District Food Inspector vs Bhanwarial Sihari

B.L. Hansaria, J.

There is an Atta Grinding mill at Jorhat called ''Jorhat Flour Mills''. A sample of atta was taken from the Respondent, who is the Manager of the mill on 4.7.73 The Public Analyst waived the same on 20th day of July, 1984 and as per his opinion dated 14th September, 1973, the sample was of "insect infested Atta having high alcoholic acidity", Insects were four in number per 100 gms and alcoholic acidity was 0.19% whereas as per the standard prescribed it should not have been more than 0.18%. A prosecution was, therefore, launched against the Respondent u/s 17 read with Section 7 of the Prevention of Food Adulteration Act, 1954, hereinafter called the Act. As per the impugned judgment, the accused was, however, acquitted as it was held that the atta was not meant for sale, nor did the accused stored the same for sale. Feeling aggrieved, the District Food Inspector has preferred this appeal.

A perusal of the impugned judgment shows that the learned trial Court come to the aforesaid conclusion on perusal of the evidence of D.Ws. 1 and 2, the purport of which is that the mill in question was allotted wheat by the Supply Department and the resultant atta was also to be disposed of by the mill as per the allotment made by the Department. At the relevant time, the Jorhat Consumers'' Goods Wholesale Co-operative Society was the only body which was given permit to lift atta from the mill. On the basis of this evidence, it was held that "the accused person had no control over the wheat or the resultant Atta" and, therefore, it was "very much doubtful" whether he was the full owner of the property. It had earlier been opined by the learned trial Court that for a sale to take place, the accused must have had the ownership over the property. It "sale" was taken to mean a transfer of ownership in exchange for a price paid or promised or part paid or part promised. It was ultimately concluded that the atta kept in the premises of the Mill was not intended for sale, and so, Section 10(2) of the Act was not attracted and, as such, the accused was not bound to sell the samples to the Food Inspector.

In assailing the judgment, the learned Public Prosecutor has referred to The Food Inspector, Calicut Corporation Vs. Cherukattil Gopalan and Another, where it was held that in view of the definition of "sale" in Section 2(xiii), sell of sample to Food Inspector amounted to sale. Our attention is invited to Ext. 2 in particular by which the Respondent acknowledged the receipt of a sum of Re. 0.52 being the price of 600 of gms Atta sold by him to the Food Inspector. It is further contended by relying on the aforesaid decision, that for a conviction under the Act proof of dealership is not necessary once a person affects a sale as defined under the Act.

In reply Shri Bhattacharjee submits that the matter is not as simple as put forward by the learned Public Prosecutor, as Sections 7 and 16 are to be read along with Section 10 which has defined the power of the Food Inspector to take samples. He relies in the this context on Municipal Corporation of Delhi v. L.N. Tandon, AIR 1975 SC 621 wherein, after referring to Sections 7, 10 and 16 of the Act, it was held as below in para 14:

From a conjoint reading of the above referred provisions, it will be clear that the broad scheme of the Act is to prohibit and penalise the sale or import, manufacture, storage or distribution for sale of any adulterated article of food. The terms "store" and "distribute" take their colour from the context and the collocation of words in which they occur in Sections 7 and 16, ''Storage" or distribution" of an adulterated article of food for a purpose other than for sale does not fall within the mischief of this action. That this is the right construction of the term "store" and "distribute" in Section 16(1) will be further clear from a reference to Section 10. Under that Section, the Food Inspector, whom the Act assigns a pivotal position for the enforcement of its provision is authorised to take samples of an article of food only from particular persons indulging in a specified course of business activity, The immediate or ultimate end of such activity is the sale of an article of food. The section does not give a blanket power to the Food Inspector to take samples of an article of food from a person who is not covered by any of the Sub-clauses of Sub-section (1)(a) or Sub-section (2). The three sub-clauses of Sub-section (1)(a) apply only to a person who answers the description of a seller or conveyor, deliverer, actual or potential, of an article of food to a purchaser or consignee or his consignee after delivery of such an article to him. Sub-section (2) further makes it clear that sample can be taken only of that article of food which is "manufactured", "stored" or exposed for sale. It follows that if an article of food is not intended for sale and is in the possession of a person who does not fulfil the character of a tiller, conveyor, deliverer, consignee, manufacturer or storer for sale suoh as is referred in Sub-sections (1)(a) and (2) of the section, the Food Inspector will not be competent under the law to take a sample and on such sample being found adulterated, to validly launch prosecution thereon. In short the expression "store" in Section 7 means "storing for sale" and consequently storing of an adulterated article of food for purposes other than for sale would not constitute an offence u/s 16(1)(a).

