Badrinarayan Sahu Vs. State of Orissa - Court Judgment

S.K. Mohanty, J.

1. Food Inspector, Sundargarh, visited the frocery shop of the petitioner on 28-9-1985 and finding edible oil, spices and cereal products exposed for sale, disclosed his identity and after giving notice in Form VI to him purchased some articles. He divided each article into three parts and after observing all formalities, forwarded one part of each article to the Public Analyst, Government of Orissa. After microspopic examination, the Public Analyst submitted his report to the effect that one sample contained starches of Bengal gram and Khesari and in his opinion the sample was adulterated and prohibited for sale as it contained Khesari powder in addition to Bengal gram powder. On receipt of the report, the Food Inspector obtained written consent from the Chief District Medical Officer, Sundargarh and launched prosecution against the petitioner for an offence under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 on the allegation that he sold adulterated Besan. Thus the petitioner was tried for the aforesaid offence on the charge that he had exposed adulterated Besan in his shop for sale for human consumption.

2. The petitioner did not dispute that he had kept the article in question for sale, but contended that it was a Besan like substance kept for sale as cattle feed.

3. Basing on the report of the Public Analyst, the trying Magistrate found the accused guilty of the offence under Section 16(1)(a)(i) of the Act, convicted him thereunder and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 600/-, in default to undergo rigorous imprisonment for six months more. In appeal the Sessions Judge has confirmed the order of conviction and sentence. Hence the revision.

4. Learned counsel for the petitioner argued that the Food Inspector having purchased the article in question after being told by the petitioner that the same was kept for sale as cattle feed and there being no reliable material on record to prove that the petitioner had kept the same in his shop for sale for human consumption, the impugned orders of conviction and sentence are liable to be set aside. In support of the argument, reliance was placed on two decisions of this Court.

5. Learned counsel for the State argued that Khesari powder being a prohibited article, the petitioner is clearly liable for the offence under Section 16(1)(a) of the Act. In this connection Rule 44A of the Prevention of Food Adulteration Rules, 1955 was pressed into service.

6. Rule 44A prohibits, inter alia, sale of mixture of Khesari dal powder and Bengal gram powder with effect from such date as the State Government may by notification in official gazette specify. By notification No. 25561/H dated 28-12-1963, State Government prohibited only sale of Khesari gram/Dal for human consumption in the State with effect from 1-1-1964. Khesari gram and Khesari Dal appear as items (a) and (b) in Rule 44A. Mixture of Khesari Dal flour and Bengal gram Dal flour appear as item No. (f). Counsel for the State could not lay his hand on any notification prohibiting sale of mixture of Khesari Dal flour and Bengal gram flour. Therefore, in order to succeed in this case prosecution cannot rely on the aforesaid notification, more so when the charge does not specify that the article in question was prohibited for sale or exposure for sale.

7. In the facts of the case, to bring home the charge of the offence under Section 16(1)(a) of the Act, prosecution has to establish three essential ingredients embodied in Section 16(1)(a) of the Act. Firstly, the accused had exposed the article in question for sale. Secondly, the article in question was an article of food. Thirdly, the article was found adulterated.

8. For understanding the scope of the section it is necessary to know the meaning of the words 'food' and 'sale' which have been defined in the Act. 'Food' according to Section 2(v) of the Act means any article used as food and includes any article which ordinarily enters into or is used in composition or preparation of human food. The word 'ordinarily' qualifies both 'enters into' as well as 'is used'. Therefore, this word in the context in which it has been used in the definition would not mean either primarily or universally. On the other hand, the proper meaning would be commonly or usually. Further the word 'used' occurring in the definition would in the context mean used or capable of being used and not to be used or for the purpose of being used. Whether or not an article ordinarily enters into or is used in the composition or preparation of human food, will depend either on its inherent quality or on the extent to which the article enters into or is used in composition or preparation of human food.

The word 'sale' has been defined in Section 2(xiii) as meaning not only sale for human consumption or use but also for analysis and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article. Thus sale to a Food Inspector for the purpose of analysis is also a sale within the meaning of the Act. The definition is quite wide and embraces within its ambit not only real sale but also embryonic sale. Therefore, the true meaning of the word 'sale' cannot be confined to sale of an article of food only for human consumption and shall also extend to sale for any other purpose (including for analysis).

