K.N. Mudaliyar, J.
1. This is an appeal filed by the State against the order of the Sub Divisional Magistrate, Ariyalur acquitting the accused-respondent, Rangaraju Chettiar (A. 1). In the Court of the Sub Divisional Magistrate, Ariyalur the prosecution was launched against A-l and two others. A-l and A-2 are the partners of the grocery and general shop under the name and style of Gobi Krishna Stores at Puvalur P.W. 1, the Food Inspector went to the said shop to take food sample. Then A-3 was seated in the shop transacting the business. P.W. 1 asked A-3 whether he got any flour variety for samples. (A.I to A. 3 are all related to each other). A-3 said that he got Bengal gram flour, pea flour and rice flour. P.W. 1 demanded Bengal gram flour and pea flour for sample in the presence of P. Ws. 2 and 3. P.W. 1 further served Ex. P. 1 notice on A-3 to take sample of pea flour for analysis He purchased 320 milligrams of pea flour on payment of 45 paise under Ex. P. 2 bill and Ex. P. 3 cash receipt. Then P.W. 1 divided the said 320 milligrams of pea flour into three parts equally and put them into three clean dry empty bottles and corked, sealed and labelled the bottles bearing No. 75 and gave one such sample bottle to A-l under Ex. P. 4 acknowledgment. P. Ws. 2 and 3 were present throughout and have attested Exs. P.I, P. 3 and P. 4. Then P.W. 1 took the other two sample bottles to his office and sent one sample bottle with Form No. VII and specimen seal impression to the analyst. The analyst found the sample not pure pea flour as represented. The sample contained 50% of kesari dal flour under Ex. P. 5, report of the analyst.
2. The plea of the accused No. 1 is that flour kept in the shop for sale was intended for 'pavu pattana pasaik-kaga' in front of the shop and he was told by his shop boy that sample flour was taken in his absence. A. 2 stated that A.I is looking after the grocery shop and he is not attending to the grocery shop business, but he is doing cloth business at Woraiyur. A. 3 stated that he is studying in college. But on 3-5-1967 he was at A-l's shop at Puvalur to inform A-l about some marriage and as A-l was not in his shop he waited in the shop near the cash counter. P.W. 1 asked him to prepare the bill at his dictation. P.W. 1 obtained his signature in two or three papers.
3. The learned trial Magistrate found that the prosecution has not beyond all reasonable doubt proved that the adulterated pea flour sample was kept in the accused's shop for sale for human consumption and not for cattle or poultry fodder and for weaving purposes. The trial Magistrate gave the finding that the prosecution has not proved beyond all reasonable doubt that A-2 and A-3 are in charge of or responsible for the conduct of the business of the shop. Probably, in view of this finding the State confined this appeal to A-l alone.
4. On behalf of the State an argument is made by the learned Public Prosecutor that the trial Magistrate has erred in law in finding that the prosecution failed to prove that the adulterated pea flour sample was kept in the accused's shop for sale for human consumption.
5. The question to be determined is one of pure law based on the proved facts in this case and in my view the matter is not free from complexity. The learned Counsel for the accused-respondent (A-l) relied on the evidence of P.W. 1 for contending that pea flour sample is not proved to be sold for the purpose of human consumption. No doubt, P.W. 1 stated that he took 'pattani mavu' for purpose of analysis and not for human consumption. 'Pattani Mavu' can be used for human consumption as well as for cattle, poultry and for weaving purposes. P.W. 1 refuted the suggestion that 'pattani mavu Pea flour' was kept in front of the shop along with cattle fodder. He maintained that it was kept inside the shop. He also refuted the suggestion that the servant of the shop represented to him that 'pattani mavu' used to be purchased for 'pavukku karijhipoda vanguvargal'. He also further refuted the suggestion that the servant represented to P.W. 1 that 'pattani mavu' used to be purchased for poultry.
6. The material part of Ex. P. 5 is extracted herebelow.
I further certify that I have caused to be analysed the abovementioned sample, and declare the result of the analysis to be as follows:
Microscopic Found smooth pea (Pisum Sativum)
Examination about SO per cent and Kesari dal (Lathyrus Sativus) about 50 per cent. and am of the opinion that the sample is not pure pea flour as represented; it contains an admixture of about 50 per cent, of kesari dal flour.
Kesari dal flour contains a poisonous ingredient and is injurious to health.' In the light of the above finding of the analyst, the short question for determination is whether the pea flour, in the present case, was sold as food for human consumption to the Food Inspector, P.W. 1.
7. The definition of 'Food' in the Prevention of Food Adulteration Act If extracted herebelow.
(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, and
(b) any flavouring matter or condiments.
8. The definition of 'sale' in the Prevention of Food Adulteration Act is extracted below.
(xiii) '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.
