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1969 (2) TMI 179
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....e first question, and with the consent of counsel for both the parties, we have modified it as follows: (1) Whether the definition of 'sale' contained in Section 2(xiii) of the Prevention of Food Adulteration Act, 1954, is confined to the sale of articles of food for human consumption alone or extends to the sale of an article of food regardless of the use to which it is put? We have referred to the "use" because that is the word used in the definition of sale in Section 2(xiii) and not purpose, though, as we shall presently show, that makes no substantial difference. 3. The circumstances under which the reference arose may be briefly stated:-- On 13-10-1966, a Food Inspector of the Municipal Council, Akot, visited the shop of the applicant-accused Dhirajlal Valji Kotak. The accused carries on business in partnership in the name of Valji Madhavji Kotak Kirana Shop. The Food Inspector asked for a sample of Kesari dal or Lakh dal, purchased 750 grams of it and took action in terms of Section 11 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to ag the Act). He divided the sample into three parts and packed each part as prescribed. When on....
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....ation of Rule 44-A and other provisions of the Act, 7. Before we state the respective contentions of the parties, it is necessary to refer to some of these provisions. The Act, as its preamble indicates, was passed in order to make provision for the prevention of adulteration of food. Section 2(i) of the Act defines "adulterated". Section 2(v), defines "food" and this definition is of some Importance on the question referred: "(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, and (b) any flavouring matter or condiments." (the underlinging (here in ' ') is ours) Section 2(ix) defines "misbranded" which occurs in several sections but is not germane for our purpose. Then we come to the important definition in Section 2(xiii) of "sale": "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 ....
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.... article of food. Kesari dal is however expressly provided for in Rule 44-A which is made only with reference to Kesari dal. Rule 44-A was inserted comparatively recently by the Union Health Ministry's notification No, F.14-41/59-PH. Pt.I. dated 2nd February, 1961. It provides: "44-A. No person in any State shall, with effect from such date as the State Government concerned may by notification in the Official Gazette specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale- (a) Kesari gram (Lathyrus Sativus) and its products, (b) Kesari dal (Lathyrus Sativus) and its products. (c) Kesari dal flour (Lathyrus Sativus) and its products, (d) a mixture of Kesari gram (Lathyrus Sativus) and Bengal-gram (Cicer Arietinum) or any other gram, (e) a mixture of Kesari dal (Lathyrus Sativus) and Bengal cram dal (Cicer Arietinum) or any other dal, (f) a mixture of Kesari dal (Lathyrus Sativus) flour and Bengal gram (Cicer Arietinum) flour or any other flour. Exp....
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....on 2(xiii) and the definition of "food" in Section 2(v). Both these definitions, it was contended refer only to "human consumption". Similarly, it is contended that Section 16(1)(a)(ii) in prescribing the penalty refers to the sale of an article other than an adulterated or mis-branded article or the sale of which is prohibited by the Food (Health) authority in the interest of public health, in contravention of any of the provisions of this Act or of any rule made thereunder. Here again, therefore, the section has regard to the definition of "sale" and to the definition of "food", by the use of the words "article of food". Rule 44-A similarly uses the words "sell or offer or expose for sale, or have in his possession for the purpose of sale". Therefore, one must turn to the definition of "sale" in order to construe these provisions of the law and sale means sale for human consumption only. Now, we have already quoted the definition of sale and an analysis of that definition shows that it is in two parts, each part respectively preceded by the words "means" and "includes', The former is truly a definition and the second is only an artificial definition by way of inclusion. We ar....
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....is being defined, therefore, is not the sale of any article of food but "sale" by itself. In defining "sale" the draftsman has used three different concepts which may, for the purposes of clarifying what we wish to state, be described as 'the subject of the sale", "the manner of the sale" and "the purpose of the sale" or "the use of the article" and these are indicated in the definition by the words which we quote against each head: "any article of food", '(a) "whether for cash or on credit", or (b) "by way of exchange" (a) "whether by wholesale or retail", (b) "for human consumption" or (c) "use", or (d) "for analysis" sis" has reference to these provisions of the law. 13. With this analysis we proceed to examine the contention of the applicant-accused. It is urged that the words 'for human consumption" are paramount in the definition and so to say, create a condition precedent to the existence or establishment of sale. So read, counsel urged the definition says that "sale" means the sale of any article of food for human consumption; and since "for human consumption" is a qualification or a condition pre....
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.... follow that where that other person had no choice but to accept the proposal the transaction would never amount to a contract. Apart from this we need not, however, consider this argument because throughout the case was argued on the footing that the transaction was a 'sale'. That was evidently because here we have a special definition of 'sale' in Section 2(xiii) of the Act which specifically includes within its ambit a sale for analysis." Thus, the definition itself calls that a sale which may not in normal circumstances always amount to a sale, namely, sale for analysis. Now a sale for analysis, it is clear, is never a sale of that article of food for human consumption. Therefore, it shows that the entire definition is not concerned with only the sale of an article of food for human consumption. 17. We may also say that the Prevention of Food Adulteration Act does not merely deal with the sale of an article of food but with other modes of dealing with an article of food, such as, for instance, those mentioned in Section 7, namely, the manufacture for sale or storage or distribution of food or an article of food. In the case of manufacture for sale also the....
