P. Janaki Amma, J.
1. On 11-12-1974 the Food Inspector, Trivandrum Circle, examined as P. W. 1 in the case, purchased from the provision store of the accused-respondent 600 gms. of turmeric powder in six packets. After following the formalities prescribed under the Prevention of Food Adulteration Act (for short the Act) one sample was sent for analysis. The Public Analyst reported that it did not conform to the standards prescribed for turmeric powder and was therefore adulterated. A complaint was thereupon filed against the accused for an offence punishable Under Section 7 read with Section 16 of the Act- The accused admitted the sale of the article. But he contended that the article was not sold by him as food but as meant for pooja. It is in evidence that the packets contained labels 'bearing the inscription 'Manjal Podi for Poojas'. The Addl. Judicial 1st Class Magistrate observed that there was no evidence adduced by the prosecution that the article was kept for sale to be used as food. Placing reliance on the labels which are marked as Ext. p-8 series the court held that the accused was not guilty of the offence charged against him and therefore acquitted him Under Section 248(1) of the Criminal P- C. The appeal is preferred against the above order of acquittal.
2. The contention 'put forward on behalf of the appellant-State is that turmeric powder or 'Manjalpodi' is an arti-1978 Cri, L. J./34 IV cle of food and therefore the sale of adulterated turmeric powder is an offence under the Prevention of Food Adulteration Act, whether it was sold as food or otherwise. The accused's stand on the other hand is that turmeric powder, though used for preparation of food, is also used for other purposes like pooja and an offence under the Act is committed only if it is adulterated and sold as an article of food. When there is specific mention that the article exhibited for sale is meant for 'pooja' no offence is committed by the vendor of the article.
3. The question involved in the case is of considerable importance and there are no rulings on the point by this Court. Two points arise for consideration; (a) whether turmeric -powder is good for the purposes of the Act, (b) whether the sale of turmeric powder otherwise as food is an offence under the Act.
4. The term food has been defined in S- 2 (v) of the Act as follows :-
'Food' means any article used1 as food or drink for human consumption other than 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 notification in the official Gazette, as food for the purpose of this Act.
The term 'ordinarily' has been the subject-matter of judicial interpretation and1 it is now settled that the term means not mainly or regularly but usually and normally. It is an admitted fact that turmeric powder is used in the composition of human food and is therefore food. Turmeric and turmeric powder are articles for which standards have been fixed in Appendix B of the. Act. CL A. 05.20.01 reads:-
A. 05.20.01-TURMERIC (Haldi) POWDER means the powder obtained by grinding the dried rhizomes or bulbous roots of the plant of Curcuma longa L. It shall be free from artificial colouring matter. The powder shall conform to the following standards :
Moisture ... Not more than 13.0 per cent by weight.
Total ash ... Not more (Jhan 9.0 -per cent by weight-Ash insoluble in dilute HCL ... Not more than 1.5 per cent by weight.
Test for lead ohromate ... Negative. Total starch per cent by weight ... more than 60.0 per cent.
Rule 44 (h) framed under the Act prohibits sale of turmeric powder containing any foreign substance by any person by himself or by any servant or agent. There is therefore no doubt that turmeric powder is food for purposes of the Act. (See also Ram Labhaya v. Delhi Municipality : 1974CriLJ672 .
5. The further point to be considered is whether there will be any difference if turmeric powder is sold or exhibited for sale with the label that it is meant for pooja. The question whether the sale of an article which falls under the definition of food under the Act otherwise as food, has been considered by various High Courts and the general view expressed by them is not favourable to the accused. In Public Prosecutor v. Hari-hara Ayer (AIR 1948 Mad 219) gingelly-oil was mixed with groundnut oil and the defence set up that the article was not sold as food but for lighting purposes. A distinction was sought between sale of food and sale of an article as food. The Court held that neither Rule 27-A nor Section 5 of the Madras Act, then in force, was confined to sale of the article as food. What was prohibited was sale of food when it was adulterated in the manner prohibited. If the article was food within the purview of the Act the sale thereof in an adulterated form was prohibited whether it was sold as food or not. The court observed that the policy of the law apparently is that even if the article is sold for lighting purposes and not as food the consumer may use it for food and it would be deleterious for his health. A similar view was taken in In re Bhimaraju AIR 1949 Mad 623 : 50 Cri LJ 839, a case of sale of gingelly-oil mixed with mustard oil.
