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PETITIONER: SHAH ASHU JAIWANT

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT18/08/1975

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH BHAGWATI, P.N. SARKARIA, RANJIT SINGH

CITATION:  1975 AIR 2178            1976 SCR  (1) 327  1976 SCC  (2)  97  CITATOR INFO :  E          1980 SC 538  (6)

ACT:      Prevention of  Food Adulteration Act 1964-Sec. 2(1) (f) 7(1) 16(i)(a)-Food  whether must  be for  human consumption- Mens rea whether necessary-Presence of the witness

HEADNOTE:     The appellant  was charged under section 16(1)(a)(1) of the Prevention  of food  Adulteration Act,  for contravening section 2(1)(f)  and 7(1) of the said Act The Food Inspector purchased black  Tils from  the appellant.  P.W. 1 Tambe was unable to  give either  the name  of the shop or approximate date modity  by the  Food Inspector  from the  appellant and taking of  the sample.  Tambe was  unable to give either the name of  the shop  or approximate date or time of his visit. He WAS  also unable to say whether the shop of the appellant was a foodgrains shop. Timbe was unable to remember who made the cash  memo and  whether any  one signed the cash memo in his presence.  Tambe could  remember nothing material and he was non-committal.  The Food  Inspector  in  his  deposition stated that  the signature  of Tambe  was taken  on the cash memo but  not on  the packets although in the examination in chief he  stated that  Tambe had  signed the  sealed packets also. The seals of the packets were found broken due to what the Inspector  described as  "handling". He admitted that no signature of  the witness was obtained on the counterfoil of the cash  memo. He  stated that  black; Tils can be used for human consumption  and further stated that it is not correct to say  that it  is used only for Puja. The appellant denied the presence  of Tambe and asserted that he clearly told the Food Inspector  that the  black; Tils in his shop were meant for Puja and not for Human consumption.      The Presidency  Magistrate after  examining  the  whole evidence held  that the  version of the appellant that there was a  talk about the actual purpose for which the Til seeds at his  shop were  meant was  more probable  because it  was supported by what the appellant had written on the cash memo when he  sold the  Til seeds  to  the  Food  Inspector.  The Magistrate also  held that  the Analyst’s report showed that the black  til seeds  were full  of cocoons  visible to  the

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naked eye  and nobody could be expected to purchase them for consumption as  food. However,  the Magistrate held that the purpose  for  which  the  Til  seeds  were  kept  was  quite immaterial.      Tho appellant  was convicted  by the Magistrate and the conviction was  confirmed by  High Court.  On appeal to this Court by Special leave it was contended by the appellant.           (1)  That  black   Tils  were  sold  to  the  food                Inspector specifically  for  the  purpose  of                Puja and  that he  was told  by the appellant                that  these   were  not   meant   for   human                consumption.           (2)  It is  the duty  of the  prosecution to prove                beyond reasonable  doubt that  what was  sold                was food.  The whole  object of the Act is to                prevent adulteration  of food meant for human                consumption.           (3)  It is a matter or common knowledge that black                Til seeds arc not used as food. ^      HELD: Allowing the appeal:      1. It  is true  that mens  rea in the ordinary or usual sense of  this Word  is not  required for proving an offence defined  by   section  7   of  the  Act.  Nevertheless,  the prosecution has  to prove  beyond reasonable doubt that what was stored or sold was food. The use of the article sold was not entirely  irrelevant. In  many eases, it can be presumed from the nature of the article itself or the circumstances 328      or manner  of offering it for sale whether the food was for human  consumption Where  circumstances raise  a genuine doubt on  the question whether what was kept by a seller was food at  all this  must be  resolved by evidence in the case Where section  7 prohibits  manufacturer, sale or storage or distribution  of  certain  types  of  food,  it  necessarily denotes articles  intended for human consumption as food. It is the  duty of  the prosecution  to prove  that the article which is the subject matter of an offence is ordinarily used for human  consumption is  food whenever,  reasonable doubts arise on  this question.  It is  self-evident  that  certain articles such  as milk, or bread or butter or foodgrains are meant for  human consumption  as food.  There are matters of common knowledge.  Other articles  may be  meant  for  human consumption  from  representations  made  about  them  ‘from circumstances in  which they are offered for sale. [330 E-H, 331 D-F]      2.About the  use of  black Tils  no judicial notice can perhaps be  take of  its special  purposes in  Gujarat.  The Statement of  tile Food  Inspector that  the can  be used as food also amounted at least to a partial admission that they are used  for Puja. There is nothing in evidence to dislodge the statement of the accused. [331 F-H, 332A]      3. The  view of  the High  Court that the Tils could be consumed  after  the  performance  of  Puja  rests  on  bare conjectures. [332A] ^      HELD FURTHER :      We are  not impressed  by the nature of evidence led by the prosecution  It is  Likely that Tambe was not present to witness the occurrence.[332C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No.

