Kerala High Court
Aboo vs Food Inspector on 11 March, 2003
Equivalent citations: 2003(2)ALT(CRI)40, 2003(2)KLT50
Author: J.B. Koshy
Bench: J.B. Koshy, P.R. Raman
ORDER J.B. Koshy, J.
1. Is horse gram (muthira) an item of food as defined under Section 2(v) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') is the question referred to us by the learned single Judge (Basant, J.) for determination. Accused in this case sold 750 grams of horse gram (muthira) to the Food Inspector at 10.00 a.m. on 29.10.1986. On analysis, the horse gram was found to be adulterated. The courts below concurrently found that the prosecution had succeeded to prove that all the ingredients of Section 16(1)(a)(i) of the Act were satisfied. The accused was found guilty of having committed the offence under Section 16(1)(a)(i) of the Act and he was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/-. In this revision petition, petitioner/accused questions the above conviction and sentence mainly on four grounds:
(i) Horse gram (muthira) purchased from the sh'op of the petitioner/accused is not a food article as defined under the Act; but, it is a horse fodder or cattle feed;
(ii) Sampling done by the Food Inspector was not proper and not in conformity with the Rules;
(iii) Petitioner/accused is entitled to the benefit of Section 19(2) of the Act; and
(iv) In any event, sentence imposed is very harsh.
Now, he is a cancer patient undergoing treatment in Amala Cancer Institute. Learned counsel showed us the treatment details showing that he is a cancer patient.
2. The first question to be considered is whether the horse gram (muthira) is a food article as defined under Section 2(v) of the act. The revision petitioner/accused relied on two earlier decisions of this Court rendered by the learned single Judges of this Court in Crl.R.P. No. 814 of 1989 and Crl. R.P. No. 835 to 1994 to support his contention that muthira is not a food article as defined under the Act and, therefore, the provisions of the Act will not apply. The learned counsel for the petitioner/accused cited the decision of a learned single Judge of this Court (K.T. Thomas, J. as he then was) in Crl.R.P. No. 814 of 1989 (Assan v. Food Inspector). There, it was held that prosecution failed to prove that horse gram is a food article used for human consumption. We quote the relevant passages:
"4. "Food" is defined in Section 2(v) of the Act. Food means any article used as food or drink for "human consumption" and includes any article which ordinarily enters into or is used in the composition or preparation of human food, any flavouring matter or condiments. There is no case for the prosecution that Central Government had issued any notification declaring that horse gram is a food article. Petitioner's contention is that horse gram is an article intended only as I'odder or horses or for the cattle. In fact, the question was put to PW1 - Food Inspector whether horse gram is a cattle fodder. He admitted it to be so and expressed ignorance whether the same is used by human beings....................................................................................................................
5. No evidence has been adduced in this case to show that the horse gram is either used for preparation of any food or consumed by human beings."
The above decision was recently followed by another Single Judge of this Court in CH.R.P. No. 835 of 1994 (K. Ibrahim v. State of Kerala). In the present case, the learned single Judge while referring the matter also observed as follows:
"8. In the facts of the instant case, if common knowledge as perceived by me were to be reckoned as an indication, I have no doubt that at least in the Malabar area of the State of Kerala, horse gram is commonly used for human consumption as a cheap food grain . There cannot possibly be any doubt in my mind on this aspect. It is common knowledge that horse gram is available a plenty in the markets and the same is used for human consumption. At least in the northern parts of the erstwhile Malabar area this is true. Recipes galore in cooking books etc. wherefrom we get indications to suggest that horse gram is used for preparation of human food."
It was further observed by the learned single Judge in the reference order as follows:
"l5................................I have taken the assistance of the dictionaries and lexicons. Websters third new international dictionary gives the meaning of horse gram as:
"a twining herb of the tropics of the Old World that is cultivated in India for fodder with the seeds being used as food."
