P. Subramonian Poti, J.
1. The respondent was running a hotel and tea shop at Vythiri, On 1-7-1977 at about 4 P. M. the Food Inspector Kalpetta circle inspected the respondent's hotel and demanded 675 Ml of boiled milk from the respondent for the purpose of sampling. This was taken out from 10 litres of boiled milk stored in a brass vessel for the purpose of preparing tea. The sample so taken was sent for analysis and on the certificate of the Public Analyst that the sample was adulterated with 47 per cent of added water the complaint was laid before the Magistrate. According to the accused the milk purchased from him was kept for the purpose of preparing tea and therefore no sample ought to have been taken from it. The learned Magistrate found that the sample was kept in the tea shop for the purpose of manufacturing tea and not for sale as such milk, that it was primary food and as such the sample ought not to have been taken under Sub-section (2) of Section 10 of the Prevention of Food Adulteration Act Accordingly the accused was acquitted under Section 255(1) of the Cri. P. C. The appeal is filed by the State against the Judgment of the Magistrate.
2 The Judgment mentions that even according to the complainant the milk taken from the hotel of the accused was kept there for the purpose of manufacturing tea and not for sale as milk. There is no dispute on this point here also. But it is said that nevertheless since that milk has been sold to the Food Inspector such sale is of adulterated milk and as such the offence has been committed by the accused. Reliance was placed on the decision of the Supreme Court in Food Inspector V. Gopalan, 1971 Ker LT 462 : 1971 Cri LJ 1277 (SC). That the article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale and that the person from whom the article of food has been purchased by the Food Inspector need not be a dealer as such in that article are principles stated by the Supreme Court in that case. If there was a sale and that happens to be of adulterated material that is sufficient to constitute an offence.
3. What was held by die learned Magistrate was that the Food Inspector should not have taken the sample at all and the taking of sample was in contravention of the statute. If that be so, no conviction could be entered on the basis of the analysis of such sample.
4. Section 10(2) of the Prevention of Food Adulteration Act 1954 reads:
10 (2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis;
Provided that no sample of any article of food, being primary food, shall be taken under this Sub-section if it is not intended for sale as such food.
By the proviso taking of sample of primary food is prohibited and unless when such primary food, sample of which is taken, is in tended for sale as such food. If milk is primary food and it is not intended for sale as milk, then the proviso to Section 10(2) prohibits taking of the sample- That the milk was not intended to be sold as such but was kept for use as an ingredient of tea is evident from the case of the complainant himself. Therefore the only question is whether milk is a primary food. If it is, taking of the sample was not authorised by law and a conviction on the basis of result of analysis of such sample cannot be made.
5. 'Primary food' is a term defined in the Prevention of Food Adulteration Act. Section 2, Clause (xii-a) inserted by Prevention of Food Adulteration (Amendment) Act, 1976 defines primary food as meaning any article of food, being a produce of agriculture or horticulture in its natural form. Milk is not a produce of horticulture. The controversy is whether milk is a produce of agriculture. If it is, since it was in its natural form when it was taken for sampling what was taken could be said to be primary food.
6. Products derived from the soil by cultivation would no doubt be produce of agriculture. Cattle breeding calls for pastures and consequently the produce of such cattle may be claimed as produce of agriculture. Would such claim be sustainable is the question before me now.
7. P. C Osborn, in the 5th edition of his book Concise Law Dictionary gives the meaning of the term 'agriculture' thus :
Agriculture includes horticulture, fruit growing, seed growing, dairy farming and livestock breeding and keeping (Agricultural Holdings Act, 1948, Section 94).
In Mitra's Legal and Commercial Dictionary the term 'agriculture' is explained thus :
Agriculture' Includes animal husbandry, dairy farming, pisciculture and poultry farming-
xx xx xx xxAgriculture means the science or art of Cultivating the ground. It includes rearing and management of livestock, animal husbandry, fanning, forestry, butter and cheese-making etc. Webster's Dictionary: Income-tax Commr, v. Benoy Kumar AIR 1957 SC 768.' In Encyclopedea Britannica the subject of dairy farming is treated as a branch of agriculture. Agriculture is treated in the said Treatise under various headings and dairy work is one of them.
8. Legislative practice also recognises dairy fanning as associated with agriculture. Section 2 of the Agriculturists' Loans Act, 1961 defines 'improvements' within the meaning of that Act to include the construction of wells, tanks, sluice, bund and other work for the storage, supply or distribution of water for the purpose of agriculture or for the use of men and cattle employed in agriculture. Section 2 of the Income-tax Act defines the term 'agriculture' for the purpose of the Act and the scope of that definition has come up for construction on several occasions- Viswanatha Sastri J., in I. T. Commr. v. Sundara Mudaliar AIR 1950 Mad 566 discussing the scope of the term agriculture, said thus:
In my opinion the word 'agriculture' is used in Section 2, Income-tax Act in a wide sense so as to denote the raising of useful or valuable products which derive nutriment from the soil with the aid of human skill and labour. It would include horticulture, which involves intensive cultivation of land as garden in the production of fruits, flowers or vegetables. It would also include growing of trees or plants whose growth is effected by the expenditure of human efforts, skill and attention in such operations, as those of ploughing sowing, planting, pruning, manuring, watering, protecting, etc. as held by Spenser J. in Pavadai Pathas v. Ramaswami Chetti ILR 45 Mad 710a(-p. 712 : AIR 1922 Mad 351. The word 'agriculture' applies to the cultivation of the soil for food products or any other useful or valuable growths of the field or gar den and is wide enough to cover the rearing, feeding and management of livestock, which live on the land and draw their sustenance from the soil.
Though the Supreme Court had occasion to notice the contention that agricultural income is to include income received by the assessee from Dairy milk the question has not been finally decided by the Supreme Court.
9. It is evident that the term produce of agriculture would take in not merely that which grows on the land but also that which lives on the land by sustenance from that which grows on land, namely, cattle. Taking note of the object and scheme of the Prevention of Food Adulteration Act, I see no reason to restrict the meaning of the term primary food to exclude milk. Milk is a produce of agriculture and is a primary food- If so it could be taken for sampling only if such milk is intended for sale as milk. That is not the case here. Hence the result of the analysis of such sample cannot be relied on for convicting the accused. The acquittal of the accused is warranted. No interference is called for. Dismissed.