G.K. Sharma, J.
1. The Local Health Authority, Tonk, has preferred this appeal against the judgment dated 30th Jan., 1981, passed by the Sessions Judge, Tonk, whereby, it has accepted the appeal of respondent Mewalal, and set aside the judgment of conviction passed against him by the CJM, Tonk, vide his judgment dated 27th Jan., 1978.
2. On a complaint of Food Inspector. Mani Shanker Sharma, respondent Mewalal was prosecuted for selling adulterated 'Gur' used for human consumption. On 29th Sept, 1979, the Food Inspector, after giving a notice to the accused-respondent, took some sample of 'Out' after paying. 90 paise for 600 gms. from Mewalal. The sample was then divided into 3 parts, kept in 3 bottles, sealed and one of the said bottles was sent to public analyst, for examination. The sample of 'Gur' was found by the public analyst, as adulterated. After obtaining necessary sanction from the District Magistrate, Mewalal was prosecuted for offence Under Section. 7/16 of the Prevention of Food Adulteration Act, 1954 (for short, 'the Act'). The contention of the accused-respondent was that the sample of 'Gur' which was taken by the Food Inspector, was not meant for human consumption, and that the 'Gur' was for animal consumption; and further that at the relevant time, the 'Gur' which was used for human consumption, was costing Rs. 3-3.50 per kg. while that which was used for animal consumption, was being sold at Rs. 150 per kg. The sample of 600 gms. of 'Gur' was sold by the respondent at. 90 paise, which shows that the said 'Our' was not meant for human consumption, but for animal consumption.
3. The learned CJM, after recording evidence and dealing extensively all the aspects of the case, found in his judgment that Mewalal accused was guilty of offence Under Section. 7/16 of the Act, and so, he convicted him and sentenced, him to 6 months' rigorous imprisonment and a fine of Rs. 1,0000/-, and in default of payment of fine, in further undergo 3 months' rigorous imprisonment.
4. Aggrieved by the judgment of the learned CJM. an appeal was preferred by Mewalal before the Sessions Judge, Tonk, who, vide his judgment dated 30th Jan., 1981, accepted the appeal, set aside the conviction and the sentence of respondent Mewalal and acquitted him of the charge levelled against him.
5. The learned Counsel for the appellant argued that the learned CJM discussed in detail, in his judgment that the sample of 'Gur' which was taken from the shop of the accused, was meant for human consumption. He referred to the Schedule of the Act and argued that 'Gur' in the Schedule, indicates that it is used for human consumption; and that even the 'Gur' which is used for animal consumption, can also be used for human consumption. It was also argued that when the sample of 'Gur' was purchased and receipt (Ex. P. 2) was prepared by the Food Inspector, which bears the signature of Mewalal respondent, there was no mention therein that the said 'Gur' was 'Raskat-Gur'. No doubt, in the receipt (Ex. P 3), issued by Mewa Lal has mentioned the 'Gur' to be 'Raskat-Gur'. The argument of the learned Counsel for the appellant was that the receipt (Ex. P. 3) was given by accused himself, who may have mentioned therein, the word, 'Raskat'. But, according to him, there is no distinction in the Schedule, between the 'Gur' used for human consumption and that which is known as 'Raskat'. So, even if for the sake of argument it is taken for granted that the said sample of 'Gur' was of 'Raskat-Gur', there was no restriction for its being used for human cousumption. To support his contention, the learned Counsel relied on the case of State of Tamil Nadu v. R. Krishnamurthy : 1980CriLJ402 , where in defining the word, 'food', their Lordships have observed as under:
According to the definition of 'food' which we have extracted above for the purposes of the Act, any article used as food or dridk for human consumption and any article which ordinarily enters into or is used in the composition or preparation of human food.' It is not necessary that it is intended for human consumption or for preparation of human food. It is also irrelevant that it is described or exhibited as intended for some other use. It is enough if the article is generally or commonly used for human consumption or in the preparation of human food.
6. Keeping the above principle laid down by Hon'ble the Supreme Court, 'Gur' is certainly a food article; and the word 'Gur' has been mentioned in the Schedule attached to the Act. The quality and description of 'Gur' have not been mentioned in the Act, but, the 'Gur' of which, the sample was taken from the shop of the respondent by the Food Inspector, in this case, was commonly or generally used for human consumption. No doubt, 'Gur' itself, is an article which is used by human beings. It is also used for preparing food-articles. But, the point is whether the 'Gur' which was taken from the shop of the accused, was the 'Gur' which was generally or commonly used for human consumption. The word, 'Raskat' means a food-article which is used for animals. 'Gur' is no doubt used for human consumption, but, it is also used for animal consumption. So, all the qualities of 'Gur', are not generally or commonly used for human consumption. There is one quality of it which is known as 'Raskat', which is used for animal consumption only. In my opinion, this is no argument that even 'Raskat-Gur' can be used by human beings. 'Raskat' is no doubts a quality of 'Gur', but it is of inferior quality. It is a quality which is generally used for animal consumption. So, if a commodity, which is meant for animals, is used for human consumption, nobody can check it. Then, if we see the difference in the prices of the 'Gur' used for human consumption and the 'Raskat-Gur,' meat for animal consumption, and 'Raskat-Gur' meant for animal consumption, it is in the evidence and the learned CJM also mentioned in his judgment that the 'Gur' which was being sold for human consumption, coated Rs. 3-3.50 per kg, while that, which was meant for animal use, costed Rs. 1.50 per kg. So, this difference indicates that though the article of which sample was taken by the Food Inspector, was 'Gur', but the 'Gur' which was meant for hunan consumption, was of the rate of Rs. 3-3.50 per kg, while the price of that 'Gur' which was for the use of animals, costed Rs. 1.50 per kg. only. So, certainty, Ate 'Raskat-Gur' was for animal consumption, and it was not for human consumption. Argument can be advanced that if a person wants to consume the 'Gur' which is meant for animals, nobody can check him, but, that would not mean that the 'Raskat-Gur' which was sold at the shop of the accused at rate of Rs. 1.50 per kg. was adulterated, because, it was not fit for human consumption. The learned CJM, therefore, no doubt, discussed in his judgment regarding the costs of both the 'Guts' and also that the Schedule attached to the Act, did not mention 'Raskat-Gur', but, be failed to appreciate the difference in the prices of the 'Gur' for human consumption and the 'Raskat-Gur'. The learned Sessions Judge, in his judgment, did not agree with the conclusion arrived at by the learned CJM; and in my opinion, the learned Sessions Judge was correct in disagreeing with the CJM.