6. The Madras High Court 'had occasion to deal with the point again in Public Prosecutor v. Palanisami : AIR1965Mad98 a case under the present Act. The article sold was asafoetida which it is well known is a condiment or flavouring matter used for preparation of human food. What the accused contended therein was that the article was sold to the customer on the express understanding that it should be given to cattle and not consumed by human beings. The accused put forward the plea that asafoetida which he had vn. stock, was used only- ton feeding? and. mot used aa toman fiaad and1 therefore he was exempt from prosecution. The court held that the ceux of the offence is in the sale of food (as denned in the Act)' and it is irneLevant to aonsidsr whether there waa anty: separate understanding betweent the buyer and the seller at the time of the sale that the article sold shouidi 'be usedi for some purpose other than m
7. A single Judge of the Andhra Pradesh High- Court took a different view in the decision, Public Prosecutor v- Satya-narayana AIR 1958 Andh Pra 681 : 1958 Cri LJ 1375. Therein the article sold was turmeric and1 a contention was raised that it was sold not as food but for external use. This plea found favour with the Judge. The court held that in the absence of evidence _ that it was sold as food and' in the face of the positive evidence on the side of the accused that the article was sold for external application it was difficult to. feoldi the accused guilty of any offence. This view, however, has been dissented from in, Palanisami's case : AIR1965Mad98 already referred to and it stands overruled in Public Prosecutor v. Nagabhu-shanam : AIR1965AP118 . The latter case arose in connection with, the sale of coconut oil. A contention was raised that coconut oil is not food, as- it Is not used, as food in Andhra Pradesh and. that the sale was for external application. The Division Bench of the Andhra Pradesh High Court considered the decision, Public Frosecur tor v- Sathyanarayana AIR 1958 Andti Pra 681 : 1958 Cri LJ 1375 but held that there is every indication in the Act that it seeks to protect the public by preventing adulteration of any article or substance which is used as food in any part of the country. It is immaterial whether a given article or substance is not used at all as food in. a particular area or is so used only by a section of the people in a given area. The word 'ordinary' occurring in Section 2. (v) of the Act does not mean universally or generally but is apparently used in contradistinction to exceptionally or unusually. The court held that the coconut oil is food under the Act and the sale of adulterated coconut oil is an offence even if the sale was for the purpose of external application,
8. Defence taken in the above line was overruled by the Patna High Court in Patna Municipal Conpn. v. Dularchand : AIR1964Pat565 Jamshedpur N- A. tCojaranittee v. Durga Prasad, (1969 Cri LJ 704i) ;(Pat) and also in Dilo Sao v. State of Bihar (1971 Cri LJ 1047) (Pat). In all the cases it was turmeric that was sold. The defence set up was that it was sold .not as food but as dye. The contention has not found favour by the court. It was held that turmeric is mostly used for human consumption though it was rarely used for dyeing clothes. The plea that the turmeric was not meant for human consumption was not accepted.
9. In Leela Ram v. State AIR 1964 Pun.i 427 : 1964-2 Cri LJ 449 the stand taken by the accused was that asafoetida was sold not for human consumption but for agricultural purpose. The court held that since asafoetida is food within the meaning of the Act, its occasional use for other purposes would not take it out of the category of food. The Punjab High Court again considered the question in Manohar Lai v. State (ILR (1970) 1' Punj and Har 588). Adulterated turmeric powder was sold in that case and the defence was that it was sold for external application to injuries or wounds. The contention was not accepted by the Court. The Court held that it is the normal use and not its occasional use that should be taken into account for deciding whether an article is food.
10. In Kanpur Municipality v. Janaki Prasad AIR 1968 All 433 : 1963-2 Cri LJ 244 a Full Bench of the Allahabad High Court had occasion to consider whether sale of adulterated Linseed Oil was an offence under the Act. The defence was. in Uttar Pradesh, linseed oil is not used as food but mainly for making paints. The Court by a majority held that in as much as it is used in some parts of the country in the preparation of food it is food within the meaning of Section 2 (v) of the Act. The mere fact that linseed oil is also used for making varnishes and paints would not make it any the less an article of food as defined in Section 2 (v) of the Act.
11. In Rakhal Chandra v. Purraa Chandra AIR 1930 Cal 27,3 : 31 Cri LJ 1151 a case under the Bengal Food Adulteration Act (6 of 1919) the accused was tried f/jr sale of adulterated mustard oil- The defence was that what was sold was mixed oil for .lighting purposes and a signboard that he was selling adulterated mustard oil had been put in front of the shop. The court held that it was not necessary that the articles of food enumerated in the Act should be sold as food and that it was no defence that the accused had notified to the public that he was selling adulterated food. See also Chairman, Dist. Board v. Atul Chandra AIR 1933 Cal 619 : 34 Cri LJ 1081.
