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U.H. Shah Vs. Abdulhabib Abdulmajeed and ors. - Court Judgment

LegalCrystal Citation
SubjectFood Adulteration
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR990
AppellantU.H. Shah
RespondentAbdulhabib Abdulmajeed and ors.
Cases ReferredAndhra Pradesh Grain and Seed Merchants Association v. Union of India (supra
Excerpt:
- - according to him, the complainant failed to comply with the provisions of rule 18 of the prevention of food adulteration rules, 1955 (hereinafter referred to as the rules) framed under the act, because he failed to send the copy of the memorandum and the specimen impression of the seal separately to the public analyst, as prescribed under the rules. he has not clearly stated in his examination-in-chief that the copy of the memo and the specimen impression of the seal were sent in the same packet in which the sample bottle was sent. we are unable to accept his argument, because the complainant has nowhere clearly stated in his evidence that the copy of the memo and the specimen impression of the seal were sent in the same packet in which the sample bottle was sent. we find that it.....m.c. trivedi, j.1. food inspector of surat municipal corporation shri u.h. shah has filed this appeal against the order passed by the learned additional sessions judge, surat, in criminal appeal no. 89 of 1973, by which he acquitted respondent no. 1 abdulwahab abdulmajeed of the offence under section 16(1)(a)(i) of the prevention of food adulteration act, 1954 (hereinafter referred to as the act) for contravention of section 7(1) of the act. he was prosecuted in the court of the learned special judicial magistrate, first class (municipal), surat, for having committed the said offence on 15th may 1973 by selling 375 grams adulterated and sub-standard coconut oil to complainant, shri u.h. shah. he pleaded not guilty to the charge and claimed to be tried. on conclusion of the trial, the.....
Judgment:

M.C. Trivedi, J.

1. Food Inspector of Surat Municipal Corporation Shri U.H. Shah has filed this appeal against the order passed by the learned Additional Sessions Judge, Surat, in Criminal Appeal No. 89 of 1973, by which he acquitted respondent No. 1 Abdulwahab Abdulmajeed of the offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) for contravention of Section 7(1) of the Act. He was prosecuted in the Court of the learned Special Judicial Magistrate, First Class (Municipal), Surat, for having committed the said offence on 15th may 1973 by selling 375 grams adulterated and sub-standard Coconut Oil to complainant, Shri U.H. Shah. He pleaded not guilty to the charge and claimed to be tried. On conclusion of the trial, the learned Judicial Magistrate found him guilty of the offence changed against him and sentenced him to undergo R.I. For 9 months and to pay a fine of Rs. 1,500/-, in default R.I. For 2 months more. There were 2 accused in that case. Respondent No. 1 was accused No. 1. The other accused was acquitted by the learned Judicial Magistrate. He was said to be a partner in the shop of accused No. 1. In this appeal, we are not concerned with the prosecution case against original accused No. 2.

2. Facts of the prosecution case are very short. Appellant-original complainant, Shri U.H. Shah, is food inspector in Surat Municipal Corporation. Respondent No. 1 original accused No. 1 was then running a grocery shop in Surat city. The complainant visited the shop of the accused on 15th may 1973. Under Section 10 of the Act, he purchased 3 samples from the shop of the accused. One was a sample of chillies powder, with which we are not concerned in this appeal, because the same, on analysis, was found to be according to the standard prescribed under the Act. He purchased sample of Coconut Oil weighing 375 grams. He followed the procedure prescribed in Section 11 of the Act. A panchnama was prepared. One bottle of the sample was given to the accused. The sample was sent to the public analyst. The public analyst, on analysis of the sample, found that the same was adulterated and substandard. Thereupon, after obtaining the requisite sanction, the complainant filed the complaint in the Court. The defence of the accused was that he was not a dealer in Coconut Oil. He is running a cycle shop in the same premises. He had kept Coconut Oil for use in cycle repairing. When the complainant demanded the sample of the Coconut Oil, he told him that the same was not meant for sale as an article of food. He also told him that it was in his possession for repairing the cycles. The complainant insisted for the sample of the same and therefore, he was compelled to sell the sample to him. On conclusion of the trial, the learned Judicial Magistrate found that the accused sold Coconut Oil, which was an article of food, to the complainant. Coconut oil was found to be adulterated and substandard and, therefore, he was proved to have committed an offence under Section 16(i)(a)(i) read with Section 7(i) of the Act. In the appeal before the learned Additional Sessions Judge, it was argued that, even if Coconut Oil was food, as defined under the Act the accused did not sell it for human consumption and he was not a dealer in the said articles. It was also argued that supply of the sample by the accused to the complainant did not amount to 'sale' of Coconut Oil and, therefore, he could not be said to have committed the offence charged against him. The learned Additional Sessions Judge found that Coconut Oil was not used for human consumption in the State of Gujarat therefore, it could not be said that it was food, as defined under the at he further held that, even if it was taken to be food, as defined under the Act, the same was sold to the complainant by the accused with a clear representation that he was not dealing in it and that the same was not meant for human consumption. Therefore, he found that the accused could not be said to have sold the article of food, as defined under the Act, and therefore, he could not be convicted of the offence charged against him.

