State of Himachal Pradesh vs Kalyan Singh

Chet Ram Thakur, J.—This is an appeal u/s 417 of the Code of Criminal Procedure against the order of acquittal passed by the Magistrate, First Class, Nahan. Kalyan Singh was prosecuted on a complaint filed by the Food Inspector, Dadahu, made u/s 7/16 of the Prevention of Food Adulteration Act in the following circumstances.

On 10th February, 1968, Shri II. P. Singhal, Food Inspector, Dadahu went at the shop of Kalyan Singh and after giving a notice to the accused as required under the law, purchased 375 grams of sarson oil on payment of Rs. 2/- for purposes of analysis. After observing all the formalities he sent one bottle containing a part of sample to the Public Analyst, who, vide his report (Ex. P.C.), reported that the sarson oil was adulterated with ground nut oil. On the basis of this report a compliant was filed against Kalyan Singh on 3rd May, 1968.

The learned Magistrate after examination of the complainant''s evidence charge-sheeted the accused u/s 16 of the Prevention of Food Adulteration Act and after recording his plea of not guilty straightaway proceeded to examine the defence evidence. After the close of the defence evidence he pronounced his judgment convicting the accused u/s 16 of the Act and sentenced him to imprisonment till the rising of the Court and a fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for 3 months.

Against this order of conviction and sentence the accused went in appeal to the District Judge, Simla Division. The learned Magistrate did not examine the accused u/s 342 of the Code of Criminal Procedure after the close of the prosecution evidence nor did he give any time to the accused to reflect as required by Section 256 of the Code of Criminal Procedure before asking whether he wanted to cross-examine any of the complainant''s witnesses already examined. So on these grounds the learned Sessions Judge accepting the appeal set aside the conviction and sentence and remanded the case for fresh trial.

After remand, the same evidence was adduced by the complainant and the defence. The learned Magistrate on appraisal of the evidence of the parties found that the Food Inspector, Dadahu had taken the sample of mustard oil from the shop of the accused and the same was, therefore, kept for sale. He, however, found that the report of the Public Analyst was incomplete and indefinite and in view of that he acquitted the accused, vide the impugned order.

The question for decision is whether the report of the Public Analyst is vague and indefinite? Under Sub-section (2) of Section 13 of the Prevention of Food Adulteration Act the accused has a right to have the sample in his possession sent to the Director of the Central Food Laboratory. If the sample is so sent to the Director then the report of the Public Analyst shall be superseded by the certificate of the Director. But in this case the accused did not choose to have the sample sent to the Director of the Central Food Laboratory, hence the report of the Public Analyst is the only evidence regarding adulteration and we have to examine the same.

The report of the Public Analyst is Ex. P.C. The relevant portion of the same reads as under:

I further certify that I have caused to be analysed the aforementioned sample and declare the result of my analysis to be as follows:

Butyro-refractometer reading

at 40�C--57.0 Argemoneail-test: Negative

Baudourin test traces Hold test: Negative

Saponification value 190.74 un-saponifiable matter 0.55%

Iodine value 96.12 Acidity 0.56%

Belliferes test 38 �C

and am of the opinion that it is adulterated with ground-nut oil.

Rule 44 of the Prevention of Food Adulteration Rules prohibits the sale of certain articles of food when mixed and it reads as:

Notwithstanding the provisions of Rule 43 no person shall either by himself or by any servant or agent sell--(a)....

(b)....

(c)....

(d)....

(e) a mixture of two or more edible oils as an edible oil.

Hence under this rule the admixtures of two or more oils as an edible oil has been totally prohibited.

Rule 5 of the Prevention of Food Adulteration Rules reads as under:

Standards of quality of the various articles of food specified in Appendix B to these rules are as defined in that Appendix.

According to A. 17.06 of the Appendix B, mustard oil (sarson-ka-tel) means the oil expressed from clean and sound mustard seeds, belonging to the compestris, junoea or napus varieties of Brassica. It shall be clear, free from rancidity, suspended, or foreign matter, separated water, added colouring or flavouring substances or mineral oil. It shall confrom to the following standards:

(a) Butyro-refractometer reading at 40� C 58.0 to 60.5

(b) Saponification value 168 to 176

(c) Iodine value 96 to 108

(d) Unsaponifiable matter Not more than 12 per cent.

(e) Free fatty acid as oleic acid Not more than 3.0 per cent.

(f) (Bellier test (Turbidity temperature-Acetic acid method). Not more than 26.5�C).