In the Viswa Vijnana Kosam published by Sahitya Pravarthaka Sahakarana Sanghom, Vol.8 at page 102, it is stated inter alia that (Horse gram is an article of food of the poor. It can be consumed roasted or boiled.) In the Malayalam Lexicon published by the Kerala University, Vol.3, Muthira-kanam is given a meaning in Page 621 which also indicates that boiled Muthira is consumed by human beings. In the Sabda Tharavali published by Sahitya Pravarthaka Sahakarana Sanghom Ltd. 7th edition, at page 1433, Muthira is referred to as one of the nine food grains (Navadhanyam). It is stated to be good for the treatment of cough, diabetes and piles. It is not good for the eyes, it is staled. It should not be taken alongwith milk, it is mentioned. It would abort pregnancy, it is further indicated. In the book by Dr. K. Subhash published by Kalpadhrumam Publications, Trivandrum, named 1001 medicinal plants, we get a description of the horse gram plant which also speaks of the medicinal properties of horse gram. In the Prabhat Balavijnana Kosatn published by Prabhal Book House, Trivandrum, in the chapter dealing with pulses, we have indications to show that horse gram is used occasionally for human consumption.
16. Once it is found that horse gram is used by any section of the people as an item of food it is not significant or vital whether such use as human food is there in other parts of the State or country. It is also irrelevant that it may be used as fodder or cattle feed. Many an article consumed by human beings is consumed by cattle also. That is not crucial or vital while considering the question. I have already extracted the relevant observations on this aspect in 1971 (1) SCR 166. It would be relevant to note the observations in Ram Lal v. State of Rajasthan (2001 (1) KLT 6 - (SC). In the said decision, it was held that notwithstanding the fact that Camel's milk is not used as human food by a substantial section of the population, it continues to be food as such use is made in certain parts of India. Similar is the view taken by a Single Judge of this Court in Radheshyam v. State of Kerala (1999 (3) KLT 545). It is observed in the said decision that:
"the normal use of the article and not its occasional use decides the fact whether the article is food or not. If an article is found to be food, the fact that its use us food is confined to particular areas or particular group or class of persons is immaterial. An article of food will not lose its character as food due to the fact that it is also sold or used for some other purposes."
17. In view of the various circumstances mentioned above, I am of the view that the observation in the order in Crl.R.P. N.Mo. 835 of 1994 requires and deserves reconsideration by a Division Bench. I respectfully disagree with the observation that "horse gram is an article intended only as a fodder for horses or for the cattle."
3. The scientific name of horse gram (muthira) is "Dolichos Biflorus". It belongs to the family of "Papilionaceae". In Sanskrit, it is called as "Kulastha" and in Hindi it is called "Kulthi". In Tamil, it is "Kollu". This is used as a medicine preparation throughout India as can be seen from the book on Medicinal Plants of India, Vol.1, written and published by Indian Council of Medical Research, New Delhi. It is cultivated in. Travancore generally used by poor people during lean months monsoon. "Kollu Rasam" is an important dish in Tamil Nadu as can be seen from Amma's Cook Book. This is one of the cheapest pulses available for the poor people.
It is true that it is also used as a food for horse. But, accused has no case that in Poonur or in Perambra or even in Koyilandy or in the Panchayat or in the taluk where accused conducting grocery shop, there are horses and customers buy horse gram for feeding horses.
4. The Food inspector purchased the muthira from the petitioner's grocery shop at Poonur, where it was kept in a gunny bag near other gunny bangs containing food grains like rice etc. Admittedly, there was HO board or sign to show that this was sold only as a cattle feed. In the bill also it is not stated that it is sold as a cattle feed and no evidence is also adduced to show that it was used as a cattle feed. As far as the evidence adduced in this case is concerned, the defence had no case that it was kept as a cattle feed. In Section 313 statement, the accused only generally denied the offence. But, he himself got examined as a witness, DW1. He stated that on 29.1.0.1986, Food Inspector visited his grocery store at Poonur. The horse gram was kept in a gunny bag and the total quantity was only 5 Kgs, The Food Inspector purchased 750 grams. Petitioner purchased the horse gram from Quality Traders, Kozhikode on 2.8.1986. He purchased 75 kgs, in a gunny bag and Ext.D1 is the bill and he kept the same in the same manner as he purchased. In chief examination, he stated only so much. He has no case that it was kept as a cattle feed or it was sold as a cattle feed. In fact, a question was asked to the Food Inspector whether he knows that it is used as a cattle feed and he said that he had no knowledge about that. Apart from that there is no case for the defence that it was kept as a cattle feed and it is sold by him only as a cattle feed. DW3 who was examined to support the defence and from whom the accused purchased muthira deposed that muthira is used as food and cattle feed.