3. The argument of the appellant before us is that Coconut Oil is food as defined under the Act. Even if Coconut Oil is not generally used for human consumption in the state of Gujarat, it does not cease to be food as defined under the Act. It is further argued that, in fact, the accused is a dealer in Coconut Oil. Even if it is assumed that he is not proved 86 be a dealer in Coconut Oil, the sale of the sample of Coconut Oil by him? To the complainant is sufficient to prove that he sold Coconut Oil, as hired under the Act. Coconut oil, on analysis, is, admittedly, found to adulterated and substandard and, therefore, according to the appellant the offence being complete, the learned Additional Sessions Judge erred in acquitting him. Mr. Takwani for the state, respondent No. 2, has adopted the arguments advanced by Mr. Adhyaru for the appellant.

4. On behalf of the accused, Mr. Thakore has argued that there is not sufficient evidence on record to prove that Coconut Oil is food, as defined under the Act. It is further argued by him that there is no evidence to prove that the accused was a dealer in Coconut Oil and that he stored it for sale. His further argument is that it is also not proved by the prosecution that the accused sold Coconut Oil to the complainant for human consumption. He wants us to hold that mens area is a necessary ingredient of the offence under Section 7 of the Act and, therefore, the prosecution must prove that Coconut Oil was sold by the accused to the complainant for human consumption. It is further argued by him that the sale of Coconut Oil by the accused to the complainant was under compulsion under the provisions of the Act and, therefore, it can not be said that he sold the sample of Coconut Oil to the complainant. In his opinion, the prosecution cannot be said to have established that the accused sold food, as defined under the Act, and the transaction between the accused and the complainant of the Coconut Oil amounts to sale, as defined under the Act. He has advanced one more argument. According to him, the complainant failed to comply with the provisions of Rule 18 of the prevention of food adulteration rules, 1955 (hereinafter referred to as the rules) framed under the Act, because he failed to send the copy of the memorandum and the specimen impression of the seal separately to the public analyst, as prescribed under the rules. Therefore, according to him, the report of the public analyst is not admissible in evidence. Once that report is excluded from evidence; there is no evidence on which the accused can be convicted of the offence charged against him.

5. We shall first examine and dispose of the last argument advanced by Mr. Thakore. He has referred us to the evidence of the complainant, wherein it is deposed by him that he had sent the copy of the memo and the specimen impression of the seal, used for sealing the packet, to the public analyst along with the sample bottle. So, according to Mr. Thakore, he has stated that the copy of the memo and the specimen impression of the seal were sent in the same packet in which the sample packet was sent to the public analyst. We do not find any such clear statement in the evidence of the complainant. The statement referred to by Mr. Thakore was made in his examination-in-chief. He was not cross-examined to find out whether the copy of the memo and the specimen impression of the seal were sent in the same packet in which the sample bottle was sent. He has not clearly stated in his examination-in-chief that the copy of the memo and the specimen impression of the seal were sent in the same packet in which the sample bottle was sent. On the contrary, he has deposed in his examination-in-chief that he complied with the requirements of the rules. There is the report of the public analyst on record. According to that report, Ex. 30, the copy of the memo and the specimen impression of the seal used for sealing the bottles were separately received by him. Mr. Thakore's argument is that the report, Ex. 30, of the public analyst cannot be looked into to find out whether the same is admissible in evidence. We are unable to accept his argument, because the complainant has nowhere clearly stated in his evidence that the copy of the memo and the specimen impression of the seal were sent in the same packet in which the sample bottle was sent. If that was the suggestion of the defence, definite questions should have been put to the complainant for satisfying the court, that the copy of the memo and the specimen impression of the seal were sent in the same packet in which the sample bottle was sent. No such attempt was made. It appears that the defence has made a vain attempt to take advantage of a little ambiguity (according to the defence) found in the evidence of the complainant. We do not find such ambiguity in his evidence and we do not see any reason why the report, Ex. 30, cannot be taken into consideration for correctly reading the evidence of the complainant. We find that it is not proved that the complainant failed to comply with the provisions contained in Rule 18 of the rules. Therefore, the contention that the report of the public analyst should be excluded from evidence is repelled.

