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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 ..... el for both the parties, we have modified it 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Before we state the respective contentions 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 analysi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s notification No, F.14-41/59-PH. Pt.I. dated 2nd February, 1961. It provides: "44-A. No person in any State shall, with effect from such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an adulterated or mis-branded article or the sale of which is prohibited by the Food (Health) authority in the interest of public health, in contravention of any of 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 subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t concepts which may, for the purposes of clarifying what we wish to state, be described as 'the subject of the sale", "the manner of the sale" and "the purpose of the sale" or "the use of the article" and these are indicated in the definition by the words which we quote against each head: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arily follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract. Apart from this we need not, however, consider this argument because throughout the case was argued on the footing that the transaction was a 'sale'. That was evidently because here we have a special definition of 'sale' in Section 2(xiii) of the Act which specifically includes within its ambit a sale for analysis." Thus, the definition itself 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 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied that it is an article used as food or drink for human consumption. But once the sale of any article of food is established the purpose for which it is sold, need not necessarily be only for human consumption or use. It may be any one or more of the purposes mentioned in the definition of sale viz. to a dealer or for use other than human consumption or for analysis. Thus, even taking into account the definition of "food" in Section 2(v), we do not think that we can accept the contention that the definition of sale is limited to sale of an article of food only for human consumption. 20. Then we turn 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning therefore can be attached to the different prepositions used preceding the different clauses. 22. Another contention was founded upon the use of the word "use" after the words "for human consumption or". The counsel sought to derive the meaning of the word "use" in the expression "for human consumption or use" by saying that it is one composite expression and "use" is also human use. He further pointed to the comma after the word "use" to suggest that the expression "for human consumption or use" is one composite expression because it has a comma preceding and a comma succeeding. Thus construed, counsel argues that even though "use" is separately mentioned, it is ejusdem generis with "human consumption" and therefore the word "use" must necessarily be limited 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 amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e word "sale". In Section 7 moreover the word "store" is used and we do not suppose that the intention with which an article is stored could ever be ascertained by the enforcing authority. In such a case if the theory or intention were to be read into the Act, the provision will become impossible to implement. If the theory of Intention cannot be applied to the act of storing, we can see no reason why it should only be applied to selling. Therefore, reading into the provision any Intention or mens rea on the part of the accused as an ingredient would render the salutary provisions of the section almost impossible of implementation. 26. But we need not go further into this question because under this very Act, the pronouncement of the Supreme Court of to which we have already referred, puts an end to this contention. In that case, one Mangaldas, a wholsale dealer, had sold turmeric powder, admittedly used for human consumption, to one Daryanomal. The turmeric powder 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 sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted decision is to be found in State v. Shankar Gambhire, where a Division Bench held that in a prosecution under Section 16 (1) (a) all that the prosecution need prove is (a) that a sale has taken place and (b) that the same is a sale of an article of food. The Division Bench further held that the question of the Intention of the seller is entirely irrelevant for the purpose of contravention of Section 7(i) of the Act and that it is sufficient if the object or the article sold happens to be an article of food and the article is found to be adulterated. With respect, we consider that that case was correctly decided, 29. In Shankar Gambhire's case, itself, the Division Bench referred to a number of unreported decisions of this Court in para, 10 of their judgment. Those decisions have all taken the same view. Of course, the first mentioned of these decisions is State v. Binjraj Punam-chaud Marwadi, Cr. Appeal No. 586 of 1960 D/- 16-11-1960 (Bom). What fell to be considered was the Act earlier to 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 coco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for holding that cocoanut oil ceases to be 'food' in an area where it is not generally used. Such an argument will lead to very absurd results. Knowing the food habits of the people in this part of the country, though it is quite possible to say that one variety of edible oil is used more generally than some other edible oil, it is not as it the less used edible oil ceases to be an edible oil, though it is sold in the market." The learned Judge further held that the Bar under section 7(i) is against selling food which is adulterated; coconut oil is an edible oil and therefore an article of food. Being adulterated, the accused was liable for an offence under Section 7(i). All these decisions were, with respect, correct, in our opinion, so far as the point before us is concerned. Thus, so far as this Court is concerned, it may be said that the view taken has been a consistent view except for one decision upon which counsel for the applicant strongly relied. That decision has in fact necessitated the present 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the sample was purchased by the Food Inspector, it was offered for sale by the accused as an article of food or that he had sold the sample as a sample of an article of food. They therefore held that the accused had not committed an offence and ordered his acquittal. 