Thus, it is amply clear from above observations and scheme of
the provisions of PFA Act referred to in para 9, 10, 11 that storage
or distribution of an adulterated article of food for a purpose other
than for sale does not fall within the mischief of Sections 7 and 16 of the PFA Act and that the Food Inspector is authorized to take
samples only from particular persons indulging in a specified
course of business activity and the immediate and ultimate end of
such activity is sale of an article of food, and if the article of food is
not intended for sale and is in possession of a person, who does not
fulfill the character of seller, conveyer, deliverer, consignee,
manufacturer or storer for sale, the Food Inspector is incompetent
to take a sample and launch prosecution on such sample being
found adulterated. Thus mere storage of adulterated food article
cannot constitute an offence under PFA Act. It is not the
prosecution case that, when the Food Inspector entered into the
hotel, the petitioner was engaged in sale of curd or that at that
point of time there were customers in the hotel consuming or
ordering for the curd or that curd was mentioned in menu card as
one of the item for sale. It is also not the case of the prosecution
that the Food Inspector made any inquiry ensuring that the curd
was stored for sale or that the hotelier, who was selling many other
items, was also a seller of curd. The prosecution presumed that
since a sample was given by the petitioner to the Food Inspector,
without stating that it was not for sale, it amounted to “sale”.
Thus, entire case proceeded on this wrong presumption.
The prosecution also expected the petitioner to disprove the
fact that the curd was stored not for sale even as he parted with
sample and accepted its cost. Therefore, in the first place, a
question as to whether the petitioner could have refused to part
with the sample of curd on the ground that it was not stored for
sale without exposing himself to the proceedings under Section 10
of the PFA Act would arise. It may be recalled that the Food
Inspector had disclosed his identity as such to the petitioner before
collecting the sample in question. His intention was to collect the
sample of food article presuming the petitioner as its seller. Under
the circumstances, refusal of the sample on any ground could have
exposed the petitioner to an additional prosecution under Section
10 of PFA Act. Thus, there is no merit in the argument of the
learned counsel for respondents on this count. Further, sub
section (3) of Section 10, which obliges the Food Inspector to pay
for the collection of sample at such rate as the article is being sold
to the public at large, also, by itself, is clear enough to indicate that
the sample which is collected must be of such food article which is
meant for sale, but contra cannot be true. Just because a person
accepts the cost of a food article collected from him, after Food
Inspector discloses to him his identity, will not
ipso facto
amount to
“sale” unless it is shown by the Food Inspector/Prosecution that, in
fact, the food article was being sold in ordinary course of business.
Further, the Courts were bound to deal with the case of the
petitioner specifically pleaded by him in his statement under
Section 313 of Cr.P.C.IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 914 of 2005
RAMAN KRISHNA IYER
Versus
STATE OF GUJARAT AND ANOTHER
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 18/01/2013
Citation; 2014 CR L J 255 Gujarat
ORAL JUDGMENT
Being aggrieved by judgment and order dated 16.11.2005
passed by Fast Track Court, Surat, in Criminal Appeal No.67 of
2001 confirming the judgment and order dated 15.10.2001 passed
by learned Judicial Magistrate, First Class, (Municipal Court),
Surat, in PFA Case No.80 of 1995, sentencing the petitioner for
offences punishable under Sections 7 (1) and 16 of the Prevention
of Foods Adulteration Act, 1954 (for short, “the PFA Act”), the
petitioner has invoked revisional jurisdiction of this Court under
Section 397 read with Section 401 of the Code of Criminal
Procedure (for short, “CRPC”).
2. Short facts giving rise to this petition are as under:
3. Respondent no.2 being Food Inspector employed with Surat
Municipal Corporation, approached the petitioner at about 4:45
p.m. on 2.8.1995 and, after disclosing his identity, collected a
sample of curd of 600 gms from 3 k.g. of curd found in a steel
container from the petitioner’s hotel “Madras Cafe” at Surat, as,
according to him, it was kept for sale. He then added preservatives
in required quantity, divided the same into three parts after stirring
it, sealed it and forwarded it for analysis as required under the PFA
Act and relevant Rules. According to second respondent, since it
was found that the curd did not comply with the minimum
standards laid down under AppendixB to Prevention of Food
Adulteration Rules (for short, “Rules”), a case was made out and,
therefore, after obtaining necessary sanction from the competent
authority, a criminal case came to be lodged and the petitioner was
prosecuted and ultimately found guilty, as aforesaid.
4.
Learned advocate for the petitioner would submit that the
Courts below had seriously erred in not properly appreciating the
fact that the curd in question was not for sale as stated by the
petitioner in his statement under Section 313 of the CRPC. It was
submitted that, while the trial Court did not deal with said aspect,
the appellate Court rested its finding on surmises and conjectures
and presumed that the curd was for sale and that it was to be used
by the petitioner in other food article and, therefore, ultimately,
curd would have been sold. It was submitted that there was no
basis for the appellate Court to have come to the said conclusion
and, therefore, there is serious legal infirmity causing miscarriage
of justice to the petitioner. In support of her argument, reliance
was placed on following cases:
(1)
Municipal Corporation of Delhi Vs. Laxmi Narain Tandon
etc. reported in 1975 Prevention of Food Adulteration Cases 444.
(2)
State of Gujarat Vs. Ashok Mulji Lakhani and others
reported in 2007(4) Crimes 514 (Guj.)
(3)
The State of Maharashtra vs. Udayram Rupram Oza
reported in 1977 Cri.L.J. 1807.
