PETITIONER:
STATE OF TAMIL NADU
Vs.
RESPONDENT:
R. KRISHNAMURTHY
DATE OF JUDGMENT15/11/1979
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SARKARIA, RANJIT SINGH
CITATION:
1980 AIR 538 1980 SCR (2) 59
1980 SCC (1) 167
ACT:
Prevention of Food Adulteration Act, 1954 (37 of 1954),
Ss. 2(1) (a) & 16 (1) (a) (i)-Scope of-Gingelly oil mixed
with 15 per cent groundnut oil-Sold or offered for sale for
external use-Whether sale of an article of food which is
adulterated.
Words & phrases-`Food'-`Sale'-meaning of-Prevention of
Food Adulteration Act, 1954, Ss, 2(v), 2(xiii).
HEADNOTE:
The prosecution alleged that gingelly oil mixed with 15
per cent of groundnut oil was sold as gingelly oil by the
respondent to the Food Inspector. The defence of the
respondent was that he kept the oil in his shop to be sold
not for consumption but for external use.
The Trial Magistrate did not accept the defence and
convicted the respondent under section 16 (1) (a) (i) read
with section 2(1) (a) of the Prevention of Food Adulteration
Act, 1954 and sentenced him to suffer imprisonment till the
rising of the court and to pay fine. On appeal the Sessions
Judge, accepted the defence of the respondent and being of
the view that the respondent could not be convicted unless
it was established that the sale of gingelly oil was for
human consumption, acquitted him of the charge. The High
Court confirmed the order of acquittal.
In the appeal to this Court, on the question 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.
^
HELD : 1. The sale of gingelly oil mixed with groundnut
oil is punishable under section 16(1) (a) (i) read with
section 2(1) (a) notwithstanding the fact that the seller
had expressly stated at the time of sale that it was
intended for external use only. [66 E]
2. According to the definition of "food" in S. 2(v) 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 consumption 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. [63 A-B]
3. To prevent the exploitation and self-destruction of
poor, ignorant and illiterate persons 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
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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. [63 D-E]
4. 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. [63 G]
Andhra Pradesh Grain & Seed Merchants' Association v.
Union of India [1971] 1 SCR 166; Shah Ashu Jaiwant v. State
of Maharashtra [1976] 2 SCC 99 explained.
5. The definition of "sale" is designedly wide. 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, or it may be by wholesale or retail. Thus every
kind, manner and method of sale are covered. The sale may be
"for human consumption or use, or for analysis". [65 F-G]
6. 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
purposes of the Act. To insist that an article sold for
analysis should have been offered for sale or 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. If sale for analysis is an
unqualified sale for the purposes of the Act, there is no
reason why other sales of the same article should not be
sales for the purposes of the Act. [66 B-C]
Mangaldas v. State of Maharashtra, AIR 1966 SC 128
referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
236 of 1973.
Appeal by Special Leave from the Judgment and Order
dated 18-1-1972 of the Madras High Court in Criminal Appeal
No. 896/70.
A. V. Rangam for the Appellant.
A. T. M. Sampath for the Respondent.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. Gingelly oil mixed with 15% of
groundnut oil was sold as gingelly oil by the respondent to
the Food Inspector, Thanjavur Municipality. The defence of
the respondent was that he kept the oil in his shop to be
sold, not for human consumption, but, for external use. The
Trial Magistrate did not accept the defence. He convicted
him under s. 16(1) (a) (i) read with s. 2(1) (a) of the Food
Adulteration Act and sentenced him to suffer imprisonment
till
61
the rising of the Court and to pay a fine of Rs. 200. On
appeal, the learned Sessions Judge accepted the defence of
the respondent and acquitted him to the charge. According to
the learned Sessions Judge, the respondent could not be
convected unless it was established that the sale of the
gingelly oil was for human consumption. The State of Tamil
Nadu preferred an appeal to the Madras High Court. The High
Court confirmed the order of acquittal. The State of Tamil
Nadu has filed this appeal by special leave of this Court.
The learned counsel for the State of Tamil Nadu made it
clear to us at the hearing that the State was not anxious,
at this distance of time (the occurrence was on 26-5-69) to
secure a conviction, but was anxious that the legal position
should be clarified. We accordingly proceed to do so.
