R.S. Sarkaria, J.
1. The common questions that arise for determination in these appeals on certificate directed against the judgment of the Delhi High Court are:
(1) Whether for purposes of the Prevention of Food Adulteration Act. 1954 (for short the Food Act), there is no sale of food which is provided by a hotelier to a guest when a consolidated charge is made for room and the other amenities, including food, and when no rebate is allowed for any meal which may not be taken by the guest
(2) Whether the expression 'store', as used in Section 7 and Section 16 of the Act, means storage simpliciter or storing for sale
2. In answer to the first question, the Full Bench of the High Court, to which these questions were referred, held that when a composite charge is made for residential accommodation and food by a hotelier, there is no sale of food to the customer within the contemplation of the Food Act. On the second question, its answer was that the word 'store' used in Section 7 and Section 16 of the Act means storage for sale.
3. The question arose in these circumstances:
M/s. Associated Hotels of India Ltd. (for short. Associated Hotels) runs Hotels, one of them is Oberoi Maidens Hotel, 7, Alipur Road. Delhi. Respondent No. 1 (L. N. Tandon) is the Manager of that Hotel, while Respondent No. 2 is the Managing Director of the Associated Hotels. According to the prosecution case, on July 25. 1966, Shri P. P. Sinha. a Food Inspector of the Municipal Corporation of Delhi, got from Respondent No, 1, the samples of ice-cream, milk, curd and butter for the purpose of analysis. The sealed samples were sent to the Public Analyst for examination and were found to be sub-standard and, as such, 'adulterated articles of food' within the purview of Section 2(i)(1). In the case of ice-cream, there was 1.6% deficiency in total solids and 2.9% deficiency in fat.
4. The Assistant Municipal Prosecutor thereupon filed four separate complaints under Section 7 read with Section 16 of the Act for prosecution of the Respondents in the court of the Magistrate 1st Class, Delhi. It was alleged in the complaints that the articles of food of which samples were taken, had been stored for sale in the said Hotel. The accused raised factual as well as legal pleas in defence. Respondents inter alia contended that the sampling was not done in their presence and consequently, the entire proceedings, being violative of the mandatory requirement of law, were vitiated and illegal. A common stand taken toy both the Respondents, was that no articles of food are sold in this Hotel to the non-resident visitors, or the public generally; that the hoteliers provide residential accommodations, services and other amenities, including meals, only so the resident customers against a composite charge and that no rebate is allowed for food if a resident customer chooses not to eat it.
5. The Magistrate accepted the defence plea that the samples had been taken in the absence of Respondent No. 1 and there had been breach of the law on that score. He further held that the food articles of which samples were taken had not been stored for sale. In the result the Magistrate acquitted both the Respondents. Against this acquittal, the Municipal Corporation of Delhi carried an appeal to the High Court. The Division Bench before which that appeal came up for hearing, referred three questions including the two set out above to a Full Bench for opinion. Thereafter, the Division Bench, merely on the basis of the answers returned by the Full Bench upheld the acquittal end dismissed the appeals.
6. It will be useful at the outset to have a look at the scheme and content of the relevant provisions of the Act.
7. The broad aim of the Act is to ensure the sale and supply of pure food to the public. With that end in view, the Act prevents adulteration of food articles.
8. For the purpose of the Act, an article of food is deemed to be adulterated, if it falls under any of the Clauses (a) to (1) of Section 2(i). This definition of 'adulterated article of food' is of very wide amplitude. Even a sub-standard article would fall within the mischief of Sub-clause (1) 'if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of prescribed limits of variability'.
9. Section 7 prohibits a person to 'manufacture' for sale or 'store', 'sell'. or 'distribute.' inter alia. any; '(i) adulterated food'.
Contravention of this prohibition is punishable as an offense wader Section 16. The relevant part of the section reads:
(1) If any person.-
(a) whether by himself or by any other person on his behalf imports into India or manufacture for sale, or stores, sells or distributes any article of food -
(i) which is adulterated or misbranded, or the sale of which is prohibited by the Food (Health) authority in the interest of public health...
he shall in addition to the penalty to which he may be liable under the provisions of Section 6, be punishable with imprisonment for a term which shall not be less than six months but may extend to six years, and with fine which shall not be less than one thousand rupees:
10. Then there is a Proviso to this sub-section which gives a discretion to the Court for any adequate and special reasons to be recorded, to award a sentence less than the minimum prescribed, only if the offence is under Clause (a) (i) and is with respect to an article adulterated under Section 2(i)(1).
