JUDGMENT
Milap Chandra, J.
1. This revision petition has been filed under 397 read with Section 401, Code of Criminal Procedure, 1973 (here in after referred to as, ‘the Code’) against the judgment of the Additional Sessions Judge, Nagaur dated February 27, 1981, confirming the conviction and sentence of the accused-petitioner under Section 16, Food Adulteration Act (here in after referred to as the Act’) read with Rule 50, Prevention of Food Adulteration Rules (here in after referred to as the Rules). The facts of the case giving rise to this revision petition may be summarised thus.
2. On December 29, 1976, the Food Inspector, Deedwana, Son H.K. Vishnoi PW 1 inspected the oil mill of the petitioner situated at Kuchaman Road, Deedwana. He took a sample of the til oil for analysis He also found that the petitioner was running his business without any licence required under Rule 50 of the Rules. On analysis, the sample of oil was found not conforming to the prescribed standard of purity. Two complaints were filed in the court of Munsif-cum-Judicial Magistrate, Deedwana, against the petitioner and Shankerlal. The first complaint pertained to the sale of adulterated till oil and the second complaint related to the violation of the Rule 50 of the Rules. The trial court convicted the accused-petitioner in both the cases and passed the sentences. Co-accused Shanker Lal was acquitted. Appeals were filed against both the judgments. Appeal pertaining to the conviction of carrying on business without licence has been dismissed by the learned Additional Sessions Judge, Nagaur by his judgment dated February 27, 1981 which has been challenged in this revision petition. It is said that the appeal against the conviction and sentence for manufacturing and selling adulterated til oil is still pending in the court of the Additional Sessions Judge Nagpur.
3. It has been contended by the learned Counsel for the accused petitioner that the trial stood vitiated as no charge was framed by the trial court. He further contended that the State of Rajasthan issued circulars Exs. D/l and D/4 on May 12, 1977 and April 4, 1977 respectively directing all the District Magistrates and Administrators/Chairman of the Municipal Board Council of Rajasthan for withdrawal of the cases filed under the Act for not having licence and not to file such cases is future. HE contended that it shall be deemed that the consent given in this case for filing the complaint stood withdrawn or the case stood withdrawn under Section 321 of the Code. He relied upon M/s. Brook Bond India Ltd. v. Slate of Haryana, 1983(1) FAC 186. He also contended that the second complaint filed under Section 16 of the Act and Rule 50 of the Rules was not maintainable. Ha relied upon Vasudeo Bhat, Food Inspector v. Ganpat and another 1975 FAC 404 (MP) M.C.D. v. Darshan Kumar and State 1979 (1) FAC 125 (Delhi), 1982 (2) F\C 319 (Delhi) and Mohammed Ali v. State of U.P. 1981 (1) FAC 3 (Allahabad). He lastly contended that the amount of licence fee of the relevant period was duly deposited, receipt Ex. D 3 was issued and this receipt purported to be the licence as is clear from the statement of the Clerk of the Municipal Board, Deedwana Pawan Kumar DW 3. He relied upon Smt. Shashi Rani v. State 1987 (12) R. Cr. C. 403. The learned Public Prosecutor tried his best to support the judgment under revision.
4. There is no force in the contention of the learned Counsel for the petitioner that the trial stood vitiated for not framing a charge against the accused-petitioner. Section 16A of the Act requires that all offences under Section 16(1) of the Act shall be tried in a summary way and the provisions of Sections 262 to 265 of the Code would be applicable to such trial. The trial was accordingly held under Chapter XXI of the Code. It does not. require framing of charges. The order-sheet of October 4, 1977 clearly recites that substance of the accusation was duly read over to the accused-petition as require under Section 251 read with Section 262 of the Code.
5. It is correct that circulars Ex. D 1 dated 12-5-1977 and Ex. D 4 dated 4-4-1977 were issued by the Government of Rajasthan in the Department of Local Self that the complaints filed under Section 16 of the Act read with Rule 50 of the Rules be withdrawn and in future, no such complaint be filed. By the issuance of these circulars, it cannot be said that the sanction Ex. P/3 issued under Section 20 of Act stood revoked. After the filing of the complaint, the sanction stood exhausted and there remains nothing for its revocation. Reference of Bashi Ram v. Mantri Lal AIR 1965 Allahabad 498 (FB) may be made here. Even if it is assumed for the sake of arguments for a moment that the sanction Ex. P/3 stood withdrawn on the issuance of these circulars, the case would still proceed as admittedly, the complaint was filed before the issuance of these circulars. Reference of R.E.S. Corpn. v. Nageshwar Rao AIR 1956 SC 213 may be made here.
