State vs Vikas Mahajan & Ors.

Respondent Vikas Mahajan is owner of a factory located at Gangyal Jammu. It manufactures Basin. It was brought to the notice of the police

authorities that this basin which is a product obtained from grinding black gram was being mixed with wheat flour and was being sold as such. It

was further noticed that a truck bearing registration No. JKR1237 was parked in the factory premises. This contained basin adulterated with

wheat flour. This was seized. This led to proceedings being taken section 3/7 of the Essential Commodities Act. Samples were sent to the public

Analyst. It was found that the samples of basin were adulterated. Charge was framed under sections 120, 272, 273 of the Ranbir Panel Code. The

trial court came to the conclusion that a case under' sections 272/273 of the Ranbir Panel Code was not made out. The view expressed was that

the basin mixed with wheat flour may be adulterated but it is not noxious and it was also observed that it is not unfit for human consumption. This

opinion expressed by the trial Magistrate on 12.0/.1997 was challenged before the court of revision. The court of revision expressed an opinion

that if wheat flour was being mixed with basin then this would also bring the case within the mischief section's 272 and 273 of the Ranbir Panel

Code.

The court of revision has expressed an opinion that once wheat flour was found to be mixed with basin then the substance would become

noxious and the provisions of section 272 and 273 of the Ranbir Panel Code would be attracted. A reference has been made to this court for

setting aside the order of the learned trial court so that further trial may commence.

The sample in question was analysed by the Public Analyst. He found that there were fungal growth. The presence of rodents hair and their

excreta was also noticed. Further opinion was expressed that the samples of basin has plenty of admixture of foreign starch. Opinion was also

expressed that the samples were adulterated.

The court of revision which has made the reference has also taken note of the statements of the witnesses which were to the effect that wheat

flour was being mixed with basin. At this stage sections 272 and 273 of the Ranbir Penal Code be taken note of:

adulteration of food or drink intended for sale whoever adulterates any article of food or drink, so as to make such article noxious as food or

drink, intending to sell such article as food or drink or knowing it to be likely that the same will be sold as food or drink, shall be punished with

imprisonment of either description for a term which may extend to six months or with fine which may extend to one thousand rupees or with both.

Sale or noxious food or drink whoever sells, or offers of exposes for sale, as food or drink, any article which has been rendered or has

become noxious or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be

punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to one thousand rupees

or with both.

The view expressed by the trial magistrate is that unless and until the adulteration leads to an article being rendered as noxious, .the provisions of

section 272 of the Ranbir Panel Code would not be attracted. This has been questioned.

These sections are not the only provision penalising the sale and exposure for sale of adulterated articles of food or drink. Various Municipal

Acts contain several provisions for seizure and destruction of noxious articles. The two sections cover not only food and drink intended only for

human consumption but the purveyor of noxious food for animal is equally punishable under these sections. Sections 272 is directed against the

adulteration of articles food or drink which renders it noxious for consumption. The word ""noxious as food"" means unwholesome as food or

injurious to health. Mere adulteration with harmless ingredients forgetting more profit is not punishable under these sections. It is an indictable

misdemeanour knowingly to sell food unfit for human consumption or to mix unwholesome ingredients in anything made or supplied for food, for

human being. In order to convict a person under the two sections, it is essential to prove that an article of food or drink has been adulterated and it

was intended to sell such article or that it was known would be likely to be sold as food or drink.

Hawkins. J. observed: ""The mere sale of an article not itself an article of food, even though it be sold with the knowledge of the vendor that it the

buyer's intention to mix it with the ingredients of which an article of food e.g. bread, is to be composed, is not offence under section 3 and it makes

no difference in a legal point of view that when sold, it is mixed with other ingredients, not in themselves hurtful, some or one of which might, in an

unmixed state, be used as articles or an articles of food, if the injurious and harmless ingredients are so inseparably mixed and in such quantities as

that the mixture, as a whole, forms an injurious compound, which nobody would dream of using as food"" James v Jones (1894) 1 Q B 304 at

p.304.

The sale of unwholesome food is reprobated not because it may be an imposition on the purchaser, if it is punishable otherwise as cheating, but

because the sale of noxious food is injurious to the public health. If, therefore, the vendor sells noxious food to the purchaser and apprises him of

the fact, he is nonetheless guilty because the law would not permit a man to poison himself by noxious food and to this extent, it helps him against

himself. But the question of notice is material, as it may, then, be urged that the purchase with notice could not have purchased it as food or drink.

