PETITIONER: FOOD INSPECTOR, CALICUT CORPORATION Vs. RESPONDENT: CHERUKATTIL GOPALAN AND ANR. DATE OF JUDGMENT06/05/1971 BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAY, A.N. CITATION: 1971 AIR 1725 1971 SCR 721 1971 SCC (2) 322 ACT: Prevention of Food Adulteration Act, 1954 (37 of 1954)- Section 16 (1)(a)(i)-Sale of Food for analysis-To be guilty of offence under section, food need not be intended for sale and person selling need not be a dealer. HEADNOTE: A sale of an article of food for analysis being "sale" within the meaning of s. 2(xiii) of the Prevention of Food Adulteration Act, 1954, an article of food sold to the Food Inspector, if found to be adulterated, the accused will be guilty of an offence punishable under s. 16(1)(a)(i) read with S. 7 of the Act. The article of food purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale and the person from whom the article of food has been purchased need not be a dealer as such in that article. [729 G] Where sugar purchased by the Food Inspector from the Respondents' tea stall was found to be adulterated and the Respondents were charged with an offence under s. 16(1) (a) (i) of the Act, the respondents must be held guilty of the offence charged with, even though the sugar purchased was not intended for sale as such and the respondents were not dealers in sugar. Mangaldas Raghavji Ruparel and Anr. v. The State of Maharashtra and Anr., [1965] 2 S.C.R. 849, State of Gujarat v. Asandas Kimmatrai Kevalramanni, A.I.R. 1964 Guj. 191, Municipal Board, Faizabad v. Lal Chand Surajmal and Anr., A.I.R. 1964 All. 199 and The Public Prosecutor v. Palanisami, A.I.R. 1965 Mad. 98, referred to. Public Prosecutor v, Kandasamy Reddiar, A.I.R. 1959 Mad. 33. Explained. In re: Govinda Rao, A.I.R. 1960 Andhra Pradesh 366, disapproved. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 281 of
1968.
Appeal by special leave from the judgment and order dated
June 26, 1968 of the Kerala High Court in Criminal Appeal
No. 113 of 1968.
A. Sreedharan Nambiar, for the appellant.
S. K. Mehta, K. L. Mehta, and K. R. Nagaraja, for the
respondents.
The Judgment of the Court was delivered by
Vaidialingam, J.-This appeal, by special leave, by the Food
Inspector, Calicut Corporation, is directed against the
judgment and order dated June 26, 1968 of the Kerala High
Court in
46-I S.C. India/7i
722
Criminal Appeal No. 113 of 1968 confirming the acquittal of
the respondents of an offence under S. 16(1)(a)(i) of the
Prevention of Food Adulteration Act, 1954 (Act No. 37 of
1954) (hereinafter to be referred to as the Act).
The first respondent is the Manager and the second
respondent, his wife, are the owner and licencee of a tea
stallin the premises No. 4/777 Customs Road, Calicut.
They were accused Nos. 1 and 2 respectively. On November
17, 1965 at about 9.45 A.M., the Food Inspector, Calicut
Corporation, purchased from the first respondent 600 grams
of sugar for a price of 78 paise ,for analysis from the
stock of sugar kept in the premises to be used in the
preparation of tea sold to customers in the said tea stall
run by the second respondent under the licence issued by the
Corporation. The quantity of sugar so purchased was sampled
as per the rules in the presence of the first accused and
the witnesses. One portion of the sample was sent to the
Public Analyst for analysis.’ The Analyst in his report Ex.
P. 3 dated December 28, 1965 has certified that the sample
contained artificial sweetner saccharin equivalent to about
seven percent of cane sugar and therefore it was
adulterated. In fact the analysis is as follows :
“Ash 0.02 per cent
Total sugar 96.00 per cent
as cane sugar
Saccharin 14.0 mgs. per 100 gms.”
On the basis of this report the Food Inspector filed on
March 21, 1966 a complaint against the two accused in the
Court of the District Magistrate, (Judicial), Calicut.
After setting out the necessary facts and the report of the
Public Analyst, the complaint alleged that the sale of such
sub-standard food which was adulterated is prohibited under
S. 7 read with item A. 07.01 in appendix to the rules framed
under the Act and therefore, it was an offence. There is a
reference to the conviction of the first accused on prior
occasions. It is not necessary for us now to refer it.
