Verendra Kumar vs State of U.P.

S. R. Bhargava, J.

This revision of Virendra Kumar was admitted on the point of sentence only. But having read the judgments of the two Lower Courts and after hearing the Learned Counsel for the revisionist, I am of. the opinion that this revision should be disposed of on merits of the case.

Revisionist Virendra Kumar is a shopkeeper of Kusba Chhiberamau, District Farrukhabad. On 17th November, 1985 Food Inspector purchased sample of Ghee from the revisionist and sent the same to public analyst. In report dated :6th December, 1985 Public Analyst found meter reading at 40 degree centigrade at 41 minimum Reichert value as 30 oleic acid 6.8% and moisture. 4% Entry at Serial No. A. 11.02.21 of AppendixB of the Prevention of Food Adulteration Act prescribes standard for ''Ghee'' in a Table. For U. P., the standard prescribed for Ghee is meter reading at 40 degree centigrade 40.0 to 43.0 minimum Reichert value 26, oleic acid 30% and moisture 0.5%. The only variation from the prescribed standard found in the sample of Ghee was oleic acid 6.8% against 3%. The lower Courts found the sample in variance with the prescribed standard and held the sample adulterated under clause (m) of Section 2 (ia) of the Prevention of Food Adulteration Act. The Learned Counsel for the revisionist has challenged this finding and has relied aforementioned clause (m) and the case of Nagar Mahapahka, Lucknow v. Mushir Ahmad, 1978 Criminal Law Journal 200.

Clause (m) of Section 2,ia) of the Act runs as under : "Adulterated an article of food shall be deeded to be adulterated

If the quality or purity of the Article fall below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injuries to health :

"Provided that where the quality or purity of the article being primary food has fallen below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency then such article shall not be deemed to be adulterated within the meaning of this subclause."

Primary Food has been defined in clause (xiia) of Section 2 of the Act as any Article of Food being a produce of agriculture or horticulture in its natural form cattle breeding or cattle keeping has always been treated as Agriculture. In India there can be no agriculture without cattle. Ghee is product of milk derived from cattle and its natural form is Primary Food.

Oleic acid denotes freshness of ''Ghee If Ghee is kept for a longer time and in open container the acidity is likely to increase due to oxidation process. If the revisionist kept the ''Ghee'' in open container for sometime oleic acid in the ''Ghee'' could increase and variability from the prescribed limit was solely due to natural causes and beyond the control of human agency. When this was the position despite presence of 6.8% oleic acid in the Ghee the proviso of clause (m) was attracted and revisionist being entitled to benefit of doubt could not be guilty of selling adulterated ''Ghee'' as defined in clause (m) on the material given in the two lowercourts judgments I hold that the revisionist could not be held guilty of selling adulterated ''Ghee

Hence he must be acquitted of the charge under Section 7/16 of the Prevention of Food Adulteration Act and his conviction and sentence should be set aside. Revision is allowed. Conviction and sentence of the revisionists, are set aside.

Revision allowed.