Mobile View
Main Search Forums Advanced Search Disclaimer
Cites 29 docs - [View All]
Section 2 in The Prevention Of Food Adulteration Act, 1954
Section 16 in The Prevention Of Food Adulteration Act, 1954
Section 7 in The Prevention Of Food Adulteration Act, 1954
The Prevention Of Food Adulteration Act, 1954
Section 7(iv) in The Prevention Of Food Adulteration Act, 1954

User Queries
Bombay High Court
Dhirajlal Valji Kotak vs Ramchandra Janglaji Gujar And ... on 26 February, 1969
Equivalent citations: AIR 1970 Bom 290, (1970) 72 BOMLR 436, 1970 CriLJ 1062
Author: Kotval
Bench: S Kotval, B Deshmukh, D Padhey

JUDGMENT

Kotval, C.J.

1. Two questions have been referred for our decision 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 or human use alone or extends to the sale of an article of food regardless of the purpose for which it is sold ?

(2) Whether the word 'sale' used in. Rule 44-A of the Prevention of Food Adulteration Rules, 1955, is used in its general sense or in the restricted sense, meaning the sale of Kesaridal for human consumption only?

2. After arguments had proceeded in the reference before us, we felt that in order to bring out the particular points which have been urged on behalf of the applicant accused and the State, it would be necessary to modify the 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 one of the packets was sent for analysis, it was found that the article purchased by the Food Inspector was of standard quality but that the sale of that article, namely, Kesari dal, was prohibited under the Act The prosecution alleged that its possession and sale is prohibited by Rule 44-A of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules). The accused therefore came to be prosecuted under Section 7(v) read with Section 16(1)(a)(ii) of the Act.

4. These facts are not in dispute. The sale has been admitted by the accused, as also the analyst's report dated 21-11-1968. The report in terms states that the dal as such was of standard quality, but the sale of that dal is prohibited under the Act.

5. Now, the defence of the accused was a simple defence. He admitted that he had sold the Kesari dal but it was his case that he had neither possessed the dal nor sold it for the purpose of human consumption. On the contrary, he made it clear to the Food Inspector at the time when the sample was seized that he had kept the dal and sold it only for the purpose of being used as cattle fodder. In fact, in granting the receipt to the Food Inspector for the sample quantity purchased from him the accused endorsed upon the receipt itself the fact that he had sold the sample as cattle fodder. This is clear from the endorsement upon the receipt Ex. 8.

6. Both the Magistrate and the Additional Sessions Judge, have negatived the accused's defence, They have held that it may be that the accused disclosed his intention at the time when he sold the sample, that he was selling it not as an item of food for human consumption but only for the purpose of being used as cattle fodder, but the rule under which the sale of Kesari dal is prohibited clearly lays down a total prohibition irrespective of what was the intention of the accused in storing or selling it. Therefore, bis defence could not prevail. It Is this finding which has given rise to the reference before us. When the matter came before our Brother Deshmukh in revision he felt, upon a consideration of the authorities on the question, that there has been conflicting views expressed not only between different High Courts but also in this High Court, and therefore referred the matter for decision to a Full Bench. The question is a pure question of law and depends on the interpretation 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 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 or any such article, and includes also an attempt to sell any such article." (the underlining (here in ' ") is ours) Section 2(xiv) and (xv) define the word "sample" and the words "unwholesome" and "noxious" which occur In several sections. These definitions have to be read in the light of the opening clause of Section 2 "..... unless the context otherwise requires".

8. Next we turn to the section which creates the offence with which the accused was charged in the present case and the section which punishes that offence. They are Sections 7 and 16:

"7. '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 misbranded 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 the Food (Health) Authority in the Interest of public health; or

(v) 'any article of food in contravention of any other provision of this Act or of any rule made thereunder.'

Section 16, so far as is relevant, is as follows:

"16. (1) If any person-

(a) Whether by himself or by any other person on his behalf imports into India or manufactures for sale or stores, sells or distributes any article or food'-

(i) which is adulterated or misbranded or the sale of which is prohibited by the Food (Health) authority in the interest of public health;

(ii) other than an article of food referred to in Sub-clause (i), in contravention of any of the provisions of this Act or of any rule made thereunder; orz

* * * *

(again the underlining (here in ' ') is ours) It is under Sub-clause (ii) of Section 16(1)(a) read with Section 7(v) that the accused has been convicted. Both these sections it will be noticed, refer generally to "food" or "any article of food" but do not refer to any particular class of food or 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.