Both the accused were charged of an offence under s.
16(1)(a)(i) of the Act for having sold on November 17, 1965
600 gm. of sugar for a price of 78 paise to the Food
Inspector from the tea stall and which sugar was found to be
adulterated by the Public Analyst.
Both the accused pleaded not guilty and even denied having
sold sugar to the Food Inspector.
723
The learned District Magistrate recorded the following find-
ings : The “sugar” is an article of food as defined under s.
2(v) of the Act ; the Food Inspector purchased sugar from
the tea stall of the accused, sampled it then and there and
handed over to the first accused. There was a sale as
defined in the Act of sugar to the Food Inspector by the
first accused; the ,purchase and the sampling by the Food
Inspector were done in strict compliance with the provisions
of the Act. The report of the Public Analyst establishes
that the sugar purchased from ,the tea stall of the accused
was adulterated. But in order to hold that the accused have
committed an offence, it must be :established that the
accused were selling sugar as such in the tea stall, which
is not the fact in this case. On the other hand, the
accused were selling tea and the sugar was kept only for the
purpose of being mixed with tea which was sold to the
,customers and the Food Inspector has clearly admitted that
sugar as such is not in the tea stall of the accused.
Inasmuch as sugar was not kept for sale by the accused, they
are not guilty ;of any offence. In this view, both the
accused were acquitted ,under s. 258(1) of the Code of
Criminal Procedure.
The State filed an appeal before the Kerala High Court
challenging the acquittal of the respondents. The High
Court agreed with the findings of the District Magistrate
that there was a sale as defined in the Act of sugar to the
Food Inspector by ,the accused on November 17, 1965 and the
said article was adulterated as is established by the report
of the Public Analyst. The High Court set before it the
principle that the prosecution will have to establish, under
such circumstances, that the persons from whom the article
of food had been purchased are those “selling those articles
as such”. The High Court applied the test to find out
whether the respondents “are persons selling ,sugar as such”
and answered the question in the negative. Agreeing with
the findings of the District Magistrate that the sugar in
the tea stall of the accused was not kept for sale as such
but for being utilised in the preparation of tea which was
being sold to the customers, the High Court finally held
that the purchase by the Food Inspector of sugar from the
respondents cannot be considered to be a purchase under the
Act so as to make them liable of the offence with which they
were charged.
Mr. A. S. Nambiar, learned counsel for the appellant, urged
that the views of both the High Court as well as the
District Magistrate that the respondents are not guilty as
they are not dealers in sugar as such, is erroneous,
specially after a finding that there has been a sale to the
Food Inspector under the Act and the article was found to be
adulterated. According to Mr. Nambiar when once the article
of food is sold to the Food
724
Inspector for analysis, it is of no consequence that the
said ,article was not intended to be sold as such by the
accused, as a sale of an article of food under the Act
attracts all the consequences that flow from such sale as
provided under the Act.
On the other hand, Mr. S. K. Mehta, learned counsel for the
respondents, urged that in order to make the respondents
liable, it must be established that they were dealers in
sugar as such. In view of the concurrent findings based
upon the admission of the Food Inspector that the accused
were not dealers in sugar as such and that the sugar kept by
them was intended to be used in the preparation of tea,
their acquittal is justified.
Before we proceed to deal with these contentions with
reference to the provisions of the Act and certain decisions
placed before us by both the learned counsel, it is to be
recorded that Mr. Nambiar has made it clear that his clients
do not want the respondents to be convicted, in case his
contentions are accepted. On the other hand, he stated that
the Corporation is only anxious to have a decision of this
Court on the legal point. We will now refer to some of the
material provisions of the Act.
Section 2(1) defines the various expressions enumerated
therein. In particular it is only necessary to refer to
clauses 5, 12, 13 and 14 defining the expressions “food”,
“prescribe”, “sale” and “sample” respectively. They are 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, and
(b) any flavouring matter or condiments
“(xii) “Prescribed means prescribed by rules
made under this Act.”
(xiii) “sale” with its grammatical
variations and cognate ex. pressions, 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.
725
(xiv) “sample” means a sample of any article
of food taken under the provisions of this Act
or of any rules made thereunder.”
