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PETITIONER: FOOD INSPECTOR, CALICUT CORPORATION

       Vs.

RESPONDENT: CHERUKATTIL GOPALAN AND ANR.

DATE OF JUDGMENT06/05/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAY, A.N.

CITATION:  1971 AIR 1725            1971 SCR  721  1971 SCC  (2) 322

ACT: Prevention  of  Food Adulteration Act, 1954  (37  of  1954)- Section 16 (1)(a)(i)-Sale of Food for analysis-To be  guilty of offence under section, food need not be intended for sale and person selling need not be a dealer.

HEADNOTE: A  sale  of  an article of food for  analysis  being  "sale" within  the meaning of s. 2(xiii) of the Prevention of  Food Adulteration Act, 1954, an article of food sold to the  Food Inspector,  if found to be adulterated, the accused will  be guilty  of an offence punishable under s.  16(1)(a)(i)  read with S. 7 of the Act.  The article of food purchased by  the Food  Inspector need not have been taken out from  a  larger quantity  intended  for sale and the person  from  whom  the article  of food has been purchased need not be a dealer  as such in that article. [729 G] Where  sugar  purchased  by  the  Food  Inspector  from  the Respondents’  tea stall was found to be adulterated and  the Respondents were charged with an offence under s. 16(1)  (a) (i)  of the Act, the respondents must be held guilty of  the offence  charged with, even though the sugar  purchased  was not  intended for sale as such and the respondents were  not dealers in sugar. Mangaldas  Raghavji  Ruparel  and  Anr.  v.  The  State   of Maharashtra and Anr., [1965] 2 S.C.R. 849, State of  Gujarat v.  Asandas  Kimmatrai Kevalramanni, A.I.R. 1964  Guj.  191, Municipal  Board, Faizabad v. Lal Chand Surajmal  and  Anr., A.I.R. 1964 All. 199 and The Public Prosecutor v. Palanisami, A.I.R. 1965 Mad. 98, referred to. Public Prosecutor v, Kandasamy Reddiar, A.I.R. 1959 Mad. 33. Explained. In  re:  Govinda  Rao,  A.I.R.  1960  Andhra  Pradesh   366, disapproved.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 281 of 1968. Appeal  by special leave from the judgment and  order  dated June  26, 1968 of the Kerala High Court in  Criminal  Appeal

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No. 113 of 1968. A.   Sreedharan Nambiar, for the appellant. S.   K.  Mehta,  K. L. Mehta, and K. R.  Nagaraja,  for  the respondents. The Judgment of the Court was delivered by Vaidialingam, J.-This appeal, by special leave, by the  Food Inspector,  Calicut  Corporation, is  directed  against  the judgment  and order dated June 26, 1968 of the  Kerala  High Court in 46-I S.C. India/7i 722 Criminal Appeal No. 113 of 1968 confirming the acquittal  of the  respondents of an offence under S. 16(1)(a)(i)  of  the Prevention  of  Food Adulteration Act, 1954 (Act No.  37  of 1954) (hereinafter to be referred to as the Act). The   first  respondent  is  the  Manager  and  the   second respondent,  his wife, are the owner and licencee of  a  tea stallin  the premises No. 4/777 Customs Road,  Calicut. They  were accused Nos. 1 and 2 respectively.   On  November 17, 1965 at about 9.45   A.M.,  the Food Inspector,  Calicut Corporation, purchased from   the first respondent 600 grams of sugar for a price of 78 paise ,for   analysis  from   the stock  of  sugar  kept in the premises to  be  used  in  the preparation  of tea sold to customers in the said tea  stall run by the second respondent under the licence issued by the Corporation.  The quantity of sugar so purchased was sampled as  per the rules in the presence of the first  accused  and the  witnesses.  One portion of the sample was sent  to  the Public Analyst for analysis.’ The Analyst in his report  Ex. P.  3 dated December 28, 1965 has certified that the  sample contained artificial sweetner saccharin equivalent to  about seven   percent   of  cane  sugar  and  therefore   it   was adulterated. In fact the analysis is as follows :      "Ash 0.02 per cent      Total sugar    96.00 per cent      as cane sugar      Saccharin      14.0 mgs. per 100 gms." On  the  basis of this report the Food  Inspector  filed  on March  21, 1966 a complaint against the two accused  in  the Court  of  the  District  Magistrate,  (Judicial),  Calicut. After setting out the necessary facts and the report of  the Public Analyst, the complaint alleged that the sale of  such sub-standard food which was adulterated is prohibited  under S. 7 read with item A. 07.01 in appendix to the rules framed under the Act and therefore, it was an offence.  There is  a reference  to the conviction of the first accused  on  prior occasions.  It is not necessary for us now to refer it. Both  the  accused  were  charged of  an  offence  under  s. 16(1)(a)(i) of the Act for having sold on November 17,  1965 600  gm.  of  sugar  for a price of 78  paise  to  the  Food Inspector from the tea stall and which sugar was found to be adulterated by the Public Analyst. Both  the accused pleaded not guilty and even denied  having sold sugar to the Food Inspector. 723 The learned District Magistrate recorded the following find- ings : The "sugar" is an article of food as defined under s. 2(v)  of the Act ; the Food Inspector purchased  sugar  from the tea stall of the accused, sampled it then and there  and handed  over  to  the first accused.  There was  a  sale  as defined  in  the Act of sugar to the Food Inspector  by  the first  accused; the ,purchase and the sampling by  the  Food Inspector were done in strict compliance with the provisions of  the Act.  The report of the Public  Analyst  establishes that the sugar purchased from ,the tea stall of the  accused