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119 of 1971.      Appeal by  Special Leave  from the  Judgment and  Order dated the  17th February,  1971 of  the Bombay High Court in Criminal Appeal No. 1371 of 1969.      F. S.  Nariman, K. J. John and Shri Narain of M/s J. B. Dadachanji & Co. for the appellant.      S. B. Wad and M. N. Shroff for the respondent.      The Judgment of the Court was delivered by      BEG, J.  The appellant  was charged  in  the  Court  of Presidency Magistrate of Bombay as follows:           "That you  on 3-12-1968  at 8  a.m. at  Bandra, in      contravention of provisions of Section 2(1)(f) and 7(i)      of the  Prevention of  Food Adulteration  Act, sold 450      grams of  Til seeds  to the Food Inspector and that the      Til seeds were unfit for human consumption, and thereby      committed an offence under sec. 16(1)(a)(1) of the same      Act and within my cognizance".      The two  witnesses produced to support this charge were D. P Tambe and S. P. Gaydhani.      D. P.  Tambe (P.W.  1), a businessman, said that he had gone. to  "a shop  to make purchases", without giving either the name  of the  shop or  approximate date  or time  of his visit. Under cross-examination, he said that he did not know whether it  was a  foodgrain shop.  He said  that he saw the complainant pick  up  a  jar,  open  it.  and  look  at  its contents. He  deposed that there was "some talk" between the complainant and the accused The complainant was 329 then said  to have  come up to and told this witness that he would be taking "some commodity from the jar" which would be sent for  analysis. After  that,  the  complainant,  it  was alleged, asked  for some  Til seeds. Thereupon, according to this witness,  "some persons  in the shop found Til seeds in three plastic  bags and  gave the bags to the Inspector". He said that  the Inspector  (i.e. the  complainant) sealed the packets and that the witness signed the packets. He deposed: "Cash Memo  was  prepared  by  some  persons  in  the  shop. Inspector paid  money to  accused No.  I.. Accused No. I was with the  Inspector all  the while".  His  cross-examination showed that  he could  remember nothing material. He did not even remember  who made  the cash  memo and  whether  anyone signed it  in his  presence. He  said he only thinks that he signed it.  To almost  every question under crossexamination his answer  was that he does not remember. Even after making every possible  allowance for a memory which could fade with lapse of  time, his  version was extra ..ordinarily nebulous and noncommittal.      The principal  witness in the case was S. P. Gayadhani, P.W 2  the prosecuting  -Food Inspector?  who  stated  that, after having  gone into  the grocery  shop at 731 Hill Road, Bandra,  he  disclosed  his  identity  to  the  accused  and demanded 450  grams of Til seeds for which he paid Rs. 1.35. He said  that he  himself divided this quantity into 3 parts each of  which was  put into a separate plastic bag and then sealed and  labelled by him. He claimed to have obtained the signatures of  the accused  in the presence of Tambe whom he described  as   "the  independent   witness  Tambe".   Under crossexamination. He  said that  he took  the signatures  of Tambe on  the cash  memo but not on the packets, although he had deposed  in  his  examination-in-chief  that  Tambe  had signed the  sealed packets  also Incidentally,  the seals of the packets  were found  broken due  to what  the  Inspector described as  ’handling". He  admitted that  no signature of the witness  was obtained  on the  counterfoil of  the  cash memo.  He   stated:  "Black  Tils  can  be  used  for  human