There is no controversy that sugar with which we are
concerned in this case is an article used as food for human
consumption or at any rate it is an article which ordinarily
entered into or is used in the composition or preparation of
human food. Even according to the respondents the sugar so
kept in their tea stall was intended to be used in the
preparation of tea which was being sold to the customers. A
reference to the definition of ‘sale’ will also show that a
sale of any article of food for analysis comes within that
definition. That the sample of food purchased by the Food
Inspector in this case satisfies the definition of ‘sale’ in
clause 14 is also beyond controversy.
Before we refer to certain other sections, it is necessary
to state that ss. 4(2) & 23(1) of the Act give power to the
Central Government to make rules in respect of the matters
referred to in those sub-sections. By virtue of the powers
conferred under ss. 4(2) and 23(1) the Central Government
have framed the Prevention of Food Adulteration Rules, 1955
(hereinafter to be referred to as the Rules). Rule 5
provides that the standards of quality of the various
articles of food specified in Appendix B to the Rules are as
defined in that Appendix. Appendix B deals with the
definition and standards of quality. Item A. 07.01 of the
appendix deals with cane sugar and enumerates its contents.
It- is not necessary for us to deal with the definition of
the expression ‘adulterated’ in s. 2(i) as well as the
requirements under item A. 07.01 of the Appendix B of the
Rules as there is no challenge to the report of the Public
Analyst that the sugar in question was adulterated, as it
does not conform to the requirements of the item mentioned
above. In fact the High Court ,as well as the District
Magistrate have also proceeded on that basis.
We will now revert back to the Act. Section 7 prohibits the
manufacture, sale etc. of certain articles of food. It is
not necessary to refer to the various items enumerated
therein. But we will refer only to the main part of s. 7,
which is as follows
“‘Section 7. No person shall himself or by any
person on his behalf manufacture for sale” or
store, sell or distribute-
It will be seen that s. 7 deals not only with manufacture,
sale, storing or distributing but also selling. We are
particularly emphasising this aspect because it has been
missed in this case
726
not only by the two courts but also in some of the
decisions, to, which our attention has been drawn. Section
10 deals with the powers of the Food Inspector. Under sub-
section 10(i)(a) the Food Inspector has power to take
samples of any article of food from any of the persons
enumerated in sub-clauses (i) to (iii) Section 12 gives a
right even to a purchaser, who is not the Food Inspector of
having the article of food analysed by a Public Analyst in
accordance with that section. Section 16(1)(a)(i), breach
of which is alleged against the respondents is as follows
“S. 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;
Here again it is to be noted that any person who sells any
article of food which is adulterated shall be punishable in
accordance, with that section. The Food Inspector purchased
sugar on November 17, 1965, from the tea stall of the
respondents on payment of price. The said transaction
clearly amounts to a sale under s. 2(xiii) of the Act. From
the definition of “sale” already quoted, a sale of an
article of food, for analysis is a sale. Under such
circumstances it amounts to a sale under the Act as has been
laid down by this Court in Mangaldas Raghavji Ruparel and
another v. The State of Maharashtra and another(1). It was
held in the said decision that there is a special definition
of “sale” in s. 2(xiii) of the Act which specifically
includes within its ambit the sale for analysis.
Mr. Nambiar referred us to certain decisions to the effect
that when once there is a sale as defined in the Act of an
article of food, it is not necessary to establish that the
accused are dealers in that article as such In the decision
reported in Municipal Board, Faizabad v. Lal Chand Surajmal
and another(2) the accused had a shop where tea was sold and
for the purpose of preparing tea, they had stored milk which
was a necessary ingredient for the preparation of tea. The
Food Inspector took a sample of milk from the tea shop and
on analysis it was found’ to be adulterated. The question
was whether the accused could, be convicted for an offence
under s. 16(1)(a)(i) read with s. 7 of the Act. The plea of
the accused was that the milk kept in
(1)[1965] 2 S.C.R. 894.
(2).R. 1964 All. 199.
727
the tea shot) was not intended to be sold as such but was
kept for being used in. the preparation of tea. The High
Court held that though the accused could not be convicted
for storing the milk, which was found to be adulterated as
the milk was not stored for sale as such, nevertheless, they
did ‘sell’ milk to the Food Inspector. As the said sale was
of adulterated milk, the accused have committed an offence.