As observed above, Section 10 does not give a blanket power to the Food Inspector to take samples of an article of food from a person who is not covered by any of the sub-clauses of Sub-section (1)(a) or Sub-section (2). In view of this, it cannot be held merely from the fact of purchase of sample by a Food Inspector from a person that the latter was "selling" such article within the meaning of Sub-clause (i) of Section 10(1)(a). It shall have to be seen, de hors the sale to the Food Inspector, whether the person from whom the sample was taken satisfied any of the characters mentioned in Sub-section (1) or Sub-section (2) of Section 10. For a person to become a seller or store for sale, there is no doubt that person or on whose behalf the transaction was made, must be the owner of the goods, as it is apparent that a person cannot sell any article unless he own the same. The mere fact that the mill (in the present case) could not have disposed of the resultant atta to anybody unless he was armed with a permit from the Supply Department would not, however, mean that the transection did not amount to sale. In this connection reference may be made to Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, in para 18 of which it was stated that for a contract to come into existence, it is not necessary that both the parties must act voluntarily. As observed in this para, a transaction may amount to contract even where one of the parties had no choice but to accept the proposal.

The submission of Shri Bhattaobarjee really is that as from materials on record it could not be held that the ownership of the atta had vested in the mill, the act of giving atta to the permit holders by the mill would not amount to sale. He refers in this connection to the evidence of D.W. 2 who had stated that the mill was allotted wheat for grinding. From this statement alone, it cannot be said for definite that the ownership of the wheat which was given for grinding had not passed on to the mill. Even if a mill gets wheat following an allotment by the Government, it may be that the mill becomes the owner of the wheat even though the resultant atta could also be disposed of by the mill only to the permit holders. Shri Bhattacharjee contends that the burden of proving the ownership of the atta with the mill rested on the prosecution and in the absence of any positive evidence in this regard, the benefit of the same must be given to the accused. We would, however, think that as this fact was within the special knowledge of the accused, it was his burden to prove the same as provided by Section 106 of the Evidence Act. It is worth pointing out in this context that the accused did produce two defence witnesses who deposed about the manner and method of allotment of wheat and the resultant atta but from their evidence also, it cannot be held for definite that the wheat which was given to the mill for grinding had remained property of the Government.

In view of the above, we would hold that from the materials on record, it cannot be said that the atta which had been stored in the mill was not meant for sale. The samples taken by the Food Inspector; therefore, was not hit by Section 10 of the Act. It may also be pointed out that in so far as taking of sample by the Food Inspector is concerned, we do not think if any permission of any authority was required, as Section 10 itself has clothed the Food Inspector with this power. We have made this observation because of the statement of PW 1 in cross-examination that atta could not have been sold by the mill at the relevant time without the permission of the Deputy Commissioner. We are of the view that this restriction did not apply to the purchase of atta by the District Food Inspector for the purpose of its analysis.

This takes us to the question as to whether the atta of which sample was taken, was adulterated or not. A reference to the report of the Public Analyst shows that the Atta was found adulterated because "told live insects" wore present in the sample and because of high alcoholic acidity, As to insect infestation, Shri Bhattacharjee to the evidence of the District Food inspector P.W. 1 who had stated in his cross-examination that he had not seen any worm in the (sic) on the day on which he had seized the same. It is, therefore contended that inrects might have made their appearance after the sample was taken which might be due to defective packing. Even if we give some concession for this contention, the percentage of alcoholic acidity was above the limit prescribed. Though the variation is marginal, that would not made any difference in so far as the question of adulteration is concerned.

We would, therefore, hold that the sample of atta was adulterated and the Respondent had committed offence u/s 16 read with Section 7 of the Act.

This takes us to the question of sentence. As the sample was taken on 5.7.73 and as the same has been held to be adulterated because of marginal non-compliance with the prescribed standard, we are satisfied on the strength of several pronouncements of the Apex Court, to wit, Ramdas Bhikaji Chaudhari Vs. Sadanand and Others, , Municipal Corporation of Delhi Vs. Tek Chand Bhatia, , Umedlal v. State. AIR 1979 SC 1700, Lingappa Shetty v. Hubli Darvar Municipality AIR 1979 SC 1828 and a number of decisions of this Court, that at this length of time the Respondent may not be sent to prison. We, therefore, sentence him to a fine of Rs. 1,000.00 for his offence under the aforesaid section of law.

In the result, the appeal is allowed by setting aside the impugned judgment and by convicting the Respondent u/s 16 of the Act. For this offence, the Respondent is sentenced to a fine of Rs. 1,000/- which shall be deposited within six weeks from today. In default of payment of fine, the Respondent shall undergo simple imprisonment for one month.