(1) This appeal is filed by the learned Public Prosecutor on behalf of the State of Madras, against the judgment of the learned Sessions Judge, Tirunelveli in C. A. 36 of 1962. The accused, a grocery merchant in Tuticorin, was convicted by the Sub Divisional Magistrate, Tuticorin, under S. 7, 16(1)(a) read with S. 7(v) of the Prevention of Food Adulteration Act. Section 7(v) states that no person shall himself or by any person oh his behalf manufacture for sale, or store, sell or distribute any adulterated food. Section 16(1)(a) sates that if any person, whether by himself or by any person in his behalf, sells or distributes, any articles of food in contravention of any of the provisions of the Act, he shall be punished.
(2) The facts in case lie within a narrow compass, P. W. 1, the Sanitary Inspector of the Tuticorin Municipality, who is also the food inspector under the Prevention of Food Adulteration Act, went to the shop of the accused on 30-9-1961 and purchased 3/4 lb of compounded asafoetida for the purpose of analysis. P. W. 2 was present at that time. As usual, the samples were divided into three parts and the is no dispute that the prescribed formalities for taking of the samples were followed. On analysis by the Chemical Analyst, these samples were found to contain coaltar dye, and it is not in dispute that admixture with that substance will amount to adulteration within the relevant rules framed under the Prevention of Food Adulteration Act. There was also a deficiency in the prescribed alcohol content and this was another reason given by the Chemical Analyst, for holding the stuff to be adulterated. The trial Court convicted the accused and sentenced him to pay a fine of Rs. 75 in default rigorous imprisonment of a period of 3 months. The learned Sessions Judge, in appeal, however, relying upon the admission of the attesting witness P. W. 2 in cross-examination, came to the conclusion that the accused represented to the Food Inspector P. W. 1, at the time of the purchase, that the asafoetida was being sold by him only for feeding cows and goats, and therefore the implication was not for human consumption. There was a witness on behalf of the accused, D. W. 1, who stated that inferior variety of asafoetida is used to be given to cattle. Accepting the evidence of the attesting witness and D.W. l, the learned Sessions Judge came to the conclusion that there was not sufficient evidence conclude that the appellant offered to sell the asafoetida as an article of food for human consumption. He acquitted the accused. Against this acquittal, the Public Prosecutor has filed this appeal. he submits that the finding of the lower Court is so unreasonable that it should be reversed and the conviction of the trial Court confirmed.
(3) The first point to be noted is that according to S. 2(v) of the Prevention of Food Adulteration Act of 1954 "food" is defined as any article used as food or drink for human consumption and includes any flavoring matter or condiments. Asafoetida is a well-known condiment or flavouring matter which enters into the preparation of human food. What the accused contented and which contention was found acceptance at the hand of the learned Sessions Judge is that, it would be an offence under the Act, if an article intended for human consumption is sold to a customer on the express understanding that it should be given to cattle and not consumed by human beings. The crux of the offence does not lie in the use to which the buyer may put an article, but whether intrinsically the article sold or exposed for sale is one used for human consumption or not. The plea of the accused seems to be that, because he used to represent to his buyers that this particular asafoetida which he had in stock, should be used only for feeding cattle and not used as human food he would-be exempt form prosecution. it would be as if a vendor of adulterated milk could aver that he sold adulterated milk to a customer on the distinct understanding that the customer should not give it to his baby but should give it only to his cat, and therefore urge that he had no sold adulterated milk and had not committed any offence.
The crux of he offence does not lie in any possible understanding between the seller and the buyer as to the use to which the article sold is to be put, but whether the article intrinsically is an article of food, or, a defined in S. 2(v)(a), an article which ordinarily enters into, or is used in the composition or preparation of human food. In spite of the attempt made by the accused to show that the asafoetida in this case was sold in the understanding that it was to be given to cattle, it still remained an article which ordinarily enters into, or is used in the preparation of human food. From this point of view, this case can be distinguished from the once decided by the Andhra High Court nPublic Prosecutor v. Satyanarayana, 1958 Mad LJ (Cri) 455: (AIR 1958 Andh Pra 681), where there was positive evidence that "turmeric" has not two varieties, one intended for human consumption and one for external use. In addition, the seller in that case fortified his position by getting it recorded on the receipt given by him to the Food Inspector at the time of seizure of the samples, that the turmeric sold was of the variety intended for external use. Here, no such claim is put forward that the substance asafoetida consists of two distinct varieties, one fit for consumption and one fit for consumption only for cattle or animals. But what the accused urges is that he used to tell his customers that the asafoetida sold by him should be given only to cattle. As already mentioned as long as the article sold by him or stored by him for sale remains an article which ordinarily enters into the preparation of human food, it is irrelevant to consider whether it was sold to a particular customer on the distinct understanding that he should not use it for preparing food, but should give it only to animals. The crux of the offence is in the sale of food (as defined in the Act) and it is irrelevant to consider whether there was any separate understanding between the buyer and the seller at the time of sale that the article sold should be used for some purpose other than food. The fact that it was agreed between the seller and the customer that an adulterated article sold was to be used for a purpose other that human consumption will not at all enter into the consideration whether an offence, as denied in the Act, has been made out or not. That definition of sale in S. 2(xiii) of the Act is very wide and covers not merely a sale for human consumption, but a sale or having in possession for sale, will all be brought within the scope of the definition of "sale". He, admittedly, the sale was one for analysis and the article was an article of food and there is a finding by both the Courts below that it was adulterated.
(4) In view of the above, I find that the judgment of the lower Court cannot be supported, as it is based on a totally unreasonable approach to the relevant principles for construing the provisions of the Food Adulteration Act.
(5) At the conclusion of the hearing of the case, the learned counsel for he respondent drew my attention to the amendment of Rule 29 of the rules framed under the Prevention of Food Adulteration Act, which states that in the case of flavouring agents, certain specified coal tar dyes could be used as admixtures. But in the case of the sample of asafetida in this case, according to the Analyst's report, not merely coal tar dye was present, but the alcoholic content was below the prescribed minimum by a considerable margin and that itself would be sufficient to make the article an adulterated one.
(6) Consequently, I allow the appeal, set aside the judgment of the lower Court and restore the judgment of the Sub Divisional Magistrate. As a result, the conviction of the appellant as well as the sentence will be restored.
(7) Appeal allowed.