It is not necessary for us in the case before us to consider
whether the expression ‘stored? occurring in s. 7 and s. 16
should be interpreted as storage for purposes of sale. The
case on hand can be disposed of without deciding that
aspect.
In the State of Gujarat v. Asandas Kimmatrai Kevalramanni(1)
the Food Inspector purchased ‘Dahi’ (Curd) and on analysis
it was found to contain fifty percent fat deficiency. The
accused was prosecuted for an offence under s. 16(1)(a)(i)
of the Act. The accused pleaded that he had not stored
‘Dahi’ for purposes of sale but he was keeping it only for
the preparation of ‘Lachhi’ and he further pleaded that the
‘Dahi’ purchased by the Food Inspector was not taken from a
larger quantity which was stored by him for the purpose of
sale as ‘Dahi’. Here again we are not concerned with the
observations of the learned Judge as to what constitutes
storing under the Act. But the learned Judge held that it
is not necessary that the accused should be a dealer in
‘Dahi’ as such and it is also not necessary that the ‘Dahi’
sold to the Food Inspector must have been taken out of a
larger quantity intended for sale. It was held that so long
as there has been a sale as defined under the Act to the
Food Inspector of Dabi and when it was found adulterated,
the accused is guilty of the offence.
To a similar effect is the decision of The Public Prosecutor
v. Palanisami Nadar(2) where it was held that when there has
been a sale to the Food Inspector for analysis of an article
of, food, which, when found to be adulterated, the accused
is guilty of an offence.
Mr. Mehta, learned counsel for the respondents,
referred us to the decisions reported in Food Inspector,
Kozhikode v. Punsi Desaie) Narain Das v. State,(1) and
Rameshwar Das Radhey Led v. The State,(1). in all those
decisions the Court has considered the question as to
whether the storage of an article under
(1) A.I.R. 1964 Guj. 191,
(2) A.I.R. 1965 Mad. 98.
(3) A.I.R. 1959 Kerala 190.
(4) A.I.R. 1962 All. 82.
(5) A.I.R. 1967 Punjab 132.
728
the Act must be for the purpose of sale. We have already
indicated that the- said question does not arise for
consideration before us and we do not propose to refer to
those decisions in detail. But we may point out that the
decision in Narain Das v. State(1) has been distinguished by
the same Court in Municipal Board Faizabad v. Lal Chand
Surajmal and another,(2) to which we have already referred.
Mr. Mehta referred us to two decisions; The Public
Prosecutor ,V. Kandasamy Reddiar(3) and in Re. Govinda
Rao(4) in support of his contention that the article of food
purchased by the Food Inspector must be shown to have been
kept by the accused for purposes of sale as such. In other
words, according to the learned counsel the person “from
whom an article of food is purchased by the Food Inspector
must be a dealer in such article”. In the Public Prosecutor
v. Kandasamy Reddiar(3) the findings of the two courts were
that the accused was carrying the milk taken from his own
buffalo for his own use. This decision does not assist the
respondents. But it must be stated that the said decision
does not consider the legal effect of a sale to a Food
Inspector under the Act and its consequences. But we may
point out that under s. 10(1)(a) the Food Inspector has got
power to take samples of any article of food from the
persons enumerated in sub-clauses (i) to (iii). It will
be seen in particular from sub-clause (ii) of s. 10(1)(a)
that the Food Inspector can take samples from “any person
who is in the course of conveying, delivering or preparing
to deliver such article to a purchaser or consignee”.
In the case before us if the accused had purchased the sugar
and it was in the process of being conveyed to be delivered
to the accused, the Food Inspector could have taken the
sample under s. 10 from any person in the course of
conveying the article for delivery. Similarly, even if the
sugar had been delivered to the accused, under sub-clause
(iii) of s. 10(1)(a), the Food Inspector could have taken
the samples from them as consignee of the article.
In the In Re. Govinda Rao(4) the accused who was the pro-
prietor of a Coffee and Meals Hotel was prosecuted for
having sold adulterated ghee to the Food Inspector. The
defence was that the, accused was not a dealer in ghee as
such and that, the said article was stored in the Hotel for
the purpose of being served along with the meals to the
customers or for using it in the preparation of other
articles of food. The accused was acquitted on the ground
that in order to constitute an offence, the
(1) A.I.R. 1962 All. 82.
(2) A.T.R. 1964 All. 199.