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consumption. It is not correct to say they are used only for Pooja. It  is not  true that the accused told me that he had only black  Tils used  for Pooja.  It is  not true  that the accused told  mc that  he will  write on  the cash  memo the purpose for which black Tils are sold".      The accused  appellant denied the presence of Tambe and asserted that  the had  clearly told the Food Inspector that the black Tils in his shop were only meant for Pooja and not for human  consumption. Apparently,  as the Inspector wanted to buy  these til  seeds despite  this information  given to him, the  accused sold  them to him and signed the necessary papers. The accused produced no witness in defence.      The real  dispute on  facts revolves round the question whether the  black Tils  were sold  to  the  Food  Inspector specifically for  the purpose of Pooja after the accused had told him that they were not meant for human consumption, or, they were  sold without  giving such information to the Food Inspector. In order to judge whether the 330 Food Inspector’s  version or  the accused’s  explanation was more credible,  it became  necessary to examine the evidence of  the  only  witness  produced  to  corroborate  the  food Inspector.  We  have  considered  the  question  whether  it actually corroborates  or contradicts  the Food  Inspector’s account. It  seems to  us that  there is  such vagueness and apparent contradiction in the pictures conveyed by Tambe and the Food  Inspector that Tambe’s testimony tends to demolish more than  to corroborate  the version of the Food Inspector on points  of fact  in issue.  k indicates  that  Tambe  was probably not present at the time when the seeds were sold by the appellant to the Food Inspector.      The Presidency  Magistrate, after  examining the  whole evidence,had concluded  that the  version of  the appellant, that there  was a  tall; about  the actual purpose for which the Til  seeds at  his shop  were meant,  was more  probable because it  was supported  by what the appellant had written on the  cash memo  when he  sold these Til seeds ’o the Food Inspector. After  all, the  appellant, who had a grain shop, must have  known that the Food Inspector could prosecute him if  he  kept  adulterated  foodstuffs  for  sale  for  human consumption. If, as the analyst’s report showed, these black Til seeds  were full  of cocoons,  visible to the naked eye, nobody could be expected to purchase them for consumption as food. The learned Magistrate, after finding that it was more probable that there was talk about the purpose for which the Til seeds  were kept in the accused’s shop. despite the Food Inspector’s denial  about such  talk, held  that the purpose for which the. Til seeds were kept was quite immaterial.      It is true that mens rea in the ordinary or usual sense of this  term is not required for proving an offence defined by Section  7 of  the Prevention  of Food  Adulteration Act, 1954 hereinafter  referred to as ’the Act’). It is enough if an article  of adultered  food is  either  manufactured  for sale, or  stored, or sold or distributed in contravention of any provision  of the  Act or  of any rule made there under. Nevertheless,  the   prosecution  has   to   prove,   beyond reasonable doubt,  that what  Was stored or sold was ‘food’. The charge  was that the Til seeds sold were unfit for human consumption. This  necessarily meant that it was part of the prosecution case  that the  Til  seeds  with  which  we  are concerned were  meant for  human consumption. Recently, this Court has  held in  Bhagwan Das  v. Delhi Administration,(1) that, although mens rea, in the ordinarily understood sense, may not  be needed  to be  proved in  such cases,  yet,  the purpose for  which articles  of food  covered by the Act are

