State of Assam vs Sundarlal Agarwalla and Another

B.L. Hansaria, J.—The two Respondents herein were booked for trial u/s 16 read with Section 7 of the Prevention of Food Adulteration Act, 1954, hereinafter called the Act. Both of them have, however, been acquitted on the ground that the sample of atta which had been sold to the District Food Inspector on 15.9.72 was not adulterated. Feeling aggrieved at the order of acquittal, this appeal has been preferred by the State.

As the acquittal if founded on the finding that the Atta was not adulterated, let the report of the Public Analyst be noted. The Analyst found as below:

Moisture � 9.3%

Total Ash � 1.94%

Ash insoluble dil in HCL � 0.04%

Gluten � 8.5%

Alcoholic acidity as H2S04 � 0.13%

Powdered millet � Present (8% aprox).

I am of the opinion that the same is a sample of adulerated atta.

A reference to the standard prescribed by the Act read with Rule 5 of the Prevention of Food Adulteration Rules, hereinafter referred to as the Rules, as finding place in Appendix-B under item A. 18.01 shows that the sample was as per the prescribed standard except for the fact that it had contained powdered millet to the extent of 8%. This would be clear from the prescribed standard which is as below:

Atta means the coarse product obtained by milling or grinding wheat. It shall conform to the following standards:

(a) Moisture not more than 14.0 per cent (when determined by beating 130-138C for 2 hours).

(b) Total ash (not more than 2.0 per cent, on dry weight basis).

(c) Ash Insoluble in dilute ACL� Not move than (on dry weight bails) 0.15 per cent.

(d) Gluten (on dry weight basis) Not less than 6.0 per cent.

(e) Alcohol acidity (with 90 per cent alcohol) at H2SO4 (on dry weight basis)� Not more than 0.10 per cent.

Rodent hair and excreta shall not exceed 5 pieces per kg.

The learned trial Court came to the conclusion, by referring to Item A. 11.06 that the sample of Atta was not adulterated.

The question which needs our decision, therefore, is whether the finding that millet powder to the extent of about 8% was present rendered atta adulterated within the meaning of Section 2(i)(a) of the Act. Learned Public Prosecutor contends that Atta has to regarded as adulterated as it did not conform to the prescribed standard, which does not visualize any foreign matter even if the same be another type of foodgrain. The counter contention of Shri Bhattacharjee is that a reference to Item A. 18.06 which has dealt with the standard of foodgrains itself shows that "foreign matter" could be in any food grain which includes wheat from which Atta is prepared.

In support of his submission, the learned Public Prosecutor has placed some reliance on State of Tamil Nadu Vs. R. Krishnamurthy, in which sale of gingelly oil mixed with ground-nut oil was held to be punishable u/s 16(1)(a)(i) of the Act. A perusal of the decision. however, shows that it had dealt mainly with the question as to whether a transaction would be ''a sale'' within the meaning of the Act even where it is expressly stated at the time of sale that it was intended for external use only. The question with which we are seized had not come up for decision before the Supreme Court in the aforesaid case. Mangaldas Raghavji Ruparel and Another Vs. The State of Maharashtra and Another, was a case where the turmeric powder having contained pollen stalk was held to be adulterated. In the case at hand, we are not concerned with extraneous matter like pollen stalk, but with another type of food grain (millet),

It was repeatedly submitted before as by the learned Public Prosecutor that the atta in the present case was adulterated because of failure to conform to the prescribed standard and he placed reliance on what has been observed in para 12 of Municipal Corporation of Delhi Vs. Tek Chand Bhatia, We are, however not fully satisfied about the soundness of this contention, because the sample in question did meet all the requirements mentioned in item A. 18.01 of Appendix-B to the Rules. Learned Public Prosecutor contends that a sample has to meet dual test. It must satisfy the Ingredients mentioned in the particular item of the Appendix, and further it should not contain any thing more. A reference to Clause (I) of the definition of ''adulterated'' in Section 2(i)(a) would, however, not uphold the contention, as that clause makes an article of food adulterated if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limit of variability. As such, an article tested on the anvil of this clause can become adulterated only if something is positively said (prescribed) about its standard or constituents. No negative test with reference to anything not prescribed is visualised by this clause.

Shri Bhattacharjee for the Respondents first contends that some items in Appendix B have specially allowed extraneous matters in an article of food. He refers to items 05.01, 05.03.01 05.08 etc. This would, really, show that where the rule making authority thought that particular item of food could cantain extraneous matter, it specifically said so. The absence of any such provision in item 18.10 would really indicate, on this reasoning, that no foreign matter has to be found in Atta. The specification of standard by item A 18.06, however, changes the complexion. He submits that as wheat, from which atta was prepared, could have contained inorganic and organic foreign matter other than foodgrains in specified quantity, the presence of millet could not have made the atta adulterated. This sub-mission has been made by referring to item A. 18.06 whose material parts read as below:

Food grains meant for human consumption shall be whole or broken kernels of cereals, millets and pulses. Paddy is included in food grains and shall have different limit for refractions wherever unspecified.

