T. Ranga Rao, J.
1. This revision is directed against the judgment dated 29-8-1996 in Crl. Appeal No. 37/93 on the file of the Sessions Judge, nanthapur.
2. The facts in giving rise to the filing of this revision are, briefly, as follows:-
The first petitioner, M/s. Sri Bheema Oil Mills, Bangalore Cross Road, Ananthapur, is a registered firm and the second petitioner Ambati Venugopal Reddy is its Managing partner. P.W.I Mahboob Jan, Food Inspector, inspected the said mill premises on 21-12-1990 at about 11-00 a.m. along with P.W.2, Santha Murthy, the mediator and found 57,090, Kgs. of groundnut kernal kept in a big heap and also found groundnut oil and he suspected adulteration and purchased 600 Gms. of groundnut kernal from A-2, after issuing Form-VI notice and paying Rs. 7.80 ps. and divided it into three parts, sealed them in empty, dry and clean bottles, as per rules. He also purchased groundnut oil and after complying with the formalities, sealed the samples and sent them for analysis. The Public Analyst found groundnut kernal contained excess of Aflatoxin in excess of quantities permitted under the Rule A-28 of Appendix 'B' and hence, opined that it was adulterated. The Director, State Food (Health) Authority gave consent for launching prosecution against the petitioners and accordingly he filed the complaint.
3. The Food Inspector was examined as P.W.I and the mediator was examined as P.W.2 and Exs. P-1 to P-20 were marked. The defence of the accused is that the groundnut kernal was not kept for sale and it used for extraction of oil after drying it. None were examined on their behalf.
4. The learned Judicial Magistrate of First Class, Ananthapur, found the first petitioner-firm guilty for the offence Under Section. 16(1)(a) of Prevention of Food Adulteration Act (For short the Act), convicted and sentenced to undergo imprisonment for eight months and to pay a fine of Rs. 4000/-. He also found the firm guilty for the offence under Section 16(1)(a)(i) of the Act, convicted and sentenced to pay a fine of Rs. 2,000/-. He further found the firm guilty for the offence under Section 7(i) r/w Section 2(ia)(m) of the Act, convicted and sentenced to pay a fine of Rs. 600/-. He found A-2, Managing Partner of the firm, guilty for the offence Under Section 16(1)(a) of the Act, convicted and sentenced to suffer imprisonment for one year and to pay a fine of Rs. 4000/-, in default to suffer rigorous imprisonment for one year. He further found the petitioner A-2 guilty for the offence under Section 16(1)(a)(i) of the Act, convicted and sentenced him to suffer imprisonment for six months and to pay a fine of Rs. 2000/-, in default to suffer rigorous imprisonment for six months. He also found A-2 guilty for the offence under Section 7(i) r/w 2(ia)(m) of the Act, convicted and sentenced to pay a fine of Rs. 600/- in default to suffer rigorous imprisonment for three months; and directed A-2 to undergo imprisonment awarded on behalf of the firm and the sentences were ordered to run concurrently.
5. Aggrieved by the said convictions and sentences, the petitioners filed Crl. Appeal No. 37 of 1993 before the Sessions Judge, Ananthapur and the learned Sessions Judge found that the appellants A-1 and A-2 have committed only one offence under Section 16(1)(a)(i) r/w Section 7(i) and 2(ia)(m) of the Act, and set aside the convictions under various counts. He sentenced A-1 firm to pay a fine of Rs. 4000/- and set aside the sentence of imprisonment. The 2nd petitioner A-2 was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 4000/- in default to suffer rigorous imprisonment for one month.
6. Aggrieved by the said judgment, the petitioners preferred this revision before this Court.
7. The learned Counsel for the petitioners submitted that admittedly the first petitioner is a firm carrying on business in extraction of groundnut oil and when P.W-1 inspected the mill premises, he found a big heap of 57,090 Kgs. of groundnut kernal, intended to be used for extracting oil after drying the same and it is a primary food not intended for sale and hence, the so called purchase of the groundnut kernal from the second petitioner is not permissible and the standards prescribed under Rule 28 of Appendix 'B' are not applicable as the groundnut kernal was not intended direct for sale of human consumption.