11, Section 10 confess powers on the Food Inspector to take samples sod also indicates the scope of these powers.
12. Sub-section (I) authorises him-
(a) to take samples of any article of food from;
(i) any person selling such article;
(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;
(iii) a consignee after delivery of any such article to him; and
(b) to send such sample for analysis to the public analyst fox the local area within which such sample has been taken.
* * * *
13. Sub-section (2) gives power to the Food Inspector to enter and inspect any place where any article of food is manufactured, stored or exposed for sale and take samples of such articles of Food for analysis.
14. From a conjoint reading of the above referred provisions, it will be clear that the broad scheme of the Act is to prohibit and penalise the sale, or import, manufacture, storage or distribution for sale of any adulterated article of food. The terms 'store' and 'distribute' take their colour from the context and the collocation of words in which they occure in Sections 7 and 16. 'Storage' or 'distribution' of an adulterated article of food for a purpose other than for sale does not fall within the mischief of this section. That this is the right construction of the terms 'store' and 'distribute' in Section 16(1) will be further clear from a reference to Section 10. Under that section, the Food Inspector, whom the Act assigns a pivotal position for the enforcement of its provisions, is authorized to take samples of an article of food only from particular persons indulging in a specified course of business activity. The immediate or ultimate end of such activity is the sale of an article of food. The section does not give a blanket power to the Food Inspector to take samples of an article of food from a person who is not covered by1 any of the sub-clauses of Sub-section (1)(a) or Sub-section (2). The three sub-clauses of Sub-section (1)(a) apply only to a person who answers the description of a seller or conveyer, deliverer, actual or potential, of an article of food to a purchaser or consignee or his consignee after delivery of such an article to him. Sub-section (2) further makes it clear that sample can be taken only of that article of food which is 'manufactured', 'stored' or exposed for sale. It follows that if an article of food is not intended for sale and is in the possession of a person who does not fulfil the character of a seller, conveyer, deliverer consignee, manufacturer or storer for sale such as is referred in Sub-sections (1)(a) and (2) of the section, the Food Inspector will not be competent under the law to take a sample and on such sample being found adulterated, to validly launch prosecution thereon. In short, the expression 'store' in Section 7 means 'storing for sale', and consequently storing of an adulterated article of food for purposes other than for sale would not constitute an offence under Section 16(1)(a).
15. The Full Bench of the High Court has thus rightly answered the second question.
17. The High Court has considered this question entirely in accordance with the norms and tests applied in the context of Punjab General Sales Tax Act, 46 of 1948 (for short the Sales Tax Act) by a Division Bench of the High Court of Punjab in State of Punjab v. Associated Hotels of India Ltd. (1967) 20 STC 1 (Punj) which was subsequently affirmed in appeal by this Court on January 4, 1972 in State of Punjab v. Associated Hotels of India Ltd. : 2SCR937 .
18. The High Court has adopted two main criteria for holding the transaction or the arrangement in question not to be a 'sale' of an article of food. First, under such an arrangement, there is no transfer of the property in the food to the customer unless it is actually consumed by him. Second, the predominant character which the transaction bears is not that of a sale of an article of food but of a contract for work or services and the food supplied by the hotelier pursuant to such a transaction, is only a part of the amenities or services rendered to the customer.
19. In our opinion, neither of these reasons holds good, if the matter is considered in the context of the Food Act. For a proper appreciation of the points for determination, it is important to bear in mind the distinction between the definition of the term 'sale' in the Sales Tax Act and the Food Act and also the fact that the purpose scheme and the content of the two Acts are entirely different.
20. Under Section 2(h) of the Sales Tax Act 'sale' has been defined as follows:
In this Act. unless there is anything repugnant in the subject or context.-
(h) 'sale' means any transfer of property in goods other than goods specified in Schedule C for cash or deferred payment or other valuable consideration, but . does not include a mortgage, hypothecation, charge or pledge
Explanation-(1) A transfer of goods on hire purchase or other instalment system of payment shall notwithstanding that the seller retains a title to any goods as security for payment of the price, be deemed to be a sale.
