article for lighting purposes by any other name. But once he sells an article in the name of Ghee he is bound to sell it in an unadulterated form and once it is found to be adulterated, the seller becomes liable under Section 16 of the Act. It was said that the description on the label that it was meant for lighting purposes was a sufficient notice to the Food Inspector that it is not a Food so as to entitle him to exercise jurisdiction under Sections 10 and 11.
That the Ghee was meant for lighting purposes is no notice to the customers that it is unfit for human consumption. There is no bar for pure ghee being used for lighting purposes and good ghee may be used for both the purposes. It is however not a sufficient defence for the accused to contend that it was never intended by him that the said ghee should be used for human consumption. Once an article is sold as Ghee in the market it was perfectly within the jurisdiction of the Food Inspector to act under Sections 10 and 11 of the Act.
14. There are a large number of authorities to show that mere notice of sale of adulterated food is not sufficient defence for the accused. In a case reported in AIR 1930 Cal 273, Rakhal Chandra v. Purna Chandra, which was a case under the Bengal Food Adulteration Act, it was held that it is no defence for the accused to say that he has advertised that he was not selling pure food and that the purchaser knew the fact. In that case mustard oil was sold to the Sanitary Inspector not as mustard oil, but as mixed oil and there was a signboard in the shop to indicate that the mixed mill oil was meant for lighting purposes. It was held that the mustard oil being an article of food it is no defence to say that the article can be adulterated and sold in the market with the publication of the fact that they were adulterated.
15. In a case reported in AIR 1933 Cal 619 Chairman District Board Midnapur v. Atul Chandra Pal, the accused stored for sale some mustard oil mixed with linseed oil which he chose to sell as fuel oil and pleaded that he did not intend that it should be used for human consumption. Costello J. held that what was stored was mustard oil which was an article of food within the meaning of Section 6 of the Bengal Food Adulteration Act and as the article did not conform to the standard required by the section the accused must be held to be guilty. We have already seen that the ghee is one of the articles of food. In spite of the description given by the accused that it was meant for lighting purposes and the disparity in prices which may exist for various reasons, the seller cannot escape the liability under the Act as it is not open to anybody to sell any article of food in an adulterated condition though he gave notice of such adulteration to his prospective buyers.
There are a large number of authorities of different High Courts of India in support of the position, (see AIR 1965 Andh Pra 118; AIR 1964 Pat 565 Patna Municipal Corporation v. Dulerchand; AIR 1965 Mad 98; AIR 1965 Bom 17, State v. Shankar Dnyanoba; AIR 1963 All 433 (FB) Municipal Board Kanpur v. Janaki Prasad and AIR 1964 Punj 427 Leelaram v. State). This contention has therefore no force and must be rejected.
16. In view of this position, it must be held that the accused is guilty under Section 16(1)(a) of the Act and must be convicted under the said section. In the result, the order of acquittal passed by the Sub Divisional Magistrate, Puri, is set aside and the respondent is convicted under Section 16(1)(a) of the Act, Though cases of this nature have to be severely dealt with, in view of the fact that several years have elapsed from the date of detection of the offence and as this appears to be the first offence by the accused, I do not propose to impose a substantive sentence of imprisonment. I would accordingly convict the accused-respondent under Section 16(1)(a) of the Act and sentence him to pay a fine of Rupees one thousand, in default to undergo R.I. for three years.
The appeal is thus allowed.