Applicability of provision to section 2(1a)(m).

1. Food Inspector, Alwaye Municipality, is the appellant. The complaint was filed against respondents 1 and 2 (accused 1 and 2) under Sec 16(1)(a)(i) read with Sec.7(i) of the Prevention of Food Adulteration Act, 1954. A-1 is the proprietor and A-2 is the salesman. The complainant's case is that on 17.11.1979 at about 11.30 a.m. he purchased from the second accused 375 grams of tea dust from about 4-1/2 kgs kept for sale in the shop of the 1st accused after giving him prescribed notice and price, that he prepared mahazar in the presence of independent witnesses, that he had complied with the legal formalities under the Act and that the sample analysed by the Public Analyst was found to be adulterated. On the basis of the report of the analyst the complaint was filed against accused 1 and 2.

2. On the application preferred by the accused one part of the sample was forwarded to the Central Food Laboratory, Mysore for analysis. Central Food Laboratory, Mysore reported that the sample does not conform to the standards laid down for tea under the Prevention of Food Adulteration Rules and is therefore adulterated.

3. The trial Court held that the Food Inspector had complied with the provisions of the Prevention of Food Adulteration Act and Rules. Complainant's contention that the tea dust was adulterated was also accepted by the trial Court in view of Exts.P12 and P16 reports. But the Court acquitted the accused holding that tea is a primary food and that the accuseds plea that the proviso to Sec.2(ia)(m) of the Act would apply to the case is tenable.

4. Counsel for the appellant submitted that the finding of the trial Court that the proviso to Sec.2(ia)(m) of the Act would apply is unsustainable as tea is not a primary food. The proviso reads:

“Provided that, where the quality or purity of the articles, being primary food has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this sub-clause.”

The proviso makes it clear that in such a contingency the article shall not be deemed to be adulterated.

5. The prime question to be considered is as to whether tea is a primary food or not. Primary food is defined under the Act. Sec.2(xii-a) defines primary food as any article of food, being a produce of agriculture or horticulture in its natural form. The above definition would unequivocally show that any article of food being a produce of agriculture or horticulture in its natural form is a primary food. To be primary food it must be an article of food and it must be a produce of agriculture or horticulture in its natural form. Any article of food not being the produce of agriculture or horticulture in its natural form cannot fall within the definition of primary food.

6. Sec.2(ia)(m) makes it abundantly clear that an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the standard prescribed or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health. In the case of primary food an exemption is made if solely due to natural causes and beyond the control of human agency the quality of purity of the article has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability. In such cases it shall not be considered to be adulterated. It is very patent from the proviso that it can apply only to primary food.

7. As primary food means any article of food being a produce of agriculture or horticulture in its natural form, by no stretch it could be said that tea is an article of food retaining its pristine natural form. Tea is prepared from green leaves by subjecting it to mechanical process. Manufactured