12. The question came up before the Orissa High Court, in Puri Municipality v. K. C- Anjanayan, whether in a prosecution for sale of adulterated ghee unfit for human consumption the plea is available that it was meant for lighting. The evidence disclosed that labels had been attached to the containers or tins indicating that the ghee was meant for lighting purposes. It was held that once the article is sold as ghee, it should be sold in an unadulterated form. That the gihee was meant for lighting was no notice to the customers that it was unfit for human consumption, It is not open to the accused to take up the plea that he never intended that the ghee should be used for human consumption.
13. In State v- Shankar Dnyanoba AIR 1965 Bom 17 : 1965-1 Cri LJ 145 a Division Bench of the Bombay High Court held that coconut oil being food under the Act it is not necessary for the prosecution to establish that it was sold for the express purpose of using it as food. The plea that the adulterated stuff was sold for being used as hair oil was not accepted as a ground of exemption from prosecution.
14. Though not strictly in the present form, the question whether in the case of sale of Kesari Dal it is open to the accused to contend that the stock was intended for sale as fodder was raised before the Full Bench in Govinda Pillai v. Padmanabha Pillai, 1964 Ker LT 1023 : 1965-1 Cri LJ 446. The Full Bench observed (at p. 448 of Cri LJ):
A particular stock of rice or milk, for example, does not cease to be food because it is-intended, not for human consumption but for feeding animals; and so long as Kesari Dal in general is an article used as food for (human consumption or is ordinarily used in the preparation of human food, the particular stocks which the accused persons were holding would be food as defined by the Act, no matter that the particular stocks were intended for sale as fodder.
15. We respectfully agree with the ratio of the above decisions. What is prohibited is sale in an adulterated condition of an article which is food under the Act, and. not its sale as food- An article is food U it satisfies the definition of food under the Act. That a standard has been fixed for an article and its sale is prohibited under the rules framed under the Act are also indications that it is food. It is the normal use and not its occasional use that decides whether an article is food. If It is food under the Act, it is immaterial whether it is not used as such in particular areas or its- use as food is confined to particular class of persons. An article which is food does not lose its character as food by the fact that it is also used or sold for other purposes. If an article is food it is not a defence in a trial under the Act that there was an agreement between the vendor and the customer that it would not be used as food. Putting a label on the container that the article is sold for other purposes end not as food is no guarantee that an article which is food will not be used as such by the purchaser and it will not absolve the vendor from liability under the Act for sale of adulterated food.
16. Strong reliance had been placed by the learned counsel for the respondent on the decision of the Supreme Court Achu Jaiwant v. State of Maharashtra : 1975CriLJ1868 -The article sold in the case was black til eeeds. In a prosecution for an offence Under Section 16 (1) (a) (i) of the Act the accused contended that the article was not food and was meant only for pooja for being burnt as incense. Although Appendix B to the Prevention of Food Adulteration Rules mentioned Til Oil as an article of food black til seeds as such are not shown as food. The Supreme Court rejected the view expressed by the High Court that til seeds could be consumed by people after the performance of pooja as it was based on conjecture. The Supreme Court observed (at p. 2181 of AIR):
There had to be credible evidence to show that black til seeds are ordinarily used as food. If that were so, the burden would have shifted on to the shoulders of the accused to prove that what he had stored was not really food meant for human consumption but an article kept for a special use. We are left in doubt on this question on the evidence in this case. We think that the appellant must get the benefit of that doubt.
17. It is evident from the above quotation that the Supreme Court acquitted the accused not because the sale of black til seeds was for pooja but on the ground that there was no proper evidence to make out that black til seeds are food under the Act.
18. In the instant case It is an admitted fact that the packets in which turmeric powder was sold had labels with the inscription in English 'Manjal Podi' for poojas. At the same time the maha-zar prepared and the evidence of P. W. 1 show that it was purchased as an article of food from the shop of the accused where provisions were sold. In spite of the label a casual purchaser or a layman who does not know English may use it in the 'preparation of food- The Public Analyst has certified that the turmeric powder sold to P. W. 1, Food Inspector, was adulterated. For the reasons already mentioned the accused-respondent 'has committed an offence punishable Under Section 7 (I) read with Section 16 (1) (a) (i) of the Act. We set aside the order of acquittal and convict the accused for the said offences. The case is remanded to the trial Court for disposal according to law after complying with the provisions contained in Section 248(2) of the Cr.PC