6. By the issuance of these circulars Exs. D/1, and D/4, it cannot be said that the case stood withdrawn. Admittedly, no application under Section 321 of the Code was moved by the A.P.P.-II before the trial court. The circulars cannot be treated as instructions issued under Section 22 of the Act as admittedly, the circulars have been issued by the State Government and not by the Central Government under Section 22A of the Act. In M/s. Brooke Bond India Ltd. v. State of Haryana 1963 (1) FAC 186 relied upon by the learned Counsel for the petitioner, directions were issued by the Central Government. As such it does not help him.
7. There is a great force in the contention of the learned Counsel for the accused petitioner that after filing of the first complaint under Section 6 read with Section 7 of the Act for manufacturing, storing and selling adulterated oil, the second complaint under Section 16 of the Act read with Rule 50 of the Rules was not maintainable. It has been observed in Vasudeo Bhat, Food Inspector v. Ganpat and another 1975 (II) FAC 404 (MP) in para 4, as under:
4. Now Section 16(1)(a)(i) and (ii) read as under: 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:
(ii) other than an article of food referred to in Sub-clause (i), in contravention of any provisions of this Act or of any of the provisions of this Act or of any rule made thereunder.
A person can be convicted under Section 16(1)(a)(ii) of the Act if two conditions are satisfied. Firstly that person should be importing, manufacturing, for sale or storing selling or distributing any article of food other than article of food referred to in Sub-clause (i) or Section 16(1)(a). Secondly, the act should be in contravention of the provisions of the Act or the rules made thereunder. Unless but these conditions are satisfied a person cannot be held guilty under Section 16(1)(a)(i) of the Act. Now, in the instant cases, the aforesaid respondents are proved to have sold adulterated milk, an article of food referred to in Sub-clause (i) of Section 16(1)(a). The fact that adulterated milk is also considered to be an article of food is clear from a perusal of the provisions of Section 7 of the Act. That section reads as under:
7. Prohibition of manufacture, sale etc. of certain articles of food:
‘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 any rule made thereunder”.
It is thus clear in the scheme of the Act adulterated milk is also an article of food It is an article of food referred to in Sub-clause (i) of section 16(i)(a) of the Act. Therefore, in case where a person is prosecuted for selling adulterated milk, even though the sale may be in contravention of the rules under the Act as no licence as required by the rules, is obtained, the first condition for the applicability of Section 16(1)(a)(ii) of the Act is not satisfied. Such a person is liable to be dealt with under Section 16(1)(a)(i) of the Act, but not under Sub-clause (ii) of Section 16(1)(a) of the Act. There is therefore, no reason to interfere with the orders of acquittal.
Similar views have been taken in MCD v. Darshan Kumar & State 1979 (1) FAC 125 (Delhi); 1982 (2) FAC 319 (Delhi) and Mohd Ali v. State of U P 1981(1) FAC 3 (Allahabad) On this ground alone, the accused deserves to be acquitted.
8. There is also great force in the contention of the learned Counsel for the accused-petitioner that after the deposit of the requisite amount of the licence fee by the accused-petitioner, he could not have been convicted for not holding licence under Rule 50 of the Rules The Nagarpalika Deedwana addressed a letter dated July 15, 1977 Ex. D/2 to the President, Vyapar Mandal Deedwana that traders who have not taken licence under the Food Adulteration Rules may still take it within three months, after depositing the requisite fee. It seems that this letter was issued in pursuance of the circular Ex. D/4 dated April 4, 1977. The petitioner deposited the requisite amount of the licence fee Rs. 12/- on July 15, 1977 vide receipt Ex. D/3 issued by the Municipal Board, Deeawana. Admittedly, the business premises of the accused-petitioner was inspected on 29-12-1976. The Clerk of the Municipal Board, Deedwana, Pawan Kumar DW 3 has disclosed in his cross-examination that in the Municipality, Deedwana, licence fee was taken but licence was not issued. In such circumstances, the receipt of the deposit of the licence fee would itself be treated as the licence. It is clear from the receipt Ex. D 3 that it was issued for the food licence year 1976-77. As such it shall be deemed that the accused petitioner had Hence Since the commencement of this year, i.e. since 1st April 1976. It cannot, therefore, be said that the accused-petitioner did not have licence under Rule 50 of the Rules on 29-12-1977. In similar circumstances, order taking cognizance of an offence punishable under Section 8(1) of Rajasthan Cinema (Regulation) Act, 1952 was set aside in Smt. Shashi Rani v. State 1987 RCC 403. On this ground also the revision petition deserves to be allowed.
9. Consequently, the revision petition is allowed. The judgments of the Munsif-cum-Judicial Magistrate, Deedwana dated April 20, 1978 and of the Additional Sessions Judge, Nagaur dated February 27, 1981 are set aside. The accused-petitioner is acquitted. Fine recovered from the accused-petitioner will be refunded to him within two months of the receipt of the: record.