Food grains meant for human consumption shall conform to the following standards

(i) General ****

(ii) Foreign matter� Foreign means any extraneous matter other than food grains and will comprise inorganic and organic matter. Inorganic matter which includes sand, gravel, dirt, pebbles, stone, lumps of earth, clay and mud shall not exceed 1 percent whereas in case of paddy, it shall not exceed 3 percent by weight Organic matter which includes chaff, straw, weed, seeds, inedible, grain, oil seeds and other non-poisonous seeds shall not exceed 3 percent by weight.

It has, therefore, to be admitted that atta, which is made from wheat, whose standard has been prescribed by item A. 18.06, can contain some inorganic and organic matter of the type men-tioned under the beading "foreign matter". It is worth pointing out that "foreign matter" as defined in the aforesaid item excludes food grains and as such, if in a particular type of food grain admixture of another foodgraio is found the same may not ipso facto render the food grain in question adulterated on the score of it being against the prescribed standard (A 18.06). As pointed out by the learned trial Court, such admixtures may attract the mischief of Rule 43 of the Rules: but, in the present case, the charge did not contain the allegation of violation of Rule 43.

This, however, is not the end of the matter. A reference to the definition of ''adulterated'' in Section 2(i)(a) shows that an article of food may be deemed to be adulterated as per Clause (a) where it ''is not of the nature, substance or quality which it purports or is represented to be". Now, if while selling atta what is passed on contains powdered millet also, can it be said that atta was of the nature, substance or quality which it was represented to be? We are of the view that atta in such a case would cease to be what it was represented to be, especially when the powder of other food grain is not in negligible, quantity. In the present case, the powdered millet was to the extent of about 8% and, as such, we ate satisfied that atta was adulterated within the meaning of Section 2(i)(a) by virtue of what has been stated in Clause (a) of the aforesaid definition. Shri Bhattacharjee has referred, in this connection, to J.L. Roy v. Mangilal 1976 ALR 114, where atta had contained powdered maize and this Court opined that it was not possible to hold the atta as adulterated as no percentage of the maize was given. In the present cast, however, the percentage has been mentioned, and, this apart, in the aforesaid decision nothing was said whether the atta would have been adulterated on the ground that presence of powder of other food grain would have rendered the same as not of the nature, substance or quality which it purports or is represented to be.

It was also urged before us by Shri Bhattacharjee that as the firm was disposing of the atta only to the nominees of the Sub-Divisional Officer as deposed by "D.Ws. 1 and 2, the District Food Inspector acted beyond his jurisdiction in taking sample, as by virtue of the power conferred by Section 10(1)(a) of the Act this could be done only from the person selling "such article". No doubt, he power under the aforesaid provision is confined as indicated therein, it cannot be doubted that giving of atta to Fair Price shops by the millers as instructed by the S.D.O. would also be "sale" within the meaning of Section 2(xiii) of the Act. Reference may usefully be made in this connection to Oil and Natural Gas Commission Vs. State of Bihar and Others, wherein supply of crude oil by the Oil and Natural Gas Commission to Indian Oil Corporation in pursuance of directions of the Central Government was regarded as sale. In coming to the conclusion, reliance was placed on the principles enunciated by a Constitution Bench in Salar Jung Sugar Mills Ltd. etc. Vs. State of Mysore and Others, wherein supply of sugarcane by its growers to the factory in pursuance of statutory provisions of Control Orders was held to be ''sale''. It has been held in Mangaldas v. State of Maharashtra AIR 1976 SC 128 that even where a person has no choice but to accept a proposal, the traduction may ncver-theless amount to contract.

We are, therefore, of the opinion that the sample of atta in question has to be regarded as adulterated and the sample of the same was legally obtained by the District Food Inspector. This takes us to the question as to who could really be found guilty for having sold the atta. Of the two Respondents, it is Sundarlal Agarwalla who had sold the sample. The other Appellant Smt Keshari Devi wee sought to be prosecuted as the proprietress of Jagdamba Rice and Flour Mills from whose premises the sample had been taken. This Respondent was aged about 70 years in 1974 and stated that she was almost an absentee proprietress. On these facts, we would have wished to give relief to this Respondent by drawing on the principle on which Section 17 of the Act is founded; but as Sections 7 and 16 prohibit and punish persons on whose behalf the transction is carried out, and as the sale in the present case by Sundarlal has to be regarded on behalf of the old lady who admitted being the (sole) owner of the Mill, we cannot really exonerate her from the liability.

In view of the above, we would find both the Respondents guilty u/s 16(1) read with Section 7 of the Act. In so far as the question of sentence is concerned, it has to be noted that the offence was committed in 1972 whereafter a decace has passed. In such casts, the view taken by the Apex Court and this Court has been not to send guilty to prison. This was the view taken in Ramdas Bhikaji Chaudhari Vs. Sadanand and Others, and Municipal Corporation of Delhi Vs. Tek Chand Bhatia, Similar consideration was shown in Umsdmal v. State AIR 1979 SC 1700 and Lingappa Shetty v. Hubli Darvar Municipality AIR 1979 SC 1838. In a number of decisions, this Court has also taken the same view. A leniency in this regard is also meritted in the present case because of the fact that the sample of atta was adulterated not because of any admixtures injuriously affecting the nature, substance or quality of atta, or for mixing any article injurious to health.

Accordingly, we allow, the appeal by finding both the Respondents guilty u/s 16 of the Act and by sentencing each of the Respondents to a fine of Rs. 1,000/-, in default, to simple imprisonment for one month. Fine shall be paid within two months from today.