Food Inspector, Municipal Board vs Raman Lal

R.B. Lal, J.—This appeal by the complainant is directed against the order of acquittal date 23rd December 1976 passed by Shri R. N. Agarwala, II Additional Sessions Judge, Mathura.

The Food Inspector, Hira Lal Gola of Municipal Board, Vrindaban visited the Parchuni shop of Raman Lal, Respondent, situated in Retia Bazar, Vrindaban town on 24-11-75 at about l p.m. He found about 10 kilo-grams oil in a canister which Raman Lal was exposing for sale. On enquiry Raman Lal gave out that the oil was Laha oil. The Food Inspector disclosed his identity to Raman Lal and gave him a notice of his (Food Inspector) intention to take a sample of the oil for analysis. He purchased 375 grams oil on payment of Rs. 2.05 P. and obtained its receipt from Raman Lal Respondent. He sealed the oil in three phials in equal quantity and observed all the rules and procedures in respect of the taking of the sample. The necessary documents were also prepared. A phial of sample oil was handed over to the Respondent and a receipt was obtained in token thereof.

One phial of oil sample was sent to the Public Analyst for report and he reported that the sample contained about 22% linseed oil. A copy of this report was sent to the Respondent by registered post. Dr. D. C. Singhal, Medical Officer of Health, Municipal Board, Vrindaban, accorded sanction to Food Inspector Hira Lal Gola to launch prosecution against the Respondent and thereafter, the Food Inspector filed complaint against the Respondent. The Magistrate committed the case to the court of session on 20-8-76. In the court of session, two charges were framed against the Respondent; one for selling adulterated Laha oil which was an offence punishable under Sections 7/16 of the Prevention of Food Adulteration Act (briefly the Act), and the other for selling Laha oil in contravention of Rule 44 (e) of the Rules framed under the Act.

Raman Lal Respondent admitted that the Food Inspector had taken a sample of Laha oil from his shop. He also admitted receipt of a copy of the report of Public Analyst. He however, contended that he had started his shop some time back and he was selling oil, Gur and Ratab for horses. Laha oil was not used as human food. It was an article for giving to horses and also for massaging them. He added that he had not mixed anything in the oil. He examined two witnesses in defence.

The learned Additional Sessions Judge took the view that it was not proved that Laha oil or linseed oil (Alsi-ka-Tel) was used for human consumption and was edible oil. Hence it could not be said that the accused had contravened the provisions of Section 7 of the Act punishable u/s 16(1) of the same Act. He further observed that the accused had informed the Food Inspector at the time of the taking of the sample that the oil in question was not edible oil and for this reason as well the accused could not be said to have committed an offence. Rule 44 (e) prohibited sale of a mixture of two or more edible oils. Since it was not proved Laha oil and linseed oil were edible oils there was no contravention of Rule 44 (e). The learned Judge, therefore, acquitted Raman Lal, accused.

The Food Inspector did not feel satisfied and, therefore, filed this appeal with leave.

At the out set, the learned Counsel for the Respondent has submitted that the well-settled practice is that the appellate court would not interfere with the finding recorded by the lower court and reverse the order of acquittal, if that finding is based on a reasonable view of the evidence. In this connection, the learned Counsel has referred to the Supreme Court decision in the case of Dhan Kumar Vs. Municipal Corporation of Delhi, . This rule applies to findings of fact recorded by the lower court. If the acquittal is based on an erroneous view of law it can certainly be reversed if the correct view warrants a conviction.

The first question for consideration in this appeal is whether Loha oil and linseed oil are edible oils and food within the meaning of Section 2(v) of the Act, as the definition stood at the time of the taking of the sample. As indicated earlier the learned trial Judge took the view that there was no evidence to show that the two oils in question were edible oils. In this connection he referred to the statements of two defence witnesses and said that they had stated that Loha oil was not used by human beings. The learned Judge mis-read the statements of the two defenee witnesses. Gir Raj (DW-1) was a Halwai and he said in his examination-in-chief that Laha oil was not used in preparation of article of food. In cross-examination, in the bediming, he said that Laha and linseed oils were not used as food even by poor people but towards the end of his cross-examination he clearly said that he could not say if Laha and linseed oils were used by human beings in food. Beni Singh (DW-2) was a Tonga-driver and merely said that Laha oil was used for giving to horses and for their massage. He did not say that Laha oil or linseed oil were not used by human beings in food. The Food Inspector had clearly stated that Laha oil was used as food by human beings. Thus, so far as the oral evidence was concerned, there was no definite evidence to come to the conclusion that two oils in question were not edible oils and were not covered under the definition of food as given in Section 2(v) of the Act.

