S. K. Kaul, J. - (1.) THIS is a State appeal which is directed against an order of acquittal passed in favour of the accused respondent by the Additional Sessions Judge, Faizabad.
(2.) ACCORDING to the prosecution story, the Food Inspector Prakash Bajpai went to the shop of the accused-respondent on 21st February, 1970, at about 11 A. M. This shop was situate in Mohalla Saadatganj, police station Cantt, district Faizabad. The Food Inspector found the accused-respondent exhibiting "kesari dal" for sale. The Inspector wanted to take sample of the "kesari dal" after paying relevant price, but the accused not only refused to give the sample but snatched the phials from the hands of the Inspector and pushed him out of the shop. Thereafter the Inspector sent his report to the Health Officer, Nagar Palika, Faizabad which is Ext. Ka-1. The Health Officer sanctioned prosecution of the accused-respondent and filed a complain in the Court of the Magistrate. The Magistrate took cognizance of the complaint, summoned the accused and framed charges under Section 7/16 of the Prevention of Food Adulteration Act The defence of the accused was that the Food Inspector had taken sample of sweets from the shop on 6th December, 1969. It was found by the Public Analyst to be standard. The Food Inspector had demanded some illegal gratification but he had refused to oblige him. Consequently the Food Inspector had implicated him in this way. The accused categorically denied that the Inspector had visited his shop or that he had tried to obtain sample of "kesaridal" from his shop. The learned Magistrate on an appraisement of the evidence came to the conclusion that the Food Inspector did visit the shop of the accused, that the accused had kesaridal at his shop and that the accused had prevented the Food Inspector from taking sample. Having come to that conclusion, the Magistrate found the accused guilty under Section 7/16 of the Prevention of Food Adulteration Act and as such had sentenced him to a fine of Rs. 1000/- or in default to undergo rigorous imprisonment for three months. Feeling aggrieved, the accused respondent went up in appeal. One of the grounds raised before the Sessions Judge was that in any case "kesaridal" was not an article of food and it was only meant for consumption by animals/cattle. The learned Additional Sessions Judge found the entire prosecution story correct, but holding that "kesaridal" was not an article of food but it was meant for consumption by cattle, and relying upon a decision of this Court in Nagar Mahapalika, Varanasi v. Pannalal, AIR 1965 Allahabad 231, he allowed the appeal and acquitted the accused. It is in this situation that the State has come up in appeal to this Court. We have heard learned Govt. Advocate as well as Sri Saghir Ahmad, learned counsel for the respondent. In our view, this appeal has to be allowed and the order of the Magistrate has to be restored. We need not mention that the State did not file an appeal against the order of the Magistrate. We would like to mention here that in this case three witnesses were examined, namely, Sri Prakash, Taqi Mirza and Jogendra Verma to show that on the relevant date and time the Inspector had gone to the shop of the accused respondent, that the accused respondent had kesaridal at his shop and that he had prevented the Food Inspector from taking sample. Both the Courts below came to the concurrent finding that such a visit by the Inspector was made on the relevant date and time at the shop of the " accused and that the accused had prevented the Inspector from taking sample of the kesaridal. The question arises whether the accused committed an offence punishable under Section 7/16 of the Prevention of Food Adulteration Act. We have got a Full Bench decision of this Court of which one of us was a member-it being Criminal Appeal No. 153 of 1971, State v. Babu Lal decided on October 8, 1976 = 1977 A.Cr.R. 200= 1977 AWC 307. In that Full Bench decision also the sale of kesaridal was involved. The ratio decidendi of the Full Bench was as follows : 1. That Kesari Dal is an article of food as defined in Section 2 (v) of the Act. 2. That the word "sale" as defined in the Act is not limited to sale of any article of food for human consumption only. 3. That the Act gives a special definition of "sale" in Section 2 (xiii) which specifically includes within its ambit a sale for analysis. 4. That the ban on the sale of kesari dal and its storage and possession for purposes of sale in rule 44-A is total and there is no scope for any exception or exemption. 5.That it is no defence to a prosecution under the Act to say : (a) that the accused did not intend to use kesaridal as food, or (b) That he never intended to sell it as food. 6. That intention or means 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." In this case once it was found as a fact that the accused had kesaridal at his shop and that he had prevented the Food Inspector from taking its sample, he would be deemed to have committed an offence punishable under Section 7/16 of the Prevention of Food Adulteration Act.
(3.) COMING to the question of the sentence, in that very Full Bench it was observed in view of the decision of the Supreme Court in M. V. Joshi v. M. U. Shimpi, AIR 1961 SC 1494 that sentence of fine to the tune of Rs.1000/- would be adequate. Moreover, in this case the Magistrate awarded the sentence of fine to the tune of Rs. 1000/- and since the State did not prefer an appeal against the inadequacy of the sentence nor notice for enhancement of sentence was issued to the accused-respondent, we do not feel inclined to go into that question inasmuch as the offence was committed more than seven and half years ago. We would, therefore, allow the appeal and restore the order of the trial court and sentence the accused respondent to pay a fine of Rs. 1000/- or, in default, to undergo rigorous imprisonment for three months. The accused is given two months time to pay the fine. Appeal allowed.;