JUDGMENT
Srivastava, J.
1. This Government appeal is directed against the judgment and order dated 17-5-82 passed by the learned Additional Chief Judicial Magistrate, Karimganj, whereby the respondent was acquitted of the charge under Section 16 of the Prevention of Food Adulteration Act, 1954, hereafter referred as the ‘Act’.
2. The prosecution case was that oh 30-5-81 when the Food Inspector, hereafter referred as the ‘Inspector’ inspected the shop premises of Rakesh Paul, the respondent, in Sariqauri Bazar, he had found kesari dal exposed in his shop, and after disclosure of his identity had obtained sample of kesari dal for analysis. The samples of Arhar Dal, and mustard oil had also been taken and sent for chemical analysis. Arhar Dal and Mustard oil were in order. The possession and exposure of kesari dal had been prohibited by notification dated 10th March, 1966 under Rule 44A of the Prevention of Food Adulteration Rules, 1955, hereafter referred as the ‘Rules’ and so was an offence under Section 7 of the Act (read with Rule 44A above) and was punishable under Section 16 of the Act. Sanction was obtained and prosecution followed. The accused respondent pleaded not guilty to the charge. The prosecution had examined two witnesses. The learned Additional Chief Judicial Magistrate by the judgment impugned in this appeal held that the prosecution had failed to prove that the accused had violated the provisions of the notification under Rule 44A of the Rules, and charge under Section 16 of the Act was not established. The accused was acquitted.
3. Aggrieved, the Government has come in appeal, and Sri B. B. Narzary, learned P.P., has submitted that by the aforesaid notification under Rule 44A of the Rules, the Government of Assam had banned cultivation, possession and sale of Kesari dal, and hence even mere possession of kesari dal was offence under Section 7 punishable under Section 16 of the Act. Sri Narzary has, therefore, submitted that the impugned judgment and order of the learned court below is erroneous and cannot be sustained.
4. Sri S. K. Senapati, learned counsel for the respondent, on the other hand, has submitted that the accused respondent was also a dealer in cattle feed and that he had kesari dal in the shop as fooder for cattle, that there was absolutely no evidence that kesari dal found in possession of the accused was for sale for human consumption, and accordingly no offence punishable under the Act had been committed and the judgment and order of the learned trial court was correct.
5. I have considered the submissions of the learned counsel for the parties. The learned trial court has held that there was no evidence for the prosecution to establish that kesari dal was for sale for human consumption. In view of the submission made by the learned P. P. for the appellant, the question which arises for consideration is that whether mere possession of kesari dal was an offence without proof that it was “for sale for human consumption”. The mere fact that kesari dal was in the shop by itself, in the facts where it was the defence case that the accused was a dealer in cattle feed and that it was stored as fodder for cattle could not lead to the necessary inference that kesari dal was stored in the shop for sale for human consumption, for obviously it could be for sale as cattle feed.
6. Sri Narzary, learned P.P. for the appellant has submitted that it was not necessary to establish that kesari dal was for sale for human consumption, and that mere possession thereof was an offence under Section 7(iv) of the Act, for it was prohibited by the said notification issued under Rule 44A.
Section 7(iv) of the Act provides :
Section 7….
(iv) No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute —
(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.
7. The Government of Assam by notification dated 10th March, 1966 in pursuance of the provisions of Rule 44A of the Rules had prohibited cultivation, possession and sale of kesari dal throughout the State of Assam. The said notification was challenged and was held to be invalid in so far as it banned cultivation of kesari dal, in R.B. Mills v. The Secretary to the Government of Assam 1973 Assam Law Reports 316. The cultivation of kesari dal was thus permissible for it was used as cattle fodder. Accordingly kesari dal could be stored for sale as cattle feed by a dealer in cattle feed.
8. The submission for the prosecution was that since under the notification issued by the Government of Assam, possession and sale of kesari dal was prohibited and the accused respondent was found in possession of kesari dal he had committed an offence under Section 7(iv) punishable under Section 16 of the Act.
9. ‘Sale’ in Section 2(xiii) of the Act is defined as under:–
“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 articles.
(Emphasis supplied)
In Fakhruddin v. State of U.P. 1976 Cr LJ 1210 : 1976 All LJ 245 the Allahabad High Court held that store in Section 7 and distribute in Section 16 need not be for sale. However, the said view was not tenable in view of the law laid down’ by the Supreme Court in Municipal Corporation of Delhi v. Laxmi Narain Tandon and in Om Prakash v. Delhi Administration where it was held that storage or distribution of an adulterated article of food for a purpose other than for sale would not constitute an offence. It may also be noted that even under the definition of ‘sale’ it has to be for ‘human consumption’.
10. Sri Narzary has submitted that ‘sale’ includes sale even for analysis. While it is true that ‘sale’ includes sale for analysis also, it is storage for sale for human consumption that can and should be offence.
11. The Act was made for protection of health of human beings and in my opinion storage, possession or sale of an item of food prohibited under the Act and the Rules has to be in relation to human consumption, i.e. an article of food which is not for sale for human consumption or has not been stored for sale for human consumption should not constitute an offence under the Act. The entire purpose of the law being to safeguard and protect human beings against adulterated or prohibited items of food, in my opinion, mere possession of kesari dal which on the finding of fact recorded by the learned trial court was for ‘cattle fodder’ could not constitute an offence under Section 7(iv) punishable under Section 16 of the Act.
12. Sri Narzary, learned P.P. for the appellant has argued that in the notification which was issued under Rule 44A, nothing was said about the purpose for which possession and sale of kesari dal was prohibited. It should be obvious in the context of the law and its object and purpose that possession and sale of kesari dal in relation to human beings was prohibited. Since kesari dal could be cultivated for the purpose of cattle fodder, and if it was cultivated, obviously some persons including a dealer in cattle feed would store it, and since it is not disputed that kesari dal was used as cattle feed, it is reasonable to expect that person dealing in cattle feed would store it and so if such a person was found in possession of kesari dal, it should not be said that he has committed an act which has been prohibited by law meant for items of food for human consumption. In my opinion, therefore, unless the prosecution had established that kesari dal found in possession of the respondent was meant for sale for human consumption, it could not be said that the respondent had committed the offence he was charged with.
13. It may also be noted here that sanction for prosecution of the accused respondent stated that kesari dal was for sale for human consumption, but the said ingredient, the prosecution had not established. I am therefore, not inclined to accept the submission for the prosecution that accused respondent by mere possession of kesari dal had committed any offence. It was, as stated by him, for sale as cattle fodder.
For the aforesaid reasons, this appeal fails and is dismissed.