M.K. Shah, J.
1. This revision application which originally came up before a learned Single Judge of this Court, has been referred to this Court as, in the opinion of the learned Single Judge, the question involved viz. whether cow's milk is primary food within the meaning of Section 2(xiia) of the Prevention of Food Adulteration Act, 1954 ('the Act'), is of considerable importance and arises in several other matters pending in this Court and also for the reason that there is conflict of views on the subject between two High Courts viz. Kerala High Court and the Allahabad High Court.
2. Opponent No. 1-Original accused was prosecuted before the learned Metropolitan Magistrate, 6th court, Ahmedabad in summary case No. 75 of 1977 for the offence under Section 16(1)(a)(i) read with Section 7 of the Act on the allegation that the accused was doing business as a hawker distributing milk from place to place and that on 18th June, 1977 at about 6 O'clock in the morning at Jahangirpura near Civil Hospital Ahmedabad, he sold cow's milk to the complainant-food inspector, which on analysis, was found to contain addition of water by 15% and thus adulterated.
3. The accused on being told by the court that as per the prosecution, he was doing business as a hawking milk vendor and he had sold cow's milk at the aforesaid time and place containing 15% of added water and thus adulterated and that he had thereby committed an offence punishable under Section 7(1) read with Section 16(1)(a)(i) of the Act and when asked as to whether he was pleading guilty or wanted to defend himself, he answered that he was pleading guilty to the offence and was praying for mercy. The learned Magistrate accepted the plea of guilty and then heard the arguments on behalf of the accused and holding that there were no proper and sufficient reasons to award lesser sentence, he awarded sentence of six months' S.I. and a fine of Rs. 1,000/-; in default, three months' further S.I. by his order dated 3rd August, 1977.
4. Aggrieved by this order, so far as the sentence was concerned, the accused preferred an appeal being criminal appeal No. 200 of 1977 which was heard and decided by the learned Additional Sessions Judge, court No. 13, Ahmedabad. In the opinion of the learned Additional Sessions Judge, cow's milk was primary food and the case was covered by the proviso to Section 16(1) and taking into consideration the young age of the accused and the fact that this was his first offence, he reduced the sentence of imprisonment from six months to three months and fine from Rs. 1.000/- to Rs. 500/- in default, further S.I. for one months, by his impugned order dated 6th July, 1978, aggrieved by which order, the petitioner-that is-the original complainant-food inspector, has moved this Court in revision.
5. As the question involved was of some importance the office was directed to put up a notice and in response thereto, some advocates have appeared as interveners.
6. Before considering the rival contentions raised before us, it would be desirable to have a clear picture of some legal provisions contained in the Act as also the rules framed thereunder.
7. 'Food' has been defined in Clause (v) of Section 2, as was substituted by Section 2 of Act No. 34 of 1976 with effect from 1-4-1976, and it reads thus:
(v) '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,
(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 purposes of this Act.
8. Giving definition of an article of food which is adulterated, Section 2(ia), which was also inserted by Act 34 of 1976, says:
(ia)- 'adulterated' -an arttcle of food shall be deemed to bi adulterated-
(M) if the quality or purity of the article falls below the prescribed standard of its constituents are present in quantities not within the prescribed limits of Variability but which does not render it injurious to health:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.
Explanation- Where two or more articles of primary food are mixed together and the resultant article of food-
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health,
then such resultant article shall not be deemed to be adulterated within the meaning of this clause.
9. The next important section is Section 7, the material portion whereof reads thus:
7. No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-
(v) any article of food in contravention of any other provision of this Act or; any rule made thereunder.
(vi) any adulterant.
Explanation - For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in Clause (iii) or Clause (iv) or Clause (v), if he stores such food for the manufacture therefrom of any article of food for sale.
10. 'Primary Food' is defined in Clause (xiia) of Section 2, which reads thus:
Primary food means any article of food, being a produce of agriculture or horti' culture in its natural form.
