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PETITIONER: STATE OF TAMIL NADU

       Vs.

RESPONDENT: R. KRISHNAMURTHY

DATE OF JUDGMENT15/11/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SARKARIA, RANJIT SINGH

CITATION:  1980 AIR  538            1980 SCR  (2)  59  1980 SCC  (1) 167

ACT:      Prevention of Food Adulteration Act, 1954 (37 of 1954), Ss. 2(1)  (a) &  16 (1)  (a) (i)-Scope of-Gingelly oil mixed with 15  per cent groundnut oil-Sold or offered for sale for external use-Whether  sale of  an article  of food  which is adulterated.      Words &  phrases-‘Food’-‘Sale’-meaning of-Prevention of Food Adulteration Act, 1954, Ss, 2(v), 2(xiii).

HEADNOTE:      The prosecution alleged that gingelly oil mixed with 15 per cent  of groundnut  oil was  sold as gingelly oil by the respondent  to  the  Food  Inspector.  The  defence  of  the respondent was  that he  kept the oil in his shop to be sold not for consumption but for external use.      The Trial  Magistrate did  not accept  the defence  and convicted the  respondent under  section 16 (1) (a) (i) read with section 2(1) (a) of the Prevention of Food Adulteration Act, 1954  and sentenced him to suffer imprisonment till the rising of  the court and to pay fine. On appeal the Sessions Judge, accepted  the defence  of the respondent and being of the view  that the  respondent could not be convicted unless it was  established that  the sale  of gingelly  oil was for human consumption,  acquitted him  of the  charge. The  High Court confirmed the order of acquittal.      In the  appeal to  this Court,  on the question whether the sale  of adulterated  gingelly  oil  which  is  sold  or offered for  sale for external use, is sale of an article of food which is adulterated. ^      HELD : 1. The sale of gingelly oil mixed with groundnut oil is  punishable under  section 16(1)  (a) (i)  read  with section 2(1)  (a) notwithstanding  the fact  that the seller had expressly  stated at  the  time  of  sale  that  it  was intended for external use only. [66 E]      2. According to the definition of "food" in S. 2(v) for the purposes  of the  Act, any article used as food or drink for human  consumption  and  any  article  which  ordinarily enters into  or is used in the consumption or preparation of human food  is "food".  It  is  not  necessary  that  it  is intended for  human consumption  or for preparation of human food.  It  is  also  irrelevant  that  it  is  described  or

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exhibited as  intended for  some other  use. It is enough if the  article   is  generally  or  commonly  used  for  human consumption or in the preparation of human food. [63 A-B]      3. To  prevent the exploitation and self-destruction of poor, ignorant  and illiterate  persons  the  definition  of "food" is  couched in such terms as not to take into account whether an article is intended for human consumption or not. In order  to be  "food" for  the purposes  of  the  Act,  an article need not be "fit" for 60      human  consumption;   it  need   not  be  described  or exhibited as  intended for human consumption; it may even be otherwise described  or  exhibited;  it  need  not  even  be necessarily intended  for human consumption; it is enough if it is generally or commonly used for human consumption or in the preparation of human food. [63 D-E]      4. Gingelly  oil, mixed  or not  with groundnut  oil or some other oil, whether described or exhibited as an article of food  for human consumption or as an article for external use only  is "food"  within the  meaning of  the  definition contained in s. 2(v) of the Act. [63 G]      Andhra Pradesh  Grain &  Seed Merchants’ Association v. Union of  India [1971] 1 SCR 166; Shah Ashu Jaiwant v. State of Maharashtra [1976] 2 SCC 99 explained.      5. The  definition of "sale" is designedly wide. A real sale as  well as  an ‘embryonic’  sale (like  agreement  for sale, offer  for sale,  exposure for  sale,  possession  for sale, attempt  at sale)  are sales  for the  purposes of the Act. The  sale may  be for  cash or  credit  or  by  way  of exchange, or  it may  be by  wholesale or retail. Thus every kind, manner and method of sale are covered. The sale may be "for human consumption or use, or for analysis". [65 F-G]      6. A sale "for analysis" can never be a sale "for human consumption" but it is nonetheless a sale within the meaning of the  definition.  It  is  an  unqualified  sale  for  the purposes of  the Act.  To insist  that an  article sold  for analysis  should   have  been  offered  for  sale  or  human consumption would  frustrate the  very object  of the Act. A person selling  an adulterated  sample to  a Food  Inspector could invariably  inform him  that  it  was  not  for  human consumption and  thereby insure  himself against prosecution for selling  adulterated food.  If sale  for analysis  is an unqualified sale  for the  purposes of  the Act, there is no reason why  other sales  of the  same article  should not be sales for the purposes of the Act. [66 B-C]      Mangaldas v.  State of  Maharashtra, AIR  1966  SC  128 referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 236 of 1973.      Appeal by  Special Leave  from the  Judgment and  Order dated 18-1-1972  of the Madras High Court in Criminal Appeal No. 896/70.      A. V. Rangam for the Appellant.      A. T. M. Sampath for the Respondent.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J. Gingelly  oil mixed  with  15%  of groundnut oil  was sold as gingelly oil by the respondent to the Food  Inspector, Thanjavur  Municipality. The defence of the respondent  was that  he kept  the oil in his shop to be sold, not  for human consumption, but, for external use. The Trial Magistrate  did not  accept the  defence. He convicted

