Prakash Narain, J.
(1) This judgment will dispose of Criminal Appeals No. 41 of 1967 and No. 71 of 1967 preferred by the Munici- pal Corporation of Delhi by special leave against the acquittal of Moti Lal son of Bishamber Sahai, Khari Baoli, Delhi. The respon- dent, Moti Lal was prosecuted under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954 under two challans for storing khoa for sale which was adulterated. The trial Magistrate convicted him in one case by an order dated 17th October, 1966 and sentenced him to pay a fine of Rs. 1000.00 and to undergo impri- sonment till the rising of the Court. In the second case, an applica- 31-R (1972) Ii Delhi Municipal Corporation Of Delhi v.MOri Lal 337 lion was moved by the respondent under section 403 of the Criminal Procedure Code to the effect that since he had been convicted and sentenced in one case for storing for sale khoa on the basis of a sample taken on 22nd October, 1965, a second trial for the same offence alleged to have been committed by him in respect of which the other challan was pending, the trial was barred in view of the provisions of section 403 Criminal Procedure Code . The learned Magistrate agreed with this contention and on 26th November, 1966 stopped further trial in the second case and acquitted the respondent. In the first case in which the respondent had been convicted, he went up in appeal to the Sessions Court. That appeal was accepted by an Additional Ses- sions Judge, Delhi, on 8th December, 1966 and the respondent was acquitted. Aggrieved against the orders of acquittal, the appeals have been preferred by the Municipal Corporation of Delhi.
(2) On 22nd October, 1965, Food Inspectors Shanti Nath and Dina Nath took two samples of khoa from the respondent which he had stored for sale not at his shop but Rajindra Ice & Cold Storage. Roshanara Road, Delhi, at 1.45 P.M. These samples were numbered as DN-2042 and S.2720. One part of each sample was sent to the Public Analyst for test who opined that the same was adulterated. Even at the time the samples were taken, the same had fungus growth. On the same date, i.e. 22-10-1965, one sample was taken by Food Inspector Lckh Raj Bhat at 3.15 P.M. from the respondent who had stored it not at his shop but in National Cold Storage and Refrigeratioa, 18 Boulevard Road, Delhi. This sample was numbered as LR-2841. One part of this sample was sent to the Public Analyst who opined that it was adulterated and unfit for human consumption. This sample was also fungus infested at the time when it was taken.
(3) With regard to' the two samples taken at 1.45 P.M., the respondent was chargesheeted by a Magistrate 1st Class on 27th April, 1966 under section 7/16 of the Prevention of Food Adulteration Act. With regard to the third sample, he was charge-sheeted separately. The two cases thus commenced against the respondent were respectively Criminal Case no. 588/3 in which the complaint was filed on 23rd July, 1966 and Criminal Case No. 417/3 in which the complaint was filed on 20th July, 1965. In the latter of the two cases, the respondent was convicted as aforesaid by the trial Magistrate which led to his moving an application under section 403 Criminal Procedure Code . in Criminal Case No. 588/3 and his being acquitted.
(4) When the two appeals against acquittal came up before a Division Bench of. this Court, it was represented that one of the points involved was whether section 403 Criminal Procedure Code . was attracted in such casev where samples are taken on the same day of the same commodity from the same person by different Food Inspectors, which question had come up for consideration before another Division Bench of this Court, but the judgment was awaited. The hearing was, thereforee, adjourned. After that judgment of the Division Bench was pronounced and was brought to the notice of Bench of two of us. it was felt tli.it lhat decision required further examination by a larger Bench and thai r- how the matter was placed before the Full Bench.
(5) Before preceding to examine the contentions of the parlies, it will be advantageous to read certain relevant provisions of law. These are section 403 Criminal Procedure Code and sections 7 and 16 of the Prevention of Food Adulteration Act. The same read as under:
'Criminal Procedure Code S. 403(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237. (2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, sub-section (1). (3) A Person convicted of any offence constituted by any act causing consequences which, together with such act. constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts any, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subse- quently charged. (5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or of section 188 of this Code. Explanationn.-The dismissal of a complaint, the stoping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273, is not an acquittal for the purpose of this section.'