9. In State of Tamil Nadu v. Krishamurthy, AIR 1980 SC 538 : (1980 Cri LJ 402) the meaning of words 'food' and 'sale' and the scope of the offence under Section 16(1)(a)(i) of the Act were considered and it has been held (at page 404 (of Cri LJ)):

x x x the definition of 'food' is couched in such terms as not to take into account whether an article is intended for human consumption or not. In order to be 'food' for the purposes of the Act, an article need not be 'fit' for human consumption; it need not be described or exhibited as intended for human consumption, it may even be otherwise described or exhibited; it need not even be necessarily intended for human consumption; it is enough if it is generally or commonly used for human consumption or in the preparation of human food, xx xx xx where the article is one which is generally or commonly used for human consumption or in the preparation of human food, there can be no question but that the article is 'food'.

xx xx xx xx

Thus every kind, manner and method of sale are covered. Finally, the sale may be 'for human consumption or use, or for analysis'. In the context, these words can only mean 'whether for human consumption or for any other purpose (including analysis)'. The object is to emphasise that whatever be the purpose of the sale it is a sale for the purposes of the Act. xx xx xx To give any other interpretation to the definition of 'sale' would be to exclude from the ambit of the Act that which has been included by the definition of 'food'. Further a sale 'for analysis' can never be a sale 'for human consumption' but it is nonetheless a sale within the meaning of the definition. It is an unqualified sale for the purpose of the Act. To insist that an article sold for analysis should have been offered for sale for human consumption would frustrate the very object of the Act. A person selling an adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and thereby insure himself against prosecution for selling adulterated food.

10. Now I may refer to the two decisions of this Court in Md. Illahi v. State, 1971 (2) CWR 713 and K. Bhimaraju v. State, 1992(1) CWR 549 : (1972 Cri LJ 1405), relied upon by the petitioner. Both the decisions are by Acharya, J. referring to and following two earlier decisions of this Court in Bhagawan-das Khandelwal v. State, 33 (1967) CWR 830 and Mahashanker Kalidas Raval v. State, 1972 (2) CWR 304.

In Bhagwandas Khandelwal, Misra, J. (as he then was) has held :

The onus is on the prosecution to prove that the Khesari Dal kept in the shop of the petitioner was for sale for human consumption. Prosecution has not adduced any such evidence. The defence plea that the Khesari Dal was kept for the consumption of the cattle cannot be discarded. Prosecution must prove its case beyond reasonable doubt and unless it is established that the Khesari Dal was kept in the shop for sale for human consumption, the offence is not brought home to the petitioner. The petitioner must accordingly be given benefit of doubt.

(Emphasis supplied)

In Mahashanker Kalidas Rawal, it was alleged that the petitioner stored for sale for human consumption adulterated motor Besan (pea powder). Report of the Public Analyst revealed that the powder had been adulterated with starches of Khesari. In prosecution of the petitioner for the offence under Section 16(1)(a)(i) of the Act, he took the plea that he had kept the motor Besan not for the purpose of sale but for feeding ants as it is the religious practice of the accused, who happened to be a Jain. On a finding that the ; defence case could not be ruled out, the accused was acquitted.

11. In Md. Illahi (supra) an analysis of the motor Besan (pea powder) purchased by the Food Inspector from the shop of the accused, it was found containing starches of pea, Bengal gram and Khesari. One of the defence pleas taken by the accused was that he had not kept the motor Besan for sale for human consumption. Relying on the decision in the case of Bhagwandas Khandelwal, it has been held that the prosecution had failed to discharge its onus to prove that the Motor Besan seized from the petitioner's shop was stored in his shop for sale for human consumption, and the accused was acquitted.

In K. Bhiraaraju (supra) pea Besan purchased by the Food Inspector from the shop of the accused was analysed and slight traces of Khesari starches were found in it. It has been held:

In order to constitute the aforesaid offence it is to be established by the prosecution that Pea Besan containing starches of Khesari was stored for sale, or sold, or distributed, for the purpose of human consumption, and if that is not established beyond resonable doubt the Court cannot convict the accused by drawing a presumption to the above effect merely from the fact that the said Besan was kept in a shop along with other articles for sale.

xx xx xx xx.there is nothing on record on which it can be said that the Pea Besan, stored in the petitioner's shop, was being sold for human consumption, or that he sold the sample or Pea Besan to P.W. 1 giving him to understand, in some manner, that the same could be utilised for human consumption.

XX XX XX XX

The burden to prove that the said Pea Besan was stored or sold for human consumption was squarely on the prosecution, and on their failure to establish the same, the petitioner cannot be convicted merely on his failure to assert any such fact in his defence.