Even though it is the duty of the prosecution to prove the case beyond doubt, court has to give its finding on the totality of evidence. The defence had no case that it was not a food article for human consumption. During evidence, his only case was that he is entitled to the protection under Section 19(2) of the Act as he purchased by bill from Quality Traders. In fact, defence witness DW3 support the prosecution case that muthira is also used as food article.
5. "Food" is defined under Section 2(v) of the Act as follows:
"(v) "food" means any article used as food or drink for human consumption other than drugs and water and includes -
(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,
(b) any flavoring matter or condiments, and
(c) any other article which the Central Government may, having regard to its use. nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act;"
It is an inclusive definition and it very clearly mentions that any article used as food or drink for human consumption will come within the definition of "food". It is true that Central Government can bring any other article also under the above definition by notification. It is not necessary that to become food, it should be declared as a food under notification. Any article which ordinarily used in the preparation of human food is also food. In State of Tamil Nadu v. R. Krishnamurty (AIR 1980 SC 538), the definition of "food" is explained by the Apex Court as follows:
"5. According to the definition of 'food' which we have extracted above, for the purposes of the Act, any article used as food or drink for human consumption and any article which ordinarily enters into or is used in the composition or preparation of human food is '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. It is notorious that there are, unfortunately, in our vast country, large segments of population, who, living as they do, far beneath ordinary subsistence level, are ready to consume that which may otherwise be thought as not fit for human consumption. In order to keep body and soul together, they are often tempted to buy and use as food, articles which are adulterated and even unfit for human consumption but which are sold at inviting prices, under the pretence or without pretence that they are intended to be used for purposes other than human consumption. It is to prevent the exploitation and self-destruction of these poor, ignorant and illiterate persons that 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 purpose 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."
Therefore, to become food, one need not exhibit as food for human consumption or only poor people take for consumption is not a ground for excluding the same. Any article which is generally or commonly used for human consumption in the preparation of food will come within the definition of food. In the above case, gingelly oil was mixed with ground nut oil and it was the contention of the accused therein that it was not food for human consumption. The Supreme Court further held as follows:
"11. That gingelly oil, however described or exhibited, is an article of food is not an end of our problem. We have further to investigate the definition of 'sale'. Now, the definition is designedly wide. It seems a real sale as well as an 'embryonic' sale (like agreement for sale, offer for sale, exposure for sale, possession for sale, attempt at sale) are sales for the purposes of the Act. The sale may be for cash or credit or by way of exchange. The sale may be by wholesale or retails. 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, just as the words 'whether by wholesale or retail' or 'whether for cash or credit or by way of exchange' are intended to emphasise that it is immaterial for the purposes of the Act what manner and method of sale is adopted. 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."
6. The learned counsel for the petitioner/accused cited the decision reported in Shah Ashu Jaiwant v. State of Maharashtra (AIR 1975 SC 2178). There, black til seeds were sold. The Supreme Court held as follows:
"Hence, where Section 7 prohibits manufacture, sale or storage or distribution of certain types of "food", it necessarily denotes articles intended for human consumption as food. It becomes the duty of the prosecution to prove that the article which is the subject-matter of an offence is ordinarily used for human consumption as food whenever reasonable doubts arise on this question. It is self-evident that certain articles, such as milk, or bread, or butter, or food grains are meant for human consumption as food. These are matters of common knowledge. Other articles may be presumed to be meant for human consumption from representations made about them or from circumstances in which they are offered for sale. What is the position in this respect about black Til seeds with which we are concerned here?"