Prevntion of Food Adulteration Act
'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 license is prescribed, except in accordance with the conditison of the license; (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 there- 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; (ii) other than an article of food referred to in subclause (i), in contravention of any of the provision of this Act or of any rule made there under; or (b) prevent a food inspector from taking a sample as authorised by this Act; or (c) prevents a food inspector from exercising any other power conferred on him by or under this Act; or (d) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any material which may be employed for the purpose of adulteration; or (c) uses any report certificate of a test or analysis made by the Director of Central Food Laboratory or by a public analyst of any extract thereof for the purpose of advertising any article of food, or (f) whether by himself or by any other person on his behalf gives to the vender a false warranty in writing in respect of any article of food sold by him, 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.'
(6) The undisputed facts in the two appeals are that the respondent had stored Khoa in the two Cold Storages; that two samples were taken from one Cold Storage and one sample was taken from the other Cold Storage and all the three samples were fungus infested and were adulterated within the meaning of the provisions of the prevention of Food Adulteration Act and were unfit for human consumption; that two samples were taken at 1.45 P.M. from one Cold Storage and one sample was taken at 3.15 P.M. from the other Cod Storage; that the respondent who sent up for trial in two cases, one with regard to the two samples taken at 1.45 P.M. and the other with regard to one sample taken at 3.15 P.M.; that in Criminal Case No. 417/3, the respondent was convicted and sentenced which led to him moving the application under section 403 Criminal Procedure Code . in Criminal Case No,588/3; that because of the conviction in Criminal Case No.417/3, his trial was stopped and he was acquitted in Criminal Case No.588/3; that the charge on which he was prosecuted in both the cases was storing adulterated Khoa for sale; and that ultimately the respondent was acquitted in Criminal case No. 417/3 also.
(7) The contention on behalf of the respondent is that the act of storing for sale any adulterated food is a single act for which these can be only one prosecution; that several samples being taken of the same commodity from the same person, if each is found adulterated, would not constitute distinct offences for lifting of the various samples are really parts of the same offence, namely, storing for sale any adultereally food. It is contended, thereforee, that there could be only one prosecution for the three samples lifted and only one punishment awarded as it is one single offence. Support for this contention was caught from section 71 of the Indian Penal Code which lays down that where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with punishment of more than one of such of his offences, unless it be so expressly provided. There may be something in this contention if several samples are taken from the same person of the same commodity from the same place at the same time, but not if samples are taken from different places or at different times even if it be from the same person. There has to be a community of time, place, person and commodity in order to bring this contention within the ambit of section 71 Indian Penal Code . or section 403 Criminal Procedure Code . Mr. Chawla, the learned counsel for the respondent referred to a decision of the Punjab High Court in Bhagwan Dass Kaka Ram v. the State 1960 Criminal Law Journal 16571. In that case the petitioner was prosecuted under section 9 of the Opium Act, 1878 for being in possession of illicit opium and it was held that recoveries made from his person and from another place constituted one offence and separate trials for the two recoveries were not warranted. The residential premises of the petitioner in that case were raided by the Police on 9th June, 1959 at 2 P.M. and opium: was recovered from his person in a bag which he was carrying from the car to his house. Further opium was recovered from a Chaubara in pursuance of a statement made by the petitioner under section 27 of the Indian Evidence Act on Police interrogation. On the basis of these two recoveries, the prosecution had put up two separate challans. D. K. Mahajan, J. observed that the gravamen of the charge being possession of illicit opium, whether recovery was made from his person or from the Cliaubara, the possession was one and so there could be only one challan, irrespective of the different places from where the two recoveries were made.
(8) In Sanker Lal Aparwalla v.Corporation of Calcutta, Air 1962 Calcutta 6112 three separate prosecution under section 7 of the Prevention of Food Adulteration Act were started against the petitioner in respect of three lots of tins of ghee found in his godown from which three samples were taken on the same day by three Food inspectors from the same place. The three samples being found adulterated, three challans were put up which were found unwarranted on the ground that the single act. of storing adulterated ghee could not be split up into three different acts according to brands and the launching of three separate prosecutions on the ground that the three distinct offences had been committed by the accused was not justified or- warranted by law. It may be noted that the prosecutions were for storing adulterated ghee and not for misbranding and all the three samples were taken from the same place at the same time from the same person.
