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TMI Blog1969 (2) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: (1) Whether the definition of 'sale' contained in Section 2(xiii) of the Prevention of Food Adulteration Act, 1954, is confined to the sale of articles of food for human consumption alone or extends to the sale of an article of food regardless of the use to which it is put? We have referred to the use because that is the word used in the definition of sale in Section 2(xiii) and not purpose, though, as we shall presently show, that makes no substantial difference. 3. The circumstances under which the reference arose may be briefly stated:-- On 13-10-1966, a Food Inspector of the Municipal Council, Akot, visited the shop of the applicant-accused Dhirajlal Valji Kotak. The accused carries on business in partnership in the name of Valji Madhavji Kotak Kirana Shop. The Food Inspector asked for a sample of Kesari dal or Lakh dal, purchased 750 grams of it and took action in terms of Section 11 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to ag the Act). He divided the sample into three parts and packed each part as prescribed. When one of the packets was sent for analysis, it was found that the article purchased by the Food Inspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the parties, it is necessary to refer to some of these provisions. The Act, as its preamble indicates, was passed in order to make provision for the prevention of adulteration of food. Section 2(i) of the Act defines adulterated . Section 2(v), defines food and this definition is of some Importance on the question referred: (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. (the underlinging (here in ' ') is ours) Section 2(ix) defines misbranded which occurs in several sections but is not germane for our purpose. Then we come to the important definition in Section 2(xiii) of sale : 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 possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale- (a) Kesari gram (Lathyrus Sativus) and its products, (b) Kesari dal (Lathyrus Sativus) and its products. (c) Kesari dal flour (Lathyrus Sativus) and its products, (d) a mixture of Kesari gram (Lathyrus Sativus) and Bengal-gram (Cicer Arietinum) or any other gram, (e) a mixture of Kesari dal (Lathyrus Sativus) and Bengal cram dal (Cicer Arietinum) or any other dal, (f) a mixture of Kesari dal (Lathyrus Sativus) flour and Bengal gram (Cicer Arietinum) flour or any other flour. Explanation -- The equivalents of Kesari gram in some of the Indian languages are as follows; Hindi -- Kesari or Khisari Sanskrit - Triputi Bengali, Malyalam, Tamil tod Oriya -Khesari Telgu - Lamka Gujarati and Marathi -- Lath. Rule 44-A was brought into force in the State of Maharashtra by the State Government notification No. PFA.1060/D dated 15th November, 1961, publishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of this Act or of any rule made thereunder. Here again, therefore, the section has regard to the definition of sale and to the definition of food , by the use of the words article of food . Rule 44-A similarly uses the words sell or offer or expose for sale, or have in his possession for the purpose of sale . Therefore, one must turn to the definition of sale in order to construe these provisions of the law and sale means sale for human consumption only. Now, we have already quoted the definition of sale and an analysis of that definition shows that it is in two parts, each part respectively preceded by the words means and includes', The former is truly a definition and the second is only an artificial definition by way of inclusion. We are really not concerned with the second part i.e., the inclusive definition though it has a bearing upon the interpretation of the first part. The real definition preceded by the 1. The subject of the sale: 2. The manner of the sale; 3. The purpose of the sale, or use of the sale: 11. The definition is no doubt a tautologous definition in so far as it defines sale to mean the sale of any article of food . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any article of food , '(a) whether for cash or on credit , or (b) by way of exchange (a) whether by wholesale or retail , (b) for human consumption or (c) use , or (d) for analysis sis has reference to these provisions of the law. 13. With this analysis we proceed to examine the contention of the applicant-accused. It is urged that the words 'for human consumption are paramount in the definition and so to say, create a condition precedent to the existence or establishment of sale. So read, counsel urged the definition says that sale means the sale of any article of food for human consumption; and since for human consumption is a qualification or a condition precedent to there being a sale, it must necessarily follow that wherever the word sale is used in the substantive provisions, it means only the sale for human consumption. 14. We have shown above that the words for human consumption or use are only two categories of the purpose of a sale, the other two being the sale to a wholesale dealer or a retail dealer, and the sale for the purposes of analysis. So viewed, the words for human consumption do not assume the importance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self calls that a sale which may not in normal circumstances always amount to a sale, namely, sale for analysis. Now a sale for analysis, it is clear, is never a sale of that article of food for human consumption. Therefore, it shows that the entire definition is not concerned with only the sale of an article of food for human consumption. 