Bombay High Court
Bhagwandas S/O Khimji Patel vs State Of Maharashtra And Another on 20 September, 1991
Equivalent citations: 1991(4)BOMCR593, 1992CRILJ2022
ORDER
1. This criminal revision application is directed against the Judgment and order passed by the Addl. Sessions Judge, Akola dt. 17-8-90 in Criminal Appeal No. 172/87 arising out of and confirming the judgment and order passed by the J.M.F.C. Akola in criminal case No. 431/1981, dated 5-12-1987, convicting the applicant/accused u/S. 16 of the Prevention of Food Adulteration Act and sentencing him to suffer R.I. for 2 years and to pay a fine of Rs. 3000/-, in default to suffer further R.I. for 6 months.
2. The accused was tried for the offence u/S. 7(i) r/w S. 2(ia)(m) punishable u/S. 16 of the Prevention of Food Adulteration Act. The facts giving rise to the prosecution are, briefly, stated as under :
Shri Mankar - Complainant, who is a food Inspector has been notified by the State Govt. for Akola district u/S. 9 of the Prevention of Food Adulteration Act, 1954. The appointment of Shri Mankar is as per notification No. PFA/1072/52885/V dt. 22-2-1973 and the Jt. Commissioner of Food and Drug Administration, Nagpur, has notified him by the notification of State Govt. No. FA/1276/1835/PH-4-III dt. 5th October, 1976. While working as Food Inspector, District Akola and other revenue areas under the control of the complainant-Shri Mankar, on 24-9-80 at about 9-0 a.m. visited the shop of the applicant/accused at Jaihind Chauk, Akola. The accused who deals in grocery shop runs his business under the name and styled "M/s. Shriram Kirana Stores". The applicant/accused Bhagwandas was present in the shop. Shri Mankar disclosed his identity and his intention of drawing sample of coconut oil which was stored and kept for sale in the shop of the accused.
In presence of the panch witnesses Shri Mankar demanded 375 grams of coconut oil and had paid Rs. 7.50/- for the same. A notice was issued in form No. VI and a receipt was obtained from the accused. A notice under S. 14(a) was also issued to the accused for which a receipt was obtained from him. A sample of coconut oil purchased from the accused was then divided in three equal parts and each part was filled upon the clean, dry and empty bottles which were duly closed with the help of cork. The bottles were sealed as per the procedure laid down in the Act. The complainant thereafter prepared all required documents, labels and had signed the same and obtained signatures of accused and panchas. Panchanama to that effect was drawn on the spot.
Shri Mankar - the complainant, on 25-9-80 sent on sealed sample bottle of coconut oil bearing Sr. No. 521 to Local Health Authority and Chief of Municipal Council, Akola and form No. VII in sealed packet to Public Analysts for Health Laboratory, Amaravati. The another sealed packet and copy of form No. VII and specimen impression of seal used for sealing the samples was sent separately to Public Analyst, Public Health Laboratory, Amravati. The complainant also sent remaining two sealed counter-parts of sample to Local Health Authority and Chief Officer to Munkcipal Council, Amravati along with copies of form No. VII and copy of appendix 'D' in sealed packet by a hand delivery.
The Public Analysts of Public Health Authority, Amravati has reported the adulteration in sample of coconut oil and opined that the sample of coconut oil does not confirm to the standard of coconut oil as per the provisions of Prevention of Food Adulteration Act and Rules 1955, vide his report dt. 5-11-80. Thereafter, Shri Mankar sent all the concerned papers to the Local Health Authority and Chief Municipal Council, for necessary permission from the Joint Commissioner, Food and Drug Administration, Nagpur to prosecute the accused. On receipt of the sanction from the Joint Commissioner, Nagpur, the complainant Shri Mankar had filed the complaint against the accused u/S. 7(i) r/w 2(ia)(m) of the Prevention of Food Adulteration Act.
The learned J.M.F.C., Akola after considering the prosecution evidence and also the defence, arrived at the conclusion that the applicant/accused has committed the offence and, therefore, he was convicted and sentenced vide order dt. 5-12-87.
Being aggrieved by the judgment and order of conviction and sentence passed by the J.M.F.C., Akola on 5-12-87, a criminal appeal No. 172/87 was preferred before the Sessions Judge, Akola. The criminal appeal was heard by Addl. Sessions Judge, Akola who confirmed the order of conviction passed by J.M.F.C. Akola, however, modified the sentence to the effect that the applicant/- accused to suffer R.I. for 6 months and to pay fine of Rs. 3000/- in default to suffer R.I. for 3 months, vide order dt. 17-8-90.
