State, by Public Prosecutor vs Irudayan

Somasundaram, J.—This appeal is by the State and it is against a judgment of acquittal in a case under the Prevention of Food Adulteration

Act.

The prosecution arose in the following circumstances. P.W. 1, the Food Inspector of Ulundarpet, purchased 300 ml. of pea flour from the

Respondent who is running a maligal shop in that place on 27th June 1967 for 53 paise as per receipt Ex. P. 2. He divided the flour thus purchased

into three parts, put the same in three bottles, seised them, gave one bottle to the Respondent, retained one with him and seat the third to the Public

Analyst. On analysis, the Analyst found that the pea flour was adulterated since it contained 75 per cent of tapioca flour and was also artificially

coloured (coaltar dyes) in contravention of Rule 23 of the Prevention of Food Adulteration Rules, 1955. The Respondent was then put up for trial.

When questioned in court he slated that he did nos sell the flour in question as ''food'' for human consumption and added that he had kept the

same for sate as food for cattle. D. Ws. 1 and 2 were examined by him for substantiating his defence.

Observing that the prosecution has failed to prove that the pea flour was sold for human consumption, the learned Magistrate acquitted the

Respondent.

The correctness of this acquittal is now canvassed in this appeal.

The short question for determination is as to whether pea flour in this case was sold as ''food'' for human consumption to the food Inspector.

''Food'' as defined in Clause (5) of Section 2 of the Act 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, and (b) any flavouring

matter of condiments"". The learned Magistrate has relied on the decision of Ramamarti J, in Manickam Chettiar In re 1966 L.W Cri. 22 for

acquitting the respondent .That was a case of sale of oil and the evidence was that it was stored for manufacture of soaps. The learned Judge

observed at page 27, that it was a case in which on the evidence and on the probabilities the accused has to fee given the benefit of doubt in the

sense that the prosecution had not proved beyond reasonable doubt that the tins in question were kept or stored for sale for human consumption

and not for being taken to or consumed at the soap factory of the owner. In other words, on the facts, the learned Judge held that the oil in

question was not stored for sale at the premises but was stored only for the consumption of the owner in the shop.

In Public Prosecutor v. Palanisami Nadar (1965) 1 Cri. LJ. 309 the accused had stored compounded asafoetida. He contended that it was sold

by him only for feeding cows and goats, in contradistinction to a sale for human consumption. Ramakrishnan, J. pointed out that the ""crux, of the

offence does not lie in any possible understanding between the seller and the buyer as to the use to which the article sold is to be put, but whether

the article intrinsically is an article of food, or as defined in Section 2(v)(a) an article which ordinary enters into, or is used in the composition or

preparation of human food"".

Thus even though an article of feed may be used as food for cattle still the same article may also be food for human consumption. So, the fact

that it was sold as food for cattle will not at ail enter Into consideration whether an offence as defined in the Act has been made out or not, because

the crux of the offence does not lie in the use to which the buyer may put an article but whether intrinsically the article sold or exhibited for sale is

one used for human consumption or not. Ordinarily the food Inspector would not take a sample of an article of food in exercised of the powers u/s

10 of the Act unless he has reason to believe that the person from whom he takes a sample in selling the article for human consumption. Therefore,

the very fact that the food Inspector makes an inspection and selects a sample for analysis presupposes that the article is being exhibited for sale

and is also an article of food within the definition of Section 2 of the Act. Pea flour is an article which enters into the preparation of food articles.

The same has been purchased as stated by P.W. 1, from the stores run by the Respondent at Ulandurpet. The very fact that P.W. 1 the food

Inspector purchased it and the fact that the Respondent sold it to P.W. 1 raises the presumption that the sale was as food for human consumption,

On 19th December 1967 P.W. 1 deposed that he went to the shop to purchase the sample food grains and that the Respondent represented to

him that the pea flour sold was pure. He was not than cross-examined. Not even a suggestion that the pea flour was stored in the shop only as

food for cattle was made to him on that day. He was recalled for cross examination on 4th January 1968 and on that day it was suggested that

there was such a representation on 27th June 1967, the date of sale. P.W. 1 has denied this suggestion. D. Ws. 1 and 2 have deposed to the effect

that they used to purchase pea flour for their cattle. But, it is not the purpose for which the food is put, but the nature of the sale which alone will

determine the question as to whether the article sold is food for human consumption, and answers the definition of ''food'' in the Act. Pea flour is

certainly food which enters into the preparation of articles for human consumption.

That apart, there is intrinsic evidence in this case to show that the pea flour sold to P.W. 1 must necessarily have been sold only as a food for

human consumption. The report of the Analyst, Ex. P-5, shows that it was adulterated with 75 par cent of tapioca flour and that it was artificially

coloured. No colouring is necessary for any food that might be sold for consumption by cattle. Thus, it is clear that the pea flour sold to P.W. 1, by

the Respondent is an article of food within the amorist of Section 2(5) of the Act. That it is adulterated is well established by the report of the

Analyst (Ex. P-5).

The acquittal of the Respondent is wrong and the same is set aside. u/s 16(1)(a)read with Rule 23 of the Prevention of Food Adulteration

Rules, I convict and sentence the Respondent to pay a fine of Rs. 50/- . In default to suffer simple imprisonment for one month.

The appeal is allowed. Time for payment of fine one month.