17. We may also say that the Prevention of Food Adulteration Act does not merely deal with the sale of an article of food but with other modes of dealing with an article of food, such as, for instance, those mentioned in Section 7, namely, the manufacture for sale or storage or distribution of food or an article of food. In the case of manufacture for sale also the word sale occurs but it would be impossible to hold that the reference to manufacture for sale has reference only to manufacture of an article for human consumption. That would make the provisions of the Act practically nugatory, and impossible to implement for no one except the manufacturer would know what he is actually manufacturing the article for. If manufacture for sale means manufacture of any article of food for human consumption, then it would be impossible to impleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn to examine whether Rule 44-A makes any difference. Rule 44-A no doubt uses the words sell or offer or expose for sale, or have in his possession for the purpose of sale . In each of these expressions the definition of sale would no doubt enter, but we have already shown that that definition does not imply that it has reference to the sale of any article of food only for human consumption. It was pointed out on behalf of the applicant that Rule 44-A does not impose an absolute bar on all dealings with Kesari dal, but having regard to the words thereof and reading it in the light of the provisions of the opening part of Section 7, the following modes of dealing with Kesari dal are not prohibited by Rule 44-A: (i) manufacture for sale, (ii) storage, (iii) distribution without consideration, i. e. free distribution of Kesari dal. If it is for consideration, of course it will amount to sale, and (iv) personal consumption of the person who has grown it. It was therefore urged that the ban on the dealing with Kesari dal is not a total ban especially when in each one of these modes of dealing described in Rule 44-A only a reference to the definition of sale has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to use for human beings. 23. We are quite unable to accept this contention for if the word use were intended to imply use of human beings, then we cannot understand why the preceding phrase for human consumption should have been used at all because consumption is also use and it would merely amount to tautology to say human consumption or use. It is clear to us that human consumption and use are two distinct and separate categories and the word human does not control the word use . On the other hand, what was intended to be implied was the sale of any article for human consumption or the sale of any article for any use whatsoever, including use by human beings for any purpose whatever. In the context of prevention of food adulteration, use can of course only be by human beings, but it does not necessarily follow that the use must be limited to use for consumption of human beings. In our opinion, the word use implies any 'use to which an article of food can be put to. 24. In the light of what we have said, it is clear that in the case of a prosecution under Section 7 read with Section 16, what the prosecution has first to establish is that the article dealt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was found to be adulterated and both Mangaldas and Daryanomal were prosecuted. While Mangaldas admitted that he had sold and despatched a bag containing turmeric powder he contended that what was sent was not turmeric powder used for human consumption but as Bhandara i. e. for use for religious purposes or for applying to the forehead. This contention, it may be noted, is similar to the contention raised in the present case, that the lakh dal was sold as cattle fodder. The contention was rejected unanimously by all the Courts, and in the appeal before the Supreme Court, counsel for Mangaldas urged that it was necessary to establish that the appellant had the mens rea to commit the offence. The Supreme Court referred to its own earlier decision in Hariprasada Rao v. The State, and held: What was held in that case is that unless a statute either clearly or by necessary Implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind. The proposition there stated is well established, Mere Section 19(1) of the Act clearly deprives the vendor of the defence of merely all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present one, namely, the Bombay Prevention of Food Adulteration Act, 1925 but the principle ol that decision would apply here. 30. In all these cases, the article involved was cocoanut oil. In Binjraj Punam-chand's case, Cri. Appeal No. 586 of 1960, D/- 16-11-1960 (Bom) a plea was also taken that in Nasik from where that case arose, cocoanut oil was not ordinarily used as an article of food. Dixit, J., answered the point by observing: it is, to my mind, clear that what 'food' as contemplated by Section 2(a) means is any article which ordinarily is used in the composition or preparation of human food, and it seems to me that it is not possible to accept the contention on behalf of the accused that cocoanut oil is not ordinarily used as an article of food, Then the learned Judge went on to answer point of mens rea by saying: In this case there is no question of mens rea because the enactment is made in the Interest of public health...... Though this was a decision under the earlier Act, it was a statute in part materia and would apply in the construction of the present Act. 31. The next decision was that of a learned single Judge in State v. Vas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt reference. 33. That decision is the one in State v. Devilal Jain, Criminal Appeal No. 1373 of 1966, DA 15-6-1968 (Bom) by a Division Bench of this Court. That was a case which concerned the very commodity with which we are concerned, namely, kesari dal. A sample was taken as in the present case from the accused and he was prosecuted under Section 16(1)(a)(i) read with Section 7(iv) and Rule 44-A (b). It may be noticed that in that case the prosecution is stated to be under Section 16(1)(a)(i) read with Section 7(iv) and Rule 44-A (b). We are quite unable to see how for contravention of Rule 44-A, the prosecution can be under Section 16(1)(a)(i) read with Section 7(iv). Section 7(iv) refers to an article of food, the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health, In the whole of the judgment, there does not appear to be any reference to the prohibition by the Food (Health) Authority. It seems to us very clear that the prosecution was under Section 18(1)(a)(ii) read with Section 7(v), However, that difficulty does not affect the principle laid down in that case. 34. In that case it was contended