7. 'Raskat-Gur' has been dealt with by a division bench of this Court in the case of State of Rajasthan v. Gulab Chand, 1980 Cr. LJ (Raj) 627. That case was also of taking sample of 'Gur', by a Food Inspector, which was 'Raskat-Gur'. Therein, the learned Division Bench of this Court, observed as under:
The Gur of which sample was taken was a 'Raskat' Gur that was meant for used as food for animals and not for human consumption. Consequently, the Sessions Judge committed no error in acquitting the respondent of the offence of having been in possession of adulterated Gur for sale at his shop.
8. In the present case, as argued by the learned Counsel for the appellant, in the receipt (Ex. P. 2) issued by the Food Inspector there was no mention about the 'Gur' being 'Raskat-Gur', though, no doubt, the receipt (Ex. P 3) given by the accused had the mention of 'Raskat'. But, as discussed in his judgment by the learned CJM, this was an afterthought of the accused. Had it been a fact that the sample taken by the Food Inspector was of 'Raskat-Gur', the accused would have stated so, while Exs. P. 1 and P 2 wets being prepared by the Food Inspector; and while signing Ex. P. 2, he would have mentioned that the sample given by him was of 'Raskat-Gur'. Therefore, the plea of 'Raskat-Gur' taken by the accused, is clearly, an afterthought, and so, I do not agree with it. The receipt (Ex. P 3) was given by the accused to the Food Inspector, and therein, the former mention the word, 'Raskat'; and this receipt was given at the very moment when the sample was taken by the Food Inspector. But, the point is that the Food Inspector while accepting Ex. P.3 from the accused, should have objected and asked the accused as to why he had mentioned therein, the word, 'Raskat', because, he bad not taken sample of 'Raskat-Gur', but the 'Gur' of which sample was taken by him was for human consumption. Why did the Food Inspector not object about mentioning 'Raskat' in Ex. P.3. by the accused? This was the receipt which was given to him, by the accused, at the moment when the sample of 'Gur' was taken by him. So, it cannot be said that it was an afterthought of the accused that the sample was of 'Raskat-Gur'.
9. Another factor is that looking to the price of both the qualities of 'Gur' it was clearly indicated that the 'Gur' from which, the sample was taken, was not for human consumption, but, that was for animal consumption. Otherwise, the price of the said 'Gur' would have been Rs. 3-3.50 per kg and Rs. 1.50 per kg. This all indicates that from the very beginning, the accused has taken the plea that he had sold the 'Reskat 'Gur' to the Food Inspector, which was meant for animal consumption.
10. Thus, in the light of the decision of a division bench of this Court in Gulab Chand's case (supra), it is clear in this case that the sample of 'Gur' which was sold by the accused to the Food Inspector, was 'Raskat', for animal consumption and not for human consumption. Hence, the learned CJM committed error in convicting and sentencing the accused-respondent, and the learned Sessions Judge has not committed any error in acquitting the respondent. Another ground for acquittal by the learned Sessions Judge was that the provisions of Rule 14, 17 and 18 of of the Prevention of Food Adulteration Rules, 1955, were not complied with. These rules are mandatory in nature. It was expected of the Food Inspector to have complied with the provisions of these rules, literally, who should have followed them, as the said rules were of mandatory nature. The argument was that there is nothing on the record to prove that the Food Inspector had not used clean bottles for keeping the sample; and that head not put seals on them, and thus, had not followed the Rule 14, 17 and 18 of the Rules. It was not necessary to lead evidence in this respect; nor was it necessary that the Food Inspector should have been cross-examined on this aspect. What the law says is that the provisions of Rule 14, 17 and 18 are mandatory in nature; and it is expected of the Food Inspector to comply with these provisions. It is immaterial whether or not questions were put to Food Inspector about the provisions of these rules and whether be had followed these provisions or not- It was mandatory and obligatory for the Food Inspector to have taken sample, kept in clean bottles and followed the procedure laid down in Rule 14, 17 and 18 of the rules. As these rules were not followed, the learned Sessions Judge has discussed in his judgment that on account of not following the mandatory provisions of the rules, the accused was entitled to acquittal and this being a correct finding, is hereby confirmed.
11. In the result, the appeal filed by the appellant being devoid of any substance, is dismissed.