Andhra HC (Pre-Telangana)
Grandhi Venkataramarao vs State Of Andhra Pradesh on 28 January, 1992
Equivalent citations: 1992(3)ALT306
ORDER 1. This criminal revision is filed against the Judgment in Crl.A. No. 142/90 dt. 3-12-90 on the file of the Sessions Judge, Guntur. This is a case of adulteration wherein the accused was convicted and punished for an offence under Section 16(1)(a)(i) read with Section 7(i) and (2) (ia) and (m) of the P.F.A. Act. The learned Counsel for the petitioner relied upon a judgment of this Court in Abdul Gafoor v. State of A.P., 1986 (2) ALT 405 and contended that mixing a little of castor oil with groundnut oil does not amount to adulteration under Section 16(a)(i) but attracts Second proviso to Section 16. In that case the learned Judge held as follows:- "It is a matter of common knowledge that castor oil in limited doses is consumed though not as a drug. It can, therefore, safely be concluded that the second proviso to Section 16 is attracted to the facts of this case inasmuch as mixing a little quantity of castor oil with groundnut oil does not amount to adulteration within the meaning of Section 16(1)(a)(i) of the Act but such an adulteration comes only within the meaning of Section 16(1)(a)(ii) and is in respect of Rule 44(e)." In the case of adulteration that is proved, the Court is bound to convict the accused for a minimum period of three months or six months depending upon the nature of the case. But if the above decision is applied, the possibility of convicting the accused under the main Section is completely ruled out and the benefit of Second Proviso to Section 16 has to be given. If that is so, the very intention of the Legislature in making the provisions stringent is lost. Hence, this Court feels that the matter has to be decided by a Bench. Hence, the papers may be placed before My Lord the Chief Justice for orders regarding posting the matter before a Bench. This Crl.R.C. coming on for final hearing before the Hon'ble Sri Justice Sivaraman Nair and the Hon'ble Sri Justice Jagannadha Raju, finally on 28-1-1992, pursuant to the Order of reference of the Hon'ble Sri Justice Radha Krishna Rao, dt. 24-9-91, upon perusing the said order dt. 24-9-92 the Petition in Crl.R.C, the order of tine Lower Court and the material papers connected thereto and upon hearing the arguments of the Counsel, appearing on behalf of the parties concerned, the Court delivered the following Judgment. JUDGMENT Sivaraman Nair, J.
1. Is castor oil an edible oil and 'food' as defined in Section 2(v) of the Prevention of Food Adulteration Act? Is its admixture with ground-nut oil an offence under Section 16(1)(a)(i) or is it an offence only under Section 16(1)(a)(ii) of the Prevention of Food Adulteration Act. These questions arise in this criminal revision case which comes up before us on a reference by our learned brother Radhakrishna Rao, J. He could not persuade himself to agree with the finding in Abdul Gafoor v. State of A.P. (1 supra) that castor oil is an edible oil and therefore the offence of admixture of castor oil with ground-nut oil and its sale as ground-nut oil is an offence punishable under Section 16(1)(a)(ii) of the Act. Hence the reference.
2. The relevant facts which are not in dispute are the following: Petitioner was the accused in C.C. No. 28/90, on the file of the Munsif Magistrate, Narasaraopet in Guntur district. On 22-9-89 at about 3.15 P.M. the Senior Food Inspector, Guntur, inspected the business premises of the accused known as M/s. Laxmi General Stores, Chejerla village, Nekarikal Mandal of Guntur District. The accused had groundnut oil for sale in his shop. The Food Inspector purchased a sample of 450 grams of groundnut oil on payment of its price of Rs. 13/-, for sampling and analysis. The Public Analyst, Hyderabad, who analysed one of the samples sent up to him found traces of castor oil in that sample. He also found that some of the tests indicated that the ground nut oil did not conform to the standard requirements. Petitioner was prosecuted for an offence under Section 16(1)(a)(i) read with Section 7(i) and Section 2(ia)(m) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act). The trial court found him guilty and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs. 5,000/-. Petitioner appealed to the Sessions Judge, Guntur, who affirmed the conviction as also the sentence of imprisonment. He however, reduced the cash penalty from Rs. 5,000/- to Rs. 2,000/-.