(4) State of Maharashtra vs. Shankar of Shankar Vilas, Hindu
Hotel reported in 1979(I) Prevention of Food Adulteration Cases
189.
5.
It was next contended that samples were not taken in
accordance with mandatory Rule 14 of the Gujarat Prevention of
Food Adulteration Rules, 1955 ( for short “the Rules”) inasmuch as
the bottle in which the samples were taken was not cleaned in
presence of the petitioner but admittedly it was claimed to have
been cleaned at some other place. It was submitted that, therefore,
since mandatory rule was not followed, miscarriage of justice has
been caused. In support of above contention, following decisions
were relied upon:
(1) Sudhirchandra B.Joshi, Food Inspector, Baroda Vs.
Arvindkumar Naranbhai Patel and others reported in 1995(2)
G.L.H. (U.J.) 24.
(2) Arjan Dass Vs. The State of Punjab reported in 1983(I)
Prevention of Food Adulteration Cases 163.
6.
It was also submitted that, in order to make the sample
homogeneous and representative, the curd was required to be first
vertically cut and then churned and, thereafter, it was required to
be divided into three parts. It was submitted that admittedly the
curd was not vertically cut and it was not even churned. It was
submitted that churning is a process different then stirring and the
witness before the Court merely said that he stirred it. In support
of her submission, following cases are relied:
(1)
Santosh Kumar Sarma Vs. State of Assam reported in
2005(1) Food Adulteration Cases 231.
(2) State of Maharashtra Vs. Rewatiprasad Menduram Agarwal
and others reported in 1980(I) Prevention of Food Adulteration
Cases 131.
7.
Learned counsel appearing for the respondents would submit
that there are concurrent findings of fact recorded by Courts below
and, therefore, this Court, having limited jurisdiction may be slow
in interfering with the factual findings. It was also submitted that
the petitioner, on being asked to sell the sample to second
respondent, had, without any resistance and without mentioning
that it was not for sale, sold it to the second respondent and,
therefore, it amounted to sale within the meaning of Section 2
(xiii) of the PFA Act. Learned APP, while inviting attention of this
Court to Section 10 of the Act, submitted that the Food Inspector
has wide powers to purchase the sample and that is what exactly he
did and, therefore, the transaction in question should be regarded
as “sale” made by the petitioner. It was sought to be contended by
the respondents that mere storage of a food article, if found to be
adulterated, would also constitute an offence under said provision.
While distinguishing the case of Laxmi Narain (supra) it was
contended that the Court raised two questions and answered the
first question in affirmative that, even if a person is not given
rebate for not consuming meal, a food article if it is included in a
package, amounted to sale, and therefore, it was submitted that
said decision comes to the rescue of the respondents rather than
the petitioner. It was also submitted that the trial Court and the
appellate Court properly appreciated the facts and found that the
sample was properly taken and have recorded concurrent finding,
and therefore, this Court may not interfere.
8.
Having considered the arguments advanced by the parties,
following questions fall for consideration of this Court:
(i) Whether, mere collection of sample of curd in exercise
of powers under Section 10 of the PFA Act and acceptance
of the cost under subsec.3 thereof, ipso facto results into the
sale of curd in ordinary course of business?
(ii) Whether mere storage of adulterated food article
constitute an offence under the PFA Act?
(iii) Whether for conviction under Section 16 read with
Section 7 of the PFA Act, the prosecution is required to
establish; (a) that the sample of curd was adulterated and
(b) that it was for sale in ordinary course of business within
the meaning of Section 2(xiii) of the PFA Act?
(iv) Whether Rule 14 of Prevention of Food Adulteration
Rules, 1955 was complied with in the matter of cleaning the
bottles for collection of sample?
9.
In order to appreciate the arguments advanced before this
Court, it is necessary to have a glance at the relevant scheme of the
PFA Act. As per Section 2 (ia), an article of food shall be deemed
to be adulterated, inter alia, if the quality or purity of the article
falls below the prescribed standard or its constituents are present in
quantities not within the prescribed limits of variability, but which
renders it injurious to health [Section 2(ia)(l)], as also if the
quality or purity of the article falls below the prescribed standard or
its constituents are present in quantities not within the prescribed
limits of variability but which does not render it injurious to health
[Section 2 (ia)(m)]. As per Clause(v) of Section 2 of the PFA Act,
“food” means any article used as food or drink for human
consumption other than drugs and water and includes any article
which ordinarily enters into, or is used in the composition or
preparation of human food, any flavouring matter or condiments,
and any other article which the Central Government may, having
regard to its use, nature, substance or quality, declare, by
notification in the Official Gazette, as food for the purpose of the
PFA Act. “Sale” has been defined in Section 2 (xiii) so as to mean,
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 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. The term “seller” has not been defined but from the
language used in Subsection (xiii) of Section 2, it is amply clear
that the person who sells for cash or on credit or by way of
exchange whether by wholesale or retail, for human consumption
or use, or for analysis, and or who executes an agreement for sale
or makes an offer for sale, or exposes for sale or has in possession
any article for sale or makes attempt to sell, is a seller. Section 2
(xiv) defines “sample” so as to mean any article of food taken
under the provisions of the PFA Act or of any rules made
thereunder.
10.
Section 10 of the PFA Act empowers the Food Inspector to
take samples of any article of food from: (1) any person selling
such article; (2) any person who is in course of conveying,
delivering or preparing to deliver to such article to a purchaser or
consignee; (3) a consignee after delivery of any such article to him.
