The prosecution must prove beyond reasonable doubt that the sample taken by the Food Inspector was intended for sale for human consumption in order to establish the offence of selling adulterated food under Section 7 of the Prevention of Food Adulteration Act, 1954.

For adulterating "jeera" (cumin) the petitioners were convicted u/s 16 of Prevention of Food Adulteration Act, 1954, for short, the Act, and sentenced to undergo R. I. for 6 months and to pay a fine of Rs. 1,000/-, in default further term of imprisonment of 2 months in each case. Second petitioner, Swadesh Ch. Saha, is the proprietor of M/s Saha and Sons in whose shop the first petitioner was employed as a salesman at the relevant time. Both of them appealed to the Court of Session against their convictions and sentences and having failed therein have come to this Court.

2. Briefly stated prosecution's story is that on 28-6-77 the Area Food Inspector (P.W. 1) visited the grocery shop of M/s Saha and Sons and purchased 900 grams of "jeera" which was kept in the shop for sale. He complied with the legal requirements prescribed in this behalf in doing so and in due course the sample was sent to Public Analyst for report after complying with the formalities prescribed by law. After the report (Ex. 4) was received and it appeared that the sample did not conform to the prescribed standard and was adulterated, prosecution was launched. In the course of trial 3 witnesses were examined on behalf of the prosecution while the first petitioner Narayan examined himself as a defence witness and took the plea that the sample of "jeera" sent for analysis was not meant for sale. Learned Magistrate rejected the defence plea and on consideration of the evidence held that prosecution had established the offence against the petitioners of selling adulterated "jeera" and accordingly convicted them.

3. Before the learned Sessions Judge, in appeal, trial court's appreciation of evidence bearing on the defence plea was challenged. It was first contended that P.W. 3 had himself, admitted the fact that "jeera" was kept in the shop in two containers, in one clean and in the other sub-standard and that the Food Inspector (P.W. 1) insisted on purchasing the substandard "jeera" despite being told by the first petitioner that the same was not meant for sale. It was also contended that the commodity ("jeera") being a primary food as defined in Sec. 2(xii)(a) of the Act the prosecution had to prove in terms of proviso to cl. (m) of Sec. 2 (i)(a) that fall in the quality or purity of the article below the prescribed standard was "solely due to natural causes and beyond the control of human agency". Another objection taken in the court below was that the copy of the report of the Public Analyst served on the petitioners was incomplete and on the basis thereof no offence was made out against the petitioners. Learned Sessions Judge rejected all the contentions in dismissing the appeal and confirmed the findings of fact recorded by the trial court on a reappreciation of evidence of P.Ws. 1 and 3 on which reliance was placed by the petitioners in support of their contentions.

4. Learned counsel for the petitioners, Mr. J. P. Bhattacharjee, has reiterated all the objections taken in the Court below and assailed the legality of the convictions on those grounds as also some others. He has mainly challenged the conclusion of learned Sessions Judge that an article which was otherwise a "primary food" lost its character as such when came into the possession of a seller or manufacturer. He further submitted that although it was not urged in the Courts below as a point of law he was entitled to submit that the report (Ex. 4) having failed to state the variation in terms of the standard prescribed under the Rules offence against the petitioners cannot be said to have been proved beyond reasonable doubt.

5. However, the important point of law urged before me by Mr. Bhattachrjee, centres around the interpretation of the proviso to sub-sec. (2) of S. 10 on which, submits learned counsel, prosecution must founder and fail. I propose, therefore, to examine first the foundational contention. Indeed, it is necessary to do so as, according to Mr. Bhattacharjee, the Courts below