on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of these cases were referred to by the counsel for the State and therefore did not come to be referred to by the Division Bench. Moreover, we find that counsel for the State virtually conceded in that case that upon the evidence it had not been established that Kesari dal was an article of food a concession which was pusillanimously made for, a perusal of the decision of the learned single Judge in this case which referred the matter to the Full Bench alone will show that there was ample material for holding that Kesari dal is an article of food. In the penultimate paragraph of that judgment, the Division Bench has stated: It is not disputed that the sale of Kesari dal is not absolutely prohibited and there is no prohibition against its sale as cattle fodder. The prohibition is only against the sale of the article as an article of food for human consumption. This again was a concession which was wrong in law. It is the very point which has been pressed before us via that the prohibition is absolute, We do not think it necessary to enter into greater detail as to the reasons in that case. The whole basis was incorrect because an incorrect concession was made and because of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od in a particular region, or is used only by a section of the people in a given region. With respect, we accept this statement of the law. 39. In Public Prosecutor v. Palanisamt, a learned single Judge was concerned with the case of adulterated asafoetida, It was found to contain coal-tar dye which should make it an adulterated article of food and also perhaps unwholesome for human consumption. The plea of the accused was that the asafoetida was being sold by him only for feeding cows and goats and therefore, by implication that it was not sold for human consumption. We are with respect in agreement with the answer which the learned Judge gave to such a plea. On page 98 ha observed: What the accused contended and which contention has found acceptance at the hands of the learned Sessions Judge is that it would not be an offence under the Act, if an article intended for human consumption is sold to a customer on the express understanding that it should be given to cattle and not consumed by human beings. The crux of the offence does not lie in the use to which the buyer may put an article, but whether intrinsically the article sold or exposed for sale is one used for huma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, the learned Judge came to a positive finding that Kesari dal was not ordinarily used for human consumption and hence it was not included within the definition of food in Section 2(v). That of course was a finding of fact in that case and serves to distinguish it from the present case. In the present case, as we have said, the learned single Judge referred this matter to the Full Bench as, in his opinion, Kesari dal was an article of food. We have also shown that Kesari dal or lakh dal is an article of food. The same learned Judge has, in another case decided by him later, Varanasi Municipality v. Sudheswari Devi, , taken, with respect, the the correct view in the case of adulterated ghee. After quoting the definition of sale in the Act, the learned judge observed as follows: The aforesaid definition is of wide amplitude and embraces not only a sale for human consumption or use but also a sale for analysis. It is, therefore, manifest that the sale of a sample of ghee to the Food Inspector was a sale under the provisions of the Act. A dealer cannot, therefore, escape the clutches of law by merely describing an article of food at the time of its sale as 'Akhadya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct interpretation of the provisions of law. The actual decision in that case, however, holding the first accused (the partner of the Mills) guilty was, with respect correct. We may also say that that case was decided on the mere application of Rule 44 which deals with cases where two articles, both articles of food, are mixed up and the case of Jingili Oil mixed with linseed oil is specifically dealt with in Rule 44. Both Jingili Oil and linseed oil were edible oils as would appear from entries Nos. A-17.04 and A. 17.11 of Appendix B to the Rules. 44. The Calcutta case also was decided upon another point, a point which was also adverted to in the arguments before us on behalf of the petitioner, namely, that hardship would be caused by the interpretation that we propose to put upon the definitions of sale and food'. It was urged that if we were to hold that simply because an article is ordinarily used as food , it would attract the mischief of the Act if found adulterated, irrespective of whether it was meant for human consumption or not, it would work great hardship upon industrial establishments and others who use such articles for industrial purposes. In the Calcutta ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t think therefore that this argument of hardship can prevail against the clear provisions of law, 46. Thus, upon a consideration of the authorities and the provisions of law, in our opinion, the following conclusions would flow: (1) That what is necessary to establish in the case of a sale under the Prevention of Food Adulteration Act is- (a) that there is an article of food, (b) that a sale oi that article has taken place and (c) that the article is either adulterated, misbranded or dealt with contrary to a prohibition or a rule under the Act; or its sale is otherwise prohibited as in Rule 44-A: It follows from this that if an article is proved to be an article of food it must be sold or otherwise dealt with only in its pure form. (2) That the ban on the sale of Kesari dal in Rule 44-A is total and there is no scope for any exception or exemption; (3) That it is no defence to a prosecution under the Act to say- (a) that the accused did not intend to use Kesari dal as food, or (b) that he never intended to sell it as food. Intention or mens rea as such is totally irrelevant to the applicability of Rule 44-A and so is the question of the use to which an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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