According to A. 17.03 ground-nut oil (moongphali-ka-tel) means the oil expressed from clean and sound ground-nuts (Arachis hypogoes). It shall be clear'', free from rancidity, suspended or other foreign matter separated water, added colouring or flavouring substances, or mineral oil. It shall conform to the following standards:

(a) Butyro-refractometer reading at 40�C 54.0 to 57.1

(6) Saponification value 188 to 196

(c) Iodine value 85 to 99

(d) Unsaponifiable matter Not more than 1.0 per cent.

(e) Free fatty acid as oleic acid Not more than 3.0 per cent.

(f) Belier test (turbidity temperature-- Acetic acid method). 39�C to 41�C.

After comparison of these two standards of quality of the mustard oil and the ground-nut oil with the analysis report (Ex. PC) of the Public Analyst we find that the standard of quality as given in the report conforms more with the standard and quality of the ground-nut oil than with the sarson oil. In other words the quantity is more that of ground-nut oil rather than of Sarson oil. Hence from this it further follows that the Sarson oil purchased by the Food Inspector and sent for analysis is not Sarson oil rather it is an admixture of ground-nut oil and Sarson oil. The ratio of ground-nut oil is on the higher side than the Sarson oil which is in a very small proportion. Hence there is an admixture of the two oils which is totally prohibited under Rule 44 of the Prevention of Food Adulteration Rules. It is immaterial what is the quantity of admixture once it is found that there is an admixture of two edible oils as the sale of such an article is totally prohibited. Therefore, on this basis the accused has contravened the provisions of Section 7 of the Prevention of Food Adulteration Act.

According to Municipal Corporation of Delhi Vs. Satpal Kapoor and Another, it is held:

In every case of a prosecution under the Act it is not necessary for the Public Analyst to state the exact quantity of foreign substance present in the sample sent to him. When the foreign substance happens to be one the presence of which is absolutely prohibited in that particular article of food, it would be unnecessary to state the quantity.

If synthetic vinegar contains sulphuric acid in any quantity it shall be deemed to be adulterated and its sale or storage for sale will be a contravention of the provisions of the Act and rides made thereunder and as such punishable u/s 16 of the Act. It is not necessary for the Public Analyst to mention the quantity of sulphuric acid that is present in the sample.

Here in the instant case it is apparent from Ex. BB, under which the sample was purchased from the accused that he sold the oil as a Sarson oil and he has specifically mentioned in his own hand in Hindi "Mera Tel Sarson Ka Hai" meaning thereby that it was a pure Sarson oil without any adulteration. But on analysis it was found to be adulterated. When the accused had claimed that it was a Sarson oil, therefore, it was not necessary as to in what proportion or in what quantity the ground-nut oil was mixed in this oil, sold as Sarson oil. According to In Re: V.K. Abdul Azeeze and Another,

A certificate of Public Analyst to the effect that the sample of Tur dal was adulterated as it was found on analysis to contain Metanil yellow a coal-tar dye, the addition of which in food is prohibited by rules, is not vague and inconclusive and a conviction for offence u/s 16(1) read with Section 7 can be based thereon.

A similar view was taken in Narinder Kumar Jaspal Rai Vs. The State, . Hence the conclusion that follows is that the report of the Public Analyst cannot be said to be vague and indefinite because according to the analysis the oil is not pure Sarson oil rather it is adulterated and the ingredient are in greater proportion of ground-nut oil and, therefore, the finding of the leanred trial Magistrate that the report was vague and no conviction could be based is incorrect when the admixture of two edible oils under the rules had been totally prohibited and the Public Analyst has found the sample the admixture of the two edible oils i.e. ground-nut and sarson.

The contention of the learned Counsel for the Respondent is that there was no sale and that the oil was meant for his domestic use and that the Food Inspector took the sample from within the house himself and that the accused did not receive any money on account of its price is also not tenable. "Sale" has been defined in Section 2(xiii) as under:

''Sale'' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or 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;

