R.K. Das, J.
1. This is an appeal against the order of the Munsif Magistrate, 1st Class. Puri, acquitting the respondent of an offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. The prosecution case out of which this appeal arises may briefly be stated as follows:
2. The accused respondent has a godown in Luxmi Bazar in Puri Town. On 21-2-1963 the Food Inspector, P. W. 1, took samples of some Ahar Dal from the godown of the accused and later on sent the same to the Public Analyst for necessary examination and seized 10 1/2 bags of Dal under Ext. 2. The public analyst after examination found the Dal to have been adulterated. Accordingly prosecution was launched against the respondent and he was put to trial before the Magistrate aforesaid.
3. The accused admitted the seizure of the Ahar Dal from his godown, but took up the plea that the Dai was not meant for human consumption but was intended for cattle feeding as indicated by 'Gokha' mark on the bag itself.
4. The learned Magistrate found that the prosecution has not been able to prove that the Dal was meant for human consumption. Ha accepted the defence version as true and acquitted the accused, Hence the appeal.
5. In support of its case, the prosecution examined the Food Inspector (P. W. 1) and two other seizure witnesses, such as P. Ws. 2 and 3 and the Public Analyst's report Ext. A.
6. It is not disputed that the sample of Ahar Dal was duly taken from the shop of the accused. In fact, in his examination the accused does not dispute the same. His only plea was that the seized Dal was not meant for human consumption, but was meant for cattle feeding. From Ext. A it appears that the Public Analyst on examination of the sample of the Dal found the presence of some foreign seeds and he was of the opinion that the sample was adulterated.
7. under Section 23 of the Prevention of Food Adul-teration Act (37 of 1954) (hereinafter referred to as 'the Act'), some rules were framed known as the Prevention of Food Adulteration Rules, 1955. Rule 26 of the said rules permits some natural colouring matter which may be used in or upon any article of food. Rule 28 of these Rules gives a list of coal tar dyes which are permissible to be used in colouring the food. That rule insists that coal tar dyes except those mentioned therein should not be used in colouring the food stuffs. Metalline yellow, a coal-tar dye does not find place in the list of permissive dyes. In other words Metalline yellow is a colour, prohibited from being used in or upon any food-stuff. From Ext. 4 it is clear that this prohibited colour was used in the Dal in question. The Public analyst also found some other foreign seeds to have been present in the samples examined by him. Thus, there cannot be any doubt that the Dal seized from the godown of the accused was adulterated.
8. A case on the point will be found in a decision reported in, In re, Abdul Aziz, : AIR1964Ker107 , There some Thuvar Dal was taken by way of sample by the Food Inspector, On analysis, the Public Analyst found that the Dal contained some Metalline yellow colour-tar dye and was of opinion that it was adulterated. In view of the presence of this prohibited coal tar dye in the Dal, their Lord-ships maintained the conviction of the petitioners in that case.
9. In a case reported in Nagar Mahapalika, Kanpur v. Sri Ram : AIR1964All270 the food Inspector purchased some samples of Ladus and sent the same to the public analyst for examination and report. It was found by the public analyst that the Ladu was coloured with coal-tar dye, viz, Metalline yellow, which was not one of the permissible dyes under Rule 28 of the Prevention of Food Adulteration Rules. In view of the presence of the prohibited dye. the Ladu was found to be adulterated within the meaning of Section 2(a) of the Act. The only coal-tar dye of yellow colour permissible under the rules is commonly known as Tartazine-Sunset yellow F FCF and the Metalline yellow has no place in Rule 28. It may be mentioned that under Section 2(j), an article of food shall be deemed to be adulterated if any colour other than the prescribed colours and in amounts not within the prescribed limit of variability is present in the articles. We have already seen that Metalline yellow is prohibited colour under Rule 28 and therefore the colouring of the Dal in question clearly comes within the mischief of Section 2(j) of the Act, and the Dal must be held to be adulterated.
10. The contention of Mr. Mohanty, Learned Counsel for the respondent, that the colour was meant as a preservative cannot be accepted in view of the fact that the colour itself is a prohibited one under the Rules, obviously because it is detrimental to human health.