3. Counsel for the petitioner submits that castor oil is an edible oil as was found in Abdul Gafoor (1 supra) and as such, there was no adulteration as defined in Section 2(ia) (m) of the Act. If there was no such adulteration, he submits that Section 16(1)(a)(i) would not be attracted, since the prosecution had no case of misbranding within the meaning of Section 2(ix) of the Act. He submits further that if Section 16(1)(a)(i) was not attracted, the only offence would be contravention of Rule 44(e) of the Prevention of Food Adulteration Rules, (for short, 'the Rules') which falls within Section 16(1)(a)(ii) of the Act. it is his further submission that in that event, the second proviso to the section would apply and it was not obligatory to impose the minimum sentence of imprisonment for six months. He also submits that Ex.P. 10 report of the Public Analyst indicates that the standard of the of fending article was tested otherwise than in accordance with the provisions of entry A. 17.03 of the Appendix 'B' of the Rules and hence the report should not have been acted upon to hold the accused guilty.
4. It is true that in Abdul Gafoor (1 supra), Jayachandra Reddy, J., assumed that in the absence of a definition of 'Edible Oil' castor oil may as well be one of the edible oils and therefore may satisfy the definition of 'Food' under Section 2(v) of the Act. The reason mentioned was that "an oil which has only a medicinal value in one area is used as edible oil in other areas" and that "it is a matter of common knowledge that castor oil in limited doses is consumed though not as a drug." It was further held that: -
"It can, therefore, safely be concluded that the second proviso to Section 16 is attracted to the facts of this case inasmuch as mixing a little quantity of castor oil with ground nut oil does not amount to adulteration within the meaning of Section 16(1)(a)(i) of the Act but such an adulteration comes only within the meaning of Section 16(1)(a)(ii), and is in respect of Rule 44 (e)."
5. Counsel for the petitioner urged before us the same submissions: that in the absence of a definition of edible oil, castor oil, consumption of which as a food is not prohibited, has to be treated as 'food' as defined in Section 2(v) of the Act and therefore the offence falls under Section 16(1)(a)(ii) of the Act, being an offence only of contravention of Rule 44(e) of the Rules.
6. We are not persuaded to agree. Section 2(v) of the Act defines 'food' in the following terms:
"2 (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 flavouring 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."
7. The essential requirement is that the article must ordinarily enter into or is used in composing or preparing human food and may include materials which may enhance its taste or quality to nourish. The emphasis is that it must ordinarily be an article of food. Necessarily therefore, extraordinary or exceptional cases are not within the knee of this definition. Conversely, an article which is food applying the above test cannot cease to be food be pedantic and scholarly but hardly common sense approaches.
8. In dealing with the question as to what shall be 'food' for purposes of the Act, the Supreme Court observed as follows in Pyar Ali K. Tejani v. M.R. Dange and Ors., :
"The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word" and "The Act defines 'food' very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is common place knowledge that the word 'food' is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. As supari is eaten with relish by men for taste and nourishment it is food within the meaning of Section 2(v) of the Act."
9. The question which we have to ask ourselves and answer is whether castor oil can be considered as an article "consumed with relish by men for taste and nourishment"? The only answer can be an emphatic negative. It is an unpalatable concoction which is forced down the throat of people on rare and infrequent occasions as an unavoidable necessity. It cannot, therefore, be treated as 'food' or 'edible oil' as commonly understood. The only fact that for certain purposes, on certain occasions, and in certain regions, small doses of castor oil is consumed by humans cannot make it 'food'. If it is not 'food', its admixutre with an article of 'food' involves an offence under Section 2(ia)(m) read with Section 7(i) and 16(1)(a)(i) of the Act.
10. The learned Public Prosecutor submitted that 'edible oils' are exhaustively enumerated in item A-17 of Appendix B of the Rules. As many as 24 different types of edible oils are mentioned under the above entry; 'castor oil' is not one among them. He submits that inclusion of every item of 'Edible Oil' in Appendix-B is the product of deliberations by Central Committee for Food Standards constituted under Section 3 of the Act, and it cannot, therefore, be urged that one of the items of 'edible oils' was omitted; and notwithstanding its omission, it shall still be considered as an 'Edible Oil'. That reasoning appealed to the Supreme Court in P.K. Tejani's case, . We do not find any reason to persuade ourselves otherwise. We are therefore inclined to hold that enumeration of 'edible oils' in Clause 17 of Appendix-B is exhaustive. It naturally follows that 'castor oil' which is not included in the enumerated items is not 'edible oil' and is therefore not a 'food'.