In the Food Act 'sale' has been defined as under:
In this Act unless the context otherwise requires-
'sale' with its grammatical variations and Cognate expressions means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article.
21. A comparative study of the above quoted definitions would show that the connotation of 'sale' for purposes of the Food Act is far wider than the Weaning assigned to it in the Sales Tax- Act. While under the Food Act 'sale' would include a mere 'offer for sale', 'exposing for sale' or having in 'possession for sale'. Under the Sales Tax Act. the transfer of property in the goods, except where it falls within the Explanation, is an essential feature of 'sale'. Further, the legislature has advisedly left the word 'sale' occurring in the first part of the definition under the Food Act to be interpreted in its widest amplitude. According to the Oxford Dictionary 'sale' means 'action or an act of making over to another for a price', 'the exchange of a commodity for money or other valuable consideration', 'disposal of goods for money'.
22. It will be seen that the definition of 'sale' in Section 2(xiii) of the Food Act with which we are concerned is wider even than its dictionary meaning. The object of assigning so extensive a meaning to the term 'sale' appears to be to bring within the ambit of the Food Act all commercial transactions whereunder an adulterated article of food is supplied for consumption by one person to another. In the context of the Food Act, therefore, the term 'sale' has to be construed according to the 'mischief rule' enunciated in Heydon's case. As pointed out by this Court in Municipal Corporation of Delhi v. Shri Kacheroo Mal Criminal Appeal No. 174 of 1971 decided on 29-9-1975 : reported in : 1976CriLJ336 wherever possible, without unreasonable stretching or straining, the language of this statute should be construed 'in a manner which would suppress the mischief, advance the remedy, promote its object. prevent its subtle evasion and foil its artful circumvention'.
23. The object of the Sales Tax Act is to levy tax on sales or purchases of certain articles of commerce. The taxable event under that Act is the sale or the 'purchase' and to constitute a taxable sale or purchase to use the words of Shelat. J., who spoke for the Court in Associated Hotels' case : 2SCR937 , 'the Revenue has to establish that there was a sale, distinct from the contract of work or service of the property so passing to the other party.' A transaction to attract liability under the Sales Tax Act, therefore, must be wholly and solely a 'sale' of a taxable article as a distinct entity. If it is inseparably submerged in or amalgamated with a contract for work or services, then it is not possible to fasten it with liability as a sale under the Sales Tax Act. much less can such liability be quantified as an item of taxable turnover for the relevant account year. Such considerations or difficulties do not arise for the purpose of the Food Act.
24. The primary object of the Food Act is to prevent, in the interest of the health of the community, the supply of adulterated foodstuffs by a person as a part of his business activity.
25. The definitions of the term 'sale' have, in terms, been made subject to the context of the respective Acts in which they occur. Consequently, in judging whether a transaction is a sale or not. due regard must be had to the purpose. scheme and context of the particular Act under which the question arises. The learned Judges of the High Court appear to have overlooked the important distinction between the connotation of 'sale' for purposes of the Sales Tax Act and the one under the Food Act.
26. For the purposes of the Food Act. the broad test applicable would be: whether the article of food was offered by the hotelier to the resident customer for a money consideration, it being immaterial whether such consideration was a distinct item or was an inseparable element of the consolidated charge made by the hotelier for providing residential accommodation services, amenities and food?
27. The mere fact that the property in the food article does not pass to the customer before he eats it. does not take it out of the definition of 'sale' under the Food Act. In the case of food actually consumed, the property does pass to the customer. In other cases even when the resident customer does not eat the food offered to him by the hotelier, such an offer by itself would be sufficient to constitute a 'sale' of that article of food within the contemplation of Section 2(xiii) of the Food Act.
