S.K. Ray, J.
1. Petitioner No. 2, Ram Nivas, has a grocery shop at Pipli. Petitioner 1 is a relation of petitioner 2 and works as a helper in the said shop. There was a bag of Arhar Dal in the shop on 17-8-1961 for sale. That day, at about 12 noon, the Food Inspector purchased 750 grams of Arhar Dal on payment of 95 paise. After serving on the two petitioners notice as required Under Section 11 of the Food Adulteration Act, the Food Inspector obtained a receipt (Ext. 2) under the joint signature of the petitioners. In that receipt the petitioners acknowledged having sold 750 grams of Arhar Dal at the market price of 95 paise. The Food Inspector divided the purchased-sample into three parts, and sealed them in three clean bottles; one bottle was given to the accused-petitioners, one was sent to the Public Analyst, and the third was kept by the Food Inspector for production in Court at the time of trial.
2. The Public Analyst reported that the sample contained foreign material 30 per cent., damaged grains 34.5 per cent., uric acid content due to insect damages - 45 mill-grams per 100 grams; Weevils were also present.
3. On the basis of his finding the Public Analyst opined that the Arhar Dal in question was adulterated. On receipt of this opinion the Food Inspector, after obtaining necessary sanction, filed his prosecution report before the S. D. M., Puri. Each of the petitioners was convicted Under Section 16(1)(a) of the Prevention of Food Adulteration Act, and sentenced to R.I. for six months, and to pay a fine of Rs. 500/-, in default to undergo further R.I. for three months.
4. The petitioners filed an appeal against their conviction and sentence by the trial court. The Sessions Judge confirmed the order of conviction and sentence passed by the trial Court. Hence this revision by the petitioners.
5. The defence of the petitioners is one of denial. It was also contended that before the sample was drawn by the Food Inspector, the entire grain was poured on the ground which was dusty and dirty, and the foreign materials found in the sample, may be due to the dirt on the floor, and as such, the finding of the Public Analyst affords no basis for holding that the Arhar Dal in the bag was not upto the defined standards o quality. Another contention raised was that the Arhar Dal was not meant for human consumption and unless the prosecution has established that it was meant to be sold for human consumption, the conviction is unsustainable. A special argument was advanced for petitioner 1. It was urged that he was a mere helper and as such he cannot be held guilty.
6. learned Counsel for the prosecution points to A. 18.06 of appendix I of the Prevention of Food Adulteration Rules, 1955, as the item covering Arhar Dal, and the standards of quality prescribed under that item of food as the standards for Arhar Dal.
7. There can be no doubt that the Arhar Dal kept for sale did not conform to the standards of quality prescribed under A. 18.06. The presence of damaged grains and the uric acid contents arising as a result of insect-damage were in excess of the permissible minimum percentage of these matters prescribed under this article. These excesses, as has been rightly observed by the learned Sessions Judge, cannot be ascribed to the pouring of the grain on the floor before the sample was drawn. That apart, if the defence evidence is accepted which is to the effect that the entire quantity of grains contained in the bag was poured on the floor, it would follow that the grain at the bottom of the bag would normally be on the top of the heap of grain poured on the floor, and if a sample is drawn it would normally be drawn from the top. There would, thus, be no chance of that portion of the grain coming into contact with the dirt on the floor thereby enhancing the quantity of foreign materials in the sample. Even ignoring that finding of the Public Analyst, his other findings viz., the presence of damaged grain, that is, grain damaged by fungus, moisture or heating, and the percentage of insect damage being in excess of the minimum prescribed standard, would still make it an adulterated food within the meaning of the definition of the expression 'adulterated'. There is thus no substance in this contention.
8. The prosecution report states that the petitioners were selling Arhar Dal for human consumption from which the Food Inspector took a sample which was found to be adulterated. The defence has led evidence to prove that it was kept for sale for cattle consumption and not for human consumption. The defence witnesses have not been cross-examined on this point at all. The prosecution witnesses also have not breathed a single word in assertion of the fact that this article of food was kept for sale for human consumption.
9. Article 18.06 of Appendix B of the Pregention of Food Adulteration .Rules runs as follows:
foodgrains meant for human consumption shall fulfil the following standards of quality, namely:
(i) x x x x(ii) x x x x(iii) Damaged grain- Grain that is damaged by fungus, moisture, or heating, and wherein the damage is not superficial, but grain is affected internally, shall not exceed 5 per cent, by weight.
(The rest is not necessary to be quoted), Section 2(v) of the Act defines 'food'.
'food' means any article used as food or drink for human consumption....
other portions of the definition are .not necessary to be quoted for the purpose of present consideration).
It is, therefore clear that any article which is either used or is capable of being used as food comes within the definition of 'food', and any adulteration of the same makes it an adulterated food. Section 7 of the Act runs a? follows:
No person shall himself or by any person on his behalf manufacture or sale, or store, sell or distribute:
(i) any adulterated food;
(ii) to (v) (not necessary to be quotes).
This imposes an absolute ban against the sale of any adultered food.
10. It further appears to me that the provisions of the Act clearly, and also by necessary implication, have ruled out the mesne rea as a constituent part of the crime, and an act done in contravention of the prohibition contained in the Act - no matter how innocently -is liable to be visited with penalty provided therefor. In that view, petitioner .Ko. 1 would be guilty and liable to be punished, notwithstanding that he was there in the shop as the helper of petitioner 2, and did sell the Arhar Dal without being cognisant of the fact that the article sold was an adulterated article of food.
11. Section 2 defines adulterated article of food. The prosecution seeks td bring it within Clause (1) of Section 2(i). This clause provides that if an article of food falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability then the article of food shall be deemed to be adulterated. The standards of quality and variability, as already stated, have been prescribed under A. 18.06 of Appendix B which is invoked for the purpose of this prosecution. It deals with foodgrains meant for human consumption, and prescribes the standards of quality therefor. It clearly indicates that any foodgrains which are to be sold for human consumption must conform to the standards of quality prescribed therein. If the foodgrain is not meant for human consumption, but is meant for consumption of cattle, then such foodgrain need not conform to that standard.
12. In this case, as evidence shows, the defence has proved that this article was kept for cattle consumption, and that evidence has not been challenged. While the prosecution has offered no positive evidence on the point that this Arhar Dal was being sold for human consumption. If it is deemed as food-grain sold for cattle consumption, then it would not be adultered food within the meaning of Section 2(i)(l). Arhar Dal may be a food as defined in Section 2(v) inasmuch as it is usable or is capable of being used as a food. But if it ceases to be food for human consumption, then it ceases to be capable of being used as a food for human beings, though the same may be consumed by cattle. In this context, the legislature has prescribed the standards of quality for foodgrains meant for human consumption. To my mind, it appears that the onus is still on the prosecution to prove that this Arhar Dal was kept in the shop of the petitioners for sale for human consumption, and was sold as such. Mere proof of sale when the specific unrebutted defence evidence is that it was kept for sale for cattle consumption, will not bring home the charge. There is no provision in the Prevention of Food Adulteration Act which bars sale of food which is adulterated within the meaning of Section 2 of the Act for the purpose of consumption by cattle as fodder. In this view it must be held that the prosecution has not been able to bring home the charge against the petitioners, and the petitioners must be acquitted.
13. In the result, this petition is allowed; the orders of conviction and sentence passed by both the courts below are set aside; the fines if paid, shall be refunded.