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was adulterated.  But in order to hold that the accused have committed  an  offence,  it must be  :established  that  the accused  were selling sugar as such in the tea stall,  which is  not  the  fact in this case.  On  the  other  hand,  the accused were selling tea and the sugar was kept only for the purpose  of  being  mixed with tea which  was  sold  to  the ,customers and the Food Inspector has clearly admitted  that sugar  as  such  is not in the tea  stall  of  the  accused. Inasmuch as sugar was not kept for sale by the accused, they are  not  guilty ;of any offence.  In this  view,  both  the accused  were  acquitted  ,under s. 258(1) of  the  Code  of Criminal Procedure. The  State  filed  an appeal before the  Kerala  High  Court challenging  the  acquittal of the  respondents.   The  High Court  agreed with the findings of the  District  Magistrate that there was a sale as defined in the Act of sugar to  the Food Inspector by ,the accused on November 17, 1965 and  the said article was adulterated as is established by the report of  the  Public Analyst.  The High Court set before  it  the principle that the prosecution will have to establish, under such  circumstances, that the persons from whom the  article of food had been purchased are those "selling those articles as  such".   The  High Court applied the test  to  find  out whether the respondents "are persons selling ,sugar as such" and  answered the question in the negative.   Agreeing  with the  findings of the District Magistrate that the sugar  in the tea stall of the accused was not kept for sale as such but  for being utilised in the preparation of tea which  was being  sold  to the customers, the High Court  finally  held that  the purchase by the Food Inspector of sugar  from  the respondents cannot be considered to be a purchase under the Act so as to make them liable of the offence with which they were charged. Mr.  A. S. Nambiar, learned counsel for the appellant, urged that  the  views  of  both the High Court  as  well  as  the District  Magistrate that the respondents are not guilty  as they  are  not  dealers  in sugar  as  such,  is  erroneous, specially after a finding that there has been a sale to  the Food Inspector under the Act and the article was found to be adulterated.  According to Mr. Nambiar when once the article of food is sold to the Food 724 Inspector  for  analysis, it is of no consequence  that  the said  ,article  was not intended to be sold as such  by  the accused,  as  a  sale of an article of food  under  the  Act attracts  all the consequences that flow from such  sale  as provided under the Act. On the other hand, Mr. S. K. Mehta, learned counsel for  the respondents,  urged  that in order to make  the  respondents liable,  it  must be established that they were  dealers  in sugar  as  such.  In view of the concurrent  findings  based upon  the admission of the Food Inspector that  the  accused were not dealers in sugar as such and that the sugar kept by them  was  intended to be used in the  preparation  of  tea, their acquittal is justified. Before  we  proceed  to deal  with  these  contentions  with reference to the provisions of the Act and certain decisions placed  before us by both the learned counsel, it is  to  be recorded that Mr. Nambiar has made it clear that his clients do  not  want the respondents to be convicted, in  case  his contentions are accepted.  On the other hand, he stated that the  Corporation is only anxious to have a decision of  this Court on the legal point.  We will now refer to some of  the material provisions of the Act. Section  2(1)  defines the  various  expressions  enumerated