Section 16(1) (a) (i) as it stood at the relevant time
was as follows :-
“16. (1) If any person-
(a) whether by himself or by any other person on his
behalf imports into India or manufactures for
sale, or stores, sells or distributes any article
of food-
(i) which is adulterated or misbranded or the sale of
which is prohibited by the Food (Health) authority
in the interest of public health;
xx xx xx xx
he shall, in addition to the penalty to which he may be
liable under the provisions of section 6, be punishable
with imprisonment for a term which shall not be less
than six months but which may extend to six years, and
with fine which shall not be less than one thousand
rupees:
Provided that-
(i) if the offence is under sub-clause (i) of clause
(a) and is with respect to an article of food
which is adulterated under sub-clause (1) of
clause (i) of section 2 or misbranded under sub-
clause (k) of clause (ix) of that section; or
(ii) if the offence is under sub-clause (ii) of clause
(a), the court may, for any adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than
six months or of fine of less than one thousand
rupees or of both impri-
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sonment for a term of less than six months and
fine of less than one thousand rupees.”
Section 7 is also relevant and it was as follows:-
“7. No person shall himself or by any person on his
behalf manufacture for sale, or store, sell or distribute-
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a
licence is prescribed, except in accordance with
the conditions of the licence.
(iv) any article of food the sale of which is for the
time being prohibited by the Food (Health)
Authority in the interest of public health; or
(v) any article of food in contravention of any other
provision of this Act or of any rule made
thereunder.”
“Food” is defined by s. 2(v) as meaning “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, and
(b) any flavouring matter or condiments.”
“Sale” is defined by s. 2(xiii) as follows:-
“Sale” with its grammatical variations and cognate
expressions, means the sale of any article of food,
whether for cash or on credit or by way of exchange and
whether by wholesale or retail, for human consumption
or use, or 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, and
includes also an attempt to sell any such article;”
Section 16(1)(a)(i) read with s.7(i) prohibits and
penalises the sale of any article of food which is
adulterated or misbranded etc. The question for
consideration is 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. This must
depend upon the definitions of “sale” and “food” in the Act.
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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 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. 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.
Most of the High Courts appear to have so understood
the meaning of the word “food”, though there appears to have
been some
64
confusion because of a misunderstanding of certain
observations of this Court in Andhra Pradesh Grain & Seed
Merchants’ Association v. Union of India(1) and Shah Ashu
Jaiwant v. State of Maharastra(2).
In the first case it was observed:-
“We are again unable to accept the argument that
under the Act even when an article is purchased not as
an article of food, but for use otherwise, the vendor
will be deemed guilty if the article does not conform
to the prescribed standards, or is as an article of
food adulterated or misbranded. Counsel said that
coconut oil is used in the State of Kerala as a cooking
medium, and sale of adulterated coconut oil may in
Kerala be an offence under s. 16, but in other parts of
the country where coconut oil is not used as a cooking
medium and is used as a component of hair oil or for
other purposes, it amounts to imposing an unreasonable
restriction to penalise the vendor who sells coconut
oil knowing that the purchaser is not buying it as a
cooking medium. But there are no article which are used
as food only in one part, and are not at all used as
food in another part of the country. Even coconut oil
is used as a cooking medium by certain sections of the
people in parts of India other than Kerala. In any
event it is always open to a person selling an article
capable of being used as an article of food as well as
for other purpose to inform the purchaser by clear
notice that the article sold or supplied is not
intended to be used as an article of food. What is
penalised by s. 16(1) is importation manufacture for
sale, or storage, sale or distribution of any article
of food. If what is imported manufactured or stored,
sold or distributed is not an article of food,
evidently s. 16 can have no application.”
In the second case it was observed:-
“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 reason-
65
able doubts arise on this question. It is self-evident
that certain articles, such as milk, or bread, or
butter, or foodgrains are means 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.”
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.
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
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
whole-sale or retail. 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
66
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”.
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
purposes 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. If sale for analysis is an
unqualified sale for the purposes of the Act, there is no
reason why other sales of the same article should not be
sales for the purposes of the Act. The question may be asked
why sale for analysis should be specially mentioned if all
manner of sales are included in the definition. It is only
to prevent the argument that sale for analysis is not a
consensual sale and hence no sale, an argument which was
advanced and rejected in Mangaldas vs. State of
Maharashtra(1).
We are therefore of the opinion that the sale of
gingelly oil mixed with groundnut oil is punishable under s.
16(1)(a)(i) read with s.2(1)(a) notwithstanding the fact
that the seller had expressly stated at the time of sale
that it was intended for external use only. We declare the
illegal position as indicated in the earlier paragraphs but
we refrain from passing any further order in the appeal
which we accordingly dismiss. We have not referred to any of
the decisions of the various High Courts which were
considered by us and all of which, we may add, have been
studiously collected and scrupulously considered by
Madhusudana Rao, J. in Public Prosecutor v. Rama Chandra
Raju(2).
N.V.K. Appeal dismissed.
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