8. But the learned Public Prosecutor submitted that the evidence of Food Inspector, P.W-1, discloses that it was intended for sale of human consumption and hence, the contention of the learned Counsel for the petitioners does not merit any consideration.
9. Therefore, in view of the rival contentions of both the Counsel, it is necessary to find out whether groundnut kernel is primary food as defined under Section 2(xii-a) of the Act and it is defined as under:-
'..Primary Food means any article of food being a produce of agriculture or horticulture in its natural form.'
The said new sub-clause was introduced by the Amendment Act 34 of 1996 (sic. 1976). It is stated by the author P.V. Ramah Krishna', in 6th Edition of the Act that in the Amendment bill, the word is defined as article of food being a produce of agriculture or horticulture in its natural form, such as cereals, millets, whole spices, whole pulses and edible oil seeds and includes rice, split spices and split pulses (whether husked or dehusked). The Joint Committee on the Amendment Bill modified the definition so as to include therein the produce of horticulture also has omitted the words illustrative of the expression 'Natural Form'. It appears that the Parliament in its wisdom omitted the illustrative of the expression 'Natural Form' only with a view to give wider interpretation to the word 'Agricultural produce' in its natural form.
10. The Nagpur Bench of Bombay High Court in a decision The Administrator of the City of Nagpur v. Laxman and Anr., 1985 Crl.L.J. 1689 (Bombay). taking into consideration the scheme of the Act interpreted the word 'Primary Food' in wider sense holding agriculture produce would take in not merely that which grows on land but also draws sustenance from land, viz., the cattle including cows and observed in para 11 of its judgment as follows:-
'In considering the meaning of the word 'agriculture' occurring in the definition of the word 'primary food' the question would be whether it should be read in a narrow sense i.e. to merely the cultivation work done upon the land or to all other activities which draw sustenance from the land. Looking to the scheme of the Act and in particular the definition of the word 'adulterated' it is clear from the proviso to Section 2(ia)(m) that it is not the intention of the Act to bring within the mischief the articles of primary food in which the variation in the prescribed standard is due to natural causes and beyond the control of human agency. The standard of various constituents in cow's milk is bound to vary depending upon their feed, breed, seasons etc. It cannot be disputed that the cows draw sustenance from the land. If it is found that the standard has fallen because of the above reasons, the aforesaid proviso makes an exception of the same from the definition of the word 'adulterated' given in the Act. It is, therefore, clear that the word 'primary food' in the Act needs to be interpreted in a wider sense in which case the words 'produce of agriculture' would take in not merely that which grows on land but also draws sustenance from the land viz., the cattle including cows.'
11. There is no dispute that the groundnut is a produce of agriculture. The only question is whether the groundnut kernel is an agriculture produce in its natural form. It is common knowledge and undisputed fact that the groundnut seeds along with shell are produced by the farmers in the lands and after harvesting the groundnut crop, shell is being removed and the groundnut kernel is taken out. Groundnut kernel is produced by raising the crop in the soil. Formation of groundnut kernel is only in the land and it does not take any transformation after harvesting groundnut crop. The emphasis is formation of groundnut kernel in the soil itself covered with shell. Therefore, it can, reasonably, be interpreted that the groundnut kernel is an agricultural produce in its natural form and is a primary food.
12. The Nagpur Bench of Bombay High Court has defined the word 'Agricultural produce' in a wider sense stating that the cow milk is a primary food, as it draws sustenance which grows from the land. Therefore, in the light of foregoing discussion I hold that the groundnut kernel is an agricultural produce in its natural form as defined in Section 2(xii-a) of the Act.
13. The next question that arises for consideration is whether the groundnut kernel was stored in Sri Bheema Oil Mill premises for sale direct for human consumption.
14. The evidence of P.W.I, the Food Inspector, discloses that he inspected the first petitioner Oil Mill premises on 21-12-1990 at about 11-00 a.m. and found about 57,090 Kgs. of groundnut seeds kept for sale and then he purchased 600 Gms. of said groundnut kernel after paying Rs. 7.80 Ps. and sent it for analysis. The Public Analyst analysed the said sample and issued report dated 31-1-91 stating that the sample contained excess aflatoxin contents and is, therefore, adulterated. P.W.I during cross-examination admitted that the place of offence is groundnut oil mill, but he denied the suggestion that the accused was not selling the seeds directly for human consumption. He stated that the seeds were kept in a big heap and the circumference of the heap was about 5 to 10 feet. P.W.2, the mediator, did not support the case of the prosecution and he says that he signed Ex.P-1 at the instance of Food Inspector. He was declared as a hostile witness.