(Emphasis supplied)

12. Thus it had been laid down by this Court that in a case under Section 16(1)(a) of the Act, evidence of sale or storage for sale of an adulterated or prohibited article of food is not enough and the prosecution must further prove beyond doubt that such sale or storage for sale was for human consumption. In other words, emphasis has been laid on the question of human consumption. In my humble view while rendering these decisions, the proper meanings of the words 'food' and 'sale' defined in the Act do not seen to have been kept in view. At any rate after the authoritative pronouncement by the Supreme Court in the case of Tamil Nadu v. R. Krishnamurthy the renderings in the afore- said four Orissa decisions can no longer hold the field. On careful analysis of the relevant provisions of the Act and keeping in view the pronouncement of the apex Court, the correct legal position that emerges is that in a case under Section 16(1)(a) of the Act, prosecution is merely to prove that an article of food as defined in the Act (which may or may not be meant for human consumption) which is adulterated or sale of which is prohibited under the law, was either sold or kept for sale by the accused.

13. So far as Besan is concerned, it is known that it is mostly used for human consumption throughout the length and breadth of the country. It is no doubt capable of being used as cattle feed, but the mere fact that some people use the same as cattle feed would not make it any the less an article of food within the meaining of Section 2(v) of the Act. The fact that Besan has been treated as an item of food in paragraph A-1B.C4 of Appendix 'B' of the Prevention of Food Adulteration Rules, 1955 lends support to the conclusion that it is food within the meaning of the Act.

14. In the instant case the accused has taken the stand that he sold Besan like article to the Food Inspector and that he had kept the same for sale as cattle feed. In other words, he does not admit to have sold Besan to the Food Inspector. P.W. 1, the Food Inspector, does not claim that he asked the petitioner to give him Besan or that the petitioner sold the article in question to him as Besan. P.W. 2, the Food Peon, has also not deposed on similar line. P.W. 3, a co-villager, has stated that when the Food Inspector asked the accused to give Besan, the latter replied that he had cattle food. P.W. 3 has further deposed that the said cattle food appeared to be Besan and that the Food Inspector purchased the same. P.W. 3 has also deposed that they used to supply (purchase) the same which appeared to be Besan like article (for) cattle feed. P.W. 4 another co-villagers, clearly says that the accused intimated the Food Inspector that the article in question was not Besan but cattle feed. D.W. 1 is also a co-villager. He has stated that the article in question was cattle feed. The above evidence coupled with report of the Public Analyst only proves that the Food Inspector purchased an article containing Bengal gram flour and Khesari Dal flour both of which are obviously articles of food having been recognised as such in Rule 44A of the Rules. As already stated, State of Orissa has not banned sale of Khesari Dal flour or mixture of Khesari Dal flour and Bengal gram Dal flour. Therefore, merely because the sample purchased by the Food Inspector was found containing starches of Khesari Dal flour and Bengal gram flour, the same cannot be said to be adulterated unless any of the conditions enumerated in the definition of the word 'adulterated' in Section 2(ia) stands satisfied. Of course the position would have been different if there would have been a total ban on sale of Khesari in any form or manner.

15. There are different clauses in definition of the word 'adulterated' contained in Section 2(ia) of the Act. Out of them clauses (f) and (h) only seem to be relevant for the purpose of this case. Thus if the prosecution is able to establish that the article purchased was either unfit for human consumption or injurious to health, then the same must be held to be adulterated. It is well known that Bengal gram flour is mainly meant for human consumption. There is no evidence whatsoever that Khesari Dal flour or an admixture of Bengal gram flour and Khesari gram flour is, either unfit for human consumption or injurious to health. Consequently, prosecution having failed to establish that the article sold was adulterated within the meaning of the Act, must fail.

16. Before parting, I may observe that I have arrived at the above conclusion since prosecution has not led any evidence to show either that the Food Inspector asked the petitioner to supply him Besan and the petitioner supplied the article in question or that the petitioner sold the article in question to the Food Inspector as Besan. In that event the question whether the Food Inspector was duly intimated by the petitioner at the time of sale that the Besan was meant to be used as cattle feed, and not for preparation of food or that there was any understanding between the petitioner and the Food Inspector that the article sold was not for human consumption but for some other purpose, would have been wholly irrelevant and could not enter into the arena for consideration while deciding the case under Section 16(1)(a) of the Act. In such a case, prosecution need not prove that the article was sold by the accused for the express purpose of being used as a food.

17. In the result, the revision is allowed and the impugned order of conviction and sentence are set aside.