11. Rule 44(e) will be attracted only in a case where a person either directly, or indirectly by any servant or agent, sells a mixture of two or more edible oils as an edible oil. Reference is made to the decision of the Supreme Court in Tulsiram v. State of M.P., which involved admixture of 'Soyabean Oil' with 'Cotton Seed Oil' and its sale as Soyabean oil. Soyabean Oil is item A. 17.13 whereas Cotton Seed Oil is A. 17.02. It is therefore clear that there was an admixture of two edible oils and its sale as one or the other of the two was prohibited by Rule 44(e) of the Rules. The second submission advanced before the Supreme Court was mixing of cotton seed oil with Soyabean Oil could not be considered as adulteration of Soyabean Oil, since such mixture was not injurious to health and therefore the accused was not liable to be convicted under Section 16(1)(a )(i) of the Act. The Supreme Court repelled that contention and held that:-
"It is, therefore, seen that the sale of article of food, the sale of which is prohibited by any rule made under the Act, also renders the person selling the article of food liable to punishment under Section 16(1)(a)(i). Rule 44(e) prohibits the sale of a mixture of two or more edible oils as an edible oil. A mixture of Soyabean Oil and cotton seed oil cannot, therefore, be sold as Soyabean Oil irrespective of whether the mixture has affected the Soyabean Oil injuriously or not."
12. In the present case, on the basis of the finding that castor oil is not 'food' nor 'edible oil' Rule 44(e) will not be attracted. On the other hand, Section 2(ia)(m) of the Act will be attracted. Therefore, the offence falls under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act.
13. Even assuming 'castor oil' is an 'edible oil' the sale of groundnut oil mixed with castor oil as the former being totally prohibited, it will still be an offence falling under Section 16(1)(a)(i) of the Act as found in Tulsiram, .
14. We have already indicated that we find it difficult to persuade ourselves to agree with the decision in Abdul Gafoor (1 supra). This view of ours is also supported by the decision of the Supreme Court in State of Tamil Nadu v. R. Krishna Murthy., Counsel for the petitioner submitted that the above decision was rendered in a prosecution which was launched prior to the Amendment Act 34 of 1976. We however, find that the principle of the decision is applicable to situations arising even after the amendment. Even otherwise the decision in Tulsiram v. State of M.P., applies on all fours.
15. We do not propose to consider the point that the Public Analyst applied different tests than those specified in the Appendix. Apart from the fact that the petitioner had not taken any such point in the trial court or appellate court, his conduct in not requiring the court to send the 2nd sample for analysis by the Central Food Laboratory as enabled by Section 13(2) of the Act disentitles him from urging this ground in these proceedings.
16. We, therefore, overrule the decision in Abdul Gafoor v. State of A.P. (1 supra), and hold that castor oil is not edible oil and that it is not 'food' as defined in Section 2(v) of the Prevention of Food Adulteration Act. We hold that admixture of groundnut oil which is 'food' by definition and 'Edible oil' by enumeration, with castor oil which is neither, and its sale as groundnut oil is not contravention of Rule 44(e) of the Rules. On the other hand, it involves adulteration of groundnut oil with an extraneous substance which is not defined as 'food' and its sale as an edible oil. Naturally, therefore, the offence which was committed was punishable under Section 16(1)(a)(i) of the Act to which the second proviso of that Section does not apply.
17. The plea that the petitioner being only a small dealer selling groundnut oil and castor oil separately but using the same funnel did not appeal to the trial court or the appellate court. Here again we do not find any reason to differ. Nor be we find our way to reduce the sentence, since the Parliament in its wisdom, has made a minimum term of imprisonment obligatory even ignoring exceptional cases where leniency may perhaps be needed.
18. In this view, the conviction and sentence of the petitioner by the trial court as modified by the appellate court cannot but be held to be right. We, therefore, dismiss the Revision Petition.