B.K. Behera, J.
1. The petitioner stands convicted Under Section 16(1)(i) and (ii) read with Section 7(i)(v) of the Prevention of Food Adulteration Act, 1954(hereinafter called the 'Act') and Rule 50 made thereunder and sentenced to undergo rigorous imprisonment for. a period of six months and to pay a fine of Rs. 1000/- and in default of payment thereof, to undergo rigorous imprisonment for a further period of three 'months, by the judgment and order passed by the Sub-Divisional Judicial Magistrate, which have been confirmed by the Additional Sessions Judge, The petitioner, it was alleged having a grocery shop at village Tarva in the district of Balangir J>ad been selling food articles including Mot dal meant for human consumption without obtaining a licence therefor and on September 28, 1974, the Food Inspector (P.W. 1, in the presence of P.W. 3, a peon in the office of the Primary Health Centre and P.W. 2. a watch repairer of Tarva visited the shop of the petitioner who had exposed for sale grocery articles including Mot dal find by giving due notice (Ext. 2) that the article would be sent for analysis, purchased 600 grams of Mot dal for Rs. 1.95 paise as per the receipt (Ext. 1) granted by the petitioner and in accordance with the rules, sent this article for examination by the Public Analyst who, as per the report, Ext. 4, found it to be adulterated. After obtaining the sanction order, the petitioner was prosecuted. A copy of the report of the Public Analyst had been sent to the petitioner by registered post. To bring home the charges to the petitioner, three witnesses had been examined for the prosecution including the Food Inspector. The petitioner's case was that he had a stationery and not a grocery shop for selling articles of food and the article in question was not meant for human consumpetion, but was meant for feeding his cattle. In his defence, he had examined one witness who had testified in support of his case. On a consideration of the evidence from the side of the prosecution, both the Courts have accepted the presecution case.
2. Mr. S. Mohapatra for the petitioner has submitted that the prosecution had failed to establish that the petiioner, having a grocery shop, had been selling food articles without a licence and the article in question kept aside in the outer verandah was for feeding cattle and was not an article of food meant for sale for human consumption. It has also been contended that it could not be said from the report of the Public Analyst that the article of food was adulterated and that there had been delay in examining the sample by the public Analyst causing prejudice to the petitioner as he had no reasonable opportunity to get the article examined in time at the Central Food Laboratory, Mr. Rath, the Additional Standing Counsei, has submitted that none of the contentions raised on behalf of the petitioner can prevail.
3. I would at this stage point out two highly disquieting features during the trial and at the stage of appeal, it was unfortunate that although the petitioner had examined a witness in his defence, neither the trial Court nor the appellate Court even touched that evidence while considering the, case against the petitioner and the defence raised by him, A contention was raised before the appellate Court that Mot dal had been stored for feeding cattle and not for human consumption. The learned Additional Sessions Judge recorded in paragraph 9, of his judgment that he would discuss in the later part as to whether Mot dal was stored for sale for human consumption or was stored for feeding cattle, but he never discussed about it later. Thus a serious contention raised on behalf of the petitioner was referred to, but left unanswered. The Presiding Officers of both the trial and the appellate Courts acted improperly and did not carefully consider the case of the petitioner.
4. If the article in question is taken as 'food' within the meaning of the Act convng under the category of pulses, it would be taken as adulterated in view of the report of the Public Analyst and regard being had to the nature of the article, some delay in examination of the article by the Public Analyst would not prejudice the case of the petitioner as it was onen to him to get it examined at the. Central Food Laboratory.
5. I would nw take up the charge against the petitioner that he had been selling articles of food without a licence. P.W. 1 had stated that he knew the petitioner who had a grocery shop at Tarva and on the day of his visit, the saw him selling spices, dal, besan etc, but 1here was nothing to show that prior to 28-9-1974, he had visited the shop of the petitioner. He had not stated in the prosecution report that he had seen the petitioner selling such articles On the date of detention. P.W. 3 was not a resident of Tarva, the village of the petitioner, but was then serving as a peon in the Primary Health Centre and on his own showing, he had gone to the shop of the petitioner for the purchase of a soap. Although he had, like P.W. 1, made a vague statement that the petitioner had been selling articles of food like Dal, Jira etc., there was no evidence that he had ever visited the shop of the petitioner on any earlier occasion and neither P.W. 1, P.W. 3 had deposed that the petitioner had ever been seen selling any food article to any one. P.W. 3 had admitted that he had never purchased food articles from the shop of the petitioner. P.W. 2, while making a statement in his examination-in-chief, that the petitioner had a grocery shop, admitted in his cross-examination that he used to f to go to the shop of the petitioner which was a stationary shop and the petitioner had not been selling any article of food. There was no reason to assume that what he had stated in. his examination in-chief was true and that what he had stated in his cross-examination which lent support to the case of the defence was untrue. This witness was a resident of Tarva and was thus competent to depose as to whether or not the petitioner had a grocery shop and had been dealing in food articles. There was, in addition, the clear and cogent evidence of D. W. 1 that the petitioner had been selling articles like comb, mirror etc., and npt articles of food. As already indicated by me, the evidence of this witness was not even touched by the Courts below. Merely because at a later point of time, the petitioner had applied for a licence for selling food articles, about which evidence had been given by P.W. 1, it could not be assunv ed in a criminal trial against him that at an earlier point of time, he must have been dealing in articles of food.
6. On a consideration of the aforesaid evidence and facts and circumstances, the charge that the petitioner had been dealing in articles of food without obtaining a licence in contravention of Rule 50 must fail.
