K. Sadasivan, J.
1. The Food Inspector, Calicut Corporation has come up in appeal against the order of acquittal entered by the District Magistrate, Kozhikode in C. C. No. 194 of 1966 on the file of his Court. Prosecution was launched under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act against the accused. The first accused is the Managing Partner and the second accused the firm engaged in the sale of articles of food. On 12-8-1966 at about 12-20 noon, P. W. 1 the Food Inspector visited the godown of the firm where he found 30 bags of toor dhall kept, presumably for sale. He seized the article under Section 10(4) of the Act and took samples from two of the bags and sampled them as provided by the Act. On analysis by the Public Analyst it was found that the article was infested with insects and completely damaged, and for that reason adulterated and unfit for human consumption.
2. The defence put forward was that the said 30 bags of toor dhal was not Intended for sale. The accused-firm is onlythe commission agent for their principal at Bombay for the disposal of the above toor dal which was received in Calicut on 15-3-1965. After some time, it became unfit for human consumption. Therefore, the accused firm contacted their principal at Bombay for sending back the article to them. The said 30 bags therefore, were kept inside for being returned to Bombay at the earliest available opportunity. Evidence was adduced by the accused in support of the fact that the article in question was intended to be sent back and the principal at Bombay had duly been informed of the position. Learned District Magistrate accepted this plea and has acquitted the accused.
3. The question therefore that arises for consideration is whether storing simpliciter is itself an offence. The position is covered by authorities starting from Food Inspector, Kozhikode v. Punsi Desai, 1958 Ker LJ 1150=(AIR 1959 Ker 190) Where a Division Bench of this Court has held that:
'The general words 'store' and 'distribute' found in Section 7 should be read as qualified by the particular words 'for sale' and 'sell' preceding them. Therefore, it is only storage for sale that is prohibited under the section.'
The learned Judges have in coming to the above conclusion compared the wording of Section 16(1) and Section 7 of the present Act, with corresponding provisions of the various State Acts which preceded the present Act in which also similar words occur. Section 5 (1) (b) of the Madras Act runs:
'Every person who manufactures, stores or offers for sale or hawks about or sells any food ...... shall be punished.'
Words 'for sale', 'offers', 'manufactures' and 'stores' appearing in the above section were judicially interpreted so as to attach the said qualifying words; in other words, as if the section read, 'manufactures for sale; stores for sale, or offers for sale'.
'The intention was to make storage of adulterated food an offence irrespective of whether it was for sale or not, and that is why in the prohibition found in Section 7 of the Central Act the qualifying words, 'for sale' appear immediately after the word, 'manufacture' and before the words 'or store, sell or distribute' so as to make it clear that they qualify only manufacture and not sale or distribution. And it was because storage simpliciter was prohibited that the presumption embodied in Section 5 (2) of the Madras Act which we might straightway observe is little more than what a Court would normally presume under Section 114 of the Evidence Act, was dropped as being no longer necessary. Had the ingredient,'for sale', been an element of the offence this presumption, so useful for establishing that element, would have been enlarged rather than dropped.'
On this reasoning the learned Judges held that mere storing of adulterated article of food is not an offence. The above ruling of the Kerala High Court gets support from In re Govinda Rao, AIR 1960 Andh Pra 366; Narain Das v. State, AIR 1962 All 82; Municipal Board, Faizabad v. Lal Chand, AIR 1964 All 199 and Rameshwar Dass v. State, AIR 1967 Punj 132. In the last mentioned case namely, Rameshwar Dass v. State, AIR 1967 Punj 132 it was held further that:
'The scheme of the Act being the safeguard against the manufacturers and sellers deceiving the public by passing off adulterated food or misbranded article of food to unwary and innocent purchaser the prohibition against storage of such food must be for sale and not storage simpliciter. ......... Adulteration impliesan element of deceit. It does not intend to prohibit a householder from adulterating any food for consumption or even for distribution otherwise than by way of sale. Any other construction of the word 'store' in Section 7 would mean that misbranded container of food contained in a private house would render the owner or occupier of the house liable to the punitive actions prescribed by the Act. A reference to Clauses (iii) and (iv) of Section 7 also indicates that the opening words of the section are intended to apply to articles manufactured or stored for sale or actually sold or distributed by way of sale.
Section 16 of the Act which prescribes the penalties, also uses the same phraseology'.
4. A recent Division Bench ruling of the Calcutta High Court rendered in Shipping & Clearing (Agents) v. Calcutta Corporation, AIR 1967 Cal 110 has taken the contrary view. The learned Judges would observe:
'Storing of an adulterated article of food is by itself anb offence. It is not necessary that such storing ought to be for sale before the offence could be said to have been committed. Therefore, the procedural powers of the Food Inspector to enter and inspect a place under Section 10(2) of the Act cannot be taken to qualify and limit the operation of Section 7 which creates the offence and Section 16 which is charging section by importing into the latter two sections the expression 'for sale' after the word 'store'. There is good reason to insist that in the case of 'manufacture' to be an offence such manufacture has to be 'for sale' because other kinds of manufacture, viz., for scientific experiments etc., are exempt. Absence of the words 'for sale' after the word 'store' in Sections 7 and 16 of the Act has been deliberate and intentional and the intention is that the storing will be an offence by itself whether it is for sale or not. The language of Section 7 and Section 16 in its plain reading and connotation supports this Interpretation, (Paras 15 and 12).
Limiting the scope of the provisions by adding the words 'for sale' after the word 'store' will be unjustified legislation on the part of the Court especially that the provisions are unambiguous and unqualified and requires no attempt to give it life and meaning. Further, rule of construction that prohibits such an interpretation is that a word should not be given a meaning which makes its use tautological in its context. Thus, if Section 7 is to be read as 'store for sale' then, that result is achieved already by word 'sell' used in that very section. Selling includes the whole process of selling including the storing, buying, handling and selling ultimately at the counter.' (See Headnote of AIR 1967 Cal 110--Ed.)
5. AIR 1959 Ker 190=1958 Ker LJ 1150; AIR 1960 Andh Pra 366; AIR 1962 All 82 and AIR 1964 All 199 referred to by me above, have been dissented from, by the learned Judges. But on a careful consideration of the two views, I am satisfied that the view expressed by this Court in AIR 1959 Ker 190 and followed by the Andhra Pradesh, Allahabad and Punjab decisions is preferable and is more in consonance with the spirit of the Act. If the view held by the Calcutta High Court is accepted, the position would be that even the storing of waste food materials will be actionable, which I do not think is a state of things, intended by the Act. I would, therefore, accept the majority view in preference to the other. The result will be that the accused cannot be held liable for the 30 bags of toor dhall found in their godown which was not intended for sale. Exts. D-1 to D-8 are letters and Exts. D-9 and D-10 account-books duly proved by the clerk of the accused-firm, and they show that out of the 53 bags of toor dhall received by the accused on 15-3-1965, 19 bags were sold in the course of 1965 itself, and there remained 34 bags which subsequently became insect-infested and unfit for human consumption. These 34 bags were refilled into 30 bags and kept in the godown to be sent back to their vendors at Bombay. Correspondence was going on between the accused and their vendors with a view to effect the return of the said bags to them. The learned Magistrate has, on a perusal of the correspondence, come to the conclusion that the contention put forward is factually true and correct. On a reappraisal of the position, I do not see any reason to take a different view. The order of acquittal has hence only to be confirmed.
6. In the result, the order of acquittal entered by the learned District Magistrate is confirmed and this appeal isdismissed.