The standard of quality of ''linseed oil'' is laid down in item No. A- 7-04 of Appendix B of the Act. This implies that linseed oil is an article of food for purposes of the Act. If the learned trial Judge had cared to peruse Appendix B, he would have come to know that linseed oil is an edible oil and an article of food. In the decision in the case of Municipal Board, Kanpur v. Janki Prasad 1963 AWR 73 (F. B.), a Full Bench of this Court held that linseed oil is used as a cooking medium and is included in the definition of food as given in Section 2(v)(a) of the Act. From this it is clear that linseed oil is food within the meaning of the Act.

The Food Inspector stated in cross-examination that no standard of purity of Laha oil was given in the rules. This answer logically gives rise to the question as to why, then, the Food Inspector took sample of Laha oil for analysis. He could take sample of an article of food only for analysis. The fact that the Food Inspector had taken a sample of Laha oil indicates that he considered Laha oil to be an article of food. A clarification was, therefore, essential to remove an ambiguity which the above answer of the Food Inspector created. It was the duty of the learned trial Judge to seek this clarification by putting necessary questions. This was, however, not done. It only shows that the learned Judge went on recording the evidence in a rather mechanical manner. Laha is in fact a type of black mustard seed and Laha oil is nothing but mustard oil. It was so held by a Division Bench of this Court in the decision in the case of State v. Bat Mukund 1953 AWR 583 (D. B.) The Food Inspector clearly said that Laha oil is used by human beings as edible oil. Thus it is clear that Laha oil is also edible oil and an article of food within the meaning of the term ''food'' as defined in the Act.

The view of the trial court that the two oils were not edible oils, was wholly erroneous and deserves to be set aside. That view cannot be sustained on the ground that it was a view reasonably possible on the evidence available on the record.

The learned Counsel for the Respondent has emphasised the fact that the Respondent had informed the Food Inspector that the oil of which he was taking a sample, was not meant for human consumption but was, meant for being given to horses and for their massage, and, therefore, that oil could not be treated as ''food'' for purpose of the Act. It this connection, the learned Counsel has referred to two decisions namely Nagar Maha Palika v. Parmeshwar 1972 AWR 816 and Gyan Chandra v. State 1980 U.P.CLR 5. He has submitted that in both these decisions it was held that since the oil in question was stated to be not for human consumption, it could not come within the purview of the Act so as to make the seller liable for punishment under the Act. He has also pointed out that the learned trial Judge had recorded a finding of fact that the accused had given out to the Food Inspector that the oil in question was not meant for human consumption but was for being given to horses.

The Food Inspector denied that at the time of taking of the sample the accused had told him that the oil in question was meant for being given to horses and for their massage only. The other witness Ramesh who was also an employee of the Nagar Palika, and was with the Food Inspector, on the other hand, said that the accused had given out this fact when the Food Inspector was taking sample of the oil in question. Both these statements could not be true at the same time. This difference in the statement of the two witnesses, requires at least a departmental probe for suitable action against the person who did not make a true statement on this point. The stand of the accused was that he had clearly told the Food Inspector that the oil was not meant for human consumption and was meant for being used for horses. The learned trial Judge took the view that this information was conveyed to the Food Inspector. In the above state of evidence, this finding of the learned trial Judge may be accepted as correct and well founded for purposes of this appeal.