28. Mr. Ashok Sen. relying on the observations of this Court in Associated Hotels' case : 2SCR937 (supra) contends that the true test to be applied even in a case under the Food Act. is: What was the primary object of the transaction and the intention of the parties while entering into it? It is maintained that the predominant character of the transaction in question was to provide a number of amenities and services to resident customers and that the meals supplied were only incidental to those services. In such a case, it is submitted it cannot be said that the transaction amounts to a 'sale' of meals as an article of commerce to the customer. Mr. Sen cites instances of Hospital. Nursing Home, College Hostel, Nursery School. Passenger Airliner. Passenger Ocean-going Ship where meals are provided to the resident or passengers, as the case may be. as part of the services against a consolidated charge. Counsel concedes that if the respondents had been supplying food to the members of the public who were not residents of the Hotel, against charges, from the same kitchen or store from which they supplied it to the resident customers against a consolidated charge, that would be hit by the Food Act because in such a case mere storage of food in the Hotel, would be storage for sale attracting the penal provisions of the Food Act.
29. It appears to us that the contention cannot be accepted. We have already indicated above that for purposes of the Food Act. the mere offer of an article of food for a money consideration, irrespective of whether such consideration is ascertainable. as a distinct item or is an inseparable element of a consolidated charge for a number of things, would bring it within the mischief of 'sale' under Section 2(xiii) of the Food Act.
30. The test suggested by Mr. Sen is not decisive for the purposes of the Food Act. Even so. if such a test is applied consistently with the object, scheme and context of the Food Act. the transaction in question is nevertheless a commercial transaction. Surely, the dominant object of the transaction and the intention of the parties while entering into the transaction in question was to provide against payment wholesome food for consumption besides residential accommodation and services. Good residential accommodation and good food against one consolidated charge were the main considerations which must have weighed with the parties while entering into this transaction. It is therefore not correct to say that the supply of food under such a composite transaction entered into between the hotelier and his resident customer does not amount to supply of food as an article of commerce. The fact remains that the supply or offer of food to such a customer is for a money consideration as a part of business activity, and as such constituted 'sale' under the Food Act.
31. It is true that in pursuance of such a transaction, the bill prepared by the hotelier is one and indivisible it is not capable of being approximated or split into charges for food and charges for other amenities. But the fact remains that such a composite bill is prepared after taking into account the cost of the meals, also.
32. The illustrations given by Mr. Sen are not apposite. Hotel business is very different from that of a Hospital or a Nursing Home, or College Hostel, or Passenger Airliner etc. Moreover, the question whether a particular transaction in the context of the Food Act constitutes a sale or not. is largely a question of fact depending on the circumstances of each case. It is therefore not proper to enunciate any hard and fast rule of universal application on the basis of purely hypothetical instances cited by Mr. Sen.
33. For the foregoing reasons we would reverse the answer given by the High Court and hold that the supply or offer of food by a hotelier to a customer when a. consolidated charge is made for residential accommodation and other amenities, including food, amounts to a 'sale' of an article of food for the purpose of the Food Act.
34. The last submission of Mr. Sen was that this case has been pending for the last 15 years; that the trial Magistrate had acquitted the respondent not only on the ground that there was no 'sale' within the meaning of the Food Act but also on the ground that the samples of the articles in question were not taken in accordance with law in the presence of respondent No. 1. It is stressed that the law on the point was anything but clear and this is not a case where articles of food were found contaminated or mixed with any deleterious or injurious substance but the article of food being sub-standard, were only technically adulterated under Clause (1) of Section 2(i) of the Act. In these premises, counsel maintains, the acquittal should not be converted into a conviction. Reliance has been placed on this Court's dicta in Food Inspector. Calicut Corporation's case : 1971CriLJ1277 and Bhagwan Das Jagdish Chander v. Delhi Administration : 1975CriLJ1091 in support of this contention.
35. Although this last contention is not wholly devoid of force, we find it difficult to accept it because the High Court has not recorded any finding on the merits of these cases. It has maintained the acquittal merely on the ground that the transaction in question did not amount to 'sale' of an article of food within the meaning of the Food Adulteration Act. The case would, therefore, have to go back to the High Court for deciding the appeals on merits.
36. Accordingly we allow these appeals, set aside the judgment of the High Court and remit the cases to it with a direction to dispose them of in accordance with law. It would be open to the respondents to urge before the High Court all the contentions which are avail able to them. Since the cases are quite old, the High Court will dispose them of with utmost expedition.