Banabihari Pradhan vs Food Inspector, Puri Municipality and Another

S.K. Ray, C.J.—The Petitioner was convicted u/s 16(l)(a) of the Prevention of Food Adulteration Act (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/-, in default to suffer S.I. for one month by Shri S.K. Mohapatra. Judicial Magistrate, Fast Class, Puri in Case No. 3(a) C.C. 148 of 1975. On appeal to the Sessions "Judge, Puri in Criminal Appeal No. 224 of 1977 the said order of conviction and sentence was confirmed. This revision is directed against the order of conviction and sentence of the Sessions Judge.

On 11-7-1975 the Food Inspector, opposite party No. 1, purchased 900 grams of ice-candy from the Petitioner after serving on him notice u/s 11(1)(a) of the Act. He divided the same into three parts and sent one part to the Public Analyst for analysis. The Public Analyst submitted his report which is Ext. 4, the relevant portion of which is as follows:

I further certify that I have caused to be analysed the aforementioned sample and declare the result of the analysis to be as follows:

Test for sugar (sucrose) - Negative.

Artificial Sweetener:

Saccharin - Present (86.1 ppm) and am of opinion that the sample is adulterated as it does not conform to the standard due to absence of sugar in it and also prohibited for sale due to presence of saccharin in it.

The following charge was framed against the Petitioner:

xx xx xx xx

That you on or about the 11th day of July, 1975 at 12 noon at the manufacturing premises of Mishra Ice factory had stored ice candy for sale for human consumption which on chemical analysis was found to be adulterated and thereby committed an offence punishable u/s 16(1)(a) of the P.F.A. Act....

In exercise of power conferred by Sub-section (2) of Section 4 and Sub-section (1) of Section 23 of the Act, the Central Government, after consultation with the Central Committee for Food- Standards framed rules for the Prevention of Food Adulteration Rules, 1955 (hereinafter called the Rules). Under Rule 5 thereof standard of quality of various articles of food specified in Appendix B to the Rules are as defined in that appendix. A 07.4 of Appendix B defines ''ice-candy'' as meaning the frozen ice produce containing sugar, with or without the addition of permitted colouring or flavouring substances.

Section 16(1)(a) of the Act under which conviction has been made provides that if any person whether by himself or by any other person on his behalf, stores any article of food which is adulterated within the meaning of Sub-clause (m) of Clause (ia) of Section 2...or the sale of which is prohibited under any provision of this Act or any rule made thereunder..."or stores any article of food "other than an article of food referred to in Sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder,...." he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees. There is a proviso to this section which is not necessary to quote.

Sub-clause (m) of Clause (ia) of Section 2 of the Act provides that an article of food shall be deemed to be adulterated If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health; provided that, where the quality or purity of the article, being primary food, fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this sub-clause. The Explanation to this clause runs as follows:

Explanation.- where two or more articles of primary food are mixed together and the resultant article of food (a) is stored, sold or distributed under a name which denotes the ingredients thereof; and

(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause.

Food has been defined in Section 2(v) of the Act as meaning, ''any article used as food or drink for human consumption other than drugs and water and includes any article which ordinarily enters into, or is used in the composition or prepartion of human food, any flavouring matter or condiments, and any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act''. Saccharin Sodium commonly known as soluble Saccharin having an empirical formula as - C7 H 4, N Nao3S, 2H20 and molecular weight as 241 2 has been declared as an article of food in A.07.10 of Appendix B.

From the aforesaid provisions it is clear that the prosecution has to prove, in order to bring home the charge under Sub-clause (i) of Section 16(1)(a) - (a) that the article in question stored was an article of food, (b) that the article of food is adulterated within the meaning of Sub-clause (m) of Clause (ia) of Section 2 of the Act, that is to say, the said article of food has fallen below the standard in quality or purity prescribed in Appendix B, or, (c) that the article stored is an article of food other than article of food referred to in Sub-clause (i) of Section 16(1)(a) of the Act (e.g. unadulterated article of food) and that the said article has been stored io contravention of any provisions of the Act or of any rule made thereunder, which, in this case, as argued by Mr. Mohanty for opposite parties, is Rule 44(g) and Rule 47 of the Rules where the charge relates to Sub-clause (ii) of the said section.

In view of the report of the Public Analyst the article which was analysed was not ice-candy as defined in A.07.4 of Appendix B, firstly because it did not contain sugar and secondly cause no evidence is there to show that what was sent for analysis was a produce out of frozen ice. The expression used in this definition is frozen Ice produce which is different from "frozen ice" simpliciter. The prosecution evidence, therefore, has failed to establish that what was stored by the Petitioner and what was sold to the Food Inspector and sent for analysis is ice-candy as defined though in common parlance it was referred to as ice-candy. Thus the article in question has not been proved to have fallen below the standard in quality or purity prescribed either in A.07.4 or in any other item in Appendix B and is, therefore, not adulterated within the meaning of Section 16(1)(a)(i) of the act.

Next. it is to be seen if the article in question is an article of food other than the article of food referred to in subclause (i) of Section 16(1)(a) and was stored in contravention of Rule 44(g) and Rule 47 of the Rules so as to attract Section 16(1) (a)(ii) of the Act. It will be seen from Section 2(v) of the Act that ''food'' as defined therein does not include water and, therefore, excludes frozen water, that is, ice from its ambit and is not an article of food. The report of the Public Analyst only shows that there was Saccharin in frozen ice. Rule 44(g) provides that notwithstanding the provisions of Rule 43 no person shall either by himself or by any servant or agent sell any article of food which contains any artificial sweetener, except where such artificial sweetener is permitted in accordance with the standard laid down in Appendix B. Rule 47 provides that Saccharain or any other artificial sweetener shall not be-added to any article of food, except where the addition of such artificial sweetener is permitted in accordance with the standards laid down in Appendix- B. To establish breach of rules 44(g) and 47 it must first of all be established that artificial sweetener (in this case Saccharin) has been added, to an article of food. The so called article of food has not been proved to be anything other than frozen ice which as already shown, is expressly exclude from the definition of ''food''. Thus as the article in question is not an article of food as defined and as enumerated in Appendix B none of these rules can be said to have been infringed even by addition of Saccharin. Thus, it has not been proved that any offence as envisaged in Section 16(l)(a)(ii) of the Act has been committed. Further, conviction under this part of the section cannot be sustained also fat the additional reason that the Petitioner had no notice in the charge of the various factual elements involved thereunder or of the allegation of the breach of rules 44(g) and 47 of the Rules.

For the foregoing reasons I must hold that the prosecution has failed to prove that the article which was said to have been stored by the Petitioner was adulterated and, accordingly, the prosecution must be held to have failed to bring home the charge under either of Sub-clauses (i) and (ii) of Section 16(1)(a) of the Act, even though the charge as framed was on the footing that the article said to have been stored by the Petitioner was adulterated and had thereby reference only to Section 16(1)(a)(i) of the Act and not to Section 16(l)(a)(ii).

It appears that the entire prosecution report contemplated a case of storage of adulterated food and not of any article of food in contravention of any other provision of the Act or of any rule made thereunder. Thus, the prosecution report refers to Clause (i) of Section 7 and not to Clause (v) of that section. Taking the prosecution report as in the nature of a charge against the Petitioner it contemplates a case u/s 16(1)(a)(i) which has been sanctioned by the District Medical Officer, Puri as required u/s 20 of the Act: Prosecution for the offence u/s 16(1)(a)(ii) has not received sanction.

In result, the revision is allowed, conviction and sentence are set aside and fine, if paid, shall be refunded.

Revision is allowed.

Revision allowed.