(9) Neither of the two cases relied upon by Mr. Chawla advance the contention of the respondent. In the Punjab case the recovery from A the Chaubara was made in pursuance of a statement by the accused under section 27 of the Indian Evidence Act while in the Calcutta case, samples of the same commodity were lifted from the same place and from the same person at the same time though by three different Food Inspectors. As we have observed, to attract section 403 Criminal Procedure Code , in prosecutions under the Prevention of Food Adulteration Act the sample lifted must be of the same thing from the same place at the same time from the same person. If any of these four elements is missing, it cannot be said that only one offence of storing for sale has been committed. For example', if a man is driving his car late in the evening without lights and is stopped and challaned, it cannot be said that he cannot be challaned again at all during the course of the same evening. The prohibition is with regard to driving after lighting up time without lights. If a man is caught once, it gives him no immunity that he can continue the offence throughout the evening. But he cannot be challaned for this offence more than once at the same time and at the same place. Similarly, storing for sale of any adulterated article of food is a continuing offence and in any case if the storing is at more than one place and samples are lifted from two places at different times, there will be two distinct offences.
(10) Mr. Chawla also relied on a Bench Decision of this Court in Criminal Revision No. 161 of 1971, Lachhman Dass versus Municipal Corporation of Delhi3, which led to the reference to the Full Beach. In that case Lachhman Dass was prosecuted for storing for sale Hing and compounded Hing samples of which were lifted from his godown on: the same day at the same time. Three samples were lifted resulting in three complaints, viz., 138/3 of 1968, 143/3 of 1968 and 139/3 of 1968. Lachhman Dass was convicted in case No. 138/3 of 1968 and thereafter he moved an application in the other two cases under section 403 Criminal Procedure Code . The application was dismissed which led to Revision Petition being filed in this Court. As there appeared to be a conflict of decisions, the matter was referred to a Division Bench and came up for hearing before v.D. Misra and Dalip K. Kapur, JJ. The contention on behalf of the petitioner was that there was no material difference between Hing and compounded Hing and even if there was a difference between the two articles, the petitioner could not be tried in two cases separately in respect of the same article since the offence with which the petitioner was charged related to storing of adulterated articles of food for sale. The decision of the Calcutta High Court in the case of Sankar Lal Agarwalla, noticed by us earlier and an un- reported judgment of this court in Dwarika Nath vs. Municipal Corporation of Delhi (Criminal Rivision No. 371-D of 1965 decided on 7-11-67)4 were noticed by the Bench. After noticing same further decisions of the English courts and the provisions of the Prevention of Food Adulteration Act and the Criminal Procedure Code, the Bench drew a distinction between sale and storing for sale and came to the conclusion that it may technically be correct to charge a person separately for each sale made by him but the situation will be materially different where the circumstances show that a person is being charged for having stored adulterated food. The Bench also observed that if samples of one' article of food are lifted from Various containers and found to be having different constituents it would not make any difference and the offence would be one. This conclusion was arrived at. by the Bench primarily on the ratio of the decision in the case of Sankar Lal Agarwalla and the decisions in the Apothecaries Company versus Jones (1893) I Q.B.D. 89,5 and in Crepps versus Durden, 1 Sm. L.C. 9th Edition, p. 692.6 Before we proceed further, it would be in fitness of things to notice these two cases also.
(11) In the Apothecaries Company case three actions were brought against the respondent that thrice in one day he had acted and practiced as an opothecary without having obtained a proper certificate entitling him to do so. He was convicted and fined in one case but judgment was given in his favor in the other two cases on the ground that only one offence in law was made out. On a reading of the provisions of law which the respondent had violated, it was apparent that the offence committed was only one and not a continuing offence inasmuch as what was forbidden was to practice without a certificate and inasmuch as the respondent practiced as an apothecary on a particular day without a certificate, there was only one offence and not three by his giving advice to three different persons at different periods of time on the same day.