In the above case, in the cash memo itself it was stated that til seeds were sold only for pooja. In such circumstances, it was held that til seeds sold in that case was not a food article. The Supreme Court held as follows:
"11. It is submitted that it is a matter of common knowledge that black Til seeds are not used as food. Even if this be true, it is not so widely known a fact that we could lake judicial notice of it. It is also urged that when the case of the appellant, supported by his cash memo, is that the particular black "Til" seeds were meant to be sold only for pooja for being burnt like incense or thrown into fire in the course of pooja, it cannot be said that this case had been repelled by the mere statement of the Food Inspector that they can be used as food also. Such a statement amounted at least to a partial admission that they are used for pooja....................... We are left in doubt on this question on the evidence in this case. We think that the appellant must get she benefit of that doubt."
7. We have seen that horse gram (muthira) is ordinarily taken as a food by the poor people and there is no evidence to show that it is used only as a mere cattle feed. Even the accused in this case had no case that it was sold as a cattle feed. It was sold in the grocery store alongwith rice and other food articles. It is an admitted case that accused also did not make any representation that it is not intended for human consumption. Therefore, on the evidence adduced in this case and from the circumstances stated above, horse gram is used as food article. The contention that muthira is hot a food fit for human consumption cannot be accepted. We agree with the observations of Basant, J. and hold that muthira is a food as defined under Section 2(v) of the Act and a contrary view was taken in Crl.R.P. No. 835 of 1994 only because of the absence of evidence and materials in that case.
8. With regard to the sampling etc., there is no specific contention that any of the rules are violated. However, we note that PW1 Food Inspector has stated that muthira was kept in a gunny bag and he purchased only 750 grams. He also stated that stones etc. will be found more in the lower parts of the gunny bag and at the time when he had taken muthira as sample, what was left in the gunny bag was not noticed by him.
When accused was examined as DW1, he staled that he purchased the muthira from Quality Traders in a 75 Kgs. gunny bag and at the time when sample was taken there was only 5Kgs. left in the gunny bag. He stated as follows:
Ext D1 also shows that he purchased one gunny bag containing 75 Kgs. of horse grain.
9. Now, we will consider the analysis report. The sample analysis report Ext.P12 shows as follows:
"The sample consists of Horse gram.
Extraneous organic matter (Stalk Stem and Mustard seeds) :
0.9 per cent by weight Extraneous inorganic mailer (stones) :
2.6 percent by weight Damaged grains :
Absent Insect damage (Weevilled grains) :
1.6. per cent by count Rodent hair and excreta :
Absent Moisture :
7.4. per cent Artificial colouring matter :
Absent."
10. A. 18.06 of Appendix B prescribed under Rule 5 of the Prevention of Food Adulteration Rules, 1955 prescribes the following standard of quality for foodgrains:
"A. 18.06. Foodgrains meant for human consumption shall be whole or broken kernels of cereals, millets and pulses. In addition to the undermentioned standards to which foodgrains shall conform, they shall be free from argemone maxicana and kesari in any form. They shall be free from added colouring matter. The foodgrains shall not contain any insecticide residues other than those specified in column (2) of the table of Rule 65 and the amount of insecticide residue in the foodgrains shall not exceed the limits specified in column (4) of the said table. The food grains meant for grinding/processing shall be clean, free from all impurities including foreign matter (extraneous matter).
A.18.06.14is as follows:
A. 18.06.14 - Any other foodgrains not specified above shall conform to the following standards, namely:-
(i) Moisture
-
Not more than 16 per cent (obtained by heating the pulverised grains at 130 degree Centigrade for two hours).
(ii) Foreign matter (Extraneous matter)
-
Not more than 1 per cent by weight of which not more than 0.25 per cent by weight shall be mineral matter and not more than 0.10 per cent by weight shall be impurities of animal organ.
(iii) Other edible grains
-
Not more than 6 per cent by weight.
(iv) Weevilled grains
-
Not more than 10 per cent by weight.
(v) Damaged grains
-
Not more than 5 per cent by weight
(vi) Uricacid Not more than 100 mg. per Kg.
(vii) Aflatoxin Not more than 30 micrograms per kilograms:
Provided that total of foreign matter, other edible grains and damaged grains shall not exceed 12.0 per cent by weight."