6. The accused stands charged with having committed an offence under Section 16(1)(a)(i) for contravention of the provisions of Section 7(1) of the Act, Section 7 of the Act reads-

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 licence is prescribed, except in accordance with the conditions of the licence....

To prove the offence, the prosecution is required to prove in this case that the accused sold adulterated or misbranded food. Coconut oil is the article sold by the accused to the complainant. The prosecution has, therefore, to prove that Coconut Oil is food, as defined under the Act, and that the transaction in question between the accused and the complainant amounted to sale, as defined under the Act. The third ingredient that the article sold was adulterated stands proved by the report of the public analyst, who found that the Coconut Oil in question was found to be adulterated, because of the find of mineral oil therein and the same was substandard. This finding of the public analyst is not challenged before us. Therefore, we are required to find out whether prosecution has succeeded in proving that the article sold was food and the same was sold, as contemplated under the Act.

7. Food is defined in Section 2(v) of the Act. It reads:

food' means any article used 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, and

(b) any flavouring matter or condiments,

The word 'sale' is defined in Section 2(xiii) of the Act. It reads-

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.

If the prosecution succeeds in proving that Coconut Oil is food, as defined under the Act, and the transaction between the complainant and the accused amounted to sale, as denned under the Act, the offence is complete and, in that case, we shall have to hold that the accused is guilty of the offence charged against him.

8. The questions, which are raised before us by Mr. Thakore on behalf of the defence, came up for decision before the Bombay High Court in Dhirajlal v. Ramachandra A.I.R. 1970 Bom. 200. It is a Full Bench decision. A Single Judge of the High Court referred 2 questions to the Full Bench for decision. The questions were-

(1) whether the definition of 'sale' contained in Section 2(xiii) of the Prevention of Food Adulteration Act, 1954, is confined to the sale of articles of food for human consumption or human use alone or extends to the sale of an article of food regardless of the purpose for which it is sold?

(2) whether the word 'sale' used in Rule 44-A of the Prevention of Food Adulteration Rules, 1955, is used in its general sense or in the restricted sense, meaning the sale of kesari dal for human consumption only?

The Full Bench modified the first question as under:

(1) Whether the definition of 'sale' contained in Section 2(xiii) of the Prevention of Food Adulteration Act, 1954, is confined to the sale of articles of food for human consumption alone or extends to the sale of an article of food regardless of the use to which it is put?

It was observed by the Full Bench-

We have referred to the 'use' because that is the word used in the definition of sale in Section 2(xiii) and not purpose, though, as we shall presently show, that makes no substantial difference.

After examining the arguments advanced on behalf of the parties, the full bench reached the following conclusions-

(1) that what is necessary to establish in the case of a sale under the Prevention of Food Adulteration Act is-

(a) that there is an article of food,

(b) that a sale of that article has taken place and

(c) that the article is either adulterated, misbranded or dealt with coutrary to a prohibition or a rule under the Act, or its sale is otherwise prohibited as in Rule 44-A.

It follows from this that if an article is proved to be an article of food it must be sold or otherwise dealt with only in its pure form.

(2) that the ban on the sale of kesari dal in Rule 44-a is total and there is no scope for any exception or exemption;

(3) that it is no defence to a prosecution under the Act to say-

(a) that the accused did not intend to use kesari dal as food, or

(b) that he never intended to sell it as food.

