State vs Babu Ram

V.P. Gupta, J.—This appeal is directed against the judgment dated 1-3-1982 passed by the Chief Judicial Magistrate, Hamirpur, by which she acquitted the Respondent of the charges u/s 16(1)(a) read with Section 7 of the Prevention of Food Adulteration Act (hereinafter the Act).

Briefly, the prosecution version is that the Respondent was carrying about 10 kg. of milk for sale. Shri Tarlok Singh, Food Inspector, after disclosing his identity served a notice upon him and indicated an intention to take the sample of milk for analysis. 660 ml. of milk was purchased from the Respondent on payment of Rs. 1.32. It was then divided nd filled in three neat, clean and dried bottles in equal quantity. Formalin was added to each part of the sample as preservative.

These bottles were packed and sealed after observing the various formalities and one of the bottles was sent to the public analyst, and the remaining two bottles were deposited with the local health authorities. According to the report of the public analyst the milk was found to be adulterated as it was deficit in milk-solids Not-fat by 21 % of the minimum prescribed standard.

A complaint was filed by Shri Tarlok Singh, Food Inspector in the Court of Chief Judicial Magistrate, Hamirpur, on 11-4-1980 and after recording pre-charge evidence, a prima facie case u/s 16(1)(a) read with Section 7 of the Act was found against the Respondent, who was charged and tried for the same. The learned Chief Judicial Magistrate, after appreciation of the evidence found that the milk from which the sample was taken was not being carried by the Respondent for sale and consequently the Respondent was acquitted.

The learned Counsel for the Appellant contends that the learned Magistrate has erred in acquitting the Respondent. He contends that it is not necessary to prove that the milk was being carried for sale or that the Respondent was dealing in the sale of milk. The mere fact that the adulterated milk was sold to the Food inspector by the Respondent is sufficient to convict the Respondent u/s 16(1) of the Act.

The learned Counsel for the Respondent contends that it is necessary to prove that the milk from which the sample was taken was meant for sale to the public and that the Food Inspector has no right to take a sample of milk for analysis from the milk which is not meant for sale to the public.

I have considered the contentions of the learned Counsel For the parties and have gone through the records of the case.

Tarlok Singh, Food Inspector states that he purchased 660 ml. of milk from the Respondent for Rs. 1.32 after disclosing his identity and a notice Ex. PA was given to the Respondent. The payment of Rs. 1.32 was made vide receipt (Ex. PB). The milk was put in three bottles which were duly fastened and sealed according to the law and rules. The sample was sent to the public analyst vide memo. Ex. PD who gave his report Ex. PE. The milk was taken from the Respondent in the way. The Respondent told him that the licence for selling milk was at his house. The witnesses S/Shri Rajinder Paul and R.C. Sharma were present at the time of the taking of the sample.

Rajinder Paul (PW 2) states that the sample of milk was purchased when the Respondent was sitting in the shop of Gian Chand Halwai. He cannot state as to whether the milk was meant for sale or not. The Respondent had disclosed to the Food Inspector that he was taking the milk to his uncle''s house for a Jag (religious) ceremony.

Shri R.C. Sharma was given up by, the prosecution.

The Respondent in his statement u/s 313 Code of Criminal Procedure states that the milk was not meant for sale and he was taking the same to his uncle''s house for Jag (religious) ceremony.

Phatta Ram (DW 1) is the uncle of the Respondent and he states that the Respondent was bringing the milk to his house for the purposes of a Jag (religious) ceremony. He further states that the milk vendors in Nadaun have been issued licences by the Notified Area Committee and that the Respondent does not sell milk.

Surjan Ram (DW 2) also states that the Respondent is not a milk vendor and was carrying the milk to the house of his uncle Phatta Ram.

The learned Chief Judicial Magistrate came to the conclusion that the Respondent was carrying the milk to his uncle''s house in connection with a Jag (religious) ceremony and it was not meant for sale to the general public.

After going through the evidence discussed above, I am satisfied that these findings of the learned Chief Judicial Magistrate are correct. The Respondent is not a regular milk vendor and he was carrying the milk for the Jag ceremony to his uncle''s house. The milk was not meant for sale to the general public.

The next question is as to whether in view of these facts and circumstances, the Respondent is liable to be convicted or not.

Sale is defined in Section 2(xiii) of the Act as follows : "''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 analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article and includes also an attempt to sell any such article."

Adulterated is defined in Section 2(ia) of the Act and the relevant portion reads as follows:

In this Act unless the context otherwise requires,-

(id) ''adulterated''-an article of food shall be deemed to be adulterated-

(a) to (l) xxx x xx xxx

(m) 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.

Food is defined in Section 2(v) of the Act as follows:

(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,

(b) any flavouring matter or condiments, and

(c) 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.

Section 7 of the Act prohibits the sale etc. of certain articles of food and the relevant portion reads as follows:

No parson shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-

(i) any adulterated food;

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Section 10 of the Act gives power to the Food Inspector to take samples of articles of food and the relevant portion of section 10 reads as follows:

(1) A food inspector shall have power-

(a) to take samples of any article of food from:

(i) any person selling such article;

(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;

(iii) a consignee after delivery of any such article to him; and

(b) to send such sample for analysis to the public analyst for the local area within which such sample has been taken.