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manufactured, distributed  or sold  was that  they  ‘.should reach the  consumer to  be used as food". Thus, the use‘ the article sold was not entirely irrelevant. It is more correct to say  that it  is presumed  from the nature of the article itself or  the circumstances  and manner  of offering it for sale. Where  circumstances raise  a  genuine  doubt  on  the question whether  what was  kept by  a seller  was "food" at all, this must be resolved       (1) A. 1. R. 1975 S. C. 1309 # 1318 331      by evidence  in the  case. After all, if what is stored or sold in a shop was neither "food" nor meant to be so used could a  person be  prosecuted on the ground that he sold it in an adulterated condition ?      It was  contended on  behalf of  the appellant that the whole object  of the  Act was  to  prevent  adulteration  of "food"  meant  for  Human  consumption.  Our  attention  was invited to  a passage  from Pyare  Lal  etc.  v,  New  Delhi Municipal Committee & Anr(1), where this Court said:           ‘‘The object  of this  Act WAS to ensure that food      which the  public could  buy was  inter  aha  prepared,      packed, and  stored under  sanitary condition so as not      to be  injurious to  the health of the people consuming      it".      Section 2. sub.s.(v) of the Act lays down:           "(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  of preparation of human food,      and           (b) any flavouring matter or condiments"; 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 reasonable doubts  arise this  question. It  is self-evident that certain articles, such as milk, or bread, or butter, or foodgrains are  meant 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.  What is  the position in this respect  about  black  Til  seeds  with  which  we  are concerned here?      It is submitted that it is a matter of common knowledge that black  Til seeds  are not used as food. Even if this be true, it  is not  so widely  known a fact that we could take judicial notice  of it. It is also urged that, when the case of the  appellant, supported  by his  cash memo, is that the particular black  ’‘Til" seeds  where meant  to be sold only for pooja  for being  burnt like incense or thrown into fire in   the course  of pooja.  it cannot be said that this case had  been  repelled  by  the  mere  statement  of  the  Food Inspector that  they can  be  used  as  food  also.  Such  a statement amounted at least to a partial admission that they arc used  for Pooja. Therefore, it is urged, they could have been kept  for the  purpose of  being  sold  11  only  as  a substance used  for pooja  and not  as  human  food.  It  is pointed out  that there  is  nothing  in  evidence  on  this .question, to      (1) [1967] 3 S.C.R. 747 @ 755. 332

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dislodge the  statement of  the accused. We find no evidence on record  to show the actual manner in which such seeds are used in the course of Pooja. Therefore, the view of the High Court that  they could  be  consumed  by  people  after  the performance of  pooja rests on bare conjecture. There had to be credible  evidence to  show that  black;  til  seeds  are ordinarily used  as food.  If that were so, the burden would have shifted  on to  the shoulders  of the  accused to prove that what  he had stored was not really food meant for human consumption but  an article  kept for  a special use. We are left in doubt on this question on the evidence in this case. We think  that the  appellant must  get the  benefit of that doubt.      As already indicated above, we are not impressed by the nature of  the evidence  led by  the prosecution.  We cannot entirely ignore  the fact  that the  signatures of Tambe are absent on  all those documents on which they would have been present if  Section 10(7)  of  the  Act  had  been  strictly complied with.  We think  that it  is more  likely, for  the reasons already  given by us, that Tambe was not there ll at all to  witness the  occurrence. If that be so, the evidence of the  prosecuting Food  Inspector, who said that Tambe was there, cannot  be implicitly relied upon in this case. It is quite unsafe  to base  the appellant’s  conviction  on  such shaky foundations.      Accordingly,  we  allow  this  appeal,  set  aside  the conviction and sentence of six months’ rigorous imprisonment and fine  of Rs.  1,000/-, and  in default, further rigorous imprisonment for two months, imposed upon the appellant. the appellant who  is on bail need not surrender. His bail bonds are discharged.  The fine, if realised. shall be refunded to him. P.M.P.                                       Appeal allowed. 333