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him under s. 16(1) (a) (i) read with s. 2(1) (a) of the Food Adulteration Act  and sentenced  him to  suffer imprisonment till 61 the rising  of the  Court and  to pay  a fine of Rs. 200. On appeal, the  learned Sessions  Judge accepted the defence of the respondent and acquitted him to the charge. According to the learned  Sessions Judge,  the respondent  could  not  be convected unless  it was  established that  the sale  of the gingelly oil  was for  human consumption. The State of Tamil Nadu preferred  an appeal to the Madras High Court. The High Court confirmed  the order  of acquittal. The State of Tamil Nadu has  filed this  appeal by special leave of this Court. The learned  counsel for  the State  of Tamil  Nadu made  it clear to  us at  the hearing that the State was not anxious, at this  distance of time (the occurrence was on 26-5-69) to secure a conviction, but was anxious that the legal position should be clarified. We accordingly proceed to do so.      Section 16(1)  (a) (i) as it stood at the relevant time was as follows :-      "16. (1) If any person-      (a)   whether by  himself or by 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 or misbranded or the sale of           which is prohibited by the Food (Health) authority           in the interest of public health;           xx              xx             xx            xx      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 six 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           which  is  adulterated  under  sub-clause  (1)  of           clause (i)  of section  2 or misbranded under sub-           clause (k) of clause (ix) of that section; or      (ii) if the  offence is under sub-clause (ii) of clause           (a), the  court may,  for any adequate and special           reasons to  be mentioned in the judgment, impose a           sentence of  imprisonment for  a term of less than           six months  or of  fine of  less than one thousand           rupees or of both impri- 62           sonment for  a term  of less  than six  months and           fine of less than one thousand rupees."      Section 7 is also relevant and it was as follows:-      "7. 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.      (iv) any article  of food  the sale of which is for the           time  being   prohibited  by   the  Food  (Health)           Authority in the interest of public health; or      (v)  any article  of food in contravention of any other           provision  of   this  Act  or  of  any  rule  made           thereunder."      "Food" is  defined by  s. 2(v) as meaning "any article"

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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."      "Sale" is defined by s. 2(xiii) as follows:-      "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;"      Section 16(1)(a)(i)  read  with  s.7(i)  prohibits  and penalises  the   sale  of  any  article  of  food  which  is adulterated   or    misbranded   etc.   The   question   for consideration is  whether the  sale of  adulterated gingelly oil which  is sold  or offered  for sale for external use is sale of  an article  of food which is adulterated. This must depend upon the definitions of "sale" and "food" in the Act. 63      According to  the definition  of "food"  which we  have extracted above,  for the  purposes of  the Act, any article used as  food or drink for human consumption and any article which ordinarily  enters into  or is used in the composition or preparation  of human food is "food". It is not necessary that it is intended for human consumption or for preparation of human food. It is also irrelevant that it is described or exhibited as  intended for  some other  use. It is enough if the  article   is  generally  or  commonly  used  for  human consumption or  in the  preparation of  human  food.  It  is notorious  that   there  are,  unfortunately,  in  our  vast country, large  segments of  population, who, living as they do, far  beneath ordinary  subsistence level,  are ready  to consume that  which may  otherwise be thought as not fit for human consumption.  In order to keep body and soul together, they are  often tempted  to buy  and use  as food,  articles which are  adulterated and  even unfit for human consumption but which are sold at inviting prices, under the pretence or without pretence  that they  are intended  to  be  used  for purposes other  than human consumption. It is to prevent the exploitation and  self-destruction of  these poor,  ignorant and illiterate  persons that  the definition  of  "food"  is couched in such terms as not to take into account whether an article is  intended for  human consumption or not. In order to be  "food" for  the purposes  of the Act, an article need not be "fit" for human consumption; it need not be described or exhibited  as intended for human consumption; it may even be otherwise  described or  exhibited; it  need not  even be necessarily intended  for human consumption; it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly  not  used  for  human  consumption  or  in  the preparation of  human  food  but  for  some  other  purpose, notwithstanding that  it may  be capable  of being  used, on rare occasions,  for human consumption or in the preparation of human  food, it  may be  said, depending on the facts and circumstances of  the case, that it is not "food". In such a case  the   question  whether   it  is  intended  for  human consumption or  in the  preparation of human food may become material. But where the article is one which is generally or commonly used for human consumption or in the preparation of human food, there can be no question but that the article is

