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V. Govinda Rao
Factual and Procedural Background
The proprietor of Radharamana Bhavan, Coffee and Meals Hotel, Masulipatam, was convicted under section 2(1)(a) and section 7 read with rule 46 of the Prevention of Food Adulteration Act, 1954, and sentenced to pay a fine of Rs. 50. The case against him was that he was found stocking adulterated ghee intended for service and preparation of food articles. The ghee was found to contain 27 per cent of fat not derived from milk or cream. The legal question arose whether the accused, who was not in possession of ghee for the purpose of sale nor selling ghee as such but had stored it for use in meals or food preparation, could be found guilty under the charged offence.
Legal Issues Presented
- Whether possession of adulterated ghee by a person who does not sell it constitutes an offence under section 7 of the Prevention of Food Adulteration Act, 1954.
- Whether storing adulterated ghee intended to be used in food preparation but not for sale as such falls within the scope of "storing" an adulterated food under the Act and related rules.
- Whether mere possession or intention to use adulterated ghee in food preparation without evidence that the adulterated ghee was actually used or served with food is sufficient for conviction under the Act.
Arguments of the Parties
Appellant's Arguments
- Any storage of adulterated food not meant for sale as such does not constitute an offence if the accused is not a dealer in that article.
- The accused is the manufacturer of food articles and possessed ghee intended to be used in food preparation, which should not be punishable under section 7 of the Prevention of Food Adulteration Act.
- The offence requires selling or storing adulterated food for sale, not merely possessing adulterated ingredients used in food preparation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pudukodu Iswara Subramanya Ayyar v. Emperor, 1940 M.W.N 804 | Supports the view that mere purchase of ghee by a Food Inspector does not establish offence | The court considered this decision relevant to reject the prosecution's reliance on seizure of ghee alone without evidence of its use in food served. |
| K.P Gopalan v. Emperor, 1935 M.W.N 750 | Clarifies that purchase of ghee by Food Inspector has no consequence for conviction | The court cited this precedent to emphasize that mere possession or purchase of adulterated ghee without further evidence is insufficient for conviction. |
Court's Reasoning and Analysis
The court analyzed the language of section 7 of the Prevention of Food Adulteration Act and found that possession of adulterated ghee by a person who does not sell it cannot be regarded as "storing of an adulterated food" within the meaning of the statute. The court compared this with a corresponding older provision under Madras Act III of 1918, which also required selling or offering for sale for an offence to arise. The court held that the offence requires either selling adulterated ghee as such or storing or selling food prepared with adulterated ghee. Mere possession or storage of adulterated ghee intended to be used in food preparation, without evidence that it was actually used or served, does not constitute an offence. The court noted that rule 46 prohibits sale or possession for sale or use as an ingredient in food for sale of mixtures that do not conform to the definition of ghee, but mere intention to use adulterated ghee without actual use is not punishable due to the possibility of repentance. The court further held that the accused's answer to the Food Inspector's enquiry and seizure of ghee alone cannot form the basis for conviction in absence of evidence that the adulterated ghee was incorporated in food served to customers. The court relied on precedents to support this interpretation and ultimately acquitted the accused.
Holding and Implications
Revision allowed. Accused acquitted.
The court set aside the conviction and fine imposed on the accused. The direct effect is the acquittal of the proprietor of the hotel from the offence under the Prevention of Food Adulteration Act. The fine, if paid, is ordered to be refunded. No broader legal precedent beyond this decision was established, as the ruling rests on statutory interpretation and application of existing case law to the facts.
The proprietor of Radharamana Bhavan, Coffee and Meals Hotel, Masulipatam, who has been convicted under section 2(1)(a) and section 7 read with rule 46 of the Prevention of Food Adulteration Act, 1954 and sentenced to pay a fine of Rs. 50, is the petitioner. The case against him is that he was found stocking adulterated ghee intended for service and for preparation of food articles. That ghee has been found to contain 27 per cent of fat not derived from milk or cream. The question is whether the accused who is not in possession of ghee for the purpose of sale or sells ghee as such, but has stored the ghee intended to be served with meals or in the preparation of an article of food, viz., the preparation of dishes accompanying meals or as refreshments, could be found guilty of the offence charged with.
2. Mr. Adavi Rama Rao, for the petitioner, has contended that any storage of an adulterated article of food when it is not meant for sale as such would not constitute an offence when the accused is not a dealer in the article such as ghee in this case. When as in this case the accused is not only the manufacturer of an article of food but is in possession of ghee intended to be used in the article of food, the point for consideration will be whether such an act of possession of adulterated ghee in such circumstances could be an offence under section 7 of the Prevention of Food Adulteration Act. That section reads:—
“No person shall himself or by any person on his hehalf manufacture for sale, or store, sell or distribute—
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is prescribed except in accordance with the conditions of the licence:
(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority with a view to preventing the outbreak or spread of infectious diseases: or
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder.”
3. Having regard to the language of this section, the possession of adulterated ghee by a person who does not sell it cannot in any sense be ‘storing of an adulterated food’; and would not, in my view, therefore, fall within the purview of this section. The corresponding section in Madras Act III of 1918 has been the following:
“5. (1) Every person who—
(a) sells any food which is not of nature, substance or quality of the article demented by the purchaser or
(b) manufactures, stores or offers for sale or hawks about or sells any food which is not of the nature, substance or quality which it purports or is represented to be;…………”
4. It would be seen even in this provision that the storing of an article, which is a component of food for sale without that article being offered for sale is not an offence. Under both the provisions, old and new, what constitutes an offence is the selling of ghee as such, or storing or selling of food with adulterated ghee. Such being the case the prosecution, in my view, cannot succeed by merely taking adulterated ghee from a hotel-keeper, if there is no sufficient evidence to establish that the ghee used in preparing the food has not been made out to have formed a component of the food; but this can be established only by seizure of the food itself or when the allegation is that the adulterated ghee is served with the food, by the evidence of the person to whom the ghee is served as part of the food. Rule 46 may now be referred to and it is in these terms:—
“No person shall sell or have in his possession for the purpose of sale or for use as an ingredient in the preparation of an article of food for sale as mixture of ghee or butter and any substance (a) prepared in imitation of or as a substitute for ghee or butter, or (b) consisting of or containing any oil or fat which does not conform to the definition of ghee;
Provided where a mixture prohibited by this rule is required for the prepration of an article of food, such mixture shall be made only at the time of preparation of such article of food.”
5. Again, the sale or possession for the purpose of sale or for use as ingredients in the preparation of an article of food for sale is made an offence. The use of the adulterated ghee when actually mixed with food is made punishable. It is not, therefore, the mere intention to mix the adulterated ghee that constitutes the offence; for, the possibility of locus penitentiae cannot be altogether ruled out in such a case.
6. Therefore, viewed in any manner, the answer given by the accused to an enquiry made by the Food Inspector cannot alone be made the basis for successfully prosecuting the hotel-keeper, and especially so when the Food Inspector has not taken a sample of any preparation or made use of evidence or relied upon the evidence of any person to whom the food is served with this adulteraed ghee.
7. The decision of Lakshman Rao, J. of the Madras High Court in Pudukodu Iswara Subramanya Ayyar v. Emperor . 1940 M.W.N 804. can be considered in point in support of this view; and that the purchase of ghee by a Food Inspector has no consequence is made clear by another decision in K.P Gopalan v. Emperor . 1935 M.W.N 750..
8. In this view, I am unable to uphold the conviction of the accused for an offence under the Food Adulteration Act. The accused is accordingly acquitted and the fine, if paid, is directed to be refunded.
9. M.S.K
Revision allowed.
Accused acquitted.
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