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therein.   In  particular it is only necessary to  refer  to clauses  5, 12, 13 and 14 defining the  expressions  "food", "prescribe", "sale" and "sample" respectively.  They are  as follows :               "(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               "(xii)  "Prescribed means prescribed by  rules               made under this Act."               (xiii)     "sale"    with   its    grammatical               variations  and cognate ex.  pressions,  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.               725               (xiv) "sample"  means a sample of any  article               of food taken under the provisions of this Act               or of any rules made thereunder." There  is  no  controversy  that sugar  with  which  we  are concerned in this case is an article used as food for  human consumption or at any rate it is an article which ordinarily entered into or is used in the composition or preparation of human food.  Even according to the respondents the sugar  so kept  in  their  tea stall was intended to be  used  in  the preparation of tea which was being sold to the customers.  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. Before  we refer to certain other sections, it is  necessary to state that ss. 4(2) & 23(1) of the Act give power to  the Central  Government to make rules in respect of the  matters referred to in those sub-sections.  By virtue of the  powers conferred  under ss. 4(2) and 23(1) the  Central  Government have framed the Prevention of Food Adulteration Rules,  1955 (hereinafter  to  be  referred to as  the  Rules).   Rule  5 provides  that  the  standards of  quality  of  the  various articles of food specified in Appendix B to the Rules are as defined  in  that  Appendix.   Appendix  B  deals  with  the definition  and standards of quality.  Item A. 07.01 of  the appendix deals with cane sugar and enumerates its  contents. It-  is not necessary for us to deal with the definition  of the  expression  ’adulterated’  in s. 2(i) as  well  as  the requirements  under item A. 07.01 of the Appendix B  of  the Rules  as there is no challenge to the report of the  Public Analyst  that the sugar in question was adulterated,  as  it does  not conform to the requirements of the item  mentioned above.   In  fact the High Court ,as well  as  the  District Magistrate have also proceeded on that basis. We will now revert back to the Act.  Section 7 prohibits the manufacture,  sale etc. of certain articles of food.  It  is not  necessary  to  refer to the  various  items  enumerated therein.   But we will refer only to the main part of s.  7, which is as follows

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            "’Section 7. No person shall himself or by  any              person  on his behalf manufacture for sale"  or              store, sell or distribute- It  will be seen that s. 7 deals not only with  manufacture, sale,  storing  or distributing but also  selling.   We  are particularly  emphasising  this aspect because it  has  been missed  in this case 726 not  only  by  the  two  courts but  also  in  some  of  the decisions, to, which our attention has been drawn.  Section 10 deals with the powers of the Food Inspector.  Under  sub- section  10(i)(a)  the  Food Inspector  has  power  to  take samples  of  any  article of food from any  of  the  persons enumerated  in sub-clauses (i) to (iii) Section 12  gives  a right even to a purchaser, who is not the Food Inspector  of having  the article of food analysed by a Public Analyst  in accordance  with that section.  Section 16(1)(a)(i),  breach of which is alleged against the respondents is as follows "S. 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; Here  again it is to be noted that any person who sells  any article of food which is adulterated shall be punishable  in accordance, with that section.  The Food Inspector purchased sugar  on  November  17, 1965, from the  tea  stall  of  the respondents  on  payment  of price.   The  said  transaction clearly amounts to a sale under s. 2(xiii) of the Act.  From the  definition  of  "sale" already quoted,  a  sale  of  an article  of  food,  for  analysis is  a  sale.   Under  such circumstances it amounts to a sale under the Act as has been laid  down by this Court in Mangaldas Raghavji  Ruparel  and another v. The State of Maharashtra and another(1).  It  was held in the said decision that there is a special definition of  "sale"  in  s. 2(xiii) of  the  Act  which  specifically includes within its ambit the sale for analysis. Mr.  Nambiar referred us to certain decisions to the  effect that  when once there is a sale as defined in the Act of  an article  of food, it is not necessary to establish that  the accused are dealers in that article as such In the  decision reported in Municipal Board, Faizabad v. Lal Chand  Surajmal and another(2) the accused had a shop where tea was sold and for the purpose of preparing tea, they had stored milk which was a necessary ingredient for the preparation of tea.   The Food  Inspector took a sample of milk from the tea shop  and on  analysis it was found’ to be adulterated.  The  question was  whether the accused could, be convicted for an  offence under s. 16(1)(a)(i) read with s. 7 of the Act.  The plea of the accused was that the milk kept in (1)[1965] 2 S.C.R. 894. (2).R.    1964 All. 199. 727 the  tea shot) was not intended to be sold as such  but  was kept  for being used in. the preparation of tea.   The  High Court  held that though the accused could not  be  convicted for  storing the milk, which was found to be adulterated  as the milk was not stored for sale as such, nevertheless, they did ’sell’ milk to the Food Inspector.  As the said sale was of adulterated milk, the accused have committed an  offence. It is not necessary for us in the case before us to consider