15. The contention of the learned Counsel for the petitioners is, when admittedly, the groundnut kernel was found in a big heap in groundnut oil mill premises, it cannot be said that it was intended for direct sale for human consumption and P.W.I with ulterior reasons took sample from groundnut kernel stored for extracting oil after drying and it becomes fit for extraction.
16. It is true that the groundnut kernel was found in a big heap of about 57,090 Kgs. and found in the groundnut oil mill premises. The prosecution has not examined any witnesses and also failed to produce any documents to substantiate its contention that the groundnut kernel was kept for direct for human consumption. The circumstances appearing in the case clinchingly establish that the groundnut kernel was stored for the purpose of extraction of oil from it. Therefore, it is difficult to accept the solitary interested testimony of P.W.I that 57,090 Kgs. of groundnut kernel in groundnut oil mill premises was kept for direct sale for human consumption.
17. The learned Counsel for the petitioners further submitted that proviso to Section 10(2) of the Act prescribes that no sample of any article of food, being primary food, shall be taken under Sub-section (1) for analysis, if it is not intended for sale as such food.
18. Section 10 of the Act empowers Food Inspector to take sample of any article of food from any person selling such article, etc. and sub-clause (sic. Sub-section) (2) further provides that he is entitled to enter and inspect any place where any food article is manufactured or stored for sale, etc. It is useful to extract Section 10(2) of the Act and proviso appended thereto and it reads us under :-
'..10 (1) (a) to (c) xxxxxxx
10 (2): Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis: Provided that no sample of any article of food, being primary food, shall be taken under this Sub-section if it is not intended for sale as such food.'
Thus it is manifest from perusal of the above provision, that if the article of food is a primary food and not intended for sale, the Food Inspector is prohibited from taking any sample of such article of food. Thus the taking of sample of groundnut kernel, which is a primary food not intended for sale, by P.W.I, is unauthorised.
19. At this juncture, it is also relevant to refer to the standards prescribed under Rule A-28 of Appendix 'B' for the groundnut kernel and it is as follows:-
'Groundnut kernel (deshelled) for direct human consumption commonly known as Moongphali are obtained from the plant Arachis hypogols. The kernels shall be free from non-edible seeds such as mahua, castor, neem or argemone, etc. It shall be free from colouring matter and preservatives. It shall be practically free from extraneous matter such as stones, dirt, clay, etc. The kernel shall conform to the following standards, namely:
(a) Moisture : Not more than 7.0 percent
(b) Damaged kernel including slightly damaged kernel - Not more than 5.0 percent by weight.
(c) Aflatoxin Content - Not more than 30 parts per billion.
The Public Analyst found excess contents of aflatoxin and, therefore, gave an opinion that the sample is adulterated.
20. At this stage, it is also relevant to mention the standards prescribed for the groundnut oil under Rule A-17.30 of Appendix 'B' and it reads as follows:-
Groundnut oil (Moong-phali ka tel) means the oil expressed from clean and sound groundnuts (arachis hypogols). It shall be clear, free from rancidity, suspended or other foreign matter, separated water, added colouring or flavouring substances, or mineral oil. It shall conform to the following standards:-
(a) Butyro-refractometer reading at 40 C .. 54.0 to 57.1(b) Saponification value .. 188 to 196(c) Iodine value. .. 85 to 99(d) Unsaponifiable matter. .. Not more than1.00 percent.(e) Acid value .. Not more than 6.00(f) Bellier test (Turbidity temperatureAcetic Acid Method) .. 39C to 41CThus the presence or otherwise of aflatoxin is not one of the ingredients in groundnut oil. Therefore, it is manifest if the groundnut kernel is meant for direct human consumption, then only the standards prescribed under Rule A-28 are applicable, but not otherwise. As already observed that the second petitioner has not stored or kept the groundnut kernel for sale for direct human consumption, the question of drawing sample does not arise in view of proviso to Section 10(2) of the Act.