Explanation -- The equivalents of Kesari gram in some of the Indian languages are as follows;

Hindi -- Kesari or Khisari

Sanskrit - Triputi

Bengali, Malyalam, Tamil tod Oriya -Khesari

Telgu - Lamka

Gujarati and Marathi -- Lath."

Rule 44-A was brought into force in the State of Maharashtra by the State Government notification No. PFA.1060/D dated 15th November, 1961, published in the Gazette dated 23rd November, 1961. The notification brings the rule into force from the 20th day of November, 1961.

9. Now, the principal contention on behalf of the accused has been that looking to any of the provisions to which we have referred above, the prohibition to manufacture for sale, store, sell or distribute contained in Section 7 read with Section 16(1)(a)(ii), as also in Rule 44-A, is only in respect of an article of food meant for human consumption or use, and nothing more. Therefore, if a person either expressly so declaring it or proving by other evidence, sells the prohibited article -- in this case Kesari dal -- for a purpose other than human consumption or use, be would not come within the mischief of the Act and the Act does not intend to prevent such sales. The other contention is that this is a penal law and would be governed by the normal principle that the Court should always have recourse to the mens rea or intention of the accused before convicting him of an offence and that having regard to the provisions to which we have referred, there was no intention on the part of the accused to sell this dal to anyone including the Food Inspector for human consumption or use, and therefore the accused cannot be convicted. It was urged that though R. 44-A expressly refers to Kesari dal and prohibits its sale or exposure for sale or even the possession for the purpose of sale still Rule 44-A must be read in the light of the provisions of the parent Act under which it is framed, and therefore, it must be held that it was not intended by Rule 44-A to prohibit the sale of Kesari dal for purposes other than human consumption or use.

10. The argument is sought to be developed principally upon the definition of the word sale" in Section 2(xiii). Section 7(v) prohibits the sale of any article of food in contravention of any rule made under the Act. Therefore, Section 7 itself has regard to the definition of "sale" in Section 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 are really not concerned with the second part i.e., the inclusive definition though it has a bearing upon the interpretation of the first part. The real definition preceded by the

1. The subject of the sale:

2. The manner of the sale;

3. The purpose of the sale, or use of the sale:

11. The definition is no doubt a tautologous definition in so far as it defines "sale" to mean "the sale of any article of food .. . But when we come to consider the several ingredients which we have analysed above, it would be found that the draftsman intended to exhaust every category of sale and to include in it every ingredient normally required in a sale. Thus, in the first category, namely, the subject of the sale, he has used the words "any article of food" without exception, Therefore, the definition includes any and every article of food. We shall presently refer to the definition of food. In prescribing the manner of sale, the draftsman has also enumerated every mode in which a sale is possible by referring the three categories (i) whether for cash, or (ii) on credit, or (iii) by way of exchange. We cannot conceive of a sale which is not included in one of these three categories. Lastly, in dealing with the purpose of the sale or the use of the article, the draftsman has used four expressions: (i) by wholesale or retail, that is to say, to a dealer dealing in any article for food, (ii) for human consumption, that is to say, to a consumer, (iii) for other uses (we will presently advert to this category), and lastly (iv) for analysis.

12. The last category, namely, the sale of any article of food for analysis takes us to the provisions of Sections 10 and 11 of the Act. Section 10(1)(a) gives power to a Food Inspector appointed under the Act to take samples of any article of food from (i) any person selling such article, (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee; and (iii) a consignee after delivery of any such article to him. He is also given the power to send such a sample for analysis to a public analyst and other powers. Section 11 prescribes the procedure to' be followed by the Food Inspector in taking samples. The reference therefore in the definition in Section 2(xiii) to the sale of any article of food "for analyword "means" refers to "sale". What 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 precedent to there being a sale, it must necessarily follow that wherever the word "sale" is used in the substantive provisions, it means only the sale for human consumption.