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whether the expression ’stored? occurring in s. 7 and s.  16 should be interpreted as storage for purposes of sale.   The case  on  hand  can be disposed  of  without  deciding  that aspect. In the State of Gujarat v. Asandas Kimmatrai Kevalramanni(1) the  Food Inspector purchased ’Dahi’ (Curd) and on  analysis it  was found to contain fifty percent fat deficiency.   The accused  was prosecuted for an offence under s.  16(1)(a)(i) of  the  Act.  The accused pleaded that he  had  not  stored ’Dahi’  for purposes of sale but he was keeping it only  for the preparation of ’Lachhi’ and he further pleaded that  the ’Dahi’ purchased by the Food Inspector was not taken from  a larger  quantity which was stored by him for the purpose  of sale  as ’Dahi’.  Here again we are not concerned  with  the observations  of  the learned Judge as to  what  constitutes storing  under the Act.  But the learned Judge held that  it is  not  necessary that the accused should be  a  dealer  in ’Dahi’ as such and it is also not necessary that the  ’Dahi’ sold  to  the Food Inspector must have been taken out  of  a larger quantity intended for sale.  It was held that so long as  there  has been a sale as defined under the Act  to  the Food  Inspector of Dabi and when it was  found  adulterated, the accused is guilty of the offence. To a similar effect is the decision of The Public Prosecutor v. Palanisami Nadar(2) where it was held that when there has been a sale to the Food Inspector for analysis of an article of,  food, which, when found to be adulterated, the  accused is guilty of   an offence.      Mr.   Mehta,  learned  counsel  for  the   respondents, referred us to the  decisions  reported in  Food  Inspector, Kozhikode  v.  Punsi  Desaie) Narain Das  v.  State,(1)  and Rameshwar  Das  Radhey Led v. The State,(1).  in  all  those decisions  the  Court  has considered  the  question  as  to whether the storage of an article under (1)  A.I.R. 1964 Guj. 191, (2)  A.I.R. 1965 Mad. 98. (3)  A.I.R. 1959 Kerala 190. (4)  A.I.R. 1962 All. 82. (5)  A.I.R. 1967 Punjab 132. 728 the  Act must be for the purpose of sale.  We have  already indicated  that  the-  said  question  does  not  arise  for consideration  before us and we do not propose to  refer  to those  decisions in detail.  But we may point out  that  the decision in Narain Das v. State(1) has been distinguished by the  same  Court in Municipal Board Faizabad  v.  Lal  Chand Surajmal and another,(2) to which we have already referred. Mr.   Mehta  referred  us  to  two  decisions;  The   Public Prosecutor  ,V.   Kandasamy Reddiar(3) and in  Re.   Govinda Rao(4) in support of his contention that the article of food purchased  by the Food Inspector must be shown to have  been kept by the accused for purposes of sale as such.  In  other words,  according  to the learned counsel the  person  "from whom  an article of food is purchased by the Food  Inspector must be a dealer in such article".  In the Public Prosecutor v. Kandasamy Reddiar(3) the findings of the two courts  were that  the accused was carrying the milk taken from  his  own buffalo for his own use.  This decision does not assist  the respondents.   But it must be stated that the said  decision does  not  consider  the legal effect of a sale  to  a  Food Inspector  under the Act and its consequences.  But  we  may point out that under s. 10(1)(a) the Food Inspector has  got power  to  take  samples of any article  of  food  from  the persons enumerated in sub-clauses  (i)  to  (iii).  It  will be seen in particular from sub-clause (ii) of s.  10(1)(a)