Intention or tens area as such is totally irrelevant to the applicability of Rule 44-a and so is the question of the use to which an article is put.

9. In Public Prosecutor v. Nagabhushanam : AIR1965AP118 it was held

There is nothing in the Act which points that an article of food may be adulterated with impunity provided it is not used as food throughout the length and breadth of the country. On the contrary, there is every intention 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 region, or is used only by a section of the people in a given region. By the use of the word 'ordinarily' in Clause (v)(a) of Section 2 of the Act, the legislature intended to lay down that when an article or substance is used as an ingredient in the preparation of food, even by some inhabitants of this country, usually and not as something exceptional or out of the ordinary, it would come within the definition of 'food'. Coconut oil is used extensively in Kerala as a cooking medium and malayalees wherever they may be generally use Coconut Oil for that purpose. It therefore falls within the definition of 'food'. The fact that Coconut Oil is not used as edible oil either in the Andhra Pradesh area or in the Telangana area is beside the point and is wholly irrelevant in determining whether it comes within the definition of 'food.

Where a person sells edible oil to the food inspector for analysis, his Act constitutes a 'sale' within the meaning of Section 2(xiii) of the Act. By its very definition, a sale is not any the less a sale because it is for analysis; it need not necessarily be for human consumption or for human use. The purchase of a sample by a Food Inspector is not for his 'personal consumption or use but is only for the purpose of detecting if the article of food is adulterated. No proof that the sample of oil to the Food Inspector was sold as an article of food is necessary.

This decision provides a complete answer to the arguments advanced by Mr. Thakore on behalf of the accused.

10. In P. Govinda Pilial v. Padmanabha Pillai : AIR1965Ker123 (Full Bench), it was held-

Kesari dal is an article of food within the meaning of the Act. Its possession for the purpose of sale is prohibited by Rule 44-A Clause (b) of the rules made under Section 23 of the Act and is punishable under Section 16(1)(a). The context requires that the word 'sale' appearing in the rule should be read as meaning an ordinary sale and not an Act sale.

It is also not necessary to show that it is used as human food in the particular locality where the alleged offence of possession for the purpose of sale is committed, or by the particular persons in respect of whom it is committed. Therefore, it clearly comes within Clause (a) of the inclusive part of the definition of 'food' if not in the body of the definition itself.

11. P.K. Tejani v. M.R. Dange : 1974CriLJ313 -it was held-

The Act defines 'food' very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is commonplace knowledge that the 'word 'food' is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. As supari eaten with relish by men for taste and nourishment, it is food within the meaning of Section 2(v) of the Act.

The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word.

There the question was whether supari was food, as denned under the Act. The Court replied the question by saying that as supari is eaten with relish by men for taste and nourishment, it is food within the meaning of Section 2(v) of the Act.

12. In Mangaldas v. Maharashtra State : 1966CriLJ106 it was held

The Act gives a special definition of 'sale' in Section 2(xiii) which specifically includes within its ambit a sale for analysis. A sale for analysis must be regarded as sale even if the transaction contains an element of compulsion.

A contract comes into existence by the acceptance of a proposal made by one person to another by that other person. The latter is not bound to accept the proposal. It may not, however, necessarily follow that where that other person had no choice but to accept the proposal, the transaction would never amount to a contract.

13. In Food Inspector, Calicut v. C. Gopalan : 1971CriLJ1277 , it was held-

A reference to the definition of 'sale' will also show that a sale of any article of food for analysis comes within that definition. That the sample of food purchased by the food inspector in this case satisfies the definition of 'sale' in Clause 14 is also beyond controversy.

14. The ratio of the above referred different decisions is that, to prove the contravention of Section 7 of the Act, the prosecution has to prove that the accused sold to the complainant food, as defined under the Act. It is not necessary for the prosecution to prove that the article in question is being used in the particular area in which is sold as an article of human consumption. It is also not necessary for, the prosecution to prove that the article was sold for human consumption. It is also not necessary for the prosecution to prove that the accused was, a dealer in that article. Even a compulsory sale under the provisions of the Act to the food inspector amounts to sale for the purpose of analysis and, therefore, if what is sold is proved to be food, as defined under the Act, the offence is complete, on the same being found adulterated.

