Sambasiva Rao, J.-In a prosecution for food adulteration,, is it necessary for the prosecution to prove not only the allegation of adulteration but also that the adulterated article is injurious to health or that purchaser has been prejudicially affected? In Public Prosecutor v. Nalam Subba Rao1, Munikannaiah, J., held that both these aspects must be proved before any criminal liability is fastened to the vendor. In Manibai v. State of Maharashtra2, it was held that it is not necessary for the prosecution to show that the article was deleterious to health. What all that need be shown is that the article was adulterated. The lower Court acquitted the accused (respondent before us) following Nalam Subba Rco’s case1. This led our learned brother Ramachandra Raju, J., to refer this appeal to a Division Bench.

2. What has happened in this case is simple. A Food Inspector purchased from the respondent, who is a dealer in edible oils, a sample of groundnut oil and sent it to the Public Analyst for analysis. The analyst in his report found that the sample practically accorded with item A. 17.03 in Appendix B to the Prevention of Food Adulterat on Rules, excepting that the temperature is one degree less than the prescribed minimum and the Iodine Value is 1. 2% more than the permissible percentage. Other tests resulted in the negative. The only thing that emanated from the report is that the sample contained about 15% safflower oil and was therefore adulterated. It is common ground as well as common knowledge that safflower oil is also an edible oil which is of higher quality than groundnut oil for the purpose of cooking and is more expensive. Prosecution was launched against the respondent under section 16 (1) read with section 7 of the Prevention of Food Adulteration Act (hereinafter referred to as ‘the Act’). The allegation was that the respondent had sold adulterated groundnut oil on 8th October, 1273. The Court below found that purchasing a sample, selling it and sending it for the opinion of the Analyst were all done properly. The respondent, as accused, claimed immunity because of the warranty which was given by the wholesale merchant. On a consideration of the evidence the Courts held that an inference was possible that the accused had mixed safflower oil in the groundnut oil and so the respondent was not entitled to the benefit of the written warranty issued by the wholesale dealer. The other defence was that the safflower oil was costilier than groundnut oil and so its mixture with the latter would not come within the purview of section 2 (i) (a), (b) or (c) of the Act and attract criminal liability. The Court below was of the opinion that in the absence of any evidence to show that the mixing of safflower oil with groundnut oil affected the quality of groundnut oil adversely or caused injury to the health of the purchaser, the adulteration in question did not fall within the purview of section 2 (i)(a), (b) or (c) and did not attract criminal liability under section 16. In coming to this conclusion it followed Nalam Subba Rao’s case1. The State preferred the present appeal.

3. There cannot be any hesitation to accept the findings of fact which were recorded by the Court of first instance. Undoubtedly there was mixture of safflower oil with groundnut oil and the former oil formed 15% of the sample sold. This mixture was sold as groundnut oil, while in fact it contained 85% of groundnut oil and 15% of safflower oil. This is clearly established by Exhibit P. 6, the certificate of the Public Analyst. Evidence disclosed that the mixture occurred while the oils were in the custody of the respondent and consequently he could not invoke to his aid the written warranty given by the wholesale dealer who had sold him the oil. In fact these conclusions of fact have not been seriously canvassed before us by the learned Counsel for the respondent.

4. The debate centred round the question of law which we have indicated even at the threshold of

Click Here to Read the rest of this document