(1) This is an appeal for which special leave under section 417(3) was granted against the acquittal of the respondent under sections 7 & 16 of the Prevention of Food Adulteration Act1954 (hereinafter to be referred as the Act).
(2) The case of the prosecutions is that on 28th November, 1961 at 9.45 Am, two Food Inspectors of the Municipal Corporation of Delhi went to the Hotel Airlines where the accused-respondent was working as the Manager. One of the Inspectors purchased 12 ounces of Dhania powder for which he paid 00.75 Paise. The other Inspector took a sample of 12 ounces of Red Chillies against the payment of 00.94 P from the store-room of the Hotel where those commodities had been stored for preparation of eatables. Each sample of the commodity was divided in three parts and kept in three clean and dry bottles. The bottles were sealed in the presence of two witnesses; one sealed bottle was given to the accused and yet another set was sent to the Public Analyst on the same day. Both these samples were declared to be adulterated by the Public Analyst. Both these cases, which were subject matter of two separate complaints, were consolidated and disposed of by a common trial. The accused was acquitted as against which the above two appeals have been filed. Both these appeals (No. 100-Dand 101-D of 1964), thereforee, may be disposed of by a common judgment.
(3) The short ground on which both the cases were thrown out was that these articles, Red Chillies and Dhania powder, were kept in the hotel for being used in the preparation of eatables and no sample of any eatable wherein the commodities were used had been taken. Reliance was placed on the decision of the Punjab High Court in Delhi Municipal Corporation vs. Hukam Chand (Cr. Appeal No. 137-D of 1961) that there being no storing of these commodities for the purpose of sale no offence had been committed. Section 2, sub-section (v) of the Act defines 'food' as including any article which ordinarily enters into, or is used in the composition or preparation of human food. Sub-section (xiii) of section 2 defines 'sale' as 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. Section 7 of the Act reads as follows :
'7.Prohibition of Manufacture, Sale, etc. of certain Articles of Food-
(4) No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-
(I)any adulterated food;
--- *** --- (II)any misbranded food ;
(III)any article of food for the sale of which a license is prescribed, except in accordance with the condi- tions of the license;
(IV)any article of food the sale of which is for the time being prohibited by Food (Health) Authority in tctor would come within the purview of the Act even though the personi concerned from whom such sample is taken is nto one who ordinarily sells the commodity or commodities purchased by the Food Inspector. He goes further to contend that even a single sale of such an article to the Food Inspector would be sufficient. In support of this contention he nto only relies upon the above said decision of the Supreme Court but what has en held to that effect by some other High Courts as well. He relied upon the decision of the Andhra Pradesh High Court in Public Prosecutor v. V. Nagabhushnam. The prior view of the Andhra Pradesh High Court was over-ruled and it was stated that it need nto be proved that the article was sold as an article of food. The view of the same High Court in re V. Govinda rao was that the mere storing of the adulterated article by a hotel-keeper who was nto dealing in that article (ghee in that case) to be served along with meals or to be used in the preparation of eatables would nto constitute an offence under section 7. But this view was considered by the same High Court, in The Public Prosecutor. Andhra Pradesh v. Kollipara Subba Rao as being no longer good law after the above said decision of the Supreme Court. The learned counsel for the accused, on the other hand, has drawn our attention to a decision of the Division Bench of this High Court in Criminal Appeal No. 16-D of 1965 : Municipal Corporation of Delhi v. Shri Prahlad Singh, to which my learned brother was also a party to that case. The Division Bench no doubt held that the sale of ground-chillies from the stall of the hotel-keeper, to a Food Inspector, which was alleged to be adulterated, would nto be punishable since it was only stored for use in the preparation of eatables, no sample of the edible articles themselves having been taken by the Food Inspector. This decision no doubt is in favor of the accused-respondent but a reading of the same clearly shows that the present aspect of the matter was nto argued before the Division Bench. All that was stated there was, by referring to section 7, that sale of adulterated food was prohibited; it was further stated that the sample should be of the prepared food and nto of one of the ingredients that went into the making of the said food. The above said decision of the Supreme Court was nto brought to the notice of the Division Bench. It having been held by the Supreme Court that any sale of food article to a Food Inspector for analysis amounts to a sale within the meaning of section 7 read with section 2(xiii) if it happens to be an article of food, as defined by the Act, it would come within the mischief of the said Act and is punishable. The Division Bench did nto consider this aspect of the matter, which is now being argued before us, and hence this decision is of no assistance to the respondent- accused. Several High Courts had taken the view that a mere storage of an adulterated article of food nto meant for sale as much would nto come within the ambit of the Act and is nto punishable. It is needless to cite all these decisions which took such a view prior to the aforesaid decision of the Supreme Court. In re Pudukodu lswara Subramanya Iyer, Naraindas v. State (5) in re v. Gobinda Rao already noticed are some of the decisions which took such a view. Even after the said decision of the Supreme Court nto only the Division Bench took the same view (the decision of the Supreme Court nto being specifically brought to the attention of the Division Bench) but also by the Punjab High Court in Rameshwar Dass Radhey Lal v. The Stater). In the latter case also the decision of the Supreme Court was nto noticed. Our attention has also been invited to the decision of the Kerala High Court in Food Inspector (Health Officer) Calicut Corporation v. C. Gopalan and another where Raghavan, J. held that a tea-vendor selling sugar to the Inspector and also accepting the price for the said sample from the Food Inspector did nto commit any offence even though the sample was found to be adulterated. His Lordship referred to the above decision of the Supreme Court as well as of the Gujarat High court in The State of Gujarat v. Asandas Kimmatrai and observed that in view of the said decisions, particularly of the Supreme Court, even one act of sale (to the Food Inspector) would come within that section. His Lordship then went on to hold, differing from also the said decision as of the Allahabad High Court in Municipal Board, Faizabad v. Lal Chand that if the said sample sold to the Food Inspector came from a larger quantity intended for sale it would fall within the expression 'storing for sale' in section 7 but the said principle would nto apply to a tea-vendor preparing tea as a beverage and the Food Inspector purchasing sugar from him. Raghavan, J. made the following observations in this. connection:- 'If the Food Inspector purchases sugar from them (accused persons) it was like a purchase of sugar by him from a private individual from his house. Such a purchase cannto be a purchase under the Act which will make the vendor liable for an offence under the Act.'
'Before discussing the authorities it will be convenient to dispose of an argument on section 10(2) of the Act on this point. The argument is based on section 10(2) of the Act, which reads as follows any Food Inspector may 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'. Mr. Banerjee argues that the words 'for sale' in section 10(2) of the Act governs all the foregoing words 'manufacture, store or expose'. thereforee, he says that the word 'store' in section 7 and section 16 should also be read there with the words added 'for sale'. The reason for his saying so is that section 10(2) according to him should control the meaning and the interpretation of section 7 and section 16, because section 10 confers the powers of Food Inspector to inspect places. It is, thereforee, natural to suppose that he will only be given the power to inspect such places for the purpose of the Act on this point, and thereforee, according to Mr. Banerjee the store must be a store 'for sale'.