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....ished the purpose for which it is sold, need not necessarily be only for human consumption or use. It may be any one or more of the purposes mentioned in the definition of sale viz. to a dealer or for use other than human consumption or for analysis. Thus, even taking into account the definition of "food" in Section 2(v), we do not think that we can accept the contention that the definition of sale is limited to sale of an article of food only for human consumption. 20. Then we turn to examine whether Rule 44-A makes any difference. Rule 44-A no doubt uses the words "sell or offer or expose for sale, or have in his possession for the purpose of sale". In each of these expressions the definition of "sale" would no doubt enter, but we have already shown that that definition does not imply that it has reference to the sale of any article of food only for human consumption. It was pointed out on behalf of the applicant that Rule 44-A does not impose an absolute bar on all dealings with Kesari dal, but having regard to the words thereof and reading it in the light of the provisions of the opening part of Section 7, the following modes of dealing with Kesari dal are not prohibited by ....
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....d "use" in the expression "for human consumption or use" by saying that it is one composite expression and "use" is also human use. He further pointed to the comma after the word "use" to suggest that the expression "for human consumption or use" is one composite expression because it has a comma preceding and a comma succeeding. Thus construed, counsel argues that even though "use" is separately mentioned, it is ejusdem generis with "human consumption" and therefore the word "use" must necessarily be limited to use for human beings. 23. We are quite unable to accept this contention for if the word "use" were intended to imply use of human beings, then we cannot understand why the preceding phrase "for human consumption" should have been used at all because consumption is also use and it would merely amount to tautology to say human consumption or use. It is clear to us that "human consumption" and "use" are two distinct and separate categories and the word "human" does not control the word "use". On the other hand, what was intended to be implied was the sale of any article for human consumption or the sale of any article for any use whatsoever, including use by human beings fo....
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....he provision any Intention or mens rea on the part of the accused as an ingredient would render the salutary provisions of the section almost impossible of implementation. 26. But we need not go further into this question because under this very Act, the pronouncement of the Supreme Court of to which we have already referred, puts an end to this contention. In that case, one Mangaldas, a wholsale dealer, had sold turmeric powder, admittedly used for human consumption, to one Daryanomal. The turmeric powder was found to be adulterated and both Mangaldas and Daryanomal were prosecuted. While Mangaldas admitted that he had sold and despatched a bag containing turmeric powder he contended that what was sent was not turmeric powder used for human consumption but as "Bhandara" i. e. for use for religious purposes or for applying to the forehead. This contention, it may be noted, is similar to the contention raised in the present case, that the lakh dal was sold as cattle fodder. The contention was rejected unanimously by all the Courts, and in the appeal before the Supreme Court, counsel for Mangaldas urged that it was necessary to establish that the appellant had the mens rea to comm....
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....an article of food and the article is found to be adulterated. With respect, we consider that that case was correctly decided, 29. In Shankar Gambhire's case, itself, the Division Bench referred to a number of unreported decisions of this Court in para, 10 of their judgment. Those decisions have all taken the same view. Of course, the first mentioned of these decisions is State v. Binjraj Punam-chaud Marwadi, Cr. Appeal No. 586 of 1960 D/- 16-11-1960 (Bom). What fell to be considered was the Act earlier to the present one, namely, the Bombay Prevention of Food Adulteration Act, 1925 but the principle ol that decision would apply here. 30. In all these cases, the article involved was cocoanut oil. In Binjraj Punam-chand's case, Cri. Appeal No. 586 of 1960, D/- 16-11-1960 (Bom) a plea was also taken that in Nasik from where that case arose, cocoanut oil was not ordinarily used as an article of food. Dixit, J., answered the point by observing: "it is, to my mind, clear that what 'food' as contemplated by Section 2(a) means is any article which ordinarily is used in the composition or preparation of human food, and it seems to me that it is not possible t....
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....nder section 7(i) is against selling food which is adulterated; coconut oil is an edible oil and therefore an article of food. Being adulterated, the accused was liable for an offence under Section 7(i). All these decisions were, with respect, correct, in our opinion, so far as the point before us is concerned. Thus, so far as this Court is concerned, it may be said that the view taken has been a consistent view except for one decision upon which counsel for the applicant strongly relied. That decision has in fact necessitated the present reference. 33. That decision is the one in State v. Devilal Jain, Criminal Appeal No. 1373 of 1966, DA 15-6-1968 (Bom) by a Division Bench of this Court. That was a case which concerned the very commodity with which we are concerned, namely, kesari dal. A sample was taken as in the present case from the accused and he was prosecuted under Section 16(1)(a)(i) read with Section 7(iv) and Rule 44-A (b). It may be noticed that in that case the prosecution is stated to be under Section 16(1)(a)(i) read with Section 7(iv) and Rule 44-A (b). We are quite unable to see how for contravention of Rule 44-A, the prosecution can be under Section 16(1)(a)(i)....