Subsection (2) of Section 10 of the PFA Act empowers the Food
Inspector to enter and inspect any place where any article of food is
manufactured, or stored for sale or stored for manufacture of any
other article of food for sale, or exposed or exhibited for sale or
where any adulterant is manufactured or kept, and take samples of
such article of food or adulterant for analysis. Subsection (3) of
Section 10, which is important for the purpose of decision in this
case makes it clear that where any sample is taken under clause (a)
of subsection (1) or subsection (2), its cost calculated at the rate
at which the article is usually sold to the public shall be paid to the
person from whom it is taken. As per subsection (5), the power
conferred by this section includes power to break open any package
in which any article of food may be contained or to break open the
door of any premises where article of food may be kept for sale.
To exercise the power of entry into the premises he is required to
follow the procedure under the Code of Criminal Procedure, as far
as may be. Subsection (7) requires the Food Inspector to obtain
signature of one or more persons if he intends to exercise the
power under Clause (a) of subsection (1), subsection (2). This
Section also penalizes an act which prevents Food Inspector from
taking sample or exercising any power authorized by the PFA Act.
11.
Section 7 of the PFA Act prohibits manufacture for sale or
store, or selling or distributing, inter alia, any adulterated food and
Section 16 penalizes importing into India or manufacturing in India
food article for sale or storing food article or selling or distributing
of food article which is adulterated, inter alia, within the meaning
of subclause (m) of clause (ia) of subsection (2).
12.
Keeping in view above legal position, a reference may now be
made to the cases cited at the bar. In Municipal Corporation of
Delhi v. Laxmi Narain Tandon etc.
(supra)
, food articles stored in
the hotel were found to be adulterated and it was alleged that the
articles of food of which the samples have been taken had been
stored in the said hotel for sale. In defence, it was inter alia
contended that no articles of food were sold in the hotel to the non
resident visitors or the public generally; that the hotelier provided
residential accommodation, services and other amenities, including
meals, only to the resident customers against the composite charge
and that no rebate is allowed for food if a resident customer
chooses not to eat it. The accused person was acquitted by learned
Magistrate after holding inter alia that adulterated food articles
were not stored for sale. Such an acquittal was upheld in appeal.
The Hon’ble Apex Court framed two questions as under:
“(1) Whether for purposes of the Prevention of Food
Adulteration Act, 1954 (for short, the PFA Act), there is
no sale of food which is provided by a hotelier to a guest
when a consolidated charge is made for room and the
other amenities, including food, and when no rebate is
allowed for any meal which may not be taken by the
guest?
(2) Whether the expression ‘store’, as used in section 7
and section 16 of the PFA Act, means storage simpliciter
or storing for sale?”
13.
This Court is concerned with only question no.2, above. In
that context, the Hon’ble Supreme Court, after discussing relevant
scheme of the PFA Act, held in paragraph 12 as under:
“12.
From a conjoint reading of the above
referred provisions, it will be clear that the broad
scheme of the Act is to prohibit and penalise the sale
or import, manufacture, storage or distribution for
sale of any adulterated article of food. The terms
“store” and “distribute” take their colour from the
context and the collection of words in which they
occur in ss.7 and 16. “Storage” or “distribution” of an
adulterated article of food for a purpose other than
for sale does not fall within the mischief of this
section. That this is the right construction of the
terms “store” and “distribute” in s.16 (1) will be
further clear from a reference to s.10. Under that
section, the Food Inspector, whom the Act assigns a
pivotal position for the enforcement of its provisions,
is authorised to take samples of an article of food
only from particular persons indulging in a specified
course of business activity. The immediate or
ultimate end of such activity is the sale of an article of
food. The section does not give a blanket power to
the Food Inspector to take sample of an article of
food from a person who is not covered by any of the
subclauses of subs.1 (a) of subs.2. The three sub
clauses of subsection 1(a) apply only to a person
who answers the description of a seller or conveyer,
deliverer, actual or potential, of an article of food to a
purchaser or consignee or his consignee after delivery
of such an article to him. Subsection (2) further
makes it clear that sample can be taken only of that
article of food which is “manufactured”, “stored” or
exposed for sale. It follows that if an article of food is
not intended for sale and is in the possession of a
person who does not fulfill the character of a seller,
conveyer, deliverer, consignee, manufacturer or
storer for sale, such as is referred in subSS.1(a) and
(2) of the section, the Food Inspector will not be
competent under the law to take a sample and on
such sample being found adulterated, to validly
launch prosecution thereon. In short, the expression
“store” in s.7 means “storing for sale” and
consequently storing of an adulterated article of food
for purposes other than for sale would not constitute
an offence under s.16(1)(a).”
(emphasis supplied)
14. Thus, it is amply clear from above observations and scheme of
the provisions of PFA Act referred to in para 9, 10, 11 that storage
or distribution of an adulterated article of food for a purpose other
than for sale does not fall within the mischief of Sections 7 and 16
of the PFA Act and that the Food Inspector is authorized to take
samples only from particular persons indulging in a specified
course of business activity and the immediate and ultimate end of
such activity is sale of an article of food, and if the article of food is
not intended for sale and is in possession of a person, who does not
fulfill the character of seller, conveyer, deliverer, consignee,
manufacturer or storer for sale, the Food Inspector is incompetent
to take a sample and launch prosecution on such sample being
found adulterated. Thus mere storage of adulterated food article
cannot constitute an offence under PFA Act. It is not the
prosecution case that, when the Food Inspector entered into the
hotel, the petitioner was engaged in sale of curd or that at that
point of time there were customers in the hotel consuming or
ordering for the curd or that curd was mentioned in menu card as
one of the item for sale. It is also not the case of the prosecution
that the Food Inspector made any inquiry ensuring that the curd
was stored for sale or that the hotelier, who was selling many other
items, was also a seller of curd. The prosecution presumed that
since a sample was given by the petitioner to the Food Inspector,
without stating that it was not for sale, it amounted to “sale”.