9. The authority reported in In re Manickam Chettiar, 1966 Mad LW. 22 has been cited before me in support of the aqcuittal of the accused respondent. But that was a case of sale of oil and the evidence was that it was stored for manufacture of soaps. In the peculiar facts and circumstances of that case the learned Judge, Ramamurti J, held that on the evidence and on the probabilities the accused should be given the benefit of doubt, in the sense, that the prosecution has not proved beyond reasonable doubt that the oil tins in question were kept or stored for sale for human consumption and not for being taken to and consumed at the soap factory of the owner. In other words, on the facts the learned Judge held that the oil in question was not stored for sale at the premises, but was stored only for the consumption of the owner of the shop. In such a context, it was held by the learned Judge that the sale to the Food Inspector of a sample of the oil should not attract the penalty under the Act, even if the oil was found to be adulterated. The same view has been taken about the ratio in In re Manickam Chettiar by Somasundaram J. in Crl. Ap No. 345 of 1968 (Mad). The learned Public Prosecutor relied on the ratio found in Public Prosecutor v. Palanisami : AIR1965Mad98 and contended that even if the sale of pea flour by the accused to P.W. 1 is for purposes of analysis, even then that would be a sale within the meaning of the Act and therefore the accused-respondent is guilty of the offence with which he is charged. That was a case of adulterated asafoetida sold for analysis. Rama-krishnan J, held that the definition of sale in Section 2(xiii) of the Act is very wide and covers not merely a sale for human consumption, but a sale for analysis, exposing for sale or having in possession for sale, would all be brought within the scope of the definition of 'sale'. This reasoning of the learned Judge has been found to be irreproachable in the decision of the Full Bench in Dhirajlal v. Ramachandra : AIR1970Bom290 in para 39. Para. 39 has been extracted here below:
39. In Public Prosecutor v. Palanisami : AIR1965Mad98 , a learned single Judge was concerned with the case of adulterated asafoetida. It was found to contain coal-tar dye which should make it an adulterated article of food and also perhaps unwholesome for human consumption. The plea of the accused was that the asafoetida was being sold by him only for feeding cows and goats and therefore, by implication that it was not sold for human consumption. We are with respect in agreement with the answer which the learned Judge gave to such a plea. On page 98 he observed:
What the accused contended and which contention has found acceptance at the hands of the learned Sessions Judge is that it would not 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 from 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, urged that he had not sold adulterated milk and had not committed any offence.
The crux of the 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 article of food, or, as denned in Section 2 (v) (a), an article which ordinarily enters into, or is used in the composition or preparation of human food.
Mr. Arunachalam cited this authority of the Full Bench with a sense of fairness, although the authority of the Full Bench is not in support of his argument submitted before the court. In another part of the judgment of the Full Bench, the three learned Judges of the Bombay High Court approve of the ratio found in Varanasi Municipality v. Sudheswari Devi : AIR1966All64 . The learned Judges observed as follows:
The same learned Judge has, in another case decided by him later : AIR1966All64 taken, with respect, the correct view in the case of adulterated ghee. After quoting the definition of 'sale' in the Act, the learned Judge observed as follows:The aforesaid definition is of wide amplitude and embraces not only a sale for human consumption or use but also a sale for analysis. It is, therefore, manifest that the sale of a sample of ghee to the Food Inspector was a sale under the provisions of the Act. A dealer cannot therefore escape the clutches of law by merely describing an article of food at the time of its sale as 'Akhadya'.
10. In Mangaldas Raghavji Ruparel v. The State of Maharashtra, : 1966CriLJ106 their Lordships of the Supreme Court considered the two cases of sales to a Sanitary Inspector who had purchased the commodity from the vendor for the purpose of analysis. (State v. Amratlal Bhogilal, : AIR1954Bom216 ; and Public Prosecutor v. Dada Haji Ebrahim Helari, : AIR1953Mad241 . The learned Judges held that we have a special definition of 'sale' in Section 2 (xiii) of the Act which specifically includes within its ambit a sale for analysis.
11. I have no hesitation in holding that the pea flour sold to P.W. 1 was necessarily sold only as a food for human consumption although the same was purchased by P.W. 1 for analysis. The report of the Public Analyst, Ex. P. 5, proves that the sample pea flour was adulterated with 50 per cent of kesari dal and that the sample is not pure pea flour. The report of the Public Analyst indicates that the keshari dal contains a poisonous ingredient and is injurious to health. That the sample pea flour is adulterated is proved beyond reasonable doubt by the report of the analyst.
12. The acquittal of the accused-respondent is improper. The order of the Sub Divisional Magistrate, Ariyalur, acquitting the accused-respondent is set aside. I find him guilty of the offence punishable Under Sections 7 (1) and 16 (1) read with Section 2 (1) (a) and (n) of the Prevention of Food Adulteration Act and convict and sentence the accused-respondent to pay a fine of Rs. 50; in default to suffer simple imprisonment for one month. The appeal filed by the State is allowed. Time for payment of fine one month.