15. Mr. Thakore referred us to the decision in Ashu Jaiwant v. State of Maharashtra : 1975CriLJ1868 . In his opinion, the facts of the decision under reference are on all fours with the facts of the present case. There the accused sold black till seeds to the food inspector. When the food inspector demanded the sample, the accused told him that they were meant only for the purpose of Pooja and for offering to the fire. The Food Inspector insisted for the sample. Thereupon the accused sold the sample to the Food Inspector but, in the receipt of the amount received by him for the sale of the sample, he made an endorsement that black til seeds sold by him to the food inspector were meant only for Pooja. The Supreme Court held-

Although metisa rea, in the ordinary understood sense, may not be needed to be proved in such cases, yet, the purpose for which articles of food covered by the Act are manufactured, distributed, or sold was that they 'should reach the consumer to be used as food'. Thus, the use of the article sold was not entirely irrelevant. It is more correct to say that it is presumed from the nature of the article itself or the circumstances and manner of offering it for sale. Where circumstances raise a genuine doubt on the 'question whether, what was kept by. A seller was 'food' at all, this must be resolved by evidence in the case.

It appears from the observations made by the Supreme Court that, in view of the circumstances of the case, it was doubtful whether black til seeds were kept by the accused as food at all. The Supreme Court further found that, in view of the doubtful position, it was the duty of the prosecution to have proved that black til seeds were food, as defined under the Act. On facts of the case, it was found that the prosecution failed to prove that and, therefore, the accused was acquitted of the offence charged against him. We are unable to accept the argument of Mr. Thakore that the Supreme Court held, in the decision under reference, that the purpose for which articles of food covered by the Act are manufactured, distributed or sold must be that they should reach the consumer to be used as food. The purpose for which food is sold is not relevant for finding out whether the provisions of Section 7 of the Act are contravened. In the decision under reference the Supreme Court found that, in view of the peculiar circumstances brought on record, it was rendered doubtful whether black til seeds were kept by the accused as a seller of food. This is quite clear from the following observations of the Supreme Court-

Where Section 7 prohibits manufacture, sale or storage or distribution of certain types of 'food', it necessarily denotes articles intended for human consumption as food. It becomes the duty of the prosecution to prove that the article which is the subject-matter of an offence is ordinarily used for human consumption as food whenever reasonable doubts arise on this question. It is self evident that certain articles, such as milk or bread, or butter, or food grains are meant for human consumption as food. These are matters of common knowledge. Other articles may be presumed to be meant for human consumption from representations made about them or from circumstances in which they are offered for sale.

There the circumstances of the case created a doubt whether black til seeds satisfied the definition of the word 'food', as defined in the Act. Black til seeds were specifically sold for the purpose of Pooja by the seller to the food inspector. For that reason, the Supreme Court found that the burden lay on the prosecution to prove that black til seeds were covered under the definition of 'food' given in the Act. It is pertinent to note that in that case the charge against the accused was that he sold til seeds, which were unfit for human consumption. The Supreme Court found that he was not proved to have sold food, as defined under the Act. It was found that there was nothing in the evidence on which it could be held proved that black til seeds, were food, as denned under the Act. So far as the case before us is concerned, the position is quite different. Coconut oil is, on the evidence in the case and in view of the decisions referred to above, proved to be food, as defined under the Act, even though the same is not generally used for human consumption in the state of Gujarat. Therefore, it cannot be said that the prosecution has failed to prove that what was sold by the accused to the complainant was food, as defined under the Act. We are unable to agree with Mr. Thakore that the representation made by the accused to the Food Inspector, at the time of selling the sample assumes relevance in all cases. In the case before the Supreme Court, the representation made by the accused to the Food Inspector was taken into consideration, because the circumstances of the case created a doubt whether what was sold by the accused to the Food Inspector was 'food', as defined under the Act. There he had made an endorsement on the receipt of the amount received by him that he had sold black til seeds, which were meant only for Pooja. Even that representation of the seller to the food inspector would not have helped him at the trial for contravention of the provisions of Section 7 of the Act, if the article sold by him was proved to be 'food', as defined under the Act. If such representation made by the seller to the Food Inspector, at the time of the sale of the sample, is given importance, in all cases of sale of samples to the Food Inspector, the seller would for the purpose of evading his responsibility make a representation that the article, which he was selling to the Food Inspector, was not meant for the purpose of human consumption. The Supreme Court has not said so in the decision under reference. The case under reference was decided on facts. The facts in the case before us are quite different and, therefore, we are unable to agree with Mr. Thakore that, because it is in the evidence of the panch witness and because the accused has stated so in his statement before the court that he had told the complainant that Coconut Oil was meant for repairing the cycles, it is sufficient to exonerate him from the, liability of having sold Adulterated Coconut Oil to the Food Inspector.