11. The next relevant section is Section 16 and the material portion thereof necessary to be considered to decide the question in issue in this matter, reads thus:
(1) Subject to the provisions of Sub-section (IA), if any person-
(a) Whether by himself or any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food-
(i) which is adulterated within the meaning of sub-Clause (m) of Clause (ia) of Section 2 or misbranded within the meaning of Clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) x x x x x x
(b) x x x x x x
(c) x x x x x x
(d)x x x x x x
(e) x x x x x x
(f) x x x x x x
(g)x x x x x x
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 which may extend to three years, and with fine which shall not be less than one thousand rupees; Provided that-
(i) if the offence, is under Sub-Clause (i) of Clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of sub-Clause (k) of Clause (ix) or Section 2; or
(ii) x x x x x.
the court may, for any adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees.
The further proviso is not material for our purpose.
12. In the background of these provisions, it is to be considered whether the cow's milk would fall within the category of primary food as defined in Clause (xiia) of Section 2, because if it falls within the category of primary food as defined in the said clause, then, the provisions contained in proviso (i) to Section 16(1) can be pressed into service for the purpose of awarding lesser than the minimum sentence of six months awardable under Section 16(1) of the Act, provided that the other conditions set out in the proviso are satisfied. It has, therefore, to be shown, in order to bring the article of food within the meaning of primary food; as defined in the Act, that it is a produce either of agriculture or horticulture and that the same is in its natural form. Agriculture or horticulture is not defined in the Act, and the court has, therefore, to fall back upon the general sense in which this expression is understood in common parlance vide Commissioner of Income-tax v. Benoy Kumar Sghas Roy A.I.R. 1957, S.C. 76. As observed by the Supreme Court in the said decision.
Agriculture in its root seanse means ager a field and cultura-cultivation, cultivation of field which of course implies expenditure of human skill and labour upon land.
Relying on the observations of Lord Koleridge in R. v. Peters (1886) 16 Q.B.D. at page 641 and Cozens-Hardy, M.R. in Canden (Marquis) v. Inland Revenue Commissioner 1914-1 K.B. 647, the Supreme Court further observed-
The term has, however, acquired a wider significance and that is to be found in the various dictionary meanings ascribed to it. It may be permissible to look to the dictionary meaning of the term in the absence of any definition thereof in the relevant statutes.
13. A Look may be had to Webster's International Dictionary which defines the word 'agriculture' as follows:
The art or science of cultivating the ground, including the harvesting of crops, and the rearing and management of live stock, tillage, husbandry, farming.
As further observed by the Supreme Court in the said decision:
The term 'agriculture' in various dicationsries has been used both in the narrow sense of the cultivation of the field and the wider sense of comprising all activities in relation to the land including horticulture, forestry, breeding and rearing of livestock, dairying, butter and cheese-making, husbandry, etc.
And the following observations of the Supreme Court as they appear at page 774 of the said report, may be noted:
Whether the narrower or the wider sense of the term 'agriculture' should be adopted in a particular case depends not only upon the provisions of the various statutes in which the same occures but also upon the facts and circumstances of each case. The definition of the term in one statute does not afford a guide to the construction of the same term in another statute and the mens in which the term has been understood in the several statutes does not necessarily throw any light on the manner in which the term should be understood generally.
The Supreme Court struck a note of caution against the tendency to adopting a wider meaning for the said word and deprecated the tendency to adopt a view covering the term in its widest possible sense-The Supreme Court stated-'We are however, of opinion that the mere fact that an activity has some connection with or is in some way dependent on land is not' sufficient to bring it within the scope of the term and such extension of the term 'agriculture' is unwarranted. The term 'agriculture' cannot be dissociated from the primary significance there of which is that of cultivation of the land and even though it can be extended in the manner we have stated before both in regard to the process of agriculture and the products which are raised upon the land, there is no warrant at all for extending it to all activities which hive relation to the land or are in any way connected with the land. The use of the word agriculture in regard to such activities would certainly be a distortion of the term.