The two decisions cited by the learned Counsel for the Respondent cannot help him because there is a clear pronouncement of the Supreme Court laying down to the contrary. The Supreme Court considered the scope of the definitions of terms ''food'' and ''sale'' given in Clauses (v) and (xiii) respectively of Section 2 of the Act, in the decision in the case of State of Tamil Nadu Vs. R. Krishnamurthy, . While considering the definition of the term ''food'' their Lordships observed thus:

It is notorious that there are unfortunately in our vast country large segments of population who, living as they do, far beneath ordinary subsistence level, are ready to consume that which may otherwise be thought as not fit for human consumption. In order to keep body and soul together, they are often tempted to buy and use as food, articles which are adulterated and even unfit for human consumption but which are sold at inviting prices, under the pretence or without pretence that they are intended to be used for purpose other than human consumption. It is to prevent the exploitation and self-destruction of these poor ignorant and illiterate persons that the definition of ''food'' is couched in such terms: as not to lake into account whether an article is intended for human consumption or not. In order to be ''food'' for the purposes of the Act, an article need not be ''fit'' for human consumption; it need not be described or exhibited as intended for human consumption, it may even be otherwise described or exhibited; it need not even be necessarily intended for human consumption, it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly not used for human consumption or in the preparation of human food but for some other purpose, notwithstanding that it may be capable of being used, on rare occasions, for human consumption or in the preparation of human food, it may be said depending on the facts and circumstances of the case, that it is not ''food''. In such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But where the article is one which is generally or commonly used for human consumption or in the preparation of human food, there can be no question but that the article is ''food''.

The above was a case of mixture of Gingelly oil and ground nut oil. Their Lordships observed at another place (para 12) thus:

We are, therefore, of the opinion that the sale of gingelly oil mixed with ground nut oil is punishable u/s 16(1)(a)(i) read with Section 2(iv)(a) notwithstanding the fact that the seller had expressly stated at the time of sale that it was intended for external use only.

While considering the definition of term ''sale'', their Lordships observed that the definition is designedly wide and covers every kind, manner and method of sale. The use of words ''for human consumption or use or for analysis'' in the definition can in view of the context, only mean whether for human consumption or for any other purpose (including analysis). Their Lordships further observed thus:

To give any other interpretation to the definition of ''sale'' would be to exclude from the ambit of the Act that which has been included by the definition of ''food''. Further, a sale ''for analysis'' can never be a sale ''for human consumption'' but it is nonetheless a sale within the meaning of the definition. It is an unqualified sale for the purposes of the Act. To insist that an article sold for analysis should have been offered for sale for human consumption would frustrate the very object of the Act. A person selling an adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and thereby insure himself against prosecution for selling adulterated food. If sale for analysis is an unqualified sale for the purposes of the Act, there is no reason why other sales of the same article should not be sales for the purposes of the Act. The question may be asked why sale for analysis should be specially mentioned if all manner of sales are included in the definition. It is only to prevent the argument that sale for analysis is not a consensual sale and hence no sale, an argument which was advanced and rejected in Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, .

From the above observations of the Supreme Court it becomes clear that the fact that the seller had expressly stated at the time of sale that the oil was not meant for human consumption but was meant for being given to horses, cannot help the Respondent. Mustard oil is not an article which is generally or commonly not used for human consumption or in the preparation of human food but for some other purposes notwithstanding that it may be capable of being used, on rare occasions, for human consumption or in the preparation of human food, and, therefore, it cannot betaken out of the ambit of the term ''food'' as defined in the Act. Here I may add that the statement of Beni Singh (DW-2) shows that Laha oil is not used generally and commonly as food or massage oil for horses. It is used for these purposes only when a horse falls ill i. e. only on rare occasions. This use will not take out Laha oil from the category of those oils which are generally or commonly used for human consumption or for preparation of food.

The learned Counsel for the Respondent has tried to get over the above legal position by urging that the shop of the Respondent did not sell any article for human use or consumption and it was a shop which was dealing only in horse feed. This contention cannot be accepted. There is no material on the record to lead to such a conclusion. The two defence witnesses did not say so. The Respondent did not adduce any other evidence to substantiate this contention. Nothing was elicited from the prosecution witnesses which could go to support this stand. The prosecution evidence shows that the shop of the Respondent was of Parchuni where he sold tea, soap, gur, ratab and other articles of daily use. The mere fact that a Tonga Stand was near the shop, would not mean that the shop was dealing in articles required for horses only. It is in evidence that the shop was in the main market and near the abadi. Hence 1 reject this contention of the learned Counsel.

For the above reasons, the contention of the learned Counsel for the Respondent that the Respondent is not liable because he had given out to the Food Inspector at the time of taking the sample that the oil was not meant for human consumption, cannot be accepted and is repelled.

