S. Acharya, J.
1. The petitioner stands convicted for an offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 hereinafter to be referred to as the Act and has been sentenced thereunder to undergo Rule I. for six months and to pay a fine of Rs 1000/- in default to undergo R. I. for a further period of one month.
2. The prosecution case, in short, is that on 11-2-72 P. W. 1, the Food Inspector visited the shop of the petitioner and purchased a sample of Pea Besan in accordance with the rules. The said sample was found by the Public Analyst to have contained slight traces of Khesari starch in it.
3. The petitioner in his Section 342 statement stated that the shop from which the said sample of Pea Besan was purchased did not belong to him and that he did not sell any Pea Besan to P. W. 1.
4. Mr. Dhal, the learned Counsel for the petitioner, contends that the prosecution has utterly failed to establish the most essential ingredient constituting the offence of which the petitioner stands convicted, as there is absolutely no evidence on record that the said Pea Basan was stored in the shop for sale for human consumption or was sold to P. W. 1 with that understanding. He contends that the finding of the Court below that the aforesaid sale of Pea Besan to P. W. 1 was for human consumption and not for any other purpose is patently ill-founded, illegal and incorrect as the sole basis of the said finding is the presumption illegally drawn on the fact that the petitioner did not specifically allege in his defence that the said Besan was kept in the shop for any other purpose other than for sale for human consumption.
5. The Government Notification No. 25561/H. dated 28-12-63 prohibits sale of Khesari gram or Dal for human consumption. Accordingly, if it is not established by the prosecution that the Pea Besan containing Khesari gram was sold for human consumption, the prohibition in the said notification cannot be said to have been contravened. In order to constitute the aforesaid offence it is to be established by the prosecution that Pea Besan containing starches of Khesari was stored for sale or sold or distributed for the purpose of human consumption, and if that is not established beyond reasonable doubt the Court cannot convict the accused by drawing a presumption to the above effect merely from the fact that the said Besan was kept in a shop along with other articles for sale.
6. Though on the report of the Public Analyst it is established that the sample of the Pea Besan purchased by P. W. 1, contained slight traces of Khesari starch in it. none of the prosecution witnesses has stated that the said Pea Besan stored in the petitioner's shop was being sold for human consumption or that while selling a sample of the same, the petitioner in any manner, gave P. W. 1 to understand that the said Besan could be utilised for human consumption. In the prosecution report or in the charge framed against the petitioner there is absolutely no mention of the fact that the said Pea Besan. stored in the petitioner's shop, was being sold for human consumption or that the petitioner actually sold the said sample of Besan to P. W. 1 on the aforesaid understanding. In the examination of the petitioner under Section 342 Cri. P.C. nothing was put to him to the above effect. Accordingly, there is nothing on record on which it can be said that the Pea Besan. stored in the petitioner's shop was being sold for human consumption or that he sold the sample of Pea Besan to P. W. 1 giving him to understand, in some manner that the same could be utilised for human consumption. The petitioner also did not know that such a fact based merely on a presumption, would be utilised against him.
7. Mr. Sahu the learned Additional Standing Counsel contends that the court below was justified in drawing and acting on the aforesaid presumption as the petitioner did not take the stand that the said Pea Besan was neither meant for human consumption nor was sold to P. W. 1 for that purpose. On the evidence adduced by the prosecution the accused took a particular defence which of course was ultimately not accepted by the court below. As stated in the preceding paragraph, the prosecution has not come forward with any allegation to the effect that the said Besan was stored or sold or distributed in any manner for human consumption. As the prosecution has not alleged, much less proved, anything to the above effect it was not for the accused to come forward of his own accord, to explain things not alleged against him in any manner. The burden to prove that the said Pea Besan was stored or sold for human consumption was squarely on the prosecution, and on their failure to establish the same the petitioner cannot be convicted merely on his failure to assert any such fact in his defence.
8. Moreover, no specific standard is fixed in the Act for Pea Besan. There is no doubt a slight admixture of Khesari in the said Pea Besan but the Public Analyst nowhere states that the said Besan was in any way injurious to health. Accordingly, the said Besan cannot also be said to be an adulterated article of food coming under Section 2(h) of the Act.
9. Most of the points decided above have been dealt with in the decisions of this Court reported in 1971 (2) Cut WR 713 (1967) 33 Cut LT 830; and 1971 (2) Cut WR 304 and they may profitably be referred to.
10. On the above considerations the conviction of the petitioner cannot be sustained. Accordingly the conviction of the petitioner under Section 16(1)(a) of the Act and the sentence passed thereunder are hereby set aside and he is acquitted of the same. He is hereby relieved of the bail bond executed by him. Fines, if paid be refunded to him.
11. The revision accordingly is allowed.