Food Inspector, Alwaye Municipality vs P.M. Shamsuddin and Another

M.M. Pareed Pillay J.

Food Inspector, Alwaye Municipality, is the appellant. The complaint was filed against respondents 1 and 2 (accused 1 and 2) u/s 16 (1) (a) (i) read with Section 7(i) of the Prevention of Food Adulteration Act. 1954. A-1 is the proprietor and A-5 is the salesman. The complainant''s case is that on 17-11-1979 at about 11.30 a.m. he purchased from the second accused 375 grams of tea dust from about 41/2 kgs kept for sale in the shop of the 1st accused after giving him prescribed notice and Price, that he prepared mahazar in the presence of independent witnesses, that he had complied with the legal formalities under the Act and that the sample analysed by the Public Analyst was found to be adulterated. On the basis of the report of the analyst the complaint was filed against accused 1 and On the application preferred by the accused one part of the sample was forwarded to the Central Food Laboratory, Mysore for analysis. Central Food Laboratory, Mysore reported that the sample does not conform to the standards laid down for tea under the Prevention of Food Adulteration Rules and is therefore adulterated.

The trial Court held that the Food Inspector had complied with the provisions of the Prevention of Food Adulteration Act and Rules. Complainant''s contention that the tea dust was adulterated was also accepted by the trial Court in view of Exts. P-12 and P-16 reports. But the court acquitted the accused holding that tea is a primary food and that the accused''s plea that the Proviso to Section 2(ia)(m) of the Act should apply to the case is tenable.

Counsel for the appellant submitted that the finding of the trial Court that the proviso to Section 2(ia)(m)of the Act would apply is unsustainable as tea is not a primary food. The proviso reads.-

Provided that, where the quality or purity of the article, being primary food, has 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 proviso makes it clear that in such a contingency the article shall not be deemed to be adulterated.

The prime question to be considered is as to whether tea is a primary food or not. Primary food is defined under the Act. Section 2(xii-a) defines primary food as any article of food, being a produce of agriculture or horticulture in its natural form. The above definition would unequivocally show that any article of food being a produce of agriculture or horticulture in its nature form is a primary food. To be primary food it must be an article of food and it must be a produce of agriculture of horticulture in its natural form. Any article of food not being the produce of agriculture or horticulture in its natural form cannot fall within the definition of primary food.

Section 2(ia)(m) makes it abundantly clear that an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the standard prescribed or the constitutes are present in quantities not within the prescribed limits of variability but which does not render it injurious to health. In the case of primary food an exemption is made if solely due to natural causes and beyond the control of human agency the quality or purity of the article has fallen below the prescribed standards or its constitutes are present in quantities not within the prescribed limits of variability. In such cases it shall not be considered to be adulterated. It is very patent from the proviso that it can apply only to primary food.

As primary food means any article of food being a produce of agriculture or horticulture in its natural form, by no stretch it could be said that tea is an article of food retaining its pristine natural form. Tea is prepared from green leaves by subjecting it to mechanical process. Manufactured tea is entirely different from the original green leaves. Even by figment of imagination consumable tea cannot be said to be the produce of agriculture or horticulture in its natural form. To manufacture consumable tea the withered, rolled and fermented lea green leaves are dried by tea drier. As tea is a manufactured product there cannot be any doubt at all that it is not a primary food. If it is not a primary food the proviso to Section 2(ia)(m) cannot at all apply. The judgment of the trial Court, acquitting the accused invoking the proviso to Section 2(ia)(m) of the Act is totally unsustainable. Learned counsel for the accused contended that the accused are entitled to protection as they have warranty in their favour and therefore even if the trial court''s reasoning in acquitting the accused is not justifiable they are entitled to be acquitted on better and firmer ground of warranty. Accused relies on Ext. D-1(a) as the warranty in their favour. Ext. D-1(a) dated 15-9-1978 shows that 175 Kgms of Periyar Valley tea was purchased by A-1 for Rs. 5.70 per kgm. From this the Food Inspector took the sample. A-2 examined as D-W 2 deposed that he was present when the Food Inspector took the sample from A-1''s shop. He stated that the Food Inspector took the sample from chest containing the label Periyar Valley. D.W. 2 stated that A-1 is not the manufacturer of tea and he usually purchased it from Cochin. He asserted that the sample taken by the Food Inspector was the tea purchased from Muhammed Ashraff and Company and tea chest was with the label of the factory. He produced the file Ext. D-1 containing the purchase bills during 5-4-1978 to 17-3-1980. Asper Bill No. 1155 dated 15-9-1978 tea was purchased by A-1. The relevant entry has been marked as Ext. D-1(a). Ext. D-2 is the stock register. It mentions bill No. 1155 of Mohammed Ashrraf and Company. Ext. D-3 would show that Rs. 12,197.70 was paid for the purchase of tea. This includes Periyar Valley tea. D.W. 2 deposed that the books of accounts were regularly produced before the sales tax office and it was examined by the Sales Tax authorities. Documentary evidence produced in the case would clearly show that tea was purchased by A-1 from a wholesaler. Ext. D-1(a) bill mentions that the article sold is covered by warranty. D.W. 2''s evidence also would show that the tea was properly stored and it was sold in the same condition as it was purchased. The above evidence is not even seen challenged in cross-examination. Thus the evidence of D.W. 2 and the documentary evidence would establish the case of the accused that they are protected by the warranty. On that ground the accused are entitled to be acquitted.

I do not find sufficient reasons to interfere with the judgment of the trial Court. In the result the appeal is dismissed.