Therefore, the total foreign matter other than edible grains are damaged grains shall not exceed 12%. Here, it is within that limit and damaged grains and rodent hair etc. were absent in this case. Foreign matter allowed is upto 1%. Moisture is only 7.5% whereas 16% is permitted. But, the foreign matter should not be more than 1% by weight. Here, it is 2.6% by weight. Foreign matter is explained in the Explanation. It is as follows:
"(a) "foreign matter, means any extraneous matter other than foodgrains comprising of -
(i) inorganic matter consisting of metallicpieces, sand, gravel, dirt, pebbles, stones, lumps of earth, clay and mud, animal filth and in the case of rice, kernels or pieces of kernels, if any having mudsticking on the surface of the rice, and
(ii) organic matter consisting of husk, straws, weed seeds and other inedible grains and also paddy in the case of rice."
Here, the foreign matter is mainly stones etc. It is of common knowledge that if foodgrains of 75 Kgs. quantity is stored in a gunny bag kept in a verticial position and foodgrains are taken from the top for retail sales, it is likely that stones etc. will come down so that at the bottom impurities will be more. But, that will not give a good defence to the seller as a customer who buys the food article will not get the standard quality. However, this may have some effect when point No. 3 is considered. In fact, the Food Inspector purchased 750 grams of muthira and he sampled it according to law and as per the Rules and the second point also has to be answered in favour of the prosecution.
11. Third question is whether petitioner/accused is entitled to the benefit of Section 19(2) of the Act. Section 19 of the Act reads as follows:
"19. Defences which may or may not be allowed in prosecutions under this Act.-
(1) It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves -
(a) that he purchased the article of food -
(i) in a case where a licence is prescribed for the sale thereof, from a duly licensed manufacturer, distributor or dealer.
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
(3) Any person by whom a warranty as is referred to in Section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence."
12. Section 14 explains "warranty" which is as follows:
"14. Manufacturers, distributors and dealers to give warranty.- No manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor:
Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.
Explanation: In this section, in Sub-section(2) of Section 19and in Section 20A, theexpression "distributor" shall include a commission agent."
Therefore, a bill itself is a warranty in view of the proviso to Section 14. Here, the contention of the petitioner/accused is that he purchased the muthira from Quality Traders by Ext.D1 bill and he is entitled to the benefit of Section 19(2) of the Act. Ext. D1 bill is dated 2.8.1986. In the bottom of the bill, it is stated as follows:
"We hereby certify that food/foods mentioned in this invoice is/are warranted to be of the nature and quality which it/these purports/purport to be".
Even otherwise, in view of the proviso to Section 14, there is deemed warranty. When accused was examined as DW1, he stated that when sampling was taken, he was not asked from where he purchased the horse gram. The Food Inspector never enquired with him from where he purchased it. In chief examination, DW1 has categorically stated that he purchased it from Quality Traders on 2.8.1986 and Ext. Dl is the bill. He also stated hat he sold it in the same state as he purchased it. He deposed as follows:
He was not at all cross-examined with respect to that aspect. DW4 who was the proprietor of Quality Traders also admitted that Ext. D1 bill is issued by his shop. Notwithstanding the evidence of DW1 or DW4, licensed wholesale dealer was not impleaded under Section 20A of the Act or under any of the provisions of the Code of Criminal Procedure. It is true that a person who is entitled to the benefit of Section 19(2) has to prove the defence. Here, accused has proved the same by producing Ext.D1 and by deposing that he has carefully stored it and sold it in the same state as he purchased it. That part of the deposition was not even cross-examined. No attempt was made to implead the Quality Traders in the proceedings. We are of the opinion that petitioner/accused in this case is entitled to the benefit under the section as he has fully discharged his burden to the extent necessary under the above section. (See: P. Unnikrishnan v. Food Inspector - AIR 1995 SC 1983).
