1. Is horse gram (muthira) an item of food as defined under S.2(v) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') is the question referred to us by the learned single judge (Basant, J.) for determination. Accused in this case sold 750 grams of horse gram (muthira) to the Food Inspector at 10.00 a.m. on 29.10.1986. On analysis, the horse gram was found to be adulterated. The courts below concurrently found that the prosecution had succeeded to prove that all the ingredients of S.16(1)(a)(i) of the Act were satisfied. The accused was found guilty of having committed the offence under S.16(1)(a)(i) of the Act and he was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/-. In this revision petition, petitioner/ accused questions the above conviction and sentence mainly on four grounds:

(i) Horse gram (muthira) purchased from the shop of the petitioner/ accused is not a food article as defined under the Act; but, it is a horse fodder or cattle feed;

(ii) Sampling done by the Food Inspector was not proper and not in conformity with the Rules;

(iii) Petitioner/ accused is entitled to the benefit of S.19(2) of the Act; and

(iv) In any event, sentence imposed is very harsh.

Now, he is a cancer patient undergoing treatment in Amala Cancer Institute. Learned counsel showed us the treatment details showing that he is a cancer patient.

2. The first question to be considered is whether the horse gram (muthira) is a food article as defined under S.2(v) of the act. The revision petitioner/ accused relied on two earlier decisions of this Court rendered by the learned single judges of this Court in Crl.R.P. No. 814 of 1989 and Crl. R.P. No. 835 to 1994 to support his contention that muthira is not a food article as defined under the Act and, therefore, the provisions of the Act will not apply. The learned counsel for the petitioner/ accused cited the decision of a learned single judge of this Court (K.T. Thomas, J. as he then was) in Crl.R.P. No.814 of 1989 (Assan v. Food Inspector). There, it was held that prosecution failed to prove that horse gram is a food article used for human consumption. We quote the relevant passages:

"4. "Food" is defined in S.2(v) of the Act. Food means any article used as food or drink for "human consumption" and includes any article which ordinarily enters into or is used in the composition or preparation of human food, any flavouring matter or condiments. There is no case for the prosecution that Central Government had issued any notification declaring that horse gram is a food article. Petitioner's contention is that horse gram is an article intended only as fodder or horses or for the cattle. In fact, the question was put to PW1- Food Inspector whether horse gram is a cattle fodder. He admitted it to be so and expressed ignorance whether the same is used by human beings ..

5. No evidence has been adduced in this case to show that the horse gram is either used for preparation of any food or consumed by human beings."

The above decision was recently followed by another Single Judge of this Court in Crl.R.P. No.835 of 1994 (K.Ibrahim v. State of Kerala). In the present case, the learned single judge while referring the matter also observed as follows:

"8. In the facts of the instant case, if common knowledge as perceived by me were to be reckoned as an indication, I have no doubt that at least in the Malabar area of the State of Kerala, horse gram is commonly used for human consumption as a cheap food grain. There cannot possibly be any doubt in my mind on this aspect. It is common knowledge that horse gram is available a plenty in the markets and the same is used for human consumption. At least in the northern parts of the erstwhile Malabar area this is true. Recipes galore in cooking books etc. wherefrom we get indications to suggest that horse gram is used for preparation of human food."

It was further observed by the learned single ju