1. This appeal by Nagar Mahapalika, Varanasi is directed against an order of D. N. Tripathi, the then City Magistrate, Varanasi, acquitting the respondent Panna Lal, of the offence under Section 16 of the Prevention of Food Adulteration Act, 1954, hereinafter to be referred as "the Act".
2. The respondent carried on business in food-grains etc., in Chateganj Dal Hatta, Varanasi. On 29-4-1961 the Food inspector, Nagar Mahapalika, Varanasi, purchased a sample of Dal Kesari from the shop of the respondent. As required by law, a portion of the sample was sent to the public analyst for examination who reported that the sample contained cent per cent, lathyrus sativus (Kesari) and did not contain added colouring matter. He further opined that lathyrus sativus contained toxic ingredients which rendered the sample of food injurious to health.
3. The respondent pleaded that he sold articles used for human as well as animal consumption and that the Dal Kesari which was in his shop was sold for consumption of animals. In support of that defence, the respondent examined two witnesses, Ganesh Prasad, D. W. 1 and Lakkhi Ram, D. W. 2 both of whom stated that the respondent dealt both in edible articles such as rice, wheat, gram and Jau etc., and non-edible articles such as Chuni, Kesari Dal and Bhusi etc. It was further stated by them that the non-edible articles mentioned by them in their statements were used for consumption of animals. Relying upon the aforesaid statements the learned Magistrate recorded an order of acquittal. Aggrieved by that order, the Nagar Mahapalika, Varanasi has come up in appeal.
4. The first contention advanced on behalf of the appellant is that Dal Kesari falls within the definition of 'food' as given in Section 2, Clause (v) of the Act. That clause runs as below;
"Food" includes drink, chewing gum and other products of a like nature and use, and articles and substances used as ingredient in the preparation of food or drink or of such products, but does not include ;
(a) water, live animals or birds,
(b) fodder, or feeding stuns, for animals, birds or fish, or
(c) articles and substances used only as drugs."
It will have been noticed that according to the aforesaid definition, 'food', inter alia, is an article used as food or drink for human consumption and the question that arises for decision is as to whether Dal Kesari is used as food for human consumption or not. None of the witnesses examined on behalf of the prosecution has stated that Dal Kesari is used for human consumption. Ganga Krishna, P. W. 1, the Food Inspector, examined on behalf of the prosecution has merely stated that Dal Kesari is edible. The exact words used were "Dal Kesari Khal Jati Hai". That statement is also susceptible of the interpretation that Dal Kesari is consumed by animals. On the aforesaid Statement, it cannot be held as a necessary consequence that Dal Kesari is ordinarily used for human consumption. The statements made by the witnesses examined on behalf of the respondent, one of whom deals in foodgralns and the other is the principal Secretary of the Beopar Mandal, Varanasi, clearly show that Dal Kesari is used as cattle fodder. On behalf of the appellant, it has been urged that in the eastern part of the State Dal Kesari is used as food by human beings also. There is no evidence in support of that allegation. Moreover, a mere use of Dal Kesari as food by human beings in time of distress cannot lead to the conclusion that Dal Kesari is ordinarily used by human beings as food. It is a matter of common knowledge that when there is famine even tree leaves and grass are taken to sustain oneself.
5. In exercise of the powers conferred by Rule 44-A of the Prevention of Food Adulteration Rules, the U. P. Government Issued a Notification No. 1632/XVI-II-1511-61 published in the U. P. Gazette dated May 20, 1961 prohibiting, inter alia, the sale of Kesari Dal and its products. That Notification runs as below:
"In pursuance of the provisions contained in Rule 44-A of the Prevention of Food Adulteration Rules, 1955, the Governor of U. P. is pleased to notify with effect from the date of publication of this notification In the U. P. Gazette no person in this State shall 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 (Iathyrus sativus) and its products.
(b) Kesari Dal (Lathyrus Satlvus) and its products.
(c) Kesari Dal Flour (Lathyrus Sativus) and its products.
(d) A mixture of Kesari gram (Lathyrus Sativus) and Bengal gram (Circer Arietinum) or any other gram.
(e) A mixture of Kesari Dal (Lathyrus Sativus) and Bengal gram Dal (Circer) (Circer Arietinum) flour or any other flour.
EXPLANATION. The equivalents of Kesari gram in some of the Indian languages are as follows; Hindi--Kesari or Khisari, Sanskrit--Triputi, Bengali Malayalam and Oral--Khesari, Telugu--Anka, Gujrati and Marathi-Lakh
dated June 8, 1961."