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that  the Food Inspector can take samples from  "any  person who  is in the course of conveying, delivering or  preparing to deliver such article to a purchaser or consignee". In the case before us if the accused had purchased the sugar and it was in the process of being conveyed to be  delivered to  the  accused, the Food Inspector could  have  taken  the sample  under  s.  10  from any  person  in  the  course  of conveying the article for delivery.  Similarly, even if  the sugar  had been delivered to the accused,  under  sub-clause (iii)  of s. 10(1)(a), the Food Inspector could  have  taken the samples from them as consignee of the article. In  the In Re.  Govinda Rao(4) the accused who was the  pro- prietor  of  a  Coffee and Meals Hotel  was  prosecuted  for having  sold  adulterated ghee to the Food  Inspector.   The defence  was that the, accused was not a dealer in  ghee  as such and that, the said article was stored in the Hotel  for the  purpose  of being served along with the  meals  to  the customers  or  for  using it in  the  preparation  of  other articles  of food.  The accused was acquitted on the  ground that in order to constitute an offence, the (1)  A.I.R. 1962 All. 82. (2)  A.T.R. 1964 All. 199. (3)  A.I.R. 1959 Mad. 333. (4)  A.I.R. 1960 Andhra Pradesh 366. 729 accused  should have been a dealer in ghee,as such and  that the _prosecution cannot succeed by the Food Inspector merely taking  adulterated  ghee  which, was stored  by  the  hotel keeper  for  being ,served with the meals or  for  preparing other articles of food. We  are  not inclined to agree with  this  decision  because it .has not considered, the legal effect of a sale to a Food Inspector under the Act.  We do not also find any indication in the Act -that when a Food Inspector purchases an article of  food from a person, the latter must be a dealer in  that article as such. Mr. Mehta, learned counsel for the respondents relied on ss. 12 and 14 to support his argument that the Act  contemplates ,.that the person from whom an article of food is  purchased must  ,be  a  dealer of that article as  such  and  if  that article  is found to be adulterated, a person can be  found guilty  under  the  Act.  If article A  is  stored  for  the purpose  of being used in the preparation of other  articles of  food,  the  fact that article A purchased  by  the  Food Inspector  is  found  to be adulterated will  not  make  the person  selling that article liable under the Act.   Section 12   give   a   right   to   any   purchaser,   other   than the  Food  Inspector, to have the article purchased  by  him analysed  by  the  Public Analyst in  accordance  with  that section.  Section 14 makes it mandatory on a  manufacturer, distributor  or  dealer  of any article of food  to  give  a warranty  when  he  sells an article about  the  nature  and quali ty of that article to the vendor.  We are not able  to find how  these  two  sections  support  the  propositions enunciated  by  Mr. Mehta.  If a third party  had  purchased sugar  from  the tea stall of the accused and if  the  said purchase  constitutes  a "sale’ under the Act, s.  12  gives such  a  party  to have the article analysed by  a  Public Analyst.  Similarly, s. 14 is also of no assistance to the respondents. To sum up we are in agreement with the decisions reported in Municipal   Board,  Faizabad  v.  Lal  Chand  Surajmal   and another(1) and The Public Prosecutor v. Palanisami  Nadar(2) to the extent to which they lay down the principle that when there  is a sale to the Food Inspector under the Act  of  an

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article  of  food,  which is found to  be  adulterated,  the accused  will  be guilty of an offence punishable  under  s. 16(1)(a)(i)  read  with s. 7 of the Act.  We  further  agree that  the  article of food which has been purchased  by  the Food  Inspector need not have been taken out from  a  larger quantity intended for sale.  We are also of the opinion that the person from whom the article of food has been  purchased by  the Food Inspector need not be a dealer as such in  that article.   We are not inclined to agree with  the  decisions laying the contrary propositions. (1)  A.I.R. 1964 All. 199. (2)  A.I.R. 1965 Mad. 98. 730 Coming to the case on hand, on the finding of the two courts the sugar in question has been found to be adulterated.  The purchase by the Food Inspector from the accused of sugar for purposes of analysis is a sale under s. 2(13) of the.   Act. Section  7  prohibits  a  person  from  selling  adulterated article of food.  Similarly, under s. 16(1)(a)(i) any person who  sells  adulterated  food  commits  an  offence  and  is punishable therein.  The sugar which is the commodity before us  is  food  under s. 2(5) of the  Act.   We  have  already pointed out that sugar by itself’ is an article used as food or  at any rate it is an article ’which,  ordinarily  enters into  or is used in the composition or preparation of  human food.   In  this  case the sale was  for  analysis  and  the article was an article of food and in view of the concurrent findings  of  both the courts that it was  adulterated,  the respondent&  have contravened ss. 7 and 16(1)(a)(i)  of  the Act.   Hence  it  must  be held  that  the  respondents  are technically  guilty  of  the offence with  which  they  were charged  and  they have been wrongly acquitted by  the  High Court and the District Magistrate.  But in view of the  fact that the appellant has argued the appeal only as a test case and does not challenge the acquittal of the respondents,  we merely  set aside the order and judgment of the High  Court. But  we  may  make  it clear that  apart  from  holding  the respondents technically guilty, we are not setting aside the order of acquittal passed in their favour. In the result the judgment and order of the High Court  are: set aside and the appeal allowed. We  find  that on December 12, 1968  when  granting  special leave  this Court had directed the appellant to deposit  Rs. 1000/to  be  used  by the respondents for  their  costs  and liberty  has been given to the respondents to  withdraw  the amount  to  pay fee to, the counsel, in case they  engage  a counsel.   As the respondents have engaged a  counsel,  they are  entitled to withdraw from the court deposit the  amount representing the costs incurred by them. and the fee payable to the counsel under the relevant rules.  Surplus,, if  any, will be refunded to the appellant. K.B.N.                                   Appeal allowed. 731