14. We have shown above that the words "for human consumption or use" are only two categories of the purpose of a sale, the other two being the sale to a wholesale dealer or a retail dealer, and the sale for the purposes of analysis. So viewed, the words "for human consumption" do not assume the importance which counsel endows them with, nor do we think that the words "for human consumption" govern the words "any article of food but govern the words "the sale of any article of food." It must be borne in mind that what is being defined is "sale" and not "any article of food."

15. The definition itself moreover gives an indication that sale is not exclusively confined to the sale of articles of food for human consumption and that sales for other purposes would also come within the ambit of the definition. For instance, definition also includes a sale for analysis where a Food Inspector takes a sample under his powers under Sections 10 and 11, It is now settled law that a sale for the purposes of obtaining a sample to a Food Inspector under the provisions of Sections 10 and 11 of the Act is also a sale within the meaning of the definition,

16. In Mangaldas v. Maharashtra State, , an appeal from this Court:, it was argued before the Supreme Court that a sale for sample is not a sale which partakes of the usual nature of sale, namely, that it is a contract voluntarily entered into, and that therefore it cannot be held to be a sale within the meaning of the Act. The Supreme Court referred to several Madras decisions under the Madras Prevention of Food Adulteration Act, where it was held that transactions by which a sample of article of food was obtained by a Sanitary Inspector from the vendor amounted to a sale even though the vendor was bound to give the sample tender of the price thereof and then proceeded to repel the contention by observing:

"But Mr. Anthony contends that a contract must be consensual and that this implies that both the parties to it must act voluntarily. No doubt a contract comes into existence by the acceptance of a proposal made by one person to another by that other person. That other person is not bound to accept the proposal but it may not necessarily 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 word "sale" occurs but it would be impossible to hold that the reference to "manufacture for sale" has reference only to manufacture of an article for human consumption. That would make the provisions of the Act practically nugatory, and impossible to implement for no one except the manufacturer would know what he is actually manufacturing the article for. If "manufacture for sale" means manufacture of any article of food for human consumption, then it would be impossible to implement the Act, the manufacturer could always say that he had manufactured the article for some purpose other than human consumption.

18. Some support for the contention on behalf of the accused was sought to be derived from the definition of food in Section 2(v). No doubt that definition enters into any construction of the word "sale" because sale is defined with reference to any article of food. Therefore, it is necessary to see the definition of food. The contention is that this definition also uses the words "any article used as food or drink for human consumption". Therefore, it is urged that the emphasis is firstly on the user, and secondly on the user for human consumption, and since it is an ingredient of the definition of "sale", it is an additional reason for holding that the word "sale" is only confined to sale of any article of food for human consumption.

19. In our opinion, upon the correct analysis of the definition of "sale" in Section 2(xiii) which we have already made above nothing turns upon the definition of "food" in Section 2(v). We have already shown that the words "for human consumption" in the context in which they are used in the definition of "sale" are used to describe only one of four purposes for which a sale may take place, the first category being to a dealer by wholsale or retail, the second being to a consumer (by the use of the words for human consumption); the third being for other use, and the fourth being for analysis. It is in this context that the words "for human consumption" have to be read. The effect of these two definitions read together would therefore be as follows: The Court must see first of all whether it is established that there was a sale of any article of food. In determining that the Court has to be satisfied that it is an article used as food or drink for human consumption. But once the sale of any article of food is established 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 Rule 44-A:

(i) manufacture for sale,

(ii) storage,

(iii) distribution without consideration, i. e. free distribution of Kesari dal. If it is for consideration, of course it will amount to sale, and

(iv) personal consumption of the person who has grown it.

It was therefore urged that the ban on the dealing with Kesari dal is not a total ban especially when in each one of these modes of dealing described in Rule 44-A only a reference to the definition of "sale" has been made.

We do not think that simply because some modes of dealing with Kesari dal may be permissible under the Rules, we can give the expression "sell or offer or expose for sale or have in his possession for the purpose of sale" any different meaning or connotation than that which we are bound to give under the definition of "sale" in Section 2(xiii). When an Act defines a word, and that word is used in a rule framed under powers conferred by that Act, then that word just carries the same meaning which is assigned to it in the definition -- unless the subject or context necessarily implies otherwise. There is nothing in the subject or context of Rule 44-A to suggest that any different meaning was intended, even assuming that Rule 44-A leaves some modes of dealing with Kesari dal to a person.