14. It will be thus seen that in order to bring a produce within the meaning of 'agricultural produce in its natural forms', the very first in gredient to be established is to show that the produce has been obtained by human efforts on land and it can never be dissociated from land. In its wider sense, it may also include product of cattle which have been reared on soil and which cattle have received sustenance from the soil, and the second requirement is that the produce must be in its natural form, that means as it emerges from the secretion from cattle. Therefore, if later, it is interfered with by some human agency or by any mechanical or any other means or process resulting in the loss of the naturalness of the product and in the product changing its natural form, then, it will cease to answer the description of agricultural produce in its natural form.
15. Our attention was drawn to a decision of the Kerala High Court in State of Kerala v. A.P. Abdul Kadar (1978) II P.F. A.C. 300. There, the expression 'primary food' came up for consideration before a Single Judge of the Kerala High Court and after considering the definition of the term 'primary food' as denned in Section 2(xiia) of the Act, the learned Judge came to the conclusion 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 the land viz. cattle.
16. We are in agreement with these observations of the Kerala High Court and in that way, adopting the wider meaning for the term 'produce of agriculture' taking within its sweep not only that which is grown on the land by human efforts but also that which is reared on the land by giving sustenance from the land that would include cattle so reared on the land and the natural produce from the said cattle.
17. In the ultimate analysis, therefore, in interpreting the term 'produce of agriculture' in its natural form, as it occurs in the definition of the word 'primary food' in the Act, we are of the opinion that it includes not only that which is grown on the land by human efforts but that which is reared on the land by supplying sustenance to the same from the land itself. There should be, therefore, direct nexus between an article and land coupled with the involvement of human efforts and drawing of sustenance from the land itself for the production of that article and such produce when it is in the natural form, that means, as it may be before by intervention of any agency, a change is brought about in its form or before it undergoes any transformation. In this sense, as per the definition as it appears in the Act, butter which may be prepared in the farm itself from cream taken out of milk secreted from a cow reared on the field, will not fall within the category of produce of agriculture in its natural form and it will be only the milk secreted from such animal which will fall within that category.
18. Our attention in this connection was drawn to the Producers Co operative Distributing Society Ltd. v. Commissioner of Taxation A.I.R. 1948 P.C. 74, where while interpreting the expression 'agricultural produce' as it appeared in the Income-tax Act, 1922, Section 2(1), the Privy Council held that if on the farmer's land, milk and cream were produced with a view to subsequent conversion of cream into butter, then if the farmer himself made butter, such butter will be agricultural produce within the meaning of the definition as it appears in the said Act because in such a case, the farmer grows or cultivates his land for the production of butter just as he used or cultivates it for the production of milk and cream, and the Privy Council distinguished between what is called butter produced by the farming industry and the butter produced by the butter making industry, that is by factory operation and it was observed as follows:
There are two industries, the farming industry and the butter making industry, The industries are indeed closely related, but they are independent and the product of the latter industry is not in any real sense the product of the former industry.
But the Privy Council was dealing with the expression as it appeared in the Income-tax Act and which merely defined an agricultural produce and not produce of agriculture or horticulture in its natural form (emphasis supplied), and, therefore, in view of the specific nature of and in view of the narrow field which is covered by the definition as it appears in the Act, primary food would not include anything but milk as it is secreted from a cow in is natural form and will exclude milk which changes form either by proceeding or intervention of any agency resulting in a change being brought about in its natural form so far as cow's milk is concerned, as also article like butter, ghee, cheese etc. which are produced from milk, It will also not include each and every kind of milk secreted from a cow (emphasis supplied). It will all depend upon the facts of each case. If the facts showed that milk was drawn from a cow, which was reared on the soil and which got its sustenance there from, and was in its natural form, before it was adulterated, then, it will fall within the definition of primary food. But if this is not shown, say for example, the milk, which is secreted from a cow which is raised in the urban area and which is stall-fed, will not be primary food.