16. In Municipal Corporation of Delhi v. Laxmi Narein Tandon : 1976CriLJ547 relied on by Mr. Thakore, the question was about storing of the article for sale. There the question was whether the article in question was intended for sale. It will have no application to the facts of the present case, because, here the Actual sale of Coconut Oil has taken place. Even though the sale by the accused to the complainant was compulsory under the Act and even if the sale of Coconut Oil was not for human consumption, the offence is complete, because Coconut Oil is proved to be food, as defined under the Act, and the sale by the accused to the complainant for the purpose of analysis is sale, as denned under the Act.

17. In Andhra Pradesh Grain and Seed Merchants Association v. Union of India : 1971CriLJ1556 -it was observed by the Supreme Court-

We are again unable to accept the argument that under the Act even when an' article is purchased not as an article of food, but for use otherwise, the vendor will be deemed guilty if the article does not conform to the prescribed standards, or is as an article of food adulterated or misbranded.

Relying on these observations, Mr. Thakore has argued that, according to the Supreme Court, the purpose for which the article is purchased by the purchaser is relevant and, if the purchase is not for human consumption, in that case, the seller cannot be convicted for breach of the provisions of Section 7 of the Act. We do not find any such law laid down by the Supreme Court in the decision under reference. It was a decision given in a bunch of writ petitions filed under the Constitution of India challenging the restrictions imposed upon the conduct of business by traders in food stuffs. They challenged the validity of Section 7 read with Section 2(v) and 2 (ix) and Section 19(2)(i) and Section 10 read with Section 13 of the Prevention of Food Adulteration Act. The challenge was under Articles 14, 19, (1)(g) and 20(3) of the constitution. The Supreme Court was not then dealing with the definition of 'food' provided under the Act and also was not dealing with the definition of 'sale' as provided under the Act. Mr. Thakore's argument is that, in Gujarat, Coconut Oil is not used for human consumption. It is used for preparing hair oils, etc. If a seller sells Coconut Oil as hair oil to a purchaser, and if it is found to be adulterated, the seller cannot be held guilty of the offence under Section 7 of the Act, because, even though he sells Coconut Oil, a food, as denned under the Act, the same is sold for purpose other than for the purpose of human consumption. A similar argument was advanced before the Supreme Court in the case under reference. Reliance is placed on the following observations of the Supreme Court-

But there are no articles which are used as food only in one part, and are not at all used as food in another part-of the country. Even Coconut Oil is used as a cooking medium by certain sections of the people in parts of India other than Kerala. In any event it is always open to a person selling on article capable of being; used as an article of food as well as for other purpose to inform the purchaser by clear notice that the article sold or supplied is not intended to be used as an article of food. What is penalised by Section 16(1) is importation, manufacture for sale, or storage, sale or distribution of an article of food. If what is imported or stored, sold or distributed is not an article of food, evidently Section 16 can have no application.

It appears that the learned Additional Sessions Judge failed to correctly appreciate these observations of the Supreme Court and, therefore, he fell into an error and held that, because the accused had sold Coconut Oil with a clear representation that the same was meant for cycle repairing, he could not be said to have committed an offence under Section 16 of the Act. The Supreme Courts observations are very pertinent. What the Supreme Court held was 'if what is imported or stored, sold or distributed is not an article of food, evidently Section 16 can have no application.' merely because the seller represents to the food inspector that what he sells is not an article of food, he is not exonerated from his liability for contravention of the provisions of Section 7 of the Act. If he wants to seek any protection under such representation, such representation should be by exposing the article in question for sale under the general representation to the public in general that the same is sold for a purpose other than the purpose of human consumption. To give an instance of Coconut Oil itself. Coconut hair oil is being manufactured from Coconut Oil. If the seller sells coconut hair oil as hair oil, he cannot be said to have sold Coconut Oil as an article of food, because he exposes it for sale by a general representation that it is hair oil. But mere representation to the Food Inspector, at the time of selling the sample, that the article, which he sells, is not meant for human consumption, is not sufficient to show that the article sold by him is not food, as defined under the Act.