21. Lastly, some emphasis was put by the counsel on the preposition "for" preceding the words "human consumption" in the definition of "sale". The counsel contrasted it with the prepositions used in other clauses, for instance "whether by wholesale or retail" in contrast to "for human con sump-don". We do not think that anything turns upon this distinction because the preposition "for", though it no doubt indicates "for the purpose of", is not used in contradistinction with the preposition "by" in the earlier clause but because the requirements of simple grammar necessitate the use of that preposition. In the earlier clause viz. "whether for cash or on credit or by way of exchange", similarly three different prepositions are used "for", "on" and "by", also because simple grammar requires it. No greater meaning therefore can be attached to the different prepositions used preceding the different clauses.

22. Another contention was founded upon the use of the word "use" after the words "for human consumption or". The counsel sought to derive the meaning of the word "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 for any purpose whatever. In the context of prevention of food adulteration, use can of course only be by human beings, but it does not necessarily follow that the use must be limited to use for consumption of human beings. In our opinion, the word "use" implies any 'use to which an article of food can be put to.

24. In the light of what we have said, it is clear that in the case of a prosecution under Section 7 read with Section 16, what the prosecution has first to establish is that the article dealt with is an article of food. Once that is established, the next question to ask is whether a sale has taken place or the person has dealt with the article in any one or more of the prohibited modes mentioned in Section 7. The Act is not confined only to the sale, storage or distribution of food to be used only for human consumption.

25. We next turn to the other part of the same argument, namely, that having regard to the definitions and the provisions of Sections 7 and 16, the Court must take into account the intention or the mens rea of the accused. So far as the Act itself is concerned, particularly the definition of "sale" or the definition of "food", we cannot see where there is any scope for reading into that definition the requirement that the intention of the accused in selling an article of food has to be taken into account, "Sale" means the sale of any article of food in the several ways prescribed and for the several purposes mentioned. The Act does not define "sale" with reference to the State of mind of the person selling. The inclusive definition moreover makes it clear that certain acts which would not normally be sales amount to sale, as for instance, the exposing for sale or having in possession for sale. With what intention such a sale takes place is no part of the definition, nor does this requirement appear upon a plain reading of Section 7 or Section 16, which merely use the word "sale". In Section 7 moreover the word "store" is used and we do not suppose that the intention with which an article is stored could ever be ascertained by the enforcing authority. In such a case if the theory or intention were to be read into the Act, the provision will become impossible to implement. If the theory of Intention cannot be applied to the act of storing, we can see no reason why it should only be applied to selling. Therefore, reading into the 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 commit the offence. The Supreme Court referred to its own earlier decision in Hariprasada Rao v. The State, and held:

"What was held in that case is that unless a statute either clearly or by necessary Implication rules out mens rea as a constituent part of the crime, a person should not be found guilty of an offence against the criminal law unless he has got a guilty mind. The proposition there stated is well established, Mere Section 19(1) of the Act clearly deprives the vendor of the defence of merely alleging that he was ignorant of the nature, substance or quality of the article of food sold by him and this places upon him the burden of showing that he had no mens rea to commit an offence under Section 7(1) or 18(1)(a) of the Act."

The Supreme Court also referred to another decision of its own in the State of Maharashtra v. Mayer Hans Georg under the Foreign Exchange Regulation Act, 1947, and held that they were unable to accept the contention of counsel that it was necessary to establish that the appellant had mens rea to commit an offence.

27. We may by way of explanation merely mention here that the words "and this places upon him the burden of showing that he had no mens rea to commit an offence under Section 7 (0 or 16(1)(a) of the Act were words used with reference to the exceptions mentioned in Section 19(2) and not to imply that there is any exception to the general principle that mens rea would not enter into the consideration of any offence under the Act. The decision in Man-galdas's case therefore negatives any contention that the mens rea or intention of the accused has to be taken into account In considering offences under Section 7 read With Section 16 of the Act.

