BISESWARLAL KHANDELWALLA Vs. BARIPADA, MUNICIPALITY
LAWS(ORI)-1973-11-8
HIGH COURT OF ORISSA
Decided on November 13,1973

Biseswarlal Khandelwalla Appellant
VERSUS
Baripada, Municipality Respondents

JUDGEMENT

G.K. Misra, C.J. - (1.) THE Petitioner has been convicted under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act (Act 37/54), as amended by Act 49 of 1964, (hereinafter to be referred to as the Act), and sentenced to R.I. for one year.
(2.) THE Petitioner has a grocery shop within Baripada Municipality. On 30th of December, 1970, the Health Officer of the Municipality (p.w. 1) purchased under receipt (ext. 3) a sample of Jira (cumin seeds) on cash payment in the presence of the Sanitary Inspector (p.w. 2) and another witness (p.w. 3). The sample was sent to the Public Analyst who found the Jira to be adulterated. His report is ext. 4. Petitioner 's defence was that the Jira was not meant for sale for human consumption. It was kept in a separate bag and Jira meant for sale was in a different bag. At the time of taking the sample the Petitioner made such a protest.
(3.) ON discussion of evidence, both the Courts below came to the conclusion that the Jira of which sample was taken had been kept in the shop by the Petitioner for sal for human consumption. The evidence of p.w. 3 that the Petitioner made a statement at the time of seizure that it was not meant for human consumption was not accepted. Such a suggestion was not made to p.ws. 1 and 2 and the Courts below discarded the testimony of p.w. 3. They attached importance to the fact that the sample was purchased on payment and the Petitioner granted the receipt (ext. 3) on acceptance of price. Rightly the learned Courts below held that the sale was not under protest. The finding that the Jira was kept in the shop for human consumption is supported by evidence, and cannot be discarded. That apart, 'sale ' has been defined in Section 2(xiii) of the Act as follows: "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 of any such article, and includes also an attempt to sell any such article. Thus, sale of any article of food even for analysis constitutes a sale under the Act. The matter is concluded by Mangaldas v. Maharastra State : A.I.R. 1966 S.C. 128 : See paragraph 18. The contention that the Jira was not for sale for human consumption has no substance.;


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