Thus, entire case proceeded on this wrong presumption.
15.
The prosecution also expected the petitioner to disprove the
fact that the curd was stored not for sale even as he parted with
sample and accepted its cost. Therefore, in the first place, a
question as to whether the petitioner could have refused to part
with the sample of curd on the ground that it was not stored for
sale without exposing himself to the proceedings under Section 10
of the PFA Act would arise. It may be recalled that the Food
Inspector had disclosed his identity as such to the petitioner before
collecting the sample in question. His intention was to collect the
sample of food article presuming the petitioner as its seller. Under
the circumstances, refusal of the sample on any ground could have
exposed the petitioner to an additional prosecution under Section
10 of PFA Act. Thus, there is no merit in the argument of the
learned counsel for respondents on this count. Further, sub
section (3) of Section 10, which obliges the Food Inspector to pay
for the collection of sample at such rate as the article is being sold
to the public at large, also, by itself, is clear enough to indicate that
the sample which is collected must be of such food article which is
meant for sale, but contra cannot be true. Just because a person
accepts the cost of a food article collected from him, after Food
Inspector discloses to him his identity, will not
ipso facto
amount to
“sale” unless it is shown by the Food Inspector/Prosecution that, in
fact, the food article was being sold in ordinary course of business.
Further, the Courts were bound to deal with the case of the
petitioner specifically pleaded by him in his statement under
Section 313 of Cr.P.C. In Rajinder Kumar (supra), no such case
was pleaded/proved and therefore the observations made in para
11 thereof relied upon by learned counsel for the respondents
cannot be applied to the facts of the present case. Similarly State
of Tamil Nadu vs. R.Krishnamurthy (supra) is not an authority
on the issue involved in this case. Moreover, the appellate court
appears to have misdirected itself by holding that adulterated food
article was to be used as an ingredient in preparation of other food
article even as it considered that fact which was not even pleaded
and proved. Be it noted, that what was relied upon by the
respondents was adulteration of curd by the petitioner, for his
prosecution, and not any other product that could have been
ultimately made by using the curd as one of the ingredient.
16.
The Court may now refer to the relevant Rules of Prevention
of Food Adulteration Rules, 1955. As per Rule 14, samples for
analysis are required to be taken in cleaned dry bottles or jars or in
other suitable containers which shall be closed sufficiently tight to
prevent leakage, evaporation or in the case of dry substance,
entrance of moisture and shall be carefully sealed.
17.
In Sudhirchandra B. Joshi, Food Inspector, Baroda v.
Arvindkumar Naranbhai Patel and Others [1995(2) GLH (U.J.)
24], this Court has unequivocally observed that the provisions of
Rule14 are mandatory. In that case also, it was an admitted
position that the bottle in which the samples were collected was
not cleaned in presence of the accused and the peon who has stated
to have cleaned the bottle was not examined. Similar fact situation
is available on record of this case and, therefore, it is required to be
held that the samples were collected in breach of said provision.
Thus, the trial was vitiated.
18.
It is also required to be appreciated that generally the fats
and other nutrients of articles like milk or curd would take the
surface if stored for some time. Therefore, the Courts have
repeatedly held [See: Santoshkumar Sarma (supra) and
Revatiprasad Menduram Agarwal (supra)] that, while collecting
the sample of curd, it has to be cut vertically then churned if the
curd has not settled. It is, however, not clear in this case as to
whether the curd had settled or not. The sample was stated to
have been stirred by the Food Inspector. There is a marked
difference between stirring and churning. While article can be said
to have been stirred if it is rotated by means of spoon and churning
would mean that it is vigorously blended so that every single part
of its constituent is so mixed that it becomes homogeneous.
Admittedly, the food article was not vertically cut and churned and,
thus, there are all the reasons to believe that sample was not
homogeneous.
19.
As noticed above, there was no evidence with the trial Court
showing that the food article was for sale as contemplated under
Sections 7 and 16 of the PFA Act. Not only that, the Court did not
appreciate the statement made by the accused under Section 313 of
Cr.P.C., and the lower appellate court misdirected itself and
considered the fact which was not even pleaded and proved. Thus,
both the Courts below were in serious error of law. Even the
mandatory provisions of the Rules, as aforesaid, were not followed
and none of the Courts below appreciated that aspect. Thus the
case for invocation of revisional jurisdiction by this Court is made
out.
20.
In view of above discussion, this Court is inclined to allow
this petition. The petition is, therefore, allowed and impugned
judgment and order dated 16.11.2005 passed by Fast Track Court,
Surat, in Criminal Appeal No.67 of 2001 confirming judgment and
order dated 15.10.2001 passed by learned Judicial Magistrate, First
Class, (Municipal Court), Surat, in PFA Case No.80 of 1995,
sentencing the petitioner for offences punishable under Sections 7
(1) and 16 of the PFA Act is quashed and set aside. The accused is
ordered to be acquitted of the charges levelled against him under
Sections 7 (1) and 16 of the PFA Act. Surety and bail bond, if any,
stands discharged. Rule is made absolute accordingly.
(G.R.UDHWANI, J.)