Hence we have to advert to the evidence in this behalf. Shri H.P. Singhal (PW-1) has stated that he served the accused with notice (Ex. PA) in the presence of the two witnesses for taking the mustard oil''s sample. After that 375 grams of mustard oil was purchased from him and a sum of Rs. 2/- was given to Kalyan Singh and a report (Ex. P.B) was prepared and was signed by the accused and the two witnesses and that the accused had written in his own hand on the report that the mustard oil belongs to him. Bishan Singh (P.W-2) is a signatory to the document (Ex. P.B) but he denies knowledge about the purchase of the sample. He was, however, declared hostile. It is admitted by him that the document (Ex. P.B) was prepared in his presence and it was singed by the witnesses as also by the accused. The accused has explained in his statement u/s 342 of the Code of Criminal Procedure that the Food Inspector did not pay Rs. 2/-. The oil was kept by him for his domestic use and the sample was taken by the Food Inspector himself. It may be stated that the defence adduced by the accused is that when the Food Inspector asked the accused about the sale of oil to him he said that he had no oil for sale and then the Food Inspector, the accused and the others went inside the house. In the meantime the son of the accused came there and he demanded oil for bath. The son then look out the oil for the purpose of bath and on this the Food Inspector also took the sample out of that oil. Faquiria (D.W-2) also stated that the son of Kalyan Singh came there and asked for little quantity of oil as he wanted to take bath and the Food Inspector also demanded oil for the purpose of sample. But the accused refused to give the oil saying that it was not meant for sale but it was meant for domestic purpose. Then he was thereatened and the Food Inspector took the sample. He offered a rupee to the accused on account of the cost of the oil but he refused to take the same. But in cross-examination, the witness has admitted that the Food Inspector did not threaten the accused. This was never the defence of the accused that his son came there and he demanded oil for taking his bath and then he gave that oil from the place where it was kept for his domestic use and that the Inspector in the meanwhile threatened him to give the sample of oil from that place. These things were not suggested to the Food Inspector (PW-1) in cross-examination nor any question was put to him regarding the non-payment of the sale price of Rs. 2/-. The accused has stated in his reply u/s 342 of the Code of Criminal Procedure that no money was paid. But he stands contradicted by the document (Ex. PB) wherein it is mentioned that Rs. 2/-on account of the price of the oil purchased for the sample was paid to Kalyan Singh by the Food Inspector and Kalyan Singh has also written in his own hand that "Mera Tel Sarson Ka Hai", therefore, from this what we can conclude is that there was a sale. There is nothing in cross-examination to discredit the Food Inspector.

In so far as the D. Ws. are concerned they are the co-villagers of the accused and they are interested in defending him. They have also narrated quite a different story to the one put up by the accused in his explanation and cross-examination of Shri H.P. Singhal Food Inspector. He has not put any suggestion if his son came there and he demanded oil for taking his bath and it was only then that the Food Inspector also took a sample from the place from where he gave the oil to his son for his bath and he has also denied the receipt of the money. Bishan Singh (PW-2) has admitted the preparation of the document (Ex. PB) and this document, therefore, supports the case of the complainant about the sale having been made to him. Even if it may be admitted that the Food Inspector himself took the sample out of the tin which contained seven to eight kilograms of Sarson oil as stated by the Food Inspector, even then it is a sale when the accused had accepted the price of the cil amounting Rs. -2/-. The accused also admits that the oil was in the tin and it was kept inside the room. According to the witnesses put up by the accused, the shop is in the verandah. Even if this contention may be accepted as correct that the shop was in the verandha and the things were stored inside the room and the Food Inspector had taken the sample himself from inside the room and he has made the payment of the price to the accused who has accepted the same, still it amounts to a sale. Hence the contention that it was not a sale is, therefore, incorrect. According to the Municipal Corporation of Delhi v. Jetha Nand (1969 DLT 605) "a sale of a food article under compulsion to a Food Inspector is one which comes within the mischief of this Act, there can be no escape from this position merely on the ground that the person from whom such article of food was purchased by the Food Inspectors does not sell such article by itself but only uses the same in the preparation of other eatable or beverages." Further that "technically speaking all the requirements of the Act were made out once there was a sale, though involuntarily of an article of food, as defined in the Act, to the Food Inspector by the person concerned accepting the price also. Technically the same would be a sale within the meaning of Section 7 read with Section 2(xiii) of the Act."

Similarly in Nagar Swasth Adhikari, Municipal Corporation Vs. Raghunath Singh, it was held that:

by acceptance of the price of the sample obtained by the Food Inspector the accused thereby sold the milk within the meaning of the Act. If the milk was not for sale he could have refused to accept the price offered by the Food Inspector for the sample. The accused was therefore wrongly acquitted and the acquittal should be set aside.