3. Shri Sirpurkar, the learned counsel for the applicant/accused mainly attacked the findings of both the learned lower courts and submitted that the coconut oil is not used in Akola as a 'food' but it is used as a 'hair oil'. In spite of such evidence, both the learned lower courts committed errors in arriving at the findings that the coconut oil is a food as it is used for eating. The prosecution has to prove that the particular article which is sold must be "Food". The coconut oil is used as a cooking material in the State of Kerala only. Though the Prevention of Food Adulteration Act is applicable to the whole of India, but one article used as a 'food' in the part but in other parts it is not used as a 'food' or cooking substance but used as cosmetic, whether the person who deals in that part commits the offence punishable under the provisions of the Prevention of Food Adulteration Act, 1954.
4. Shri Pande, the learned P.P. on the contrary submitted that it is immaterial whether coconut oil is used as food or cooking substance in one part of India and the same used as cosmatic or hair oil in another part of India, because the Prevention of Food Adulteration Act is an All India Act and if the coconut oil can be considered to be 'food' in areas where it is used as a cooking medium or for other food purposes, it would be deemed to be 'food' in Vidarbha Region also. A reliance has been placed on the case of Municipal Board, Kanpur v. Janki Prasad (Full Bench). In the case before Their Lordships, there was no dispute that linseed oil was recovered from the possession of the respondents who had stored it for sale. The report of the Public Analyst clearly shows that the same was adulterated. Therefore, if linseed oil can be covered by the definition of the word 'food' in the Act. The defence of the accused was that in Uttar Pradesh, linseed oil is not consumed as a food and, therefore, it was agitated that linseed oil can not be considered as 'food'. Their Lordships did not accept the submission made on behalf of the accused and observed as follows (at page 246) :
"It is, however, contended that it is not used in Uttar Pradesh and in major parts of the country. That it is not so used in Uttar Pradesh is immaterial because the Act is, as we have already said above, an All-India Act, and if linseed oil can be considered to be food in areas where it is used as a cooking medium or for other food purposes it would be deemed to be 'food' in Uttar Pradesh also. It cannot be readily assumed that though the word 'food' is comprehensive enough to include linseed oil in its ambit in some of the southern States it cannot so include it in Uttar Pradesh. The same word in a statute cannot have two different and diametrically opposite meanings in two different local areas governed by the same statute".
Further, Their Lordships discussed the meaning of the word ordinarily which is used in S. 2(5) of the Act, as under (at page 246) :
"In our opinion it is in the sense of non-exceptional or usual that the word 'ordinarily' has been used in section 2(v) of the Act. The word 'ordinarily' does not mean "primarily" nor does it mean "universally". It does not also mean "generally". By the use of the word 'ordinarily' the legislature intended to provide that if an article enters into or is used in the composition or preparation of human food even by some people usually and not as exception it would be deemed to be 'food'.
5. Shri Sirpurkar, the learned counsel for the applicant/accused further submitted that it is the burden on the prosecution to discharge and thereby to prove that the article purchased by the Food Inspector was stored and sold for consumption as an article of food u/S. 2(v) of the Prevention of Food Adulteration Act. S. 2(v) of the Act reads is follows :
"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 Govt. may having regard to its use, nature, substance or equality, declare by notification in the Official Gazette, as food for the purposes of this Act;".
Shri Sirpurkar, the learned counsel for the applicant further submitted that there is no dispute that the coconut oil used as "food" in India but it is used for consumption in Kerala State only. In other parts of India, it is used as hair oil. Under the circumstances, if coconut oil is stored and sold by the shop-keepers, the prosecution has to prove that in that particular part, the coconut oil is used as "food". A reliance has been placed on the case of The State of Tamil Nadu v. R. Krishnamurthy, . The question before their Lordships was that whether the sale of adulterated gingelly oil which is sold or offered for sale for external use is sale of an article of food which is adulterated. Their Lordships in para 5, observed as follows (at page 404) :
"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 though 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 purposes of the Act, an article need not be described or exhibited as intended for human consumption, it may even the 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. Where an article is generally or commonly not used for human consumption or in the preparation of human food but for some other purpose, notwithstanding that it may be capable of being used, on rare occasions, for human consumption or in the preparation of human food, it may be said, depending on the facts and circumstances of the case, that it is not food. In such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But 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'. Gingelly oil, mixed or not with groundnut oil or some other oil, whether described or exhibited as an article of food for human consumption or as an article for external use only is 'food' within the meaning of the definition contained in S. 2(v) of the Act."
In para 7, their Lordships referred the case of Andhra Pradesh Grain and Steel Merchant's Association v. Union of India .
Their Lordships further considered another case of Shah Ashu Jaiwant v. State of Maharashtra, , and observed that "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 a milk, or bread, or butter, or foodgrains 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".