Print Page
the provisions of PFA Act referred to in para 9, 10, 11 that storage
or distribution of an adulterated article of food for a purpose other
than for sale does not fall within the mischief of Sections 7 and 16 of the PFA Act and that the Food Inspector is authorized to take
samples only from particular persons indulging in a specified
course of business activity and the immediate and ultimate end of
such activity is sale of an article of food, and if the article of food is
not intended for sale and is in possession of a person, who does not
fulfill the character of seller, conveyer, deliverer, consignee,
manufacturer or storer for sale, the Food Inspector is incompetent
to take a sample and launch prosecution on such sample being
found adulterated. Thus mere storage of adulterated food article
cannot constitute an offence under PFA Act. It is not the
prosecution case that, when the Food Inspector entered into the
hotel, the petitioner was engaged in sale of curd or that at that
point of time there were customers in the hotel consuming or
ordering for the curd or that curd was mentioned in menu card as
one of the item for sale. It is also not the case of the prosecution
that the Food Inspector made any inquiry ensuring that the curd
was stored for sale or that the hotelier, who was selling many other
items, was also a seller of curd. The prosecution presumed that
since a sample was given by the petitioner to the Food Inspector,
without stating that it was not for sale, it amounted to “sale”.
Thus, entire case proceeded on this wrong presumption.
The prosecution also expected the petitioner to disprove the
fact that the curd was stored not for sale even as he parted with
sample and accepted its cost. Therefore, in the first place, a
question as to whether the petitioner could have refused to part
with the sample of curd on the ground that it was not stored for
sale without exposing himself to the proceedings under Section 10
of the PFA Act would arise. It may be recalled that the Food
Inspector had disclosed his identity as such to the petitioner before
collecting the sample in question. His intention was to collect the
sample of food article presuming the petitioner as its seller. Under
the circumstances, refusal of the sample on any ground could have
exposed the petitioner to an additional prosecution under Section
10 of PFA Act. Thus, there is no merit in the argument of the
learned counsel for respondents on this count. Further, sub
section (3) of Section 10, which obliges the Food Inspector to pay
for the collection of sample at such rate as the article is being sold
to the public at large, also, by itself, is clear enough to indicate that
the sample which is collected must be of such food article which is
meant for sale, but contra cannot be true. Just because a person
accepts the cost of a food article collected from him, after Food
Inspector discloses to him his identity, will not
ipso facto
amount to
“sale” unless it is shown by the Food Inspector/Prosecution that, in
fact, the food article was being sold in ordinary course of business.
Further, the Courts were bound to deal with the case of the
petitioner specifically pleaded by him in his statement under
Section 313 of Cr.P.C.IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION NO. 914 of 2005
RAMAN KRISHNA IYER
Versus
STATE OF GUJARAT AND ANOTHER
CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 18/01/2013
Citation; 2014 CR L J 255 Gujarat
ORAL JUDGMENT
Being aggrieved by judgment and order dated 16.11.2005
passed by Fast Track Court, Surat, in Criminal Appeal No.67 of
2001 confirming the judgment and order dated 15.10.2001 passed
by learned Judicial Magistrate, First Class, (Municipal Court),
Surat, in PFA Case No.80 of 1995, sentencing the petitioner for
offences punishable under Sections 7 (1) and 16 of the Prevention
of Foods Adulteration Act, 1954 (for short, “the PFA Act”), the
petitioner has invoked revisional jurisdiction of this Court under
Section 397 read with Section 401 of the Code of Criminal
Procedure (for short, “CRPC”).
2. Short facts giving rise to this petition are as under:
3. Respondent no.2 being Food Inspector employed with Surat
Municipal Corporation, approached the petitioner at about 4:45
p.m. on 2.8.1995 and, after disclosing his identity, collected a
sample of curd of 600 gms from 3 k.g. of curd found in a steel
container from the petitioner’s hotel “Madras Cafe” at Surat, as,
according to him, it was kept for sale. He then added preservatives
in required quantity, divided the same into three parts after stirring
it, sealed it and forwarded it for analysis as required under the PFA
Act and relevant Rules. According to second respondent, since it
was found that the curd did not comply with the minimum
standards laid down under AppendixB to Prevention of Food
Adulteration Rules (for short, “Rules”), a case was made out and,
therefore, after obtaining necessary sanction from the competent
authority, a criminal case came to be lodged and the petitioner was
prosecuted and ultimately found guilty, as aforesaid.
4.
Learned advocate for the petitioner would submit that the
Courts below had seriously erred in not properly appreciating the
fact that the curd in question was not for sale as stated by the
petitioner in his statement under Section 313 of the CRPC. It was
submitted that, while the trial Court did not deal with said aspect,
the appellate Court rested its finding on surmises and conjectures
and presumed that the curd was for sale and that it was to be used
by the petitioner in other food article and, therefore, ultimately,
curd would have been sold. It was submitted that there was no
basis for the appellate Court to have come to the said conclusion
and, therefore, there is serious legal infirmity causing miscarriage
of justice to the petitioner. In support of her argument, reliance
was placed on following cases:
(1)
Municipal Corporation of Delhi Vs. Laxmi Narain Tandon
etc. reported in 1975 Prevention of Food Adulteration Cases 444.
(2)
State of Gujarat Vs. Ashok Mulji Lakhani and others
reported in 2007(4) Crimes 514 (Guj.)
(3)
The State of Maharashtra vs. Udayram Rupram Oza
reported in 1977 Cri.L.J. 1807.
