P.N.Bakshi, J. - (1.) THE applicant has been convicted under Sections 7/16 of the Prevention of Food Adulteration Act and sentenced to 6 month's R. I. ;and a fine of Rs. 1000/-. His conviction and sentence has been maintained in appeal by the Sessions Judge, Basti, hence this revision.
(2.) THE case for the prosecution is that Shri A. R. Pandey, Food Inspector found the applicant selling buffalo milk, which he suspected to be adulterated. He purchased 3/4 seer of milk on 15th September, 1973 at 9.30 A. M. on payment of its price, and divided it into three equal parts in accordance with law. One sample phial was given to the applicant and another was sent to the Public Analyst for analysis. THE report of the Public Analyst disclosed that the same was deficient in fat contents by about 4.7 per cent and non-fatty solids by about 3.6 per cent. After obtaining sanction for prosecution, the applicant has been prosecuted and convicted as above. I have heard learned counsel (for the applicant and have also perused the impugned orders. I have carefully perused the statements of the Food Inspector. He has admitted in cross- examination that he apprehended the applicant at the place of Tekdhar Baba. The case taken up by the accused was that the milk in question was being sold for the purpose of being offered to Tekdhar Baba. It was the time of Pitra- paksh and offering of milk was made during this period to Tekdhar Baba. The Food Inspector was cross- examined on this question. He has feigned ignorance and stated further that he does not remember whether in those days there was Pitra-paksha. He also states that he does not know whether milk is offered to Tekdhar Baba during the Pitra-paksha period. Such ignorance on the part of the Food Inspector appears to be wholly unbelievable. On behalf of the accused, Ikadashi DW 1 has been produced. He has corroborated the defence case. He has also specifically stated that Bhola was selling milk for being offered to Tekdhar Baba. Having regard to the evidence on the record and the circumstance!; of the case, I have no hesitation in holding that the milk which was being sold by Bhola on the date in question, was sold for the purpose of offering at Tekdhar Baba. Counsel for the applicant has submitted that since the milk was not sold for human consumption ; the purchase by the Food Inspector would not amount to sale within the meaning of Section 2 (xiii) of the Prevention of Food Adulteration Act. It has been held times out of number by the Supreme Court that in order to attract the provisions of the P. F. Act, the article of food must be sold for human consumption. This milk which was being sold by the applicant was not meant for human consumption. It was meant for being offered during the period of Pitra paksha at Tekdhar Baba. The Sessions Judge has taken a view that after the offering had been made, a part of this milk must have been consumed by the public as Prasad and therefore, the sale of milk would be deemed to have been covered by the definition of sale under the P. F. Act. As a matter of fact, the observation of the Sessions Judge with which I do not agree at all is as follows : "It is immaterial whether the milk was meant for human consumption or for offering to Tekdhar Baba". The courts below have not realized the legal implication of 'Sale' as envisaged under the provisions of the Prevention of Food Adulteration Act. In the instant case, the purpose of sale of milk was to offer it at Tekdhar Baba. When such is the purpose, it is wholly immaterial as to what use the milk may be made at a subsequent stage. It was not sold for human consumption.
(3.) LEARNED counsel has referred to a decision of the Supreme Court reported in Shah Ashu Jaiwant v. State of Maharashtra, AIR 1975 SC 2178, in which the 'Til' seeds were meant to be sold only for Pooja for being burnt like incense or thrown into fire in the course of Pooja and not for human consumption. In that case, the Supreme Court was of the opinion on the factual question that the Food Inspector had failed to prove that the 'Til' was used as an item of food. The position was accepted that at least partially the admission of the Food Inspector amounted to a recognition of the fact that 'Til' was used for Pooja. In those circumstances, apart from others, the conviction of the applicant under Sections 7/16 of the Prevention of Food Adulteration Act was set aside. Moreover, learned counsel has also argued in the instant case that milk, offered on the occasion of Pitra-bisarjan is never taken as PRASAD. That appears to be the correct factual religious position also, which I have no hesitation in accepting. In these circumstances, it is impossible to hold that the milk was sold for human consumption. The Food Inspector, therefore, had no jurisdiction to take a sample of such milk for analysis. Hence the conviction of the applicant for the offence under Sections 7/16 of the Prevention of Food Adulteration Act has been incorrectly and illegally recorded by the courts below.;