Decided on January 30,1968



- (1.) The Food Inspector, Calicut Corporation has come up in appeal against the order of acquittal entered by the District Magistrate, Kozhikode in C. C. No. 194 of 1966 on the file of his court. Prosecution was launched under S.16(1)(a)(i) of the Prevention of Food Adulteration Act against the accused. The first accused is the Managing Partner and the second accused is the firm engaged in the sale of articles of food. On 12-8-1966 at about 12-20 noon, pw. 1 the Food Inspector visited the godown of the firm where he found 30 bags of toor dhall kept, presumably for sale. He seized the article under S.10(4) of the Act and took samples from two of the bags and sampled them as provided by the Act. On analysis by the Public Analyst it was found that the article was infested with insects and completely damaged, and for that reason adulterated and unfit for human consumption.
(2.) The defence put forward was that the said 30 bags of toor dhall were not intended for sale. The accused firm is only the commission agent for their principal at Bombay for the disposal of the above toor dhall which was received in Calicut on 15-3-1965. After some time, it became unfit for human consumption. Therefore, the accused firm contacted their principal at Bombay for sending back the article to them. The said 30 bags therefore, were kept inside to be returned to Bombay at the earliest available opportunity. Evidence was adduced by the accused in support of the fact that the article in question was intended to be sent back and the principal at Bombay had duly been informed of the position. Learned District Magistrate accepted this plea and has acquitted the accused.
(3.) The question therefore that arises for consideration is whether storing simpliciter is itself an offence. The position is covered by authorities starting from Food Inspector, Kozhikode v. Punsi Desai ( 1958 KLT 983 ) where a Division Bench of this court has held that: "The general words 'store' and 'distribute' found in S.7 should be read as qualified by the particular words 'for sale' and "sell" preceding them. Therefore, it is only storage for sale that is prohibited under the section." The learned Judges have in coming to the above conclusion compared the wording of S.16(1) and S.7 of the present Act, with corresponding provisions of the various State Acts which preceded the present Act in which also similar words occur. S.5(1)(b) of the Madras Act runs: "Every person who manufactures, stores or offers for sale or hawks about or sells any food .... shall be punished." Words 'for sale', 'offers', 'manufactures' and 'stores' appearing in the above section were judicially interpreted so as to make it appear as if the section read, 'manufactures for sale, stores for sale, or offers for sale.' "The intention was to make storage of adulterated food an offence irrespective of whether it was for sale or not, and that is why in the prohibition found in S.7 of the Central Act the qualifying words, 'for sale' appear immediately after the word, 'manufacture' and before the words 'or store, sell or distribute' so as to make it clear that they qualify only manufacture and not sale or distribution. And it was because storage simpliciter was prohibited that the presumption embodied in S.5(2) of the Madras Act which we might straightaway observe is little more than what a Court would normally presume under S.114 of the Evidence Act, was dropped as being no longer necessary. Had the ingredient, 'for sale', been an element of the offence this presumption, so useful for establishing that element, would have been enlarged rather than dropped." On this reasoning the learned Judges held that mere storing of adulterated article of food is not an offence. The above ruling of the Kerala High Court gets support from In re v. Govinda Rao (AIR 1960 Andhra Pradesh 366): Narain Das v. State (AIR 1962 Allahabad 82): Municipal Board, Faizabad v. Lal Chand (AIR 1964 Allahabad 199): and Rameshwar Dass v. State (AIR 1967 Punjab 132). In the last mentioned case namely, Rameshwar Dass v. State. (AIR 1967 Punjab 132) it was held further that: "The scheme of the Act being the safeguard against the manufacturers and sellers deceiving the public by passing off adulterated food or misbranded article of food to unwary and innocent purchaser the prohibition against storage of such food must be for sale and not storage simpliciter. ....... Adulteration implies an element of deceit. It does not intend to prohibit a householder from adulterating any food for consumption or even for distribution otherwise than byway of sale. Any other construction of the word 'store' in S.7 would mean that misbranded container of food contained in a private house would render the owner or occupier of the house liable to the punitive actions prescribed by the Act. A reference to clauses (iii) and (iv) of S.7 also indicates that the opening words of the section are intended to apply to articles manufactured or stored for sale or actually sold or distributed by way of sale. S.16 of the Act which prescribes the penalties, also adopts the same phraseology".;

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