(3) A.I.R. 1959 Mad. 333.
(4) A.I.R. 1960 Andhra Pradesh 366.
729
accused should have been a dealer in ghee,as such and that
the _prosecution cannot succeed by the Food Inspector merely
taking adulterated ghee which, was stored by the hotel
keeper for being ,served with the meals or for preparing
other articles of food.
We are not inclined to agree with this decision because
it .has not considered, the legal effect of a sale to a Food
Inspector under the Act. We do not also find any indication
in the Act -that when a Food Inspector purchases an article
of food from a person, the latter must be a dealer in that
article as such.
Mr. Mehta, learned counsel for the respondents relied on ss.
12 and 14 to support his argument that the Act contemplates
,.that the person from whom an article of food is purchased
must ,be a dealer of that article as such and if that
article is found to be adulterated, a person can be found
guilty under the Act. If article A is stored for the
purpose of being used in the preparation of other articles
of food, the fact that article A purchased by the Food
Inspector is found to be adulterated will not make the
person selling that article liable under the Act. Section
12 give a right to any purchaser, other than
the Food Inspector, to have the article purchased by him
analysed by the Public Analyst in accordance with that
section. Section 14 makes it mandatory on a manufacturer,
distributor or dealer of any article of food to give a
warranty when he sells an article about the nature and quali
ty of that article to the vendor. We are not able to
find how these two sections support the propositions
enunciated by Mr. Mehta. If a third party had purchased
sugar from the tea stall of the accused and if the said
purchase constitutes a “sale’ under the Act, s. 12 gives
such a party to have the article analysed by a Public
Analyst. Similarly, s. 14 is also of no assistance to the
respondents.
To sum up we are in agreement with the decisions reported in
Municipal Board, Faizabad v. Lal Chand Surajmal and
another(1) and The Public Prosecutor v. Palanisami Nadar(2)
to the extent to which they lay down the principle that when
there is a sale to the Food Inspector under the Act of an
article of food, which is found to be adulterated, the
accused will be guilty of an offence punishable under s.
16(1)(a)(i) read with s. 7 of the Act. We further agree
that the article of food which has been purchased by the
Food Inspector need not have been taken out from a larger
quantity intended for sale. We are also of the opinion that
the person from whom the article of food has been purchased
by the Food Inspector need not be a dealer as such in that
article. We are not inclined to agree with the decisions
laying the contrary propositions.
(1) A.I.R. 1964 All. 199.
(2) A.I.R. 1965 Mad. 98.
730
Coming to the case on hand, on the finding of the two courts
the sugar in question has been found to be adulterated. The
purchase by the Food Inspector from the accused of sugar for
purposes of analysis is a sale under s. 2(13) of the. Act.
Section 7 prohibits a person from selling adulterated
article of food. Similarly, under s. 16(1)(a)(i) any person
who sells adulterated food commits an offence and is
punishable therein. The sugar which is the commodity before
us is food under s. 2(5) of the Act. We have already
pointed out that sugar by itself’ is an article used as food
or at any rate it is an article ‘which, ordinarily enters
into or is used in the composition or preparation of human
food. In this case the sale was for analysis and the
article was an article of food and in view of the concurrent
findings of both the courts that it was adulterated, the
respondent& have contravened ss. 7 and 16(1)(a)(i) of the
Act. Hence it must be held that the respondents are
technically guilty of the offence with which they were
charged and they have been wrongly acquitted by the High
Court and the District Magistrate. But in view of the fact
that the appellant has argued the appeal only as a test case
and does not challenge the acquittal of the respondents, we
merely set aside the order and judgment of the High Court.
But we may make it clear that apart from holding the
respondents technically guilty, we are not setting aside the
order of acquittal passed in their favour.
In the result the judgment and order of the High Court are:
set aside and the appeal allowed.
We find that on December 12, 1968 when granting special
leave this Court had directed the appellant to deposit Rs.
1000/to be used by the respondents for their costs and
liberty has been given to the respondents to withdraw the
amount to pay fee to, the counsel, in case they engage a
counsel. As the respondents have engaged a counsel, they
are entitled to withdraw from the court deposit the amount
representing the costs incurred by them. and the fee payable
to the counsel under the relevant rules. Surplus,, if any,
will be refunded to the appellant.
K.B.N. Appeal allowed.
731