(4) State of Maharashtra vs. Shankar of Shankar Vilas, Hindu
Hotel reported in 1979(I) Prevention of Food Adulteration Cases
189.
5.
It was next contended that samples were not taken in
accordance with mandatory Rule 14 of the Gujarat Prevention of
Food Adulteration Rules, 1955 ( for short “the Rules”) inasmuch as
the bottle in which the samples were taken was not cleaned in
presence of the petitioner but admittedly it was claimed to have
been cleaned at some other place. It was submitted that, therefore,
since mandatory rule was not followed, miscarriage of justice has
been caused. In support of above contention, following decisions
were relied upon:
(1) Sudhirchandra B.Joshi, Food Inspector, Baroda Vs.
Arvindkumar Naranbhai Patel and others reported in 1995(2)
G.L.H. (U.J.) 24.
(2) Arjan Dass Vs. The State of Punjab reported in 1983(I)
Prevention of Food Adulteration Cases 163.
6.
It was also submitted that, in order to make the sample
homogeneous and representative, the curd was required to be first
vertically cut and then churned and, thereafter, it was required to
be divided into three parts. It was submitted that admittedly the
curd was not vertically cut and it was not even churned. It was
submitted that churning is a process different then stirring and the
witness before the Court merely said that he stirred it. In support
of her submission, following cases are relied:
(1)
Santosh Kumar Sarma Vs. State of Assam reported in
2005(1) Food Adulteration Cases 231.
(2) State of Maharashtra Vs. Rewatiprasad Menduram Agarwal
and others reported in 1980(I) Prevention of Food Adulteration
Cases 131.
7.
Learned counsel appearing for the respondents would submit
that there are concurrent findings of fact recorded by Courts below
and, therefore, this Court, having limited jurisdiction may be slow
in interfering with the factual findings. It was also submitted that
the petitioner, on being asked to sell the sample to second
respondent, had, without any resistance and without mentioning
that it was not for sale, sold it to the second respondent and,
therefore, it amounted to sale within the meaning of Section 2
(xiii) of the PFA Act. Learned APP, while inviting attention of this
Court to Section 10 of the Act, submitted that the Food Inspector
has wide powers to purchase the sample and that is what exactly he
did and, therefore, the transaction in question should be regarded
as “sale” made by the petitioner. It was sought to be contended by
the respondents that mere storage of a food article, if found to be
adulterated, would also constitute an offence under said provision.
While distinguishing the case of Laxmi Narain (supra) it was
contended that the Court raised two questions and answered the
first question in affirmative that, even if a person is not given
rebate for not consuming meal, a food article if it is included in a
package, amounted to sale, and therefore, it was submitted that
said decision comes to the rescue of the respondents rather than
the petitioner. It was also submitted that the trial Court and the
appellate Court properly appreciated the facts and found that the
sample was properly taken and have recorded concurrent finding,
and therefore, this Court may not interfere.
8.
Having considered the arguments advanced by the parties,
following questions fall for consideration of this Court:
(i) Whether, mere collection of sample of curd in exercise
of powers under Section 10 of the PFA Act and acceptance
of the cost under subsec.3 thereof, ipso facto results into the
sale of curd in ordinary course of business?
(ii) Whether mere storage of adulterated food article
constitute an offence under the PFA Act?
(iii) Whether for conviction under Section 16 read with
Section 7 of the PFA Act, the prosecution is required to
establish; (a) that the sample of curd was adulterated and
(b) that it was for sale in ordinary course of business within
the meaning of Section 2(xiii) of the PFA Act?
(iv) Whether Rule 14 of Prevention of Food Adulteration
Rules, 1955 was complied with in the matter of cleaning the
bottles for collection of sample?
9.
In order to appreciate the arguments advanced before this
Court, it is necessary to have a glance at the relevant scheme of the
PFA Act. As per Section 2 (ia), an article of food shall be deemed
to be adulterated, inter alia, if the quality or purity of the article
falls below the prescribed standard or its constituents are present in
quantities not within the prescribed limits of variability, but which
renders it injurious to health [Section 2(ia)(l)], as also if the
quality or purity of the article falls below the prescribed standard or
its constituents are present in quantities not within the prescribed
limits of variability but which does not render it injurious to health
[Section 2 (ia)(m)]. As per Clause(v) of Section 2 of the PFA Act,
“food” means any article used as food or drink for human
consumption other than drugs and water and includes any article
which ordinarily enters into, or is used in the composition or
preparation of human food, any flavouring matter or condiments,
and any other article which the Central Government may, having
regard to its use, nature, substance or quality, declare, by
notification in the Official Gazette, as food for the purpose of the
PFA Act. “Sale” has been defined in Section 2 (xiii) so as to mean,
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 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. The term “seller” has not been defined but from the
language used in Subsection (xiii) of Section 2, it is amply clear
that the person who sells for cash or on credit or by way of
exchange whether by wholesale or retail, for human consumption
or use, or for analysis, and or who executes an agreement for sale
or makes an offer for sale, or exposes for sale or has in possession
any article for sale or makes attempt to sell, is a seller. Section 2
(xiv) defines “sample” so as to mean any article of food taken
under the provisions of the PFA Act or of any rules made
thereunder.
10.
Section 10 of the PFA Act empowers the Food Inspector to
take samples of any article of food from: (1) any person selling
such article; (2) any person who is in course of conveying,
delivering or preparing to deliver to such article to a purchaser or
consignee; (3) a consignee after delivery of any such article to him.