28. The other authorities which were referred to also show that in a majority of cases, the same view has been taken. So far as the Bombay High Court is concerned, the reported decision is to be found in State v. Shankar Gambhire, where a Division Bench held that in a prosecution under Section 16 (1) (a) all that the prosecution need prove is (a) that a sale has taken place and (b) that the same is a sale of an article of food. The Division Bench further held that the question of the Intention of the seller is entirely irrelevant for the purpose of contravention of Section 7(i) of the Act and that it is sufficient if the object or the article sold happens to be 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 to accept the contention on behalf of the accused that cocoanut oil is not ordinarily used as an article of food,"

Then the learned Judge went on to answer point of mens rea by saying:

"In this case there is no question of mens rea because the enactment is made in the Interest of public health......"

Though this was a decision under the earlier Act, it was a statute in part materia and would apply in the construction of the present Act.

31. The next decision was that of a learned single Judge in State v. Vasant Shivram, Criminal Appeal No. 1807 of 1962, DA 3-5-1963 (Bom). There also a plea was taken that cocoanut oil was not used in that part of the country from where the case arose as food or in the preparation of food. That plea was negatived, the learned Judge observing:

"All that is necessary for the prosecution to show is that the accused sold an article of food as defined by the Act and the Rules framed thereunder, Whether in a particular case, a particular article was sold or purchased for the express purpose of using It as food is entirely irrelevant."

32. The third case was State v. Uttani-chand Hasarimal (Cr. Appeal No. 230 of 1963 DA 26-7-1963 (Bom) ). This was also a case of sale of coconut oil. It was found adulterated to the extent of 94.2% with mineral oil. In that case, the Magistrate had found that the accused bad not stocked the article for sale as an article of food, and on that footing he had acquitted the accused a ground very similar to the one raised in the present case. Once again, a contention was raised that the sale was not really a sale for human consumption but the oil was to be used for oiling the boiler of the accused in his oil mill, and that in any event, cocoanut oil was not used as an article of food at Malegaon where the offence took place. The learned Judge held:

"Moreover, there is really no justification for holding that cocoanut oil ceases to be 'food' in an area where it is not generally used. Such an argument will lead to very absurd results. Knowing the food habits of the people in this part of the country, though it is quite possible to say that one variety of edible oil is used more generally than some other edible oil, it is not as it the less used edible oil ceases to be an edible oil, though it is sold in the market."

The learned Judge further held that the Bar under section 7(i) is against selling food which is adulterated; cocoanut 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) read with Section 7(iv). Section 7(iv) refers to an article of food, the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health, In the whole of the judgment, there does not appear to be any reference to the prohibition by the Food (Health) Authority. It seems to us very clear that the prosecution was under Section 18(1)(a)(ii) read with Section 7(v), However, that difficulty does not affect the principle laid down in that case.

34. In that case it was contended on behalf of the accused that there was no evidence whatever on the record to show that the accused had sold Kesari dal as an article of food. On the other hand he had produced evidence that Kesari dal was sold by him as an article of cattle fodder. The Division Bench observed that the Prevention of Food Adulteration Act was concerned with the prevention of Adulteration of food and that Rule 44-A was made by the Central Government under its power under Section 23(f). Reading Section 7(iv) (it should be section 7(v) with Rule 44-A (b), the Division Bench held that only the sale of Kesari dal as an article of food is prohibited and a sale in defiance of this provision is made penal under Section 16(1). They therefore held that in order to sustain a conviction for contravention of section 7(iv) (7(v)) read with Rule 44-A (b), it is necessary for the prosecution to show that Kesari dal was being sold by the accused as an article of food. The Division Bench further observed:

"It is pointed out by the learned Assistant Government Pleader that the definition of "sale" includes sale for analysis also. That undoubtedly is so, but the sale for analysis to come within the definition of sale under the Act must be the sale of an article of Food."

Then they proceeded to examine the evidence and found that there was no evidence produced to show that when the sample was purchased by the Food Inspector, it was offered for sale by the accused as an article of food or that he had sold the sample as a sample of an article of food. They therefore held that the accused had not committed an offence and ordered his acquittal.

35. Now, it seems to us that Jn this decision very little assistance was given to the Court in coining to a correct decision. The learned Assistant Government Pleader who argued the case on behalf of the State does not appear to 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 disputed that the sale of Kesari dal is not absolutely prohibited and there is no prohibition against its sale as cattle fodder. The prohibition is only against the sale of the article as an article of food for human consumption."