13. It was argued by the Prosecutor that the goods were sold in the gunny bags and it was not kept in the same manner. But, the Supreme Court in Andhra Pradesh Grain and Seed Merchants Association and Ors. v. Union of India and Anr. (AIR 1971 SC 2346) held that a vender who opens a container of a branded article and sells it in retail does not lose the protection under Section 19(2) merely because he opens the container and sells it in retail. The only condition is that he must sell the article in the same condition in which it was purchased. The Supreme Court held as follows:
"8.................. By Sub-section (2) of Section 19, even in respect of the absolute offence, the Parliament has enacted that on proof of certain facts, criminal liability will be excluded. Thereby a vendor is not deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that he purchased the articles of food from a duly licensed manufacturer, distributor or dealer in a case where a licence is prescribed for the sale thereof, and in any other case from any manufacturer, distributor or dealer with a written warranty in the prescribed form, provided the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. The argument of counsel for the petitioners that the provision that a retail seller who opens a container of a branded article of food loses even the limited protection under Section 19(2) is without substance. Clause (b) of Sub-section (2) of Section 19 does not provide, nor does it imply, that if the container of a branded article is opened, the article of food ceases to be in the same state in which the vendor purchased it. If the article of food is sold in the same condition in which it was purchased from a licensed manufacturer or dealer, or was purchased with a warranty, the vendor will not lose the protection of Sub-section (2) of Section 19 merely because he opened the container."
In Food Inspector v. Shoukath Ali (1989 (1) KLT 323), Justice K.T. Thomas as he then was, held as follows:
"5. Section 19(2) of the Act says that a vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or mishranded article of food if he proves that he purchased the article of food from a duly licensed manufacturer, distributor or dealer with a written warranty in prescribed form and "that the article of food while in his possession was properly stored and that he sold it in the same state ask he purchased it." There is no finding that the article was not properly stored. The evidence of DW1 shows that the coriander was properly stored. That aspect was not challenged in cross-examination. But the question is whether by opening its package the "state" of the food article would be disturbed or changed. Section 19(2) is primarily intended to give protection to the retail dealers. If a retailer is not permitted to sell the article in retail after he purchases it from a wholesale dealer it would affect the trading system of retail business. Oneof the usual modes of retail business is to buy articles in bulk and sell them in smaller qualities. The Legislature would never have intended that the retailer would be permitted to avail the defence envisaged in Section 19(2) only if he sells the food article in the same package or container without opening them............... There cannot be a hard and fast rule that every article is liable to change its state when it is disinterred from its container. Coriander is certainly not that type of article which undergoes transformation through disinterment from its package. No cereals or other edible grains would lose its state, in normal conditions, by its exposure from the packages."
We respectfully agree with the above observation. In this case, the petitioner/accused clearly stated that he kept the article in the same state and that was not contradicted. Therefore, accused has discharged his burden under Section 19(2) of the Act and he is entitled to the benefit of the above section.
14. It is also argued by the Prosecutor that he did not produce the bill and warranty when sampling was taken. Nowhere it is stated in the section that the warranty or bill should be produced at the time when sampling is taken. The Act does not say that Bill or warranty should be shown to the Food Inspector at the time of the seizure. All that Section 19(2) of the Act provides is that the vendor shall not be deemed to have committed any offence if the conditions have been fulfilled.
From the foregoing discussions, we arrive at the following conclusions:
(1) Horse gram (muthira) is an item of food as defined under Section 2(v) of the Prevention of Food Adulteration Act, 1954;
(2) The decisions in Assan v. Food Inspector (Crl. R.P. No. 814 of 1989 and K. Ibrahim v. State of Kerala (Crl. R.P. No. 835 of 1994) are rendered only because of insufficiency of evidence in those cases and those decisions are not laying down any general proposition;
(3) A vendor who opens the container of food article and sells it in retail will not lose the protection under Section 19(2) of the Prevention of Food Adulteration Act, 1954 merely because he opens the bulk container and sells it in retail provided he proves that he purchased the article of food with warranty from a duly licensed manufacturer, distributor or dealer and the article of food was properly stored while in his possession and that he sold it in the same state as he purchased it;
(4) For getting the benefit under Section 19(2) of the Prevention of Food Adulteration Act, 1954, it is not mandatory that the accused should produce the bill or warranty when the sample was taken by the Food Inspector; and (5) The burden is on the accused who takes the defence that he is entitled to the protection of Section 19(2) of the Prevention of Food Adulteration Act, 1954.
15. Since the petitioner/accused has discharged the burden that he is entitled to the benefit under Section 19(2) of the Act, his conviction has to be set aside. Therefore, we set aside the conviction and sentence passed against the petitioner/accused and he is acquitted. The Crl. Revision Petition is allowed.