The learned Counsel has next contended that there was no compliance with the requirements of Sub-section (7) of Section 10 of the Act inasmuch as the Food Inspector did not call any public witness to be a witness of the taking of sample. Admission of the Food Inspector in cross-examination shows that he had not cared to call a public witness to be a witness of the taking of sample. This was no doubt a lapse on she part of the Food Inspector but it cannot help the prosecution in the instant case. The object of the provision contained in Sub-section (7) is to ensure the regularity and to secure evidence of the action of the Food Inspector. In the event of non-compliance with the provisions of Section 10(7) of the Act it has to be seen if the accused has been prejudiced in his defence in any manner and whether the evidence regarding the taking of sample is worthy of acceptance. In the instant case the accused admitted all the facts regarding taking of sample. He made only one addition namely, that he had given out to the Food Inspector at the time of the taking of the sample that the oil was not meant for human consumption but was for being given to horses. This fact too has been accepted for the purpose of the case. It has not been pointed out how the failure to comply with the provisions of Section 10(7) has caused any prejudice to the accused. It, therefore, follows that the non-compliance with the provisions of Sub-section (7) of Section 10 of the Act has no adverse effect on the prosecution case on account of the peculiar facts and circumstances of this case.

The learned Counsel for the Respondent has not assailed the prosecution case on evidence on merits on any other ground.

The sample of oil can be treated as ''adulterated'' within the meaning of Sub-clauses (a) and (b) of Clause (i) of Section 2 of the Act. It is covered under the last part of Sub-clause (a) because the Respondent had represented the oil to be Laha oil but it was found to contain another oil namely linseed oil to the extent of 22%. Thus, the oil sold by the Respondent was not of the nature, substance or quality which it was represented to be. The sample is also covered under Sub-clause (b) because of the presence of 22% linseed oil which can be said to be "any other substance which affects...injuriously, the nature, substance or quality" of the article of food.

Clause (c) of rule 44 prohibits sale of a mixture of two or more edible oils as an edible oil. The case is also covered under this clause because what the Respondent was selling, was a mixture of two edible oils.

The Respondent was charged both for selling adulterated Laha oil and for selling it in contravention of rule 44 (e). Thus, both the charges are made out against the Respondent; however, the question is whether he can be convicted and sentenced on both counts simultaneously. The words, "other than an article of food referred to in Sub-clause (i)" occurring in the beginning of Sub-clause (ii) of Clause (a) of Sub-section (1) of Section 16 of the Act, take out an article of food which is covered under Sub-clause (i) as an adulterated article, from the purview of sub-clause (ii). Sub-clause (ii) can apply to an article of food which does not come within the purview of Sub-clause (i) or in other words, which is not an adulterated article of food. A similar view was taken by the Delhi High Court in the case Municipal Corporation of Delhi Vs. Darshan Kxjmar, , the same view was also taken by a Bench of Madhya Pradesh High Court. I am in respectful agreement with this view.

On account of the above legal position, the Respondent cannot be convicted on both the charges at one and the same time. In the instant case, he can be convicted of the offence of selling adulterated Laha oil which is an offence u/s 7(i) punishable u/s 16(1)(a)(i) of the Act. I hold Raman Lal Respondent guilty of this offence.

Next I come to the question of sentence.

The learned Counsel for the Respondent has urged that benefit of probation provisions be allowed to the Respondent and he may not be sent to jail. In this connection he has pointed out that Section 20AA was added to the Act with effect from 1st April 1976 and the offence in this case was committed prior to that date. 1 have carefully considered these submissions of the learned Counsel. In my view, these circumstances are not sufficient to give the benefit of the probation provisions to the Respondent. The imperative of social defence must discourage the applicability of the probation principle. This was observed by the Supreme Court in the decision Prem Ballab and Another Vs. The State (Delhi Admn.), . The instant case does not come under the proviso to Sub-section (1) of Section 16 of the Act. Hence the minimum sentence which can be awarded is imprisonment for six months and a fine of Rs. 1000/-.

The appeal is allowed. Order of acquittal dated 23-12-76 is set aside. Raman Lal, Respondent is convicted of an offence u/s 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act and is sentenced to undergo rigorous imprisonment for six months and pay a fine of Rs. 1000/-. In default of payment of fine he shall further undergo rigorous imprisonment for three months. The Respondent is allowed three month''s time to pay up the fine. The Respondent shall be taken into custody to serve out the sentence according to law.