This again was a concession which was wrong in law. It is the very point which has been pressed before us via that the prohibition is absolute, We do not think it necessary to enter into greater detail as to the reasons in that case. The whole basis was incorrect because an incorrect concession was made and because of the failure of counsel on behalf of the State to refer to the relevant provisions of law and to the reasoning in the previous decisions of which there were at least five of this Court alone. That case, it must be held, was incorrectly decided.

36. So far we have referred only to the authorities of this Court but there is a considerable volume of authority of other Courts also where the same views have been expressed. We will refer to some of them which directly bear upon the question referred to us.

37. A Full Bench of the Kerala High Court in Covinda Pillai v. Padmanabha Pilial, (FB) held that Kesari dal was an article of food within the meaning of the - Act. It held upon a reference to books on medical jurisprudence that Kesari dal was being used as food and took judicial notice of that fact. The Full Bench also held:

"It is enough if the article in general is used as food for human consumption, or is used in the preparation of human food, and every particular stock of that article becomes food, no matter that it is intended for some other use. A particular stock of rice or milk, for example, does not cease to be food because it is intended not for human consumption but for feeding animals; and so long as Kesari dal in general is an article used as food for human consumption or is ordinarily used in the preparation of human food, the particular stocks which the accused persons were holding would be food as defined by the Act, no matter that the particular stocks were intended for salo as fodder."

With the greatest respect we are in complete agreement with this statement of the law. That case moreover was almost identical with the case before us including the defence taken by the accused.

38. The other case which is relevant is Public Prosecutor v. Nagbhushanam, which overruled an earlier decision 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 learned Judge gave to such a plea. On page 98 ha observed:

"What the accused contended and which contention has found acceptance at the hands of the learned Sessions Judge is that it would not be an offence under the Act, if an article intended for human consumption is sold to a customer on the express understanding that it should be given to cattle and not consumed by human beings. The crux of the offence does not lie in the use to which the buyer may put an article, but whether intrinsically the article sold or exposed for sale is one used for human consumption or not. The plea of the accused seems to be that, because he used to represent to his buyers that this particular asafoetida which he had in stock, should be used only for feeding cattle and not used as human food, he would be exempt from prosecution.

It would be as if a vendor of adulterated milk could aver that he sold adulterated milk to a customer on the distinct understanding that the customer should not give it to his baby but should give it only to his cat, and therefore, urge that he had not sold adulterated milk and had not committed any offence.

The crux of the offence does not lie in any possible understanding between the seller and the buyer as to the use to which the article sold is to be put, but whether the article intrinsically is an article of food, or as defined in section 2(v)(a), an article which ordinarily enters into, or is used in the composition or preparation of human food."

40. A similar view was taken in Patna Municipal Corporation v. Dularchand, where the adulterated article was

turmeric and the defence was that there was no evidence to show that what the accused had sold to the Food Inspector was intended to be used as food and that it was possible that the turmeric may have been sold for use as dye. The learned Judge referred to the decision of the Andhra Pradesh High Court in the case of Public Prosecutor, Andhra Pradesh v. S. Sarya-narayana, AIR 1958 Andh Pra 681 (which has subsequently been overruled). The learned Judge declined to follow it and observed:

"But in view of the definition of 'food' which is to be found in Section 2(v) of the Act, the Court is not concerned with the actual use to which the article in question may be put. To constitute 'food' for the purpose of the Act, it is enough that the article in question 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 Devi, , taken, with respect, the the correct view in the case of adulterated ghee. After quoting the definition of "sale" in the Act, the learned judge observed as follows:

"The aforesaid definition is of wide amplitude and embraces not only a sale for human consumption or use but also a sale for analysis. It is, therefore, manifest that the sale of a sample of ghee to the Food Inspector was a sale under the provisions of the Act. A dealer cannot, therefore, escape the clutches of law by merely describing an article of food at the time of its sale as 'Akhadya'",