11. Though the Dal was found adulterated, the learned Magistrate acquitted the respondent mainly on the ground that there is some evidence to show that the sample Dal seized from the godown of the accused was not meant for human consumption but was intended for use as a cattle food. under Section 11 of the Act the Food Inspector has to give notice to the seller before he makes sample purchases under Section 10. Exhibit 1 is the notice that was issued under Section 11 by the Food Inspector. In the said notice Ext. 1 he clearly mentioned that the Ahar Dal in question in possession of the accused was intended to be used as an article of food and so he demanded for sample to be purchased for analysis by the Public Analyst. It is the evidence of P. W. 1 that the accused signed on the receipt when P. W. 1 made the seizure of 10 1/2 bags of Ahar Dal under seizure list, Ext. 2. Exhibit 3 is a money receipt granted by the accused himself in token of his having received the price of the samples at the rate of Rs. 0.60 nP. per kilo. No doubt Ext. 3 has not been put to the accused to explain the circumstances under which the Sample Dal was sold to the Food Inspector and if it was not meant for human consumption. Gut such non-examination is not material in view of the definition of 'food' as given in the Act itself. Section 2(v) defines food to mean any article used as food or drink for human consumption and includes any article which ordinarily enters into or is used in the composition or preparation of human food. It is needless to state that Dal is one of the common articles of food in (India as used in its various forms. Section 7 prohibits the sale of any kind of adulterated food and the sale of such food is an offence under Section 18 of the Act.
12. It was contended on behalf of the accused that the mere stacking or storing of adulterated Dal at the shop of the accused is not enough and it was to be shown that the Dal was meant to be sold for human consumption. It was also contended that there is evidence to show that it was not meant for human consumption as there was great difference in the usual prices of Ahar Dal sold in the market at 1.25 nP. and Dal in question which was being sold only at 0.60 nP. per Kilo at which P. W. 1 purchased and this low price was a clear indication that it was not meant for human consumption. No doubt this argument of the defence appealed to the learned Magistrate. But that however is not the correct approach. Once the article is found to be an article of food, we are not concerned with the question of its actual use or the nature of its use. The difference in price is no test. There may be any number of reasons for the same.
13. Mr. Mohanty in support of his contention that it was incumbent upon the prosecution not merely to show that the article in question was a food but also to show that the article was being sold as an article of food and unless that is shown the accused cannnot be held to have contravened Section 7 of the Act, relied upon a decision of the Andhra Pradesh High Court reported in Public Prosecutor v. Satya-narayana AIR 1958 Andh Pra 681. The learned Judge in that case took the view that before a conviction could be held under Section 16 read with Section 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 it must also establish that the adulterated food has been sold as an article of food. The correctness of this view was canvassed before a Division Bench of the same High Court in the case reported in Public Prosecutor v. Nagabhushanam : AIR1965AP118 , but their Lordships expressed their respectful dissent from the above view of the learned Judge and held that it would not be correct to hold that in the case of purchase for analysis before a conviction can be had under Section 16(1)(a) of the Act, it is incumbent upon the prosecution to prove that the article in question was sold as an article of food in addition to the prosecution proving that what was sold was an article of food and that it was adulterated.
14. The Patna High Court in a case reported in Patna Municipal Corporation v. Dular Chand Shaw AIR 1964 Pat 585 also dissented from the view ex. pressed in AIR 1958 Andh Pra 681. Their Lordships held that in view of the definition of food as found in Section 2(v) of the Act, the Court is not concerned with the actual use to which the article in question is put. To constitute food for the 'purpose of the Act it is enough if the article in question is usable or is capable of being used as food. It was held that it was not incumbent upon the prosecution to show that the article in question was being sold as an article of food fit for human consumption.
15. The Madras High Court in a case reported in Public Prosecutor v. Palani Sami Nadar : AIR1965Mad98 held that as long as the article is sold by the shop keeper or is stored by him for sale, remains an article which ordinarily enters into the preparation of human food, it is irrelevant to consider whether it was sold to a particular customer on the distinct understanding that he should not use it for preparing food and should give it only to animals. The crux of the offence is in the sale of the article of food as defined in the Act. It is irrelevant to consider whether there was a distinct understanding between the seller and the buyer at the time of sale that the article should be used for some purpose other than food. The fact that it was agreed between the seller and the buyer that the adulterated article sold was to be used for purposes other than human consumption will not at all enter into consideration, in determining whether an offence under Section 16 has been committed or not.
16. It may be mentioned here that in the aforesaid decision of Andhra Pradesh High Court, AIR 1958, Andh Pra 681 there were two varieties of turmeric sold, one intended for human consumption and the other for external use. Moreover, at the time of seizure it was noted in the receipt that the seized turmeric was meant for external use. In the present case there is nothing in the receipt to show that the accused claimed the Dal to be used other than as human food. But that as I have said has no bearing on the question at issue.
