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IN THE HIGH COURT OF ORISSA
S.C. Mohapatra, J.
STATE Of ORISSA - APPELLANT
Versus
NARASINGH MAHANTY - RESPONDENT
Government Appeal No. 8 of 1981
Decided On : 27-02-1985
PREVENTION OF FOOD ADULTERATION ACT, 1954 - SECTION 2(1)(a), 7, 16(1)(a) AND (ii) - SALE OF ADULTERATED TIL OIL - WHETHER TIL OIL IS AN ARTICLE OF FOOD - INTERPRETATION OF SECTION 2(1)(a) - PRESUMPTION OF FACT - REBUTTABLE PRESUMPTION - EVIDENCE TO PROVE TIL OIL IS NOT FOOD IN THE AREA - ACQUITTAL OF ACCUSED UPHELD.
Fact of the Case:
The accused, a grocery shop owner, was charged with selling adulterated Til oil in violation of the Prevention of Food Adulteration Act, 1954. The accused claimed that Til oil was not an article of food in the area and was used for massaging the body.
Finding of the Court:
The court held that Til oil is an article of food as defined in Section 2(1)(a) of the Act, but this presumption of fact is rebuttable. The court found that the prosecution had failed to prove that Til oil was 'food' as defined in Section 2(1)(11) of the Act in the area, and therefore the accused was acquitted.
Issues: 1. Whether Til oil is an article of food as defined in Section 2(1)(a) of the Prevention of Food Adulteration Act, 1954? 2. Whether the presumption that Til oil is food can be rebutted by evidence that it is not commonly used as food in the area?
Ratio Decidendi: 1. The court held that Til oil is an article of food as defined in Section 2(1)(a) of the Act, as it is capable of being used as an article of food or in the preparation of human food. 2. The court held that the presumption that Til oil is food can be rebutted by evidence that it is not commonly used as food in the area. The court found that the prosecution had failed to prove that Til oil was 'food' as defined in Section 2(1)(11) of the Act in the area, and therefore the accused was acquitted.
Final Decision: The appeal was dismissed, and the accused was acquitted.
JUDGMENT :
S.C. Mohapatra, J. - This appeal by the State is directed against the order of acquittal of the accused-Respondent from a charge u/s 16(1)(a) and (ii) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act').
2. Repentant has a grocery shop in village Putippadar under Purusottampur Police station of Ganjam District where he sells articles of food also. On 24-8-1979, the Food Inspector visited the shop and suspecting the Turmeric Powder and the Til oil exposed for sale to be adulterated, purchased the required quainter for analysis after observing the formalities. The Food Inspector (P.W. 1) also demanded the licence but, the Respondent could not produce the same. After receipt of the report of the public analyst that the sample of Til oil was adulterated, P.W. 1 submitted the prosecution report on the basis of which the Respondent faced the trial.
3. The Respondent took the plea that on receipt of notice he has already renewed his licence on payment of proper fee. As regards sale of adulterated Til oil Respondent claimed that the same was not an article of food in their area and was used for massaging the body.
4. Prosecution examined three witnesses and various documents to bring home the guilt of the Respondent. In defence, the Respondent examined one witness.
5. The learned Trial Judge has acquitted the Respondent on the finding that the licence has already been renewed and Til oil is not an edible oil in the area of the Respondent.
6. In appeal, Mr. R.K. Patra, the learned Additional Government Advocate appearing as the Public Prosecutor has assailed the acquittal on the ground that Til oil is an edible oil and the sale of adulterated Til oil is in contravention of the prohibition of Section 7 of the Act attracting the penalty u/s 16. Mr. S.C. Ghosh, the learned Counsel for the Respondent submitted that Til oil not being an article of food in the area, the Respondent has no liability under the Act for selling such articles.
7. The short question that requires consideration in this case is whether sale of Til oil, if found not to have been sold as au article of food, can attract the penal provision under the Act where it is found on analysis to be adulterated.
8. In this Court, the question arose for consideration in a case reported in Food Inspector of Puri Municipality v. K.G. Anjanayulu ILR 1966 Cutt. 58. Adulterated ghee was the subject matter of consideration. The plea of the accused was that he committed no offence as the adulterated ghee was not sold by him for human consumption but for lighting purposes. It was observed
...Although the ghee might have an alternative use, such as for lighting purposes, it cannot lose its importance as a food. It was open to the accused to sell such article for lighting purposes by any other name. But once he sells an article in the name of ghee, he is bound to sell it in an unadulterated form and once it is found to be adulterated, the seller becomes liable u/s 16 of the Act....
This decision has been followed in The Public Prosecutor, High Court of Andhra Pradesh v. B. Ramachandra Raju (1977) 1 An. W.R. 356. The Andhra Pradesh decision has been accepted in State of Tamil Nadu Vs. R. Krishnamurthy, .
It is clear from the decision of this Court reported in Food Inspector of Puri Municipality v. K.G. Anjanayulu ILR 1966 Cutt. 58, (supra) that an article of food in an area when sold for any other purpose will not be an excuse when it is adulterated. In the Andhra Pradesh decision reported in The Public Prosecutor, High Court of Andhra Pradesh v. B. Ramachandra Raju (1977) 1 An. W.R. 356, (supra) the same principle was reiterated. In that case red Gram Dhal was offered for sale as cattle fodder. It was held that the accused cannot succeed with that plea. In State of Tamil Nadu Vs. R. Krishnamurthy, Gingelly Oil was mixed with 15% of groundnut oil and was sold as gingelly oil. The accused was acquitted in appeal on the finding that he could not be convicted
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