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"food". Gingelly  oil, mixed  or not  with groundnut  oil or some other oil, whether described or exhibited as an article of food  for human consumption or as an article for external use only  is "food"  within the  meaning of  the  definition contained in s. 2(v) of the Act.      Most of  the High  Courts appear  to have so understood the meaning of the word "food", though there appears to have been some 64 confusion  because   of  a   misunderstanding   of   certain observations of  this Court  in Andhra  Pradesh Grain & Seed Merchants’ Association  v. Union  of India(1)  and Shah Ashu Jaiwant v. State of Maharastra(2).      In the first case it was observed:-           "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.  Counsel  said  that      coconut oil is used in the State of Kerala as a cooking      medium, and  sale of  adulterated coconut  oil  may  in      Kerala be an offence under s. 16, but in other parts of      the country  where coconut oil is not used as a cooking      medium and  is used  as a  component of hair oil or for      other purposes,  it amounts to imposing an unreasonable      restriction to  penalise the  vendor who  sells coconut      oil knowing  that the  purchaser is  not buying it as a      cooking medium. But there are no article 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 an 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  s. 16(1)  is importation  manufacture for      sale, or  storage, sale  or distribution of any article      of food.  If what  is imported  manufactured or stored,      sold  or   distributed  is  not  an  article  of  food,      evidently s. 16 can have no application."      In the second case it was observed:-           "Hence, 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 reason- 65      able doubts  arise on this question. It is self-evident      that certain  articles, such  as  milk,  or  bread,  or      butter, or  foodgrains are  means 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."      The seeming  confusion created  by the  observations in the two cases will disappear if they are properly understood in the  context in  which they  were made. In the first case the Court  was  considering  the  argument  based  upon  the supposition that  there might  be articles which were "food" somewhere and not "food" elsewhere. The Court first remarked

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that there  were no articles which were used as food only in one part,  and were  not at all used as food in another part of the  country. In  such  an  unlikely  event,  the  person selling the  article could  inform the  purchaser  that  the article sold was not meant to be used as an article of food. If prosecuted  he could  establish that in that area what he sold was  not an  article of  food at all. That was all that was observed.  If the  expression "food" is understood as we have explained  earlier, there  would be no occasion for any confusion.      The observations  in the second case are in accord with what we  have said.  The Court merely observed that if there was any  doubt in  a particular  case whether an article was ordinarily used  for human  consumption  in  order  to  fall within the  definition of "food", the prosecution would have to prove the same      That gingelly  oil, however  described or exhibited, is an article  of food  is not  an end  of our problem. We have further to  investigate the  definition of  "sale". Now, the definition is  designedly wide. It seems a real sale as well as an  ’embryonic’ sale  (like agreement for sale, offer for sale, exposure  for sale,  possession for  sale, attempt  at sale) are sales for the purposes of the Act. The sale may be for cash or credit or by way of exchange. The sale may be by whole-sale or  retail. Thus every kind, manner and method of sale are  covered. Finally,  the  sale  may  be  "for  human consumption or  use, or for analysis". In the context, these words can  only mean  ’whether for  human consumption or for any other  purpose (including  analysis)’. The  object is to emphasise that  whatever be  the purpose of the sale it is a sale for the purposes of the Act, just as the words "whether by wholesale or retail" or "whether for cash or credit or by way of  exchange" are  intended  to  emphasise  that  it  is immaterial for the 66 purposes of  the Act  what manner  and  method  of  sale  is adopted. To  give any other interpretation to the definition of "sale" would be to exclude from the ambit of the Act that which  has  been  included  by  the  definition  of  "food". Further, a  sale "for  analysis" can  never be  a sale  "for human consumption"  but it  is nonetheless a sale within the meaning of the definition. It is an unqualified sale for the purposes of  the Act.  To insist  that an  article sold  for analysis  should  have  been  offered  for  sale  for  human consumption would  frustrate the  very object  of the Act. A person selling  an adulterated  sample to  a Food  Inspector could invariably  inform him  that  it  was  not  for  human consumption and  thereby insure  himself against prosecution for selling  adulterated food.  If sale  for analysis  is an unqualified sale  for the  purposes of  the Act, there is no reason why  other sales  of the  same article  should not be sales for the purposes of the Act. The question may be asked why sale  for analysis  should be specially mentioned if all manner of  sales are  included in the definition. It is only to prevent  the argument  that sale  for analysis  is not  a consensual sale  and hence  no sale,  an argument  which was advanced  and   rejected   in   Mangaldas   vs.   State   of Maharashtra(1).      We are  therefore of  the  opinion  that  the  sale  of gingelly oil mixed with groundnut oil is punishable under s. 16(1)(a)(i) read  with s.2(1)(a)  notwithstanding  the  fact that the  seller had  expressly stated  at the  time of sale that it  was intended  for external use only. We declare the illegal position  as indicated in the earlier paragraphs but we refrain  from passing  any further  order in  the  appeal

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which we accordingly dismiss. We have not referred to any of the  decisions   of  the  various  High  Courts  which  were considered by  us and  all of  which, we  may add, have been studiously  collected   and   scrupulously   considered   by Madhusudana Rao,  J. in  Public Prosecutor  v. Rama  Chandra Raju(2). N.V.K.                                     Appeal dismissed. 67