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.... have referred either to the relevant provisions of law or to any of the previous authorities -- and they were several of them as we have shown. We have already referred to the decision in State v. Shankar Garnbhire, and to the several previous decisions of this Court referred to in the penultimate paragraph of that judgment. If these decisions had been cited they would ordinarily have been binding upon the Division Bench which decided Criminal Appeal No. 1373 of 1966 (Bom). If there is one thing remarkable about that decision, it is that none of these cases were referred to by the counsel for the State and therefore did not come to be referred to by the Division Bench. Moreover, we find that counsel for the State virtually conceded in that case that upon the evidence it had not been established that Kesari dal was an article of food a concession which was pusillanimously made for, a perusal of the decision of the learned single Judge in this case which referred the matter to the Full Bench alone will show that there was ample material for holding that Kesari dal is an article of food. In the penultimate paragraph of that judgment, the Division Bench has stated: "It is not....
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....of a single Bench of that Court In para. 16 the Division Bench held: "As regards the first ground, there is nothing in the Act which posits that an article of food may be adulterated with impunity provided it is not used as food throughout the length and breadth of the country. On the contrary there is every indication in the Act that it seeks to protect the public by preventing adulteration of any article or substance which is used as food in any part of the country. It is immaterial whether a given article or substance is not used at all as food in a particular region, or is used only by a section of the people in a given region." With respect, we accept this statement of the law. 39. In Public Prosecutor v. Palanisamt, a learned single Judge was concerned with the case of adulterated asafoetida, It was found to contain coal-tar dye which should make it an adulterated article of food and also perhaps unwholesome for human consumption. The plea of the accused was that the asafoetida was being sold by him only for feeding cows and goats and therefore, by implication that it was not sold for human consumption. We are with respect in agreement with the answer which the....
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....is usable as food or drink for human consumption. The word 'used' which is to be found in Section 2(v) of the Act obviously means usable or capable of being used, and not to be used or for the purpose of being used," That is a construction of the definition of 'food' which we have already said is acceptable to us. With respect, we accept the above statement of the law in the Patna case. 41. A view contrary to the view which has commended itself to us was taken in Nagar Mahapalika Varanasi v. Panna Lal, by a learned single Judge. In that case, however, the learned Judge came to a positive finding that Kesari dal was not ordinarily used for human consumption and hence it was not included within the definition of "food" in Section 2(v). That of course was a finding of fact in that case and serves to distinguish it from the present case. In the present case, as we have said, the learned single Judge referred this matter to the Full Bench as, in his opinion, Kesari dal was an article of food. We have also shown that Kesari dal or lakh dal is an article of food. The same learned Judge has, in another case decided by him later, Varanasi Municipality v. Sudheswari Dev....
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....s is also the law as declared by the Supreme Court. The expression "food" which was never 'meant' for human consumption of use (underlining (here in ' ') is ours) was used in the above passage, suggesting that the intention or mens rea is to be taken into account, The learned Judge thus took into consideration the intention of the accused who was in possession of Jingili Oil in this case, and therefore it seems to us that the judgment in that case is not in consonance with the decision of the Supreme Court, nor, upon the reasons we have given, based upon a correct interpretation of the provisions of law. The actual decision in that case, however, holding the first accused (the partner of the Mills) guilty was, with respect correct. We may also say that that case was decided on the mere application of Rule 44 which deals with cases where two articles, both articles of food, are mixed up and the case of Jingili Oil mixed with linseed oil is specifically dealt with in Rule 44. Both Jingili Oil and linseed oil were edible oils as would appear from entries Nos. A-17.04 and A. 17.11 of Appendix B to the Rules. 44. The Calcutta case also was decided upon another point, ....
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....stance, in the case of turmeric mixed with lead, a point may be reached by the increasing admixture of lead when it ceases to be turmeric and becomes only lead. At that stage, it would be a question of fact as to what is the real article. Is it an article of food or is it an article industrially used not connected with food? It seems to us on a perusal of the totality of the provisions of the Act that the Legislature, in order to protect the health of the community by preventing the adulteration of food, deliberately bypassed the possible hardship in a few border-line cases. We do not think therefore that this argument of hardship can prevail against the clear provisions of law, 46. Thus, upon a consideration of the authorities and the provisions of law, in our opinion, the following conclusions would flow: (1) That what is necessary to establish in the case of a sale under the Prevention of Food Adulteration Act is- (a) that there is an article of food, (b) that a sale oi that article has taken place and (c) that the article is either adulterated, misbranded or dealt with contrary to a prohibition or a rule under the Act; or its sale is other....