19. We are fortified in the view which we take by a Full Bench decision of the Rangoon High Court in In re. Commissioner of Income tax, Burma v. Kokine Dairy Rangoon A.I.R. 1938 Rangoon 260. This was a case which arose under the Income-tax Act and the expression 'agricultural income' as it appeared in Sections 2(i) and 4(3)(viii) came up for interpretation. The Rangoon High Court while observing that what is exempted from tax by the Income Tax Act is agricultural income and for the purpose of considering the position of a dairy farm and the milk which is derived from it, it is necessary to enquire whether the cattle are kept in an urban area and stall-fed or whether they are pastaured upon the land, made the following observations which are very eloquent and they appear at page 261:
Where cattle are wholly stall-fed and not pastaured upon the land and all, doubtless it is trade and no agricultural operation is being carried on; where cattle are being exclusively or mainly pastaured and are nonetheless fed with small amounts of oil-cake or the like, it may well be that the income derived from the sale of their milk is agricultural income.
20. The learned Additional City Sessions Judge, it appears, crept into an error in holding that cow's milk in whatever form was primary food. He has not applied his mind to the exact nature of the definition of the expression 'primary food' as it appears in the Act. There was no material on record to justify a conclusion that the milk sold by the accused who was admittedly a hawker vending milk and not a rearer of cattle, was secreted from a cow or cows reared on a pastaured land or soil from which they got their sustenance.
21. It was submitted by Mr. Barot, the learned Advocate appearing for the accused and the learned Advocates who appeared as interveners that the burden of proving as to whether the milk sold was primary food within the definition of the Act, was on the prosecution and always remained with the prosecution and it never shifted and that, therefore, the accused was entitled to the benefit of the lesser sentence under the proviso Reliance was placed in this connection on Ambalal v Union of India and Ors. A.I.R. 1961 S.C. 264. The Supreme Court negatived the contention that by reason of the provisions of Section 106 of the Evidence Act, the onus lies on the appellant accused to prove that he had brought the goods which were seized by the custom officers as contraband articles into India in 1947, and reliance was then placed on the following observations at page 267:
But it may be assumed that the principle underlying the said section is of universal application. Under that section, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. This Court in Shambhu Nath Mehra v. State of Ajmer 1958 SCR 199 : (S) A.I.R. 1958 SC 404 after considering the earlier Privy Council decisions on the interpretation of Section 106 of the Evidence Act, observed at p. 204 (of SCR)(at p. 406 of AIH) thus-
The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.
If Section 106 of the Evidence Act is applied, then, by analogy, the fundamental principles of criminal jurisprudence must equally be invoked. If so, it follows that the onus to prove the case against the appellant is on the customs authorities, and they failed to discharge that burden in respect of items 1 to 5.
There cannot be any dispute with regard to the proposition that onus of proving the case against the accused and bringing home the guilt is on the prosecution and it never shifts. But there is a glaring fallacy in the argument advanced by the learned Advocates in the instant case. It is not the prosecution case here nor is it, their imputation that the milk which was sold by the accused to the complainant-inspector was primary food. The prosecution approached the court with a case that the accused had sold adulterated milk which was food within the meaning of that expression as it appears in the Act and as defined by Clause (vi) of Section 2. The accused pleaded guilty to the charge which was specifically put to him and explained by saying that he was a hawker vending milk and had sold cow's milk which was adulterated food and thereby he had committed an offence punishable under Section 7(1) read with Section 16(1)(a)(i) of the Act. The accused pleaded guilty, that means, the prosecution established that the accused had sold adulterated food or article of food which was adulterated within the meaning of Sub-Clause (m) of Clause (la) of Section 2 and the duty of the prosecution ended there.