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Section 10(2) empowers a food inspector to enter and inspect any place where any article of food is manufactured or stored for sale, or stored for the manufacture of any other article of food for sale or exposed or exhibited for sale or where any adulterant is manufactured or kept and take samples of such articles of food or adulterant for analysis.

Section 16 of the Act provides punishment which can be awarded to a person for selling adulterated food and the relevant portion reads as follows:

(1) Subject to the provisions of sub-section (1A) if any person-

(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food-

(b) which is adulterated within the meaning of Sub-clause (m) of clause (ia) of Section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority.

he shall, in addition to the penalty to which he may be liable under the provisions of Section 6, 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.

After going through the various provisions of sections 7, 10 and 16 of the Act, I find that the Respondent can only be made liable for having committed any offence if he was found carrying the milk (from which the sample was purchased by the Food Inspector) for sale. In Municipal Corporation of Delhi Vs. Laxmi Narain Tandon and Others, , para 14 reads as follows:

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 section. That this is the right construction of the terms ''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 provisions 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 die- 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 (l)(a) or sub-section (2). The three sub-clauses of sub-section (l)(a) apply only to a person who answers the description of a seller or conveyer, 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 seller, conveyer, deliverer, consignee, manufacturer or storer for sale such as is referred in sub-sections (l)(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).

24 The question to be answered in Municipal Corporation case (supra) was as to whether the expression ''store'' as used in sections 7 and 16 of the Act means storage simpliciter or storage for sale. It was held that the storing should be for the purpose of sale and the simple storage of an article of food is not sufficient to make a person guilty under sections 6 and 17 of the Act.

In Nazir Vs. State of U.P., , a sample of milk was purchased by the Food Inspector from Nazir (Appellant) and the same was found to be adulterated. Nazir was only an agriculturist and was carrying the milk obtained from his buffaloes not for sale but for his uncle in connection with his daughter''s marriage. In these circumstances, it was held that the Appellant was not guilty under Sections 7 and 16 of the Act because the sample of milk purchased by the Food Inspector from him was not taken from the milk which the Appellant had kept or carried for sale.

In 1983 F.A.J. 377, (Nagar Nigam v. Bisram), learned single Judge of the Madhya Pradesh High Court observed that:

although sale of an article of food to a Food Inspector for purposes of analysis would be a sale of that article within the meaning of the term ''sale'' as used in Section 2(xiii) of the Prevention of Food Adulteration Act, yet the person selling must be shown to be engaged in the activity of sale. A person who stores such articles of food for his own consumption and does not engage in the business of sale of that article cannot be held liable under the Act even if under compulsion he is required to sell it to the Food Inspector for the purposes of analysis. If the definition of ''sale'' is also held to include sale by persons who store articles of food at their residence for their own consumption and on the articles being found to be adulterated, they are to be held liable under the Act, the results would be surprising hazardous as in that event an ordinary consumer purchasing an adulterated article of food from a sale engaged in the activity of sale and storing it with him for his own consumption shall always be in the danger of being prosecuted and even being held liable. Such a result was never intended.

The facts of the case were that the accused after purchase of milk from a dealer was taking the same to his sister-in-law on a request being made by her. The accused was not shown to be engaged in the activit y of sale of milk. On the other hand, he was proved to be a mere cultivator. He was not found guilty for having committed any offence because he was not storing the milk in the course of commercial activities.

In Giridhari Ballani Vs. Corporation of Calcutta, , it was held that the word ''store'' in Section 7 of the Act means storing for sale and that storing for the purpose other than sale did not constitute an offence u/s 16. The facts were that some ghee was stored in a temple. The Food Inspector visited the temple and seized four tins of ghee, which were in the process of being removed from a room inside the temple. The Appellant (Giridhari) claimed that he was the owner of the ghee. Two samples of the seized ghee were taken by the Food Inspector after observing all formalities and were sent for analysis. The ghee was found to be highly adulterated. Giridhari (Appellant) was charged and tried for having committed offences under Sections 16 and 7 of the Act. His defence was that the ghee was being stored in the temple and the same was to be taken to his house for consumption in his family for the purpose of a feast to be held there to celebrate tne birth anniversary of Mahavir Jain.

It was held that the ghee from which the sample was taken by the Food Inspector was not meant for sale and the Appellant (Giridhari) was not carrying or storing the ghee for sale.

In the present case, I find that it is not proved that the milk in possession of the Respondent was meant for sale. The Respondent is not proved to be a milk vendor or dealing in the sale of milk. The milk vendors were being issued licences by the Notified Area Committee but the Respondent had no such licence to sell milk. On the contrary, it is proved that the Respondent was carrying the milk to the house of his uncle for the purpose of a Jag (religious) ceremony.

In view of the aforesaid circumstances, although the sample of milk was purchased by the Food Inspector on payment of a price from the Respondent, still the Respondent cannot be held liable under Sections 7 and 16 of the Act because the Respondent was not carrying the milk (from which the sample was purchased) for sale.

As a result of the above discussion, I find that there'' is no merit in this appeal which is hereby dismissed.