So, where the accused sold a quantity of old and gritty flour, unfit for human consumption at the reduced rate of 18 seers per rupee, which was 3

seers more than the prevailing marketrate and the seller told the purchaser that the flour was bad and was, therefore, sold cheap, he was held to

have committed no offence under this section, Ganesha (1873) P.R No. 15. In such a case the accused might well have believed that the purchaser

was not likely to use the flour as food on account of its inferior quality.

The knowledge or belief may be inferred from the condition of the food, the probability of its having become noxious, the foul smell it has begun

to emit or its altered appearance. In order to be punishable, it is not necessary to show that the article had become unfit owing to anything done by

the vendor, for it may have become so by natural deterioration. So a vendor was convicted for selling toddy in which worms had germinated

wrong to its having been kept too long. Ediga Narasappa (1804) 1 weir 228. But where the accused has sold some ghee which, on chemical

analysis, was pronounced to be ""somewhat rancid"". The accused's conviction was quashed on the ground that there was not evidence that the

accused knew it to be noxious at the time. The principle deducible from this case, then, is this that merely expert evidence is not sufficient to bring

the offence home to the accused. There must be evidence from which the Court would be justified in inferring that the accused knew it to be

noxious at the time of sale, Sheo Lal, I.L.R26 All. 387.

Thus what is required to be seen with a view to attract the provisions of section 272 of the Penal Code is that by the adulteration food or drink

has been rendered noxious. This offence is thus different from that which is covered by the provisions of Food Adulteration Act. Thus mixing of

water with milk for sale may not be an offence under section 272 of the Penal Code. In such cases, it has to be demonstrated that by doing so the

milk was rendered noxious as food and drink. Such was the opinion expressed by the Lahore High Court in case reported as Amir Chand Mahesh

Das vs. Bhag Singh & Ors AIR 1929 Lahore 49. in a latter decision reported as Veer Pal Singh vs Smt Tilka Devi & anr 1999 Cr.L.J 310, it has

been observed that the provisions of Section 272 of the Penal Code are different as compared with the provisions of Prevention of Food

Adulteration Act. If the offence falls under the provisions of two different Acts then it is open to invoke any of the provisions of the Act.

So far as section 272 of the Penal Code is concerned this applies to as situation where food or drink is rendered noxious. The expression

noxious as food"" would mean unwholesome as food or injurious to health. It does not mean repugnant to one's feelings. Thus mixing of pig's fat

with ghee and selling the mixture would not render the article ""noxious as food"" though it may be noxious to the religious feeling of some sections of

the public. Such was the view expressed by Allahabad High Court in the case reported as Ram Dayal and others vs King Emperor 1924

Allahabad 214.

Therefore, what was required to be seen was as to whether by the process of adulteration the food was rendered noxious. The Public Analyst

has expressed an opinion that the samples basin contained fungs and had rodent hairs and excreta also. The exposure of such food articles would

definitely fall under Section 272 of the Penal Code. Therefore, the matter required further consideration and the proceedings could not be quashed.

There is another aspect of the matter. The proceedings were taken under section 420 of the Penal Code also. So far as this aspect of the

matter is concerned, this was also not dealt with by the trial court. In the decision of the Allahabad High Court reported as Ram Dayal and others

vs King Emperor 1924 Allahabad 214, after observing that mixing of pig's fat with ghee and selling the mixture may injure the religious feelings of

the people but it is not noxious as food, it was observed that where there is an attempt to sell it on the pretext that it was pure ghee then the

accused would be guilty of cheating. What is said by the Allahabad High Court is being reproduced below:

It is true that the mixing of pig's fat with ghee and selling the mixture would be noxious to the religious and social feeling of both Hindus and

Mohamedans but I am of opinion that such an act would not come within the meaning of the expression 'noxious as food"" which occurs in Section

Indian Penal Code. That expression obviously means unwholesome as food or injurious to health and not repugnant to one's feelings. The

word 'noxious' had it stood by itself might have had a wider meaning but what I have to consider is the expression noxious as food and not merely

noxious. I, therefore, think that the conviction under section 272 of the Indian Penal Code was not justified. Of course, if the accused had sold the

mixture or attempted to sell it on the pretence that it was pure ghee they would have been guilty of quite a different offence that is to say of cheating

or attempt to cheat.

In the present case proceedings have been initiated under section 420 of the Penal Code also. This section has not been taken note of. In view

of the above the reference is accepted. The matter would go to the trial court who would proceed further in accordance with law.