35. Now, it seems to us that Jn this decision very little assistance was given to the Court in coining to a correct decision. The learned Assistant Government Pleader who argued the case on behalf of the State does not appear to have referred either to the relevant provisions of law or to any of the previous authorities -- and they were several of them as we have shown. We have already referred to the decision in State v. Shankar Garnbhire, and to the several previous decisions of this Court referred to in the penultimate paragraph of that judgment. If these decisions had been cited they would ordinarily have been binding upon the Division Bench which decided Criminal Appeal No. 1373 of 1966 (Bom). If there is one thing remarkable about that decision, it is that none 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of human food, the particular stocks which the accused persons were holding would be food as defined by the Act, no matter that the particular stocks were intended for salo as fodder." With the greatest respect we are in complete agreement with this statement of the law. That case moreover was almost identical with the case before us including the defence taken by the accused. 38. The other case which is relevant is Public Prosecutor v. Nagbhushanam, which overruled an earlier decision of a single Bench of that Court In para. 16 the Division Bench held: "As regards the first ground, there is nothing in the Act which posits that an article of food may be adulterated with impunity provided it is not used as food throughout the length and breadth of the country. On the contrary there is every indication in the Act that it seeks to protect the public by preventing adulteration of any article or substance which is used as food in any part of the country. It is immaterial whether a given article or substance is not used at all as food 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of Public Prosecutor, Andhra Pradesh v. S. Sarya-narayana, AIR 1958 Andh Pra 681 (which has subsequently been overruled). The learned Judge declined to follow it and observed: "But in view of the definition of 'food' which is to be found in Section 2(v) of the Act, the Court is not concerned with the actual use to which the article in question may be put. To constitute 'food' for the purpose of the Act, it is enough that the article in question is usable as food or drink for human consumption. The word 'used' which is to be found in Section 2(v) of the Act obviously means usable or capable of being used, and not to be used or for the purpose of being used," That is a construction of the definition of 'food' which we have already said is acceptable to us. With respect, we accept the above statement of the law in the Patna case. 41. A view contrary to the view which has commended itself to us was taken in Nagar Mahapalika Varanasi v. Panna Lal, by a learned single Judge. In that case, however, the learned Judge came to a positive finding that Kesari dal was not ordinarily used for human consumption and hence it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceed to consider the facts of this case on the basis of the view expressed in Ghasiram's case, Cri. Appeal No. 297 of 1961, D/- 27-6-1963 (Cal)." 43. Now, we have already said that upon the analysis of the provisions of the Act, particularly sections 7 and 16, read in the light of the definitions of "food" and "sale", there is no scope in those provisions for letting in the intention of the person dealing with the article of food or for consideration of his 'mens rea.' We have indicated that this is also the law as declared by the Supreme Court. The expression "food" which was never 'meant' for human consumption of use (underlining (here in ' ') is ours) was used in the above passage, suggesting that the intention or mens rea is to be taken into account, The learned Judge thus took into consideration the intention of the accused who was in possession of Jingili Oil in this case, and therefore it seems to us that the judgment in that case is not in consonance with the decision of the Supreme Court, nor, upon the reasons we have given, based upon a correct interpretation of the provisions of law. The actual decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e health of the community. The Legislature in its wisdom considered that object paramount as opposed to the hardship upon a few citizens using an article of food for purposes other than human consumption or as in some of the cases we have referred to in an adulterated state for industrial purpose. We may also say that the hardship is not so great as is sought to be made out, for the industrial uses of an article of food must necessarily be after considerable adulteration and a stage would be reached where that article of food would cease to be an article of food. For instance, in the case of turmeric mixed with lead, a point may be reached by the increasing admixture of lead when it ceases to be turmeric and becomes only lead. At that stage, it would be a question of fact as to what is the real article. Is it an article of food or is it an article industrially used not connected with food? It seems to us on a perusal of the totality of the provisions of the Act that the Legislature, in order to protect the health of the community by preventing the adulteration of food, deliberately bypassed the possible hardship in a few border-line cases. We do not think therefore that this argume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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