Subsection (2) of Section 10 of the PFA Act empowers the Food
Inspector to enter and inspect any place where any article of food is
manufactured, or stored for sale or stored for manufacture of any
other article of food for sale, or exposed or exhibited for sale or
where any adulterant is manufactured or kept, and take samples of
such article of food or adulterant for analysis. Subsection (3) of
Section 10, which is important for the purpose of decision in this
case makes it clear that where any sample is taken under clause (a)
of subsection (1) or subsection (2), its cost calculated at the rate
at which the article is usually sold to the public shall be paid to the
person from whom it is taken. As per subsection (5), the power
conferred by this section includes power to break open any package
in which any article of food may be contained or to break open the
door of any premises where article of food may be kept for sale.
To exercise the power of entry into the premises he is required to
follow the procedure under the Code of Criminal Procedure, as far
as may be. Subsection (7) requires the Food Inspector to obtain
signature of one or more persons if he intends to exercise the
power under Clause (a) of subsection (1), subsection (2). This
Section also penalizes an act which prevents Food Inspector from
taking sample or exercising any power authorized by the PFA Act.
11.
Section 7 of the PFA Act prohibits manufacture for sale or
store, or selling or distributing, inter alia, any adulterated food and
Section 16 penalizes importing into India or manufacturing in India
food article for sale or storing food article or selling or distributing
of food article which is adulterated, inter alia, within the meaning
of subclause (m) of clause (ia) of subsection (2).
12.
Keeping in view above legal position, a reference may now be
made to the cases cited at the bar. In Municipal Corporation of
Delhi v. Laxmi Narain Tandon etc.
(supra)
, food articles stored in
the hotel were found to be adulterated and it was alleged that the
articles of food of which the samples have been taken had been
stored in the said hotel for sale. In defence, it was inter alia
contended that no articles of food were sold in the hotel to the non
resident visitors or the public generally; that the hotelier provided
residential accommodation, services and other amenities, including
meals, only to the resident customers against the composite charge
and that no rebate is allowed for food if a resident customer
chooses not to eat it. The accused person was acquitted by learned
Magistrate after holding inter alia that adulterated food articles
were not stored for sale. Such an acquittal was upheld in appeal.
The Hon’ble Apex Court framed two questions as under:
“(1) Whether for purposes of the Prevention of Food
Adulteration Act, 1954 (for short, the PFA Act), there is
no sale of food which is provided by a hotelier to a guest
when a consolidated charge is made for room and the
other amenities, including food, and when no rebate is
allowed for any meal which may not be taken by the
guest?
(2) Whether the expression ‘store’, as used in section 7
and section 16 of the PFA Act, means storage simpliciter
or storing for sale?”
13.
This Court is concerned with only question no.2, above. In
that context, the Hon’ble Supreme Court, after discussing relevant
scheme of the PFA Act, held in paragraph 12 as under:
“12.
From a conjoint reading of the above
referred provisions, it will be clear that the broad
scheme of the Act is to prohibit and penalise the sale
or import, manufacture, storage or distribution for
sale of any adulterated article of food. The terms
“store” and “distribute” take their colour from the
context and the collection of words in which they
occur in ss.7 and 16. “Storage” or “distribution” of an
adulterated article of food for a purpose other than
for sale does not fall within the mischief of this
section. That this is the right construction of the
terms “store” and “distribute” in s.16 (1) will be
further clear from a reference to s.10. Under that
section, the Food Inspector, whom the Act assigns a
pivotal position for the enforcement of its provisions,
is authorised to take samples of an article of food
only from particular persons indulging in a specified
course of business activity. The immediate or
ultimate end of such activity is the sale of an article of
food. The section does not give a blanket power to
the Food Inspector to take sample of an article of
food from a person who is not covered by any of the
subclauses of subs.1 (a) of subs.2. The three sub
clauses of subsection 1(a) apply only to a person
who answers the description of a seller or conveyer,
deliverer, actual or potential, of an article of food to a
purchaser or consignee or his consignee after delivery
of such an article to him. Subsection (2) further
makes it clear that sample can be taken only of that
article of food which is “manufactured”, “stored” or
exposed for sale. It follows that if an article of food is
not intended for sale and is in the possession of a
person who does not fulfill the character of a seller,
conveyer, deliverer, consignee, manufacturer or
storer for sale, such as is referred in subSS.1(a) and
(2) of the section, the Food Inspector will not be
competent under the law to take a sample and on
such sample being found adulterated, to validly
launch prosecution thereon. In short, the expression
“store” in s.7 means “storing for sale” and
consequently storing of an adulterated article of food
for purposes other than for sale would not constitute
an offence under s.16(1)(a).”
(emphasis supplied)
14. Thus, it is amply clear from above observations and scheme of
the provisions of PFA Act referred to in para 9, 10, 11 that storage
or distribution of an adulterated article of food for a purpose other
than for sale does not fall within the mischief of Sections 7 and 16
of the PFA Act and that the Food Inspector is authorized to take
samples only from particular persons indulging in a specified
course of business activity and the immediate and ultimate end of
such activity is sale of an article of food, and if the article of food is
not intended for sale and is in possession of a person, who does not
fulfill the character of seller, conveyer, deliverer, consignee,
manufacturer or storer for sale, the Food Inspector is incompetent
to take a sample and launch prosecution on such sample being
found adulterated. Thus mere storage of adulterated food article
cannot constitute an offence under PFA Act. It is not the
prosecution case that, when the Food Inspector entered into the
hotel, the petitioner was engaged in sale of curd or that at that
point of time there were customers in the hotel consuming or
ordering for the curd or that curd was mentioned in menu card as
one of the item for sale. It is also not the case of the prosecution
that the Food Inspector made any inquiry ensuring that the curd
was stored for sale or that the hotelier, who was selling many other
items, was also a seller of curd. The prosecution presumed that
since a sample was given by the petitioner to the Food Inspector,
without stating that it was not for sale, it amounted to “sale”.