If Kesari Dal is ordinarily used for human consumption, its sale would not have been prohibited absolutely. I, therefore, see no reason to reject the defence evidence that Kesari Dal is used as a cattle fodder.
6. It has next been contended on behalf of the appellant that under Section 7 of the Act, the storing of Kesari Dal is also an offence. That section runs as below:
"7. Prohibition of manufacture, sale, etc., of certain articles of food-
No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute:
(i) any adulterated food;
(ii) any mlsbranded food;
(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;
(iv) any article of food the sale of which is for the time being prohibited by Food (Health) Authority with a view to preventing the outbreak or spread of infectious diseases; or
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder."
The sample of Kesari Dal sent to the public analyst was not found to be adulterated. The respondent had not misbranded the Kesari Dal which was at his shop. It has not been shown that a license has been prescribed for the sale of Kesari Dal or that the Food (Health) Authority has prohibited the sale of Kesari Dal with a view to preventing the outbreak or spread of infectious diseases. Clauses (i) to (iv) of Section 7 are, therefore, inapplicable to the instant case. The Notification issued by the U. P. Government and published in the Gazette dated May 20, 1961 has already been quoted in the earlier portion of this order, it will be seen that by virtue of that Notification mere storing of Kesari Dal was not prohibited and, therefore, the respondent cannot be penalised merely for storing it. By virtue of the Notification referred to above, no person could 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 selling Kesari Dal and at this stage, the definition of 'sale' as given in the Act may usefully be referred to. It reads as below:
"Section 2(xiii) "Sale" means a transfer of ownership in exchange for a price paid or promised, or part paid or part promised, and includes barter, or offering or attempting to sell, or receiving for sale, or having in possession for sale, or exposing for sale or sending or delivering for sale or causing or allowing to be sold, offered, or exposed for sale, and refers only to sale for human consumption or use."
One of the essential ingredients of sale is sale for human consumption or use. It has already been seen that the respondent did not sell Kesari Dal for human consumption and he cannot, therefore, be held to have contravened any of the provisions of the Act or of the Rules framed thereunder.
7. It has been strenuously contended on behalf of the appellant that under the Act it is not necessary to see as to for what purpose a person sells an article and further that the working of the Act would be difficult if the purpose for which a sale takes place were to be looked into. The function of a Court of law is to interpret the law as it finds it and not to scan the wisdom or policy of the Legislature. In defining "Sale", the Legislature has expressly included a sale for human consumption and in order to see as to whether a particular transaction is a sale or not the purpose for which the sale has been effected must be looked into. I am alive that the definition of the word "Sale" also Includes a sale for analysis, but I am quite clear that the word "Sale" or its cognate expression, as used in, the Notification referred to above, does not include a sale for analysis. By virtue of the Notification, the sale of Kesari Dal is prohibited and if sale were also held to include a sale for analysis it will have to be held that such a sale also fell within the mischief of the Notification, but it could never have been the intention of the Rule making body to prohibit such a sale. A sample is purchased for analysis in order to carry out the provisions of the Act and it would defeat the very purpose of the Act if a sale for analysis were to be prohibited.
8. Since the respondent did not sell Kesari Dal for human consumption he did not contravene the provisions of the Act or of any of the rules framed thereunder.
On behalf of the appellant, reliance has been placed upon the following two cases:
1. AIR 1933 Cal 619, Chairman, Dist. Board, Midnapur v. Atul Chandra Pal.
2. AIR 1949 Mad 623, In re. Vanka Bhimaraju.
None of the aforesaid cases was under the Prevention of Food Adulteration Act. One of them was under the Bengal Food Adulteration Act and the other under the Madras Prevention of Adulteration Act. The relevant provisions of the Bengal and Madras Food Adulteration Act were not placed before me by the learned counsel and it cannot, therefore, be said whether the provisions of those Acts were in pari materia with the provisions of the Act under consideration. No guidance can, therefore be sought from those cases. Furthermore a reference to the Madras case would indicate that Rule 27-A of the Rules framed under Section 22(2)(f) or the Madras Prevention of Adulteration Act which came up for consideration in that case absolutely prohibited the sale or possession for the purpose of sale, Irrespective of the purpose for which the consumer may take or the seller may sell the commodity. The Calcutta and the Madras cases relied upon on behalf of the appellant are thus distinguishable.
9. In conclusion, the appeal fails and is hereby dismissed.