21. The learned Counsel for the petitioners referring to the Text Book of Preventive and Social Medicine by J.E. Park and K. Park, submitted that the aflatoxin are a group of mycotoxin produced by certain fungi, aspergillus flavus and a parasiticus. These fungi infest food grains such as groundnut maize, paraboiled rice, sorghum, wheat, rice, cotton seed and tapioca under conditions of improper storage, and produce aflatoxin or which B1 and G1 are the most potent hepatotoxins in addition to being carcinogenic. The most important factors affecting the formation of the toxins are moisture and temperature. The word Aflatoxin is defined in Stedman's Medical Dictionary, 24th Edition, as under :-
'.. .Toxic metabolites of some strains of aspergillus flavus, which produce disease in animals eating peanut meal and other feed contaminated by this fungus. It is one of approximately 180 mycotoxins of economic importance in domestic animals..'
Thus the aflatoxins is found on account of formation of fungi due to moisture.
22. The learned Counsel for the petitioner further submitted that the formation of fungus is solely due to natural causes, but not on account of any admixture or any foreign substance and when the prescribed standard has fallen below or its constitutents are present in quantities not within the prescribed limits of variability, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of proviso to Section 2(ia)(m) of the Act. It is relevant to extract proviso to Section 2(ia)(m) of the Act and it reads as under:-
'..(m) If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this Sub-section..'
Thus it is clear from the perusal of the above proviso that if the article of food, being primary food, has fallen below the prescribed standards or its constitutents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of the said Sub-section.
23. The Food Inspector took sample on 21-12-1990 during winter season and there is possibility of moisture being present in the groundnut kernel resulting in formation of fungi. It is also significant to mention, the sample was taken on 21-12-1990 and the Public Analyst sent report on 31-1-1991 nearly after forty days. As per the standards prescribed under Rule A-28, App. 'B' aflatoxin is permissible upto 30 PPB, but the Analyst found 225 PPB. The presence of moisture in kernel during long lapse of time, there is further possibility of increase of fungi. Therefore, it follows that the formation of fungi is only on account of natural causes and its growth is very fast and hence, it cannot be said that the presence of aflatoxin is on account of any foreign substance. I need not dwell on the aspect whether the formation of fungi is beyond the control of human agency, as no material is placed in that regard and also in view of the findings on other points, as kernel was not kept for sale for direct human consumption.
24. The learned Counsel for the petitioner further submitted that the Food Inspector has not taken representative sample. The evidence of P.W.I shows that he took sample at different places totally about 1.00 Kg. and from that he took 600 Gms. and admittedly, the said fact was not mentioned in the panchanama. If really the sample was taken at eight places naturally it should have been mentioned in the mediator's report, Ex.P-1. In the absence of any corroborative evidence and conspicuous omission to mention the same, it is difficult to accept the evidence of P.W.I in that regard. The said aspect is not so material, in view of the findings on other points.
25. The contention of the learned Counsel for the petitioners is that the seeds are further dried up and after the product is fit for extraction of oil, oil will be extracted and therefore, sample of groundnut oil taken at the same time was found to be of prescribed standard, hence, it cannot be said by any stretch of imagination that the petitioners have committed any offence as alleged by the prosecution.
26. It is true that the evidence of P.W.I discloses that he also took sample of groundnut oil and sent if for analysis and the Analyst sent a report stating that it is a genuine and not adulterated. This circumstance also justifies the contention of the learned Counsel for the petitioners.
27. Therefore, in the light of the foregoing discussion and on considering the entire material on record, it emerges that the groundnut kernel is a primary food and if it is not kept and stored for sale, the Food Inspector is prohibited from drawing sample of the said product. The standards prescribed under Rule A-28 of Appendix 'B' applies only to the groundnut kernel kept for sale for direct human consumption. If the primary food has fallen below the prescribed standards or its constitutents are present in quantities not within the prescribed limits of variability, solely due to natural causes and beyond the control of human agency, such article shall not be deemed to be adulterated within the meaning of Section 2(ia)(m) of the Act.
28. Thus, in any view of the matter, I hold that the prosecution has failed to prove the guilt of the accused-petitioners and the conviction and sentence awarded by the Courts below are set aside and the petitioners are found not guilty and acquitted. The fine amount, if paid, is ordered to be refunded.