In para 9, their Lordships further observed as under :
"The seeming confusion created by the observations in the two cases will disappear if they are properly understood in the context in which they were made. In the first case the Court was considering the argument based upon the supposition that there might be articles which were 'food' somewhere and not 'food' elsewhere. The Court first remarked that there were no articles which were used as food only in one part and were not at all used as food in another part of the country. In such an unlikely event, the person selling the article could inform the purchaser that the article sold was not meant to be used as an article of food. If prosecuted he could establish that in that area what he sold was not an article of food at all. That was all that was observed. If the expression 'food' is understood as we have explained earlier, there would be no occasion for any confusion".
In para 10, their Lordships observed that :
"In the second case i.e. Shah Ashu Jaiwant v. State of Maharashtra, are in accord with what we have said. The court merely observed that if there was any doubt in a particular case whether an article was ordinarily used for human consumption in order to fall within the definition of 'food', the prosecution would have to prove the same".
In case of Luxmi Chand Rustogi v. Corporation of Calcutta, 1980 Cri LJ 22 (Calcutta). In that case the prosecution was u/Ss. 7 and 16(1)(a)(i) of the Prevention of Food Adulteration Act. In para 23, their Lordships observed that :
"It has already been pointed out that when on the prayer of the accused the tin in question kept in the Malkhana of the court was brought, it was found printed on the label that it was non-edible and perfumed coconut oil. So such oil was not kept and stored for human consumption, as alleged on behalf of the prosecution. We do not accept the contention put forward on behalf of the respondent. We hold that the charge u/S. 7 read with S. 16(1)(a)(i) of the Prevention of Food Adulteration Act has not been established again the accused appellants".
In the case of Ashok Kumar v. State of Himachal Pradesh, 1985 Cri LJ 105 (Him-Pra) the contention was raised that "Gur is ordinarily used for human consumption and that even if it is 'raskat gur', which may be used as a food for animals, cannot be excluded from the definition of 'food'. The case of State of Tamil Nadu v. R. Krishnamurthy, , has been discussed and in para 10, it is observed as follows :
"The inevitable conclusion that can be drawn from the evidence on record is that the petitioner sold the gur to the Food Inspector as 'raskat' meant for animals' consumption at a comparatively lower rate than the rate of gur meant for human consumption. There is no material on record to show that 'raskat' gur is ordinarily used for human consumption".
In para 11, their Lordships also discussed the same issue and observed as follows :
In Shah Ashu Jaiwant case (supra) (1975 Cr. LJ 1868) (SC) the decision is given by three Hon'ble Judges of the Supreme Court, including the then Chief Justice, whereas the State of Tamil Nadu case (1980 Cri LJ 402) (SC) (supra) has been decided by two Hon'ble Judges of the Supreme Court. In the said decisions in para 10, their Lordships have observed as under;
"The observations in the second case are in accord with what we have said. The Court merely observed that if there was any doubt in a particular case whether an article was ordinarily used for human consumption in order to fall within the definition of 'food' the prosecution would have to prove the same".
6. Shri Vasant Manikrao Mankar Food Inspector in cross-examination deposed that :
"It is true that in Vidarbha Region the coconut oil is also used for hair oil".
According to Mr. Sirpurkar, the learned counsel for the applicant, as the word "also" been used, it has altogether changed the meaning and import. He attracted my attention to the vernacular deposition of Shri Vasant Mankar. In vernacular, it is written as under :
This specified that in the Vidarbha Region coconut oil is used as hair oil.
7. P.W. 2 Digambar Dhondopant Deshpande a public analyst in Public Health Laboratory, Amravati in para 3 deposed as under :
"To find out the possible oil mixed in coconut oil I performed 3 specific tests, as follows :-
1. Sea some oil test - I got negative reading.
2. Cottonseed oil test - I got negative reading.
3. Argemone oil test - I got negative reading.
On performing above test though I could not arrive on exact possible adulterant oil till I could opine that the sample of coconut oil was substandard sample."
A reliance has been placed on the case of State v. Madan, 1985 (1) FAC 38. Madhya Pradesh High Court. It has been observed that :
"The Food Inspector has to prove that the sample of coconut oil purchased from the respondent was meant for human consumption as food in view of the decisions reported in 1980 (1) FAC 7, The State of Tamil Nadu v. R. Krishnamurthy (cited supra) and the prosecution evidence on this point is wanting in those necessary particulars."
8. In the case in hand Shri Vasant Mankar - the food inspector specifically deposed that "In Vidarbha Region" coconut oil is used as hair oil. Therefore, there is no evidence to show that the coconut oil sold by the applicant/accused was sold as a "food".
9. In the result, as the prosecution failed to prove that the coconut oil was sold and used as a "food in Akola Town, where the applicant/accused had a Kirana Shop. Revision application is, therefore, allowed and the orders passed by both the learned lower Courts are set aside. The applicant/accused is, thus, acquitted of the charge. If the fine is paid by the applicant/accused be refunded to him, is, thus, acquitted of the charge. If the fine is paid by the applicant/accused be refunded to him.
10. Revision allowed.