42. On behalf of the applicant, strong reliance was placed on the decision of the Calcutta High Court in Calcutta Corporation v. United Oil Mills, AIR 1968 Cal 842, In that case, the Oil Mill and the proprietor were prosecuted for having in their possession Jinjili Oil, otherwise known as Til or Sesame Oil, containing linseed oil. The Jinjili Oil was found adulterated in that it was mixed with linseed oil. Ono of the defences was that though it was an article of food, it was stored for the purposes of the Mills, namely for industrial purposes. The learned Judge noticed the decision of this Court in ; but he preferred to accept the view of his own High Court in Criminal Appeal No. 297 of 1961 D/- 27-6-1963 (Cal) Corpn. of Calcutta v. Ghasiram Agarwalla. Though the latter case has been referred to in para 8 of the Judgment, we are unable to gather from the report of the United Oil Mills Case, what was the reasoning which impelled the decision in Ghasirm's case. The principle was however stated by the learned Judge in Col. 1 of page 345 as follows:

"As stated above, according to the Ghasi-ram's case, it is always open to the defence to plead and to prove that the sale or the storage was of an article of food which was never meant for human consumption or use. I proceed to consider the facts of this case on the basis of the view expressed in Ghasiram's case, Cri. Appeal No. 297 of 1961, D/- 27-6-1963 (Cal)."

43. Now, we have already said that upon the analysis of the provisions of the Act, particularly sections 7 and 16, read in the light of the definitions of "food" and "sale", there is no scope in those provisions for letting in the intention of the person dealing with the article of food or for consideration of his 'mens rea.' We have indicated that this 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, a point which was also adverted to in the arguments before us on behalf of the petitioner, namely, that hardship would be caused by the interpretation that we propose to put upon the definitions of "sale" and "food'. It was urged that if we were to hold that simply because an article is ordinarily used as food", it would attract the mischief of the Act if found adulterated, irrespective of whether it was meant for human consumption or not, it would work great hardship upon industrial establishments and others who use such articles for industrial purposes. In the Calcutta case this argument appealed to the learned Judge, for he observed in para 8:

"The acceptance of this argument would lead to the starvation of many industrial establishments or force them, to manufacture raw materials,"

That was one of the reasons why he held that "the Prevention of Food Adulteration Act deals with food and it will be open to the accused to plead that the article involved in any case is not food."

45. Where the provisions of law are clear and the intention of the legislature can be clearly gathered from them there is no scope for any considerations of hardship. It must be presumed that the legislature was alive to the possible hardship it may inflict on some citizens who use Lakh dal as cattle fodder and yet decided to impose a total ban on its sale. Lakh dal has been proved to be seriously deleterious to human health if consumed by human beings and the legislature may well have thought that no relaxation whatever in the matter of its sale should be permitted even though it could be used as cattle fodder, for the starving and the hungry would always be tempted to consume it so long as it was available. The object of the Act is the prevention of adulteration of food and there by to safeguard the health of the community. The Legislature in its wisdom considered that object paramount as opposed to the hardship upon a few citizens using an article of food for purposes other than human consumption or as in some of the cases we have referred to in an adulterated state for industrial purpose. We may also say that the hardship is not so great as is sought to be made out, for the industrial uses of an article of food must necessarily be after considerable adulteration and a stage would be reached where that article of food would cease to be an article of food. For instance, 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 otherwise prohibited as in Rule 44-A: It follows from this that if an article is proved to be an article of food it must be sold or otherwise dealt with only in its pure form.

(2) That the ban on the sale of Kesari dal in Rule 44-A is total and there is no scope for any exception or exemption;

(3) That it is no defence to a prosecution under the Act to say-

(a) that the accused did not intend to use Kesari dal as food, or

(b) that he never intended to sell it as food.

Intention or mens rea as such is totally irrelevant to the applicability of Rule 44-A and so is the question of the use to which an article is put:

Upon this view, we would answer the two questions referred as follows:

1. The definition of "sale" contained in section 2(xiii) of the Prevention of Food Adulteration Act is not confined to the sale of articles of food for human consumption only but extends to the sale of any article of food regardless of the use to which it is put.

2. So far as the second question is concerned, upon the view which we have taken on the first question, it does not really survive for consideration.

47. The papers may now be returned to Mr. Justice Deshmukh for disposal of the criminal revision application.

48. Reference answered accordingly.