22. The next stage was the stage with regard to sentence. This has nothing to do with the establishment of or bringing home the charge against the accused which has already been brought home by virtue of the fact that the accused pleaded guily to the charge. The court accepted that plea of guilty and convicted him for the offence punishable under Section 7(1) read with Section 16(1)(a)(i). The learned Magistrate then heard the accused with regard to sentence. If the accused at that time wanted to plead for lesser sentence then the minimum awardable under Section 16(1)(a)(i), which was six months imprisonment and fine of Rs. 1.000/- on the ground that his case fell within the purview of proviso (1) to Section 16(1) by virtue of the fact that the offence was under Sub-Clause (1) of Clause (a) and was in respect of an article of food being primary food which was adulterated due to human agency, then, it was for him to urge the court by taking such plea and setting out grounds for lesser sentence which the court may impose if two conditions are satisfied viz. (i) that article of food viz. cow's milk which was sold was primary food within the meaning of the Act and (ii) that there were adequate and special reasons to impose sentence of imprisonment for a term lesser than the minimum that is-lesser than six months but which shall not be less than three months and fine which shall not be less than Rs. 500/-. The accused did nothing of the sort and the learned Magistrate, therefore, in our opinion, was perfectly justified in awarding the minimum sentence awardable under Section 16(1)(a)(i) of the Act viz. imprisonment for a term of six months and fine of Rs. 1,000/-. The prosecution has to prove its case and not the case of the accused. It was never the prosecution case that the cow's milk sold by the accused was primary food, but the prosecution case only was that it was an adulterated article of food. The prosecution has proved the case. The accused pleaded guilty to this charge and the learned Magistrate accepted his plea and convicted him. It was, therefore, for the accused if he wanted to claim benefit of the proviso to bring on record (or to point out from some material which was already on record) material showing that the offence was committed in respect of an article of food which was primary food within the meaning of the Act. The prosecution cannot be expected to prove that the article which was sold viz. cow's milk fell within the category of primary food because that was never their case. If that was the case of the accused, and particularly when the facts which would show that this was primary food were especially within his knowledge, the burden of proving that would be on him because the provisions of Section 106 of the Evidence Act would certainly be attracted in such a case. This is not a case in which by pressing into service the provisions of Section 106 of the Evidence Act, a sitmtion arises whereby the section is used to undermine the well established rule of law that save in a very exceptional class of cases, the burden is on the prosecution and never shifts. The burden which lay on the prosecution viz. to prove that the accused had committed an offence of selling adulterated article of food is discharged by the prosecution. It is only at the time when the question of sentence is considered that the accused, in order to get the benefit of the proviso, can urge that by virtue of the fact that the offence was committed in respect of primary food, the court may use its discretion to give lesser sentence for adequate and special reasons. The accused may show that this was primary food either from the materials which were already on record or he may with the court's permission, bring on record material to establish this fact. But the prosecution in such a case cannot be expected to bring evidence on record of a negative nature that the article of food was not primary food and, therefore, the accused should be granted the sentence prescribed under the section without taking into consideration the proviso.
23. The result of the above discussion is that the revision application succeeds and the rule is made absolute to the extent that the order of the learned Additional Sessions Judge reducing the sentence originally awarded by the learned Metropolitan Magistrate from six months to three months' S.I. and fine from Rs. 1,000/- to Rs, 500/-, is set aside and the order of the learned Metropolitan Magistrate awarding sentence of six months' S.I. and fine Rs. 1000/- in default further S.I. for three months is restored. The order of the conviction is confirmed. Order accordingly. Mr. Barot, the learned advocate appearing for the accused applies for a certificate under Article 134(1)(c) of Constitution. In our opinion, this is not a fit case for granting certificate of fitness for appeal to the Supreme Court and the oral request of Mr. Barot is, therefore, rejected. Mr. Barot also orally requests for time to surrender. Accused is granted six weeks' time to surrender.