7. I would next come to the question as to whether Mot dal was an article of food meant for human consumption as sought to be established by the prosecution or meant for feeding cattle which was the case of the defence. Section 2(v) of the Act defines 'Food' this :
2. (v) 'Food' means any article used as food or drink for human consumption other then drugs and water and includes :
(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,
(b) any flavouring matter or condiments, and
(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notiflca ion in the Official Gazette, as food for the purposes of this Act.
Clause (v) of Section 2 of the Act li-mi s the meaning of 'food' to articles used as food or drink for human consumption. Subject to this limitation, the word is of very wide import and includes every article of food used as food or drink in whatever form it may be unless the same is specifically excluded The intention of the Legislature in giving such a wide import is to make the provisions of the Act applicable to 11 articles of food. The inclusive definition of 'food' under the Act is wide enough to -ake in any article which ordinarily enters into or is used in the composition or preparation of the article of human food or any flavouring mat'er or condiments. In the case of P. K. Tejani v. M. R. Dange : 1974CriLJ313 Their Lordships held thus (para 10):The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word. The Act defines 'food' very widely as covering any article used as food and every component which enters into it and even flavouring matter and condiments. It is common knowledge that the word food is a very general term and applies to all that is eaten by men for nourishment and takes the subsidiaries.
As has been held by the Supreme Court in the case of State of Tamil Nadu v. R. Krishnamurthy: : 1980CriLJ402 any article used as food or drink for human consumption any any article which ordinarily enters into or is used in the composition or preparation of human food is 'food'. It is not necessary that it is intended for human food. It is enough if the article is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly not used for human consumption or in the preparation of human food, but for some., other purpose, notwithstanding that it may be capable of being used, on rare oceasions, for human consumption or in the preparation of human food, it may be said, depending on the facts and circumstances of the case that it is not 'food'
8. Keeping the aforesaid principles in mind and judged in that light, it is to be considered as to whether in the instant case, 'Mot dal1 could be said to be food wihin the meaning of the Act. P.W. 1 had not testified about it. His evidence would not give an indication that Mot dal was an article of food which was generally or commonly used for human consumption. He had stated in his evidence that the article had no prescribed standard and he could not say from which article Mot dal was produced. The case of the petitioner was that the article in question had not been kept by him for human consumption, but for feeding his cattle and a suggestion that he had told P.W. 1 about it had been denied by him. But P.W. 2 had stated in his examination-iin-chief itself that the petitioner had been telling that he had kept this article not for sale, but for feeding his cattle. He had further testified that the articles meant to be sold had been kept inside the shop of the petftion'er%nd the tin from which he sample was taken by the Food Inspector had been kept in a corner of the outer verandah of the shop and no other article had been kept near that tin. This witness had reiterated in his cross-examination that when the Food Inspector wanted' to take the sample, the petitioner told him that it was meant for animal feed and not for sale to human beings. P.W. 2 had not made any statement that Mot dal was being consumed by the persoris in that locality. P.W. 3 had not stated that Mot dal was meant for or being used for human consumption. D. W. 1 had categorically testified that he had nevei seen Mot dal nor had he taken this at any time and he did not know what was Mot dal. His definite evidence was that it was not being cultivated in their area. He could not say if Mot dal was consumed by human beings or cattle. All this would lend support to the case of the defence that this article had been kept by the petitioner not for sale for human consumption., but for feeding his cattle, In the absence of evidence to show that it was an article of food meant for human consumption or was being consumed by persons, the petitioner could not be held to be liable for selling adulterated food.
9. As has been laid down by the Supreme Court in the case of Shah Ashu Jaiwant v. State of Maharashtra : 1975CriLJ1868 mens rea in the ordinary or usual sense of this term is not required for proving an offence denned by Section 7 of the Act. It is enough if an article of adulterated food is either manufactured for sale, or stored, or sold or distributed in contravention of any provision of the Act or any rule made thereunder. Nevertheless, the prosecution has to prove beyond reasonable doubt that what was stored or sold was 'food'. Where circumstances raise a genuine doubt on the question whether what was kept by a seller was 'food' at all, this must be resolved by evidence in the case. Where Section 7 prohibits manufacture, sale or distribution of certain types of 'food', it necessarily denotes articles intended for human consumption as food. It become the duty of the prosecution to prove that the article, which is the subject-matter of an offence, is ordinarily used fair human consumption as food whenever reasonable doubts arise on this question. The principles earlier laid down in the cases of the Supreme Court reported in Bhagwan Das Jagdish Chander v. Delhi Administration : 1975CriLJ1091 and Payare Lai v. New Delhi Municipal Committee. : 3SCR747 , were followed in this case.
10. In the light of the dicta of the Supreme Court in the decisions earlier and just referred to, it would be seen that the evidence in the instant case was far short of the mark to establish that the article in question was 'food' within the meaning of the Act kept for sale for human consumption. The evidence would not warrant a conclusion that 'Mot dal' was intended to be used or was being used for human consumption. On the evidence on record, it could not be said that at common parlance, this article could be said to be 'food'. I may not be understood as laying down a proposition that Mot dal is not to be construed as 'food' within the meaning of the Act and my finding in this regard is limited to the facts and circumstances of the instant case and is founded on the evidence led by both the sides which would lead one to a reasonable conclusion that the prosecur lion had failed to establish that Mot dal in respect of which the statutory purchase had been made by P.W. 1 was 'food' and it would be reasonable and proper to accept the defence version that the article in question had been kept in a corner of the outer verandah for feeding the cattle of the petitioner and not for sale for human consumption.
11. For the reasons aforesaid, I would hold that the findings recorded by the Courts below were unreasonable on facts and unsustainable in law and could not be maintained. The prosecution had failed to bring home to the petitioner any of the charges levelled against him.
12. In the result, therefore, revision succeeds and the same is allowed. The order of conviction and sentences passed against the petitioner is set aside.