Thus, entire case proceeded on this wrong presumption.
15.
The prosecution also expected the petitioner to disprove the
fact that the curd was stored not for sale even as he parted with
sample and accepted its cost. Therefore, in the first place, a
question as to whether the petitioner could have refused to part
with the sample of curd on the ground that it was not stored for
sale without exposing himself to the proceedings under Section 10
of the PFA Act would arise. It may be recalled that the Food
Inspector had disclosed his identity as such to the petitioner before
collecting the sample in question. His intention was to collect the
sample of food article presuming the petitioner as its seller. Under
the circumstances, refusal of the sample on any ground could have
exposed the petitioner to an additional prosecution under Section
10 of PFA Act. Thus, there is no merit in the argument of the
learned counsel for respondents on this count. Further, sub
section (3) of Section 10, which obliges the Food Inspector to pay
for the collection of sample at such rate as the article is being sold
to the public at large, also, by itself, is clear enough to indicate that
the sample which is collected must be of such food article which is
meant for sale, but contra cannot be true. Just because a person
accepts the cost of a food article collected from him, after Food
Inspector discloses to him his identity, will not
ipso facto
amount to
“sale” unless it is shown by the Food Inspector/Prosecution that, in
fact, the food article was being sold in ordinary course of business.
Further, the Courts were bound to deal with the case of the
petitioner specifically pleaded by him in his statement under
Section 313 of Cr.P.C. In Rajinder Kumar (supra), no such case
was pleaded/proved and therefore the observations made in para
11 thereof relied upon by learned counsel for the respondents
cannot be applied to the facts of the present case. Similarly State
of Tamil Nadu vs. R.Krishnamurthy (supra) is not an authority
on the issue involved in this case. Moreover, the appellate court
appears to have misdirected itself by holding that adulterated food
article was to be used as an ingredient in preparation of other food
article even as it considered that fact which was not even pleaded
and proved. Be it noted, that what was relied upon by the
respondents was adulteration of curd by the petitioner, for his
prosecution, and not any other product that could have been
ultimately made by using the curd as one of the ingredient.
16.
The Court may now refer to the relevant Rules of Prevention
of Food Adulteration Rules, 1955. As per Rule 14, samples for
analysis are required to be taken in cleaned dry bottles or jars or in
other suitable containers which shall be closed sufficiently tight to
prevent leakage, evaporation or in the case of dry substance,
entrance of moisture and shall be carefully sealed.
17.
In Sudhirchandra B. Joshi, Food Inspector, Baroda v.
Arvindkumar Naranbhai Patel and Others [1995(2) GLH (U.J.)
24], this Court has unequivocally observed that the provisions of
Rule14 are mandatory. In that case also, it was an admitted
position that the bottle in which the samples were collected was
not cleaned in presence of the accused and the peon who has stated
to have cleaned the bottle was not examined. Similar fact situation
is available on record of this case and, therefore, it is required to be
held that the samples were collected in breach of said provision.
Thus, the trial was vitiated.
18.
It is also required to be appreciated that generally the fats
and other nutrients of articles like milk or curd would take the
surface if stored for some time. Therefore, the Courts have
repeatedly held [See: Santoshkumar Sarma (supra) and
Revatiprasad Menduram Agarwal (supra)] that, while collecting
the sample of curd, it has to be cut vertically then churned if the
curd has not settled. It is, however, not clear in this case as to
whether the curd had settled or not. The sample was stated to
have been stirred by the Food Inspector. There is a marked
difference between stirring and churning. While article can be said
to have been stirred if it is rotated by means of spoon and churning
would mean that it is vigorously blended so that every single part
of its constituent is so mixed that it becomes homogeneous.
Admittedly, the food article was not vertically cut and churned and,
thus, there are all the reasons to believe that sample was not
homogeneous.
19.
As noticed above, there was no evidence with the trial Court
showing that the food article was for sale as contemplated under
Sections 7 and 16 of the PFA Act. Not only that, the Court did not
appreciate the statement made by the accused under Section 313 of
Cr.P.C., and the lower appellate court misdirected itself and
considered the fact which was not even pleaded and proved. Thus,
both the Courts below were in serious error of law. Even the
mandatory provisions of the Rules, as aforesaid, were not followed
and none of the Courts below appreciated that aspect. Thus the
case for invocation of revisional jurisdiction by this Court is made
out.
20.
In view of above discussion, this Court is inclined to allow
this petition. The petition is, therefore, allowed and impugned
judgment and order dated 16.11.2005 passed by Fast Track Court,
Surat, in Criminal Appeal No.67 of 2001 confirming judgment and
order dated 15.10.2001 passed by learned Judicial Magistrate, First
Class, (Municipal Court), Surat, in PFA Case No.80 of 1995,
sentencing the petitioner for offences punishable under Sections 7
(1) and 16 of the PFA Act is quashed and set aside. The accused is
ordered to be acquitted of the charges levelled against him under
Sections 7 (1) and 16 of the PFA Act. Surety and bail bond, if any,
stands discharged. Rule is made absolute accordingly.
(G.R.UDHWANI, J.)
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