(12) In the Crepps' case, a baker who was selling bread rolls on Sunday was prosecuted for having made four sales in violation of the law that no tradesman or other person shall do or exercise any worldly labour, business or work of their ordinary calling on the Lord's day. It was contended that there was only one offence and not four offences in selling rolls to four different persons on a Sunday. On a consideration of the prohibition contaiied in that statute, it was held that the offence was in exercising his ordinary trade on the Lord's day. thereforee, the four sales could not be construed as four offences.
(13) In both these cases what was prohibited was the plying of the trade. The separate transactions as such were not prohibited. In the Prevention of Food Adulteration Act, however, the prohibition relates to selling, or storing for sale any article of food which is adulterated etc. thereforee, each transaction of selling and storing would be actionable if the sale or storing is of adulterated food. It cannot be disputed that if samples of different items of adulterated food are lifted at the same time, each tansaction would constitute a separate offence. So, if several samples are taken of the same article of food from different places each transaction would constitute a different offence. The Bench in Lachhman Dass' case did observe that in sale of adulterated food it may technically be correct to charge a person separately for each sale and in our view that ratio would be attracted also in prosecutions for storing for sale, provided several samples are lifted not of the same commodity at the same time, from the same place and from the same person but if samples are taken of the same article from different places at different times and even of the same article at different times from the same place. We cannot agree with the observation in Lachhman Dass' case that unless an article of food is analysed and found adulterated, it cannot be said to be adulterated under the Act. The offence is complete the moment adulterated article is either sold or stored for sale. The analysis only confirms that the article of food was adulterated. The report of the Analyst is evidence to bring home the offence. The analysis does not crystalise the offence or make it come into existence. thereforee, it must be held that when samples of Khoa were taken at different points of time from different cold storages, though on the same day and from the same person, two distinct offences were allegedly committed. In that view of the matter, the acquittal of the respondent by the trial Magistrate in case No. 588/3 cannot be upheld and is hereby set aside. Criminal Appeal No. 41 of 1967 is, thereforee, accepted and the case is remanded to the Trial magistrate for being dealt with in accordance with law. Coming now to Criminal Appeal No. 71 of 1967, as already observed, the respondent was convicted by the trial Magistrate and sentenced to pay a fine of Rs. 1000.00 and imprisonment till the rising of the court. His appeal was accepted by the Additional Sessions Judge on the ground that storage of Khoa or any other article of food in the cold storages is primarily for preserving the article of food though the ultimate object of preservation of the article of food in cold storages is to sell it and so preservation has .to be distinguished from storage for sale. It is also mentioned by the Additional Sessions Judge that the respondent had pointed out the moment the sample was lifted that the Khoa was fungus infested and was unlift for human consumption, and so he will not accept the price for the sample taken by the Food Inspector. Inasmuch as this did not constitute a sale and mere preservation could not be regarded as storage for sale, the prosecution had not made out a case and the conviction had to be set aside.
(14) We are unable to accept the reasoning of the Additional Sessions Judge. The respondent was obviously dealing in Khoa and having obtained it for purposes of sale, he stored it in the cold storage. It was no body's case that he had stored it for consumption himself. There is no warrant for making out a distinction between preservation and storing for sale. The respondent was not preserving the Khoa for any other purpose than for sale and it is immaterial whether the Khoa was kept in his own shop in a refrigerator or otherwise or in a cold storage from where he could take it out whenever he wanted to sell it. In this view of the matter it has to be held that the respondent was storing for sale Khoa which was adulterated in the National Cold Storage at Boulevard Road Delhi. The Additional Session Judge seems to have gone wrong in equating 'storing for sale' with 'sale' and put unnecessary emphasis on the respondent stating at the time when the sample was lifted that the Khoa was putrified and decomposed ed. Criminal Appeal No. 71 of 1967 is, thereforee, accepted and the conviction and sentence of the respondent passed by the trial Magistrate is restored.