In Municipal Board Vs. Lal Chand Surajmal and Another, it was held:

The accused had a shop where they sold tea and for the purpose of selling tea they stored milk which is a necessary ingredient for the preparation of tea. On 26th October, 1961 at 8.00 A.M. the Food Inspector took a sample of milk purporting to be cow''s milk from the accused weighing 3/4th of a seer and sealed it in three bottles and paid a sum of 37nP. to him as its price. The report of the Public Analyst indicated that the sample contained fat to the extent of 2.7 per cent and non-fatty solids to the extent of 4.6 percent. The deficiency in fat contents was thus 23 per cent and non-fatty solids about 46 per cent.

Held that though the accused could not be convicted for storing the milk at their shop which was of the quality or purity below the prescribed standard, as the milk was not stored for sale they did sell milk to the Food Inspector and even sale for analysis comes within the definition of ''sale'' u/s 2(xiii) of the Act. u/s 7 of the Act, therefore, even this sale of adulterated milk to the Food Inspector for analysis was an offence. It was not obligatory upon the accused to sell the milk to the Food Inspector. When the Food Inspector came to take the sample they could say that he could very well take the sample but they were not going to sell it and would not accept its price. If they had refused to sell the milk they would not have been guilty of any offence. The accused committed the offence though it may be of a technical nature.

Hence from the aforesaid authorities it is manifest that even if the oil kept in the tin weighing about 7 or 8 kg was stored for domestic use and the accused gave it as a sample or the Food Inspector himself took a sample out of the tin and the accused accepted the price it would, therefore, clearly amount to sale within the definition of Section 2(xiii) of the Act. If the article was not for sale, the accused could refuse to accept the price. There is no evidence on the record to indicate that he was forced to accept the price.

The learned Counsel for the Respondent has relied on the The Public Prosecutor v. Matha Satyam (1970 CLJ 393). In the aforesaid authority it was held:

When the evidence in a case is that a sample was taken by the Food Inspector from a person who has an article of food in his possession, the question as to whether there resulted a sale for analysis has to be decided on the facts of that case.

A person in possession of a food article is not bound to receive the price and he has got a right to refuse or to receive it and to indicate that he is not making a sale of the article of food for analysis and that he is just allowing the officer to take a sample.

When a person allows or does not prevent sample of article of food in his possession being taken for analysis and receives the amount tendered to him as a cost by the Food Inspector u/s 10(3) of the Act, it will be presumed that he made a sale of the article for analysis as defined in Section 2(xiii), but this presumption is rebuttable.

This authority, therefore, does not assist the learned Counsel for the Respondent. Further the leanred counsel for the Respondent has relied on Asgar v. State (1970 CLJ 1289) in which it was held that:

Compulsory sale of an article of food to Food Inspector would not constitute a sale for purposes of Sections 7 and 16 of the Prevention of Food Adulteration Act, and such a sale, in the absence of proof that food was meant for sale, would not bring the accused under Sections 7 and 16 of the Act. u/s 10(1)(a)(ii) the Food Inspector is entitled to collect a sample from a person even if he is carrying it not for sale but for his own use. Section 10(3) directs the Inspector to pay the price of the article to its owner. A purchase made under such circumstances cannot be considered a voluntary sale.

This authority is not applicable inasmuch as the oil sold as a sample on payment of Rs. 2/- was kept in a tin in the room which was a store and the quantity of oil as stated by the Food Inspector was also not less than 7 or 8 kg and, therefore, this quantity could not be said to be for personal and domestic use. It was definitely for sale. Hence, we are of the view that sale has been proved and it is also found that there was admixture of other edible oil sold by the accused who had written in his own hand that the Sarson oil was his and he has also mentioned the receipt of Rs. 2/-as the sale-price thereof in Ex. PB. Therefore, in our opinion, this acquittal of the accused was definitely unfounded and unwarranted.

We, therefore, accept this appeal, set aside the acquittal and convict the Respondent of the offence u/s 7 read with Section 16 of the Prevention of Food Adulteration Act. The case is pending since long. First the accused had been convicted and sentenced and then on appeal the case was remanded by the learned Sessions Judge. Again the accused was acquitted and hence an appeal against acquittal was filed so that way the accused had to suffer a lot and had also to spend money in his defence. Moreover the accused is a petty shop-keeper in a far flung rural area. Therefore, in view of these circumstances we feel that the ends of justice would be met if the accused is sentenced to pay a fine of Rs. 50/- and which we do impose on him. However, we pass no sentence of imprisonment. In default the accused shall undergo simple imprsonment for a month.

D.B. Lal, J.

I agree.