17. The Bombay High Court in a case reported in State v. Shankar Dnyanoba : AIR1965Bom17 where the Food Inspector purchased some cocosnut oil for the purpose of analysis, and the same was found to be adulterated, the accused took the plea that it was meant for application to hair and not for human consumption, their Lordships held that cocoa-nut oil falls in the category of edible oils according to the appendix to the Rules and is therefore a food. Their Lordships observed that the definition of food is wide enough to include any article which ordinarily enters into or is used in the composition or preparation of human food. Their Lordships further held that the question of intention of the seller is entirely irrelevant for the purpose of contravention of Section 7 of the Act. It is sufficient if the object or the article sold happens to be an article of food and found to be adulterated.
18. A Full Bench decision of the Allahabad High Court, reported in Municipal Board, Kanpur v. Janaki Prasad : AIR1963All433 , also took the same view. Their Lordships were dealing with a case of Linseed oil and it was argued that Linseed oil was not an article of food and it was used for preparation of paints and varnishes. Repelling this contention, their Lordships held that an article may have more than one use and it may ordinarily be used for more than one purpose. The mere fact that Linseed oil is also used for making paints and varnishes would not make it any the less on article of food as defined in Section 2(v) of the Act.
19. The Punjab High Court in a case reported in Leela Ram v. State AIR 1964 Punj 427, were dealing with a case of Hing. The plea of the accused was that it was meant for agricultural purposes and not as a food for human consumption. Their Lordships held that the occasional use of Hing for agricultural purposes does not take it out from the category of food. The word 'ordinarily' in Section 2(v) indicates that it is not essential that the article should exclusively and invariably be used in the composition and preparation of food. The language rather shows that it is quite enough if the article is generally used in the composition and preparation of human food.
20. In a case reported in Chairman, District Board, Midnapur v. Atul Chandra Pal AIR 1933 Cal 619 which is a case under the Bengal Food Adulteration Act, the Sanitary Inspector purchased mustard oil which on analysis was found to be mixed with Linseed oil. The plea of the accused was that it was fuel-oil and not intended for human consumption. It was held that what was sold was mustard oil which is an article of food and as the oil in question did not conform to the standard required by Section 6 of the Act, the accused was guilty.
21-22. The view of the aforesaid authorities cited by Mr. Misra, Learned Counsel for the appellant, there is no room to accept the contention of the respondent that what was sold to the food inspector is not food within the meaning of the Act.
23. It was next urged that there is nothing to show that the adulteration was prejudicial to human health and that mere adulteration is not enough. The answer to this argument will be found in a case reported in In re S. Moses : AIR1959Mad185 , It was held in that case that the adulterated substance need not be poisonous or injurious. Indeed it may even be conducive to health. But the object of the Act is to see that the substance sold is not mixed with any other thing not permitted by law. Hence the plea that the adulteration was not prejudicial to health or injurious to anybody and was only to add colour to the substance so as to attract the buyers is un-sustainable.
23a. It was next urged that the extent of the presence of the Metalline yellow or the foreign seed has not been (given) in Ext. A by the Public Analyst and the mere nominal presence of the substance would not make the food adulterated and would not amount to an offence. Reliance was placed on a case reported in Sarup Lal v. Emperor AIR 1936 Pat 636. That however was a case under the Bihar and Orrissa Prevention of Food Adulteration Act, and there the definition of adulteration is not so wide as in the present Act of 1954. In that case some admixture of foreign starchy grains were found in Suji. The learned Judge remanded the case held by that the Courts below have not applied their mind at all to the question whether the admixture of foreign starchy grains was so large that it could not be explained otherwise than by fraud or to the question whether the transit other grains had innocently and unavoidably became mixed with the Suji. This however is not the plea of the accused in the present case.
24. Finally it was urged on behalf of the respondent that the giving of sample Dal in question to the Food Inspector is not a sale within the meaning of the general law and under the provisions of Sections 10 and 11 of the Act the accused had no option but to sell the samples and as such the sale was not a voluntary act between the seller and the buyer and therefore is no sale within the meaning of law. But the Supreme Court in a number of cases have treated such transactions as sale for the purpose of the Act (See Sarjoo Prasad v. State of Uttar Pradesh : 1961CriLJ747 . M.V. Joshi v. M. U. Shimpi : 3SCR986 ; State of Uttar Pradesh v. Kartar Singh : 1964CriLJ229 , Mangaldas Raghavji v. State of Maharastra : 1966CriLJ106 . It is also evident from the definition of said Section 2(xiii) of the Act that it specifically includes a sale to the Food Inspector. This contention must therefore be rejected.
25. In view of this position it must be found that the respondent-accused has committed an offence under Section 16(1)(a) read with Section 7(i) of the Act and he is accordingly convicted under that Section and is sentenced to pay a fine of rupees five hundred and in default to undergo R. I. for three months.
26. In the result, the order of acquittal la set aside and appeal allowed.