18. In the present case, the complainant has denied that the accused had made any such representation to him that Coconut Oil was kept by him for repairing his cycles. However, there is the evidence of the panch witness that the accused had represented to the complainant that Coconut Oil was meant for repairing the cycles. In our opinion, it is not sufficient, to hold it proved that what was sold by him was not food, as defined the Act. It was sold by him from the pavali, which was lying in front part of the shop. It was lying amongst the articles, which were exposed for sale. It was exposed for sale as Coconut Oil. It was sold as Coconut Oil. Even if his defence is believed that he made such representation to the complainant, it need not be proved that he was a dealer in Coconut Oil, because, in law, the sale of the sample of Coconut Oil by him to the complainant is sufficient to complete the offence. The case of Ashu Jaiwant v. State of Maharashtra (supra) was decided on facts. The facts of the instant case are different and, therefore, the same does not help the accused. Similarly, the case of Municipal Corporation of Delhi v. Laxmi Narain Tandon (supra) cannot help the accused because there the question for interpretation was whether the article was stored for sale. The decision in Andhra Pradesh Grain and Seed Merchants Association v. Union of India (supra) also cannot help the accused because the Supreme Court did not lay down therein that the purpose for which the article was sold was relevant in all cases for finding out whether the provisions of Section 7 of the Act were contravened. There the Supreme Court very clearly laid down that 'if what is imported or stored, sold or distributed is not an article of food, evidently Section 16 can have no application.' in the present case, we were not convinced that the article in question, that is Coconut Oil, sold by the accused to the complainant, is not an article of food. Therefore, we find that the learned additional sessions judge erred in holding that the accused was wrongly convicted by the learned Judicial Magistrate under Section 10(1)(a)(i) read with Section 7(i) of the Act. In our opinion, the prosecution has succeeded in proving the offence against the accused and, therefore, he should be convicted of the same. We, therefore, set aside his acquittal and convict him for the said offence.

19. Mr. Thakore for the accused has submitted that, if he is found guilty of the offence charged against him, he should be leniently dealt with, in view of the fact that he has closed the shop, after he was prosecuted before the trial Court. The minimum sentence provided under the section is imprisonment far six months and a fine of Rs. 1,000/-. The Court can award lesser sentence for reasons to be recorded in writing. The fact that the complainant had taken the sample of chillies powder from the accused on the same day, which was found to be in accordance with the standards prescribed under the rules, can be taken into consideration for deciding the quantum of sentence to be awarded to him. The fact that Coconut Oil is generally not used for human consumption in the State of Gujarat can also be taken into consideration for leniently dealing with the accused. However, that leniency cannot be to the extent of allowing him to go with a mere sentence of fine. There may be persons residing in the State of Gujarat, who may be using Coconut Oil for human consumption. The offence is an offence against the society as a whole and the same cannot be dealt with too leniently. In our opinion, sentence of simple imprisonment for three months and a fine of Rs. 200/- in default to undergo simple imprisonment for one month more, will be sufficient to meet the ends of Justice.

20. The result is that the appeal is allowed. Acquittal of the respondent-accused is set aside He-is convicted of the offence under Section 16(1)(a)(i) read with Section (i) of the Act and is sentenced as aforesaid. The accused is given two weeks' time to surrender to undergo the sentence awarded to him. Mr. Thakore has made an oral request for a certificate of fitness for fitting a I appeal to the Supreme Court. The case has been decided by us on the settled position of law, as laid down in the decisions, referred to by us in the course of the judgment. We are not satisfied that it involves any question, which is required to be decided by the Supreme Court. Hence, the request